AMENDMENT NO. 2 TO THE SYSTEMS INTEGRATOR AGREEMENT (RENEWAL)
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
Exhibit 10.2
AMENDMENT NO. 2 TO THE SYSTEMS INTEGRATOR AGREEMENT (RENEWAL)
This Amendment No. 2 (the “Amendment”) to the Systems Integrator Agreement (the “Agreement”) by and between Cisco Systems, Inc., a California corporation, having its principal place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx, 00000 (“Cisco”) and ConvergeOne Inc., a corporation formed under the laws of Minnesota (the “Integrator”) having its principal place of business at 0000 Xxxxxxx 000, Xxxx, Xxxxxxxxx, 00000, Xxxxxx Xxxxxx, is entered into as of the date of last signature below (the “Amendment Effective Date”).
WHEREAS, as of June 20, 2016, Cisco and Integrator entered into the Agreement, as amended (if applicable);
WHEREAS, any future extension, renewal, or amendment to the Agreement may be in electronic format and accepted on-line by means of an electronic contract management system, (including these terms the “On-line Amendment”) as described herein; and
WHEREAS, in order to implement an On-line Amendment, Cisco will deliver an e-mail to an authorized officer or representative of Integrator, which e-mail will contain a link to the On-line Amendment. By clicking on the link, Integrator will be presented with an On-line Amendment, which will set forth the terms of the extension, renewal or amendment to the Agreement and will contain a means for acceptance.
NOW THEREFORE, the parties agree to amend the Agreement as follows:
1. The Agreement may be extended, renewed or amended by electronic means by accepting terms and conditions on-line and the provisions of such extension, renewal or amendment shall for all purposes be legally enforceable and binding on the parties as if the Agreement were extended, renewed or amended in writing and signed by both parties. The On-line Amendment shall be deemed signed and thus the terms hereof agreed to, if Integrator clicks on the ‘Renew’ button therein and thereby accepts the On-line Amendment. All references to writing or written amendments in the Agreement shall be deemed to include any On-line Amendment, and all references to signature shall include on-line acceptance. Integrator waives any challenge to the validity or enforceability of any renewals, extensions or amendments to the Agreement or the terms of any of the forgoing on the grounds that the terms of any renewal, extension or amendment were presented on-line or electronically or acceptance of such renewal, extension or amendment was electronically transmitted or accepted.
2. The term of the Agreement shall be renewed for a period of two (2) year(s) commencing on the following date: (i) if the Agreement has not expired (i.e. the Amendment Effective Date is on or before the expiry of the then-current term of the Agreement), then the end of the then-current term of the Agreement; or (ii) if the Agreement has expired (i.e. the Amendment Effective Date is after the expiry of the then-current term of the Agreement), then the Amendment Effective Date.
3. If the Agreement contains a subsection titled “Integrator’s Volume Requirement” under the Integrator Obligations section, then that subsection is hereby deleted in its entirety and replaced with the following subsection:
“Integrator must meet certain annual volume purchase requirements to maintain its eligibility for this Agreement. Such requirements vary by country and are listed at the following link:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxx.xxxx
1.
4. If the Agreement does not contain such a subsection, then the following language is added to the Integrator Obligations section and any language in the Agreement regarding annual volume purchase requirements is hereby deleted:
“Integrator must meet certain annual volume purchase requirements to maintain its eligibility for this Agreement. Such requirements vary by country and are listed at the following link:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxx.xxxx
5. The Integrator’s Certification Requirement (generally located in Exhibit A to the Agreement) is hereby deleted in its entirety and replaced with the following:
“Integrator must meet certain certification/specialization requirements to maintain its eligibility for this Agreement. Such requirements are listed at the following link:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxx.xxxx.”
6. If the Agreement does not contain the Integrator’s Certification Requirement, then the following language is added to Exhibit A to the Agreement and any language in the Agreement regarding certification requirements is hereby deleted:
“Integrator must meet certain certification/specialization requirements to maintain its eligibility for this Agreement. Such requirements are listed at the following link:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxx.xxxx.”
7. If the Agreement contains a subsection as part of the Integrator’s Obligations titled “No Stocking of Product”, then that subsection is hereby deleted in its entirety and replaced with the following subsection:
“No Stocking of Product. Integrator may not stock Products nor order Products without a valid End User purchase order. This subsection does not apply to Integrators based in Japan.”
8. If the Agreement does not contain such a subsection, then the following language is added to the Integrator Obligations section and any language in the Agreement regarding no stocking of Product is hereby deleted:
“No Stocking of Product. Integrator may not stock Products nor order Products without a valid End User purchase order. This subsection does not apply to Integrators based in Japan.”
9. The following subsection is added to the Integrator Obligations section of the Agreement:
“Due Diligence. Integrator must complete any due diligence or other questionnaire provided by Cisco and must comply with such other due diligence or other compliance requirements requested by Cisco in writing.”
10. If the Agreement contains an “Added Value” definition (the “Initial Added Value Definition”) which differs from the following definition, the Initial Added Value Definition is hereby deleted and replaced with the following definition. If the Agreement does not contain an “Added Value” definition, then the following definition is hereby added:
“Added Value” is the non-Cisco component or portion of the total solution which Integrator provides to End Users. Examples of Added Value are pre- and post-sales network design, configuration, trouble-shooting, managed services, cloud services, and support and the sale of complementary products and services that comprise a significant portion of the total revenues
2.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
received by Integrator from an End User of Cisco Products. Integrator acknowledges that providing financing options and/or network services (unless such network services comprise managed and/or cloud services) to End Users does not constitute Added Value.
11. The section in the Agreement regarding Shipping and Delivery and any associated Shipping Terms Exhibit that may be attached thereto are hereby deleted in their entirety and replaced with the following clause:
SHIPPING AND DELIVERY
| (a) | Scheduled shipping dates will be assigned by Cisco as close as practicable to Integrator’s requested date based on Cisco’s then-current lead times for the Products. Cisco will communicate scheduled shipping dates in the order acknowledgement or on Xxxxx.xxx. Unless given written instruction by Integrator, Cisco shall select the carrier. |
| (b) | Shipping options available as well as applicable shipment terms (per Incoterms 2010) are set forth in the Shipping Terms Exhibit at the following URL:xxxxx://xxx.xxxxx.xxx/xxx/xx/xxxxx/xxxxxxxx/xxxxxxx/xxx/Xxxxxxxx_Xxxxxxxx_Xxxxxxx.xxx at Xxxxx.xxx (the “Shipping Terms Exhibit”). The selected shipping option shall be indicated on the Purchase Order. Where applicable, Integrator shall pay the shipping and handling charges in addition to the purchase price for the Products, which will be included in remittance and/or commercial invoices issued by Cisco. Title and risk of loss shall transfer from Cisco to Integrator and delivery shall be deemed to occur in accordance with the Shipping Terms Exhibit. Integrator shall be responsible for all freight, handling and insurance charges subsequent to delivery. |
| (c) | Where Integrator places orders on any Cisco Affiliate other than Cisco, Integrator shall pay any invoices issued by such entity with respect to such orders and the delivery terms agreed with such entity shall apply. Different shipping terms may apply to such Purchase Orders as set forth in the Shipping Terms Exhibit or otherwise as set out on Xxxxx.xxx. |
| (d) | Integrator shall assume responsibility for compliance with applicable export laws and regulations, including the preparation and filing of shipping documentation necessary for export clearance. This also applies in cases where Integrator requests in its Purchase Order delivery of Products to Integrator’s forwarding agent or another representative in the country of shipment. Integrator agrees not to use any export licenses owned by Cisco or any of its Affiliates. |
For shipments under FCA as per the Shipping Terms Exhibit, Integrator specifically agrees to provide Cisco with the complete name and address of each End User either (a) in the Purchase Order issued, or (b) in writing within five days of receiving a request by Cisco, and other information required under this Agreement or requested by Cisco. Export clearance will ensure utilizing Cisco’s general global export licenses or in the case a general global license does not include the listed End User destination, then individual export licenses must be obtained prior to export. Integrator accepts any additional delays caused by the export licensing process as well as delays to comply with conditions of the individual export license.
| (e) | Cisco shall not be liable for any loss, damage, or penalty for delay in delivery or for failure to give notice of any delay. Except in accordance with the applicable shipping terms set forth in this Agreement, Cisco shall not have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of Cisco. |
3.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
| (f) | All sales are final. Except as provided in Cisco’s warranty statements, Cisco does not accept returns unless (i) Cisco shipped a product other than as specified in the Purchase Order, (ii) such Product is unopened, and (iii) the Product is returned in accordance with Cisco’s then current RMA policy and procedures. |
12. Exhibit B, Discount Schedule shall now be known as Exhibit B, Discount Terms and Conditions; the existing Discount Schedule shall be hereby deleted and replaced in its entirety with the Discount Terms and Conditions attached herein as Appendix A.
13. To the extent the following language is not present in the Agreement, it is hereby added to the Term and Termination section of the Agreement:
“In the event that, following termination or expiration of this Agreement, Integrator places Purchase Orders and Cisco accepts such Purchase Orders, then any such Purchase Orders shall be governed by the terms and conditions of this Agreement notwithstanding the earlier expiration or termination of this Agreement; provided, however, that acceptance by Cisco of any such Purchase Order will not be considered to be an extension of the term of the Agreement nor a renewal thereof.”
14. To the extent there is a clause or exhibit in the Agreement regarding Compliance with Laws, including Anti-Corruption Laws, such clause or exhibit is hereby deleted in its entirety and replaced with the following clause:
“Compliance with Laws, including Anti-Corruption Laws
Cisco Systems expects and requires that all of its suppliers, subcontractors, channel partners, consultants, agents and other parties with whom Cisco does business (“Cisco Partners”), act at all times in a professional and ethical manner in carrying out their services and contractual obligations to Cisco, or on Cisco’s behalf to a Cisco customer or other third party. To that end, all Cisco Partners shall:
| 1. | Comply with all country, federal, state and local laws, ordinances, codes, regulations, rules, policies and procedures, including, but not limited to, anti-corruption laws, such as the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, (“Applicable Laws”). Cisco Partners can find more information about the FCPA at the following URL: xxxx://xxx.xxxxx.xxx/xxxxxxxx/xxxxx/xxxx/, or by contacting xxxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx. |
| 2. | Upon request, Cisco’s Partners may be required to have their own subcontractors, consultants, agents or representatives execute a similar written anti-corruption compliance statement, and to confirm to Cisco that such action has been taken. |
| 3. | Cisco’s Partners shall immediately report to Cisco any concerns it may have regarding any business practices by any Cisco employee or Cisco Partner by emailing xxxxxx@xxxxx.xxx, or by calling Cisco’s Helpline toll free number in North America 0-000-000-0000 or worldwide number (reverse calling charges to Cisco) 000-000-000-0000. |
15. The section in the Agreement titled “No Resale Outside the Territory” is hereby deleted in its entirety and replaced with the following:
“No Resale Outside the Territory. Integrator shall not solicit Product or Service orders, engage salespersons, Resell, or establish warehouses or other distribution centers outside of the Territory.
4.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
For purposes of clarification, Cisco considers the following to be soliciting Product or Service orders outside of the Territory in violation of the Agreement, except as expressly authorized by Cisco in writing in advance: where Integrator solicits for Resale or Resells Cisco Product or Services to an End User which is located outside the Territory and otherwise has no meaningful operations in the Territory, even if delivery of the Cisco Product or Service occurs in the Territory.”
16. In the section in the Agreement titled “Term and Termination”, Cisco may additionally terminate the Agreement where Integrator fails to complete any due diligence questionnaire or other questionnaire provided by Cisco and/or fails to comply with such other due diligence or other compliance requirements requested by Cisco in writing and/or fails to meet Cisco’s general due diligence requirements.
17. To the extent that there is conflict between the Agreement and this Amendment, the terms of this Amendment shall take precedence over the terms and conditions of the Agreement with regards to the subject matter described herein.
18. All other terms and conditions of the Agreement remain unchanged and in full force and effect.
The parties have caused this Amendment to be duly executed. Each party represents that its respective signatories whose signatures appear below have been and are on the date of signature duly authorized to execute this Amendment.
| ConvergeOne Inc. |
Cisco Systems, Inc. | |||
| (“Integrator”) | (“Cisco”) | |||
| /s/ Xxxx Xxxxx Authorized Signature |
/s/ Xxxx Xxxx Authorized Signature | |||
| Xxxx X. Xxxxx |
Xxxx Xxxx | |||
| Print Name | Print Name | |||
| President, ConvergeOne Field Organization |
Authorized Signatory | |||
| Title | Title | |||
| March 26, 2018 Date |
March 26, 2018 Date | |||
5.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
Appendix A
Discount Terms and Conditions
| 1.0 | Certification Incentive |
Cisco Certified Partner Programs are designed to recognize and reward Partners who achieve the highest expertise in selling, designing, supporting, and servicing Cisco solutions. Certified Partners have completed comprehensive training that ensures a consistently high level of Product knowledge, technical expertise and service capabilities. Integrator’s discount will be set based on the certification level Integrator has been awarded at the time it submits a particular purchase order for Products. The requirements for each certification level are provided in the URLs identified in the following table:
| Program |
| URL |
| Gold |
| xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxx/xxxxxxxxxxxxxxx/xxxx.xxxx |
| Premier |
| xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxx/xxxxxxxxxxxxxxx/xxxxxxx.xxxx |
| Select |
| xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxx/xxxxxxxxxxxxxxx/xxxxxx.xxxx |
Partner must comply with the requirements of a particular Program as outlined in the information provided at the associated URL in order to achieve and retain all program benefits, including any associated increase in discount.
Integrator’s participation in a particular certification Program may be subject to additional requirements, including compliance with Program audit requirements. Certification requires the submission of an electronic application. The application and program transition guidelines are available at: xxx.xxxxx.xxx/xx/xxx.
Certifications are granted by country, and discount points attributable to certification will be provided based on the country specified in point of sale information provided by Integrator at time of order. Cisco may designate larger geographical areas in which certifications are effective. Such multi- national areas will be identified by Cisco to Integrator at: xxxxx://xxx.xxxxx.xxx/x/xx/xx/xxxxxxxx/xxxxxxx-xxxx-xxxxx/xxxxxxx-xxxxxxx-xxxxxxx/xxxxxxxxxxxxxx/xxxxxxxxxxxxx-xxx-xxxxxx.xxxx.
6.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
| 2.0 | Discount Matrices |
Upon execution of the Agreement, Integrator will be provided access to a restricted web page describing the resale discount to which Integrator is entitled depending on Integrator’s certification level. The web page is available at
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxxxxxxxxx_xxxxxxxx.xxxx.
Note: Cisco reserves the right to introduce future Product families at different discounts. Cisco will notify Integrator in writing (including by posting on CCO) at least thirty (30) days prior to the introduction of such a new family of Products.
| 3.0 | Internet Commerce/Point of Sale Reporting |
Integrator shall submit electronically complete Point of Sale information with each of its Resales of Products under this Agreement.
POS information is submitted electronically when Integrator uses IC or EDI (Electronic Data Interchange) technology in a format agreed in advance with Cisco to submit orders electronically.
POS information shall include the following:
| A. | Integrator’s Purchase Order number. |
| B. | Cisco’s Product name and number. |
| C. | The following information: |
| (1) | Ship-To Name |
Address (street, city, state, zip)
| (2) | Xxxx-To Name |
Address (street, city, state, zip)
| (3) | Install Site Name |
Address (street, city, state, zip)
Contact person (name, email, phone number)
| (4) | End User Name |
Address (street, city, state, zip)
Contact person (name, email, phone number)
NOTE: A Post Office Box is not a valid value for address information and will be rejected.
Cisco will have the right to verify all POS information provided. Integrator shall provide Cisco with reasonable proof (shippers’ documentation, invoices, etc.) confirming the information on Cisco’s written request.
In the event Integrator does not provide POS information at the time of order entry, Integrator shall prepare such information in an electronic format as specified by Cisco and forward such POS information to Cisco within seven (7) days following the submission of an Order. Integrator shall include all information that is set forth above under “IC/POS”. Cisco will have the right to verify the information in such reports and may request, and Integrator shall provide, reasonable proof (shippers’ documentation, invoices, etc.) confirming the information.
7.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
Such reports shall be sent to the following e-mail address: xx0_xxxx_xxx@xxxxx.xxx or such other address as Cisco may specify.
| 4.0 | Internal Use Discount |
The discount level at which Integrator is entitled to purchase Products for Internal Use will be made available to Integrator at:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxxxxxxxxx_xxxxxxxx.xxxx.
| 5.0 | Demonstration/Evaluation/Lab Product Discount |
To assist Integrator in its sales and marketing efforts, Integrator will be entitled to a discount for its purchases of demonstration, evaluation, and lab equipment (collectively the “Lab Discount). Upon execution of the Agreement, the Lab Discount to which Integrator is entitled shall be provided at:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxxxxxxxxx_xxxxx unt.html.
This discount may be applied to a maximum total value of Cisco Products as follows (the “Lab Discount Limitations”):
| Integrator’s Certification Level |
Maximum total value of Cisco Products*/ Integrator may purchase using the Lab Discount | |
| Gold | $[***] in any [***] period. | |
| Premier | $[***] in any [***] period. |
| */ | Based on the Price List of Products purchased by Integrator from Cisco. |
If Integrator is authorized by Cisco to Resell Products and Services in more than one country or country grouping, then the Lab Discount Limitations will apply on a per country or country grouping, provided that Integrator may not use the Lab Discount to purchase more than US$500,000 (based on then-current Price List) in Products in any Cisco sales theater (North America, Asia/Pacific, Europe, Emerging Markets, Japan) in any 12-month period.
If Integrator and its Affiliates collectively have multiple Systems Integrator Agreements with Cisco in a particular country or country grouping, then the Lab Discount Limitations will apply as if all Affiliates were purchasing under a single Systems Integrator Agreement.
Integrator may only use Products purchased with its Lab Discount for demonstration, evaluation, or lab purposes. Except to the extent permitted by Applicable Law, any Software received with or for such Products may not be distributed further, and, notwithstanding any other provision of this Agreement, all Software for such Products is licensed to Integrator solely for its use for demonstration, evaluation or lab purposes.
8.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
In the event that a particular Cisco certification, specialization, or Advanced Technology Provider program in which Integrator participates requires the purchase of additional demonstration, evaluation, or lab Products, then, notwithstanding the dollar caps referenced in the matrix above, Integrator may apply its Lab Discount to the purchase of such required Products.
| 6.0 | Price Deviations |
With respect to additional discounts granted to Integrator for Integrator’s Resale to one or more specific End Users in accordance with Section 3 of the Agreement (Prices), Integrator will receive a valid deal identification number (“Deal ID”) from a Cisco Sales Representative. The Integrator must place the Deal ID in the appropriate field in Cisco’s Ordering Tool, Ariba and/or ICS-XML interface. For an Integrator with no specific Deal ID field in their XML interface or Ariba Solution, a Deal ID must be provided to Cisco either by electronic submission at the time of order. A valid Purchase Order must be placed within five (5) business days of the granting of the additional discount, or the Purchase Order will be subject to cancellation.
Integrator may submit the Deal ID in the notes fields on Purchase Orders when using ICS-XML as an order submission method.
| 7.0 | Non-Value Added Discount |
In the event that Cisco determines in its sole discretion that Integrator is selling Products without significant Added Value, the total discount for any such no-value added opportunity will be reduced. Upon execution of the Agreement, the Non-Value Added Discount to which Integrator is entitled depending on Integrator’s certification level shall be made available at:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxxxx/xxxxxxx_xxxx_xxxxx/xxxxxxx_xxxxxxx_xxxxxxx/xxxxxxxxxxxxx_xxxxxxxx.xxxx.
This remedy is without prejudice to, and is in addition to, all other rights and remedies available to Cisco. Purchases and Resales of Products Integrator makes within the Territory to other resellers of Products that are purchasing for purposes of Resale will be presumed to be sales made without significant Added Value, and will be subject to the special Non-Value Added Discount provided for in this Section 7.0 unless Cisco provides written consent in advance.
9.
[***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Section 240.24b-2.
