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Exhibit 10.10
Cisco Systems, Inc. Agreement No.: ____________
CONFIDENTIAL
CISCO SYSTEMS, INC.
NETWORK SUPPORTED ACCOUNT AGREEMENT
This Network Supported Account Agreement ("Agreement") is made and entered into
this 21 day of May 1996 ("Effective Date"), by and between Cisco Systems, Inc.,
a California corporation, with offices at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000 ("Cisco"), and New York Mercantile Exchange, a New York
corporation, with offices at 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Buyer").
Cisco agrees to furnish NSA (Network Supported Account) services ("NSA
Services") identified below, subject to the terms and conditions of this
Agreement.
All notices intended for the parties shall be effective if sent to their
respective address above; if to Cisco, attention Customer Service Manager, if to
Customer, attention: General Counsel, Chief Information Officer ("Notice").
The NSA program is intended to supplement an existing hardware and/or software
maintenance Agreement. No hardware nor software support of any kind is offered
under this NSA agreement.
IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto
have caused this Agreement to be duly executed as of the Effective Date.
CISCO SYSTEMS, INC. NEW YORK MERCANTILE EXCHANGE
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
______________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
____________________________________ ____________________________
Title: V.P. Worldwide Sales Finance Title: Sr. Vice President
___________________________________ ___________________________
Date: 10/4/96 Date: 9/30/96
____________________________________ ____________________________
GENERAL TERMS AND CONDITIONS
1. TERM. This Agreement will commence, with respect to the O.N.E. Phase
Products (as defined in the Volume Purchase Agreement dated as of even
date herewith, by and between Buyer and Cisco ("Volume Purchase
Agreement"), on January 1, 1997 (unless Buyer places any such Products
into live service earlier, in accordance with the Volume Purchase
Agreement) and will continue in full force and effect until 15 months
from such date unless earlier terminated pursuant to the terms and
conditions contained herein. Cisco will provide notice to Buyer ninety
(90) days prior to the end of the then-current term indicating whether
Cisco intends to renew this Agreement. In the event Cisco desires to
renew this Agreement, Buyer will respond to Cisco's notice within
thirty (30) days of Buyer's receipt of such notice indicating whether
Buyer desires to renew this Agreement. In the event either party hereto
decides not to renew this Agreement, this Agreement will terminate at
the end of the then-current term.
2. SERVICE RESPONSIBILITIES OF SELLER. For the yearly maintenance charge
stated herein (see Section 5), Cisco shall provide the NSA Services
described below:
A. Cisco agrees to designate an expert team of support personnel
("NSA Support Team") to act as the primary interface with
Buyer. Each member of the NSA Support Team will be
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a Cisco Certified Internetworking Expert ("CCIE") in a
specific area: at least one each in local-area networking,
wide-area networking, and IBM networking. One NSA Support Team
member will be the primary point of contact for all of the
Buyer's technical support needs, both proactive and reactive.
The other members of the NSA Support Team will function both
as additional resources and as backups for the primary
contact. Each member of the NSA Support Team will carry pagers
and cellular phones and will be available from 5:00 A.M. to
6:00 P.M. Pacific Time, Monday through Friday, excluding
Cisco's holidays as set forth In APPENDIX A. Each member of
the NSA Support Team will be familiar with the Buyer's staff,
operations, on-line topology and network. The NSA Support Team
will keep diagrams and updated configurations of Buyer's
internetworks on file at the Cisco Technical Assistance Center
(TAC).
B. Upon execution of this Agreement, Cisco shall schedule with
Buyer, as mutually agreed, one three-day visit to Buyer's site
to review Buyer's network and operations. Additional visits
will be as mutually agreed. During the initial visit, the NSA
Support Team will develop an understanding of Buyer's
business, network, and procedures and familiarize itself with
the support staff. Further, the NSA Support Team will work
with Buyer to ensure that the latest configuration files and
topology maps of Buyer's networks, including software release
information, are on file with Cisco. The NSA Support Team will
also develop, together with Buyer's staff, a set of mutually
agreed upon procedures and contacts for placing support calls
and resolving problems under this Agreement.
C. The NSA team will provide support for the escalation of
critical problems impacting the Buyer's network. For normal,
non-critical problem resolution involving hardware failure or
software problems, the Buyer should contact the technical
assistance center of their service provider.
D. The NSA Support Team will preview any new configuration or
configuration changes to Buyer's network before installing
them in the network to help prevent the possibility of
installing a faulty configuration. Further, the NSA Support
Team will use commercially reasonable efforts to periodically
monitor Cisco's list of bugs and check the relevance of such
list to Buyer's network. In the event the NSA Support Team
finds any relevant bugs, it will disclose such bug information
to Buyer, which disclosure shall include any known conditions
of the occurrence of such bugs, the symptoms, and possible
workarounds or applicable software fixes.
E. Upon Buyer's prior written request, the NSA Support Team shall
use commercially reasonable efforts to review Buyer's network
design and configuration. The NSA Support Team will provide
written report summary of Buyer's information, change impact
analysis and alternative recommendations, including, without
limitation, information regarding the impact that fixes to
known bugs, software maintenance releases, or new software
releases can have on Buyer's network. In the event Buyer
decides to make any changes to its network, the NSA Support
Team will assist Buyer's staff in developing a plan to
minimize the risk to Buyer's network operations.
F. Cisco will schedule weekly conference calls, at a time
mutually agreed, to review the status of the Agreement and the
NSA Services being provided, including, without limitation,
discussing the status of all existing trouble tickets,
evaluating the priority and escalation requirements of
critical issues and informing Buyer's staff of any new bugs
that may impact their networks and any new tools that may be
available to enhance Buyer's network performance.
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G. Upon written request of Buyer, Cisco agrees to make available
a designated support contact on a 24-hour 7-day a week standby
basis to remotely assist Buyer in major network service
changes (e.g. major hardware or software upgrade, major site
installation). Buyer agrees to submit a detailed request and
schedule to Cisco prior to any such activity. Such requests
shall be limited to two (2) events per month with total
standby time not to exceed forty eight (48) hours in any one
month period. In the event Buyer requires additional NSA
Services, the parties agree to negotiate in good faith the
terms, conditions and maintenance fee for such additional NSA
Services.
H. Cisco will make NSA Services available in accordance with the
Problem Prioritization and Escalation Guideline described in
Appendix B.
3. SERVICE RESPONSIBILITIES OF BUYER
A. Buyer shall provide Cisco reasonable electronic access to
Buyer's network to assist the NSA Support Team in providing
NSA Services.
B. Buyer shall designate at least two (2) but not more than five
(5) technical representatives, who must be Buyer's employees
in a centralized network support center (Buyer's Technical
Assistance Center [TAC]), to act as the primary technical
interface to the NSA Support Team. Buyer agrees to maintain
not less than two (2) Cisco Certified Internetworking Expert
trained employees within one (1) year from the start of this
contract as designated contacts. Buyer's TAC shall maintain
centralized network management for all networks supported
under this Agreement.
C. Buyer's TAC shall provide Level 1 support to their end users.
Level 1 support is defined as having the necessary technical
staff with the appropriate skills to perform installations,
remedial hardware maintenance and basic hardware and software
configurations on Cisco products.
D. Buyer's TAC shall provide Level 2 support to their end users
for equipment. Level 2 support is defined as having the
necessary technical staff with the appropriate skills to
perform isolation, replication and diagnosis of
internetworking based problems on Cisco equipment. Buyer shall
not report software bugs to Cisco prior to attempting to
identify the source of such bugs and testing in Buyer's
network where appropriate. If the Buyer cannot duplicate the
bug in Buyer's network, Buyer and Cisco will cooperate in
attempting to replicate and resolve related software bugs in
either Buyer's or Cisco's test facility as mutually agreed. In
all cases Buyer will address software bugs on a best effort
basis to replicate same in Buyer's network and document
activity to Cisco before seeking further resolve with Cisco's
participation.
E. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS SOLELY
RESPONSIBLE FOR DETERMINATION AND IMPLEMENTATION OF ITS
NETWORK DESIGN REQUIREMENTS. IN NO EVENT SHALL SELLER BE
LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE INFORMATION
CONTAINED IN ANY DESIGN REPORT, NOR FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES RESULTING FROM THE FURNISHING,
PERFORMANCE, OR USE OF SUCH INFORMATION.
F. Buyer shall bear the cost of all reasonable travel expenses of
Cisco if Cisco is requested to perform on-site visits other
than the initial setup visit described in Section 2.E. In
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such case, engineering time will be billed at the travel and
labor rates referred to in Appendix A.
G. Deleted.
H. Buyer will provide Cisco with a priority level for all calls
placed with Cisco (see Appendix B.).
I. Buyer will provide Cisco a network topology map and topology
updates as required to support Buyer's network.
4. SERVICES NOT COVERED BY THIS AGREEMENT
A. Customization of existing software for non-standard
applications.
B. Labor to install firmware at Buyer's location.
C. Travel and other associated expenses required to visit Buyer's
location, except as required herein.
D. Support or replacement of software that is altered, modified,
mishandled, destroyed or damaged by natural causes or damaged
due to negligence of Buyer.
E. Software problems resulting from third party products used by
Buyer without Cisco's consent or causes beyond Cisco's
control.
F. Software support that has been superseded by a maintenance
release by twelve (12) months or two (2) Software releases.
G. Any hardware upgrade of equipment required to accept a new
software release.
5. NSA CHARGES
A. The charges for NSA Services shall be based on the pricing
schedules set forth in Appendix A and Appendix C, attached
hereto, and are payable in US Dollars.
B. Cisco will notify Buyer of any changes to the pricing schedule
for any Renewal Term upon sixty (60) days' Notice prior to the
beginning of such term; provided, however, that the percentage
of any price increase shall not exceed the Consumer All-Urban
Price Index inflation rate as published by the U.S. Government
for the calendar year immediately preceding the calendar year
in which such price increase will be effective. In the event
of any price increase, Buyer may exercise its option not to
renew this Agreement without liability to either party hereto
by giving written notice to Cisco thirty (30) days prior to
the end of the then-current term.
C. Cisco acknowledges and agrees that:
1. Battery Park City Authority ("BPCA") is making
available to Buyer certain sales and use tax benefits
in connection with Cisco's provision of the Services
to Buyer hereunder (the "Work") and, more
specifically, that materials purchased in connection
with the Work, and equipment and items of personal
property
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purchased for incorporation into and as part of the
Work, are exempt from sales and use tax provided
that:
(i) such materials, equipment or items of
personal property have a useful life of one
(1) year or more, and are not consumables;
and
(ii) such materials, equipment or items of
personal property are installed and used in
that certain building to be constructed and
improved by or on behalf of Buyer on Site 15
in Battery Park City (the "NYMEX Building"),
New York, New York (the "NYMEX Building"),
00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and
Four World Trade Center, New York, New York.
Cisco further acknowledges and agrees that, in order
for Buyer to enjoy the sales tax exemption, all
materials, equipment and items of personal property
must be purchased by Cisco, in each case as agent (or
subagent) for BPCA. The agency, and the resulting
sales tax exemption, are evidenced in a Sales Tax
Letter heretofore delivered by BPCA to Buyer, and
attached to the Volume Purchase Agreement as Exhibit
E. Cisco understands that the exemption described
herein is an exemption from the sales or use tax that
is payable in connection with the acquisition of
certain materials to be installed in the NYMEX
Building - and that labor (including installation
labor) and services, and the resale of items
originally subject to tax, are and shall remain
exempt from sales tax;
2. This Agreement relates to (i) the purchase or lease
of materials and fixtures for installation in, and/or
the construction of and any repairs and renovations
made to, the NYMEX Building, (ii) the purchase or
lease of equipment, machinery, furniture and
furnishings for use by Buyer and its members and
affiliates in the NYMEX Building and in certain
facilities of Buyer located at 00 Xxxxxxxxx Xxxxxx
and at 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and
(iii) the maintenance or repair of any of the
foregoing (the foregoing, collectively, the "NYMEX
Project"). The sales tax exemption provided with
respect to this Agreement shall only be available for
the NYMEX Project;
3. In no event shall BPCA have any liability (directly,
indirectly or otherwise) or performance obligation
under this Agreement;
4. This Agreement is being delivered by Buyer on the
understanding that no amount of sales or use taxes is
included in the contract price and that all charges
under this Agreement shall exclude all taxes, duties
or charges of any kind (including, without
limitation, withholding or value added taxes) imposed
by any federal, state or local governmental entity
for products or services provided under this
Agreement. Cisco's authorized representative shall
promptly provide Buyer with a certificate in the form
of Exhibit G to the Volume Purchase Agreement which
shall identify with specificity and certify the sales
tax for any products or services provided under this
Agreement. Notwithstanding the foregoing, all
products and services provided hereunder are exempt
from sales tax, as evidenced by the Sales Tax Letter
attached to the Volume Purchase Agreement as Exhibit
E; and
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5. Cisco shall not acquire any equipment or materials
from or use the services of any third party vendors
in fulfilling its obligations hereunder. Cisco will
perform all of the services described herein itself."
6. PAYMENT TERMS
A. All NSA Services are invoiced yearly in advance. All other
charges for additional services (Appendix A) or materials
requested under this Agreement will be invoiced in the month
following the services rendered. Any other schedule of payment
will be subject to a surcharge.
B. Payment is due thirty (30) days from Buyer's receipt of
invoice.
7. FORCE MAJEURE
If either party's performance under this Agreement, or of any
obligation hereunder, is interfered with by reason of any circumstance
beyond either party's reasonable control and without its fault or
negligence, including without limitation: fire, explosion, power
failure, acts of God; war, revolution, civil commotion, or acts of
public enemies; any law, order regulation, ordinance, or requirement of
any government or legal body or any representative of any such
government or legal body; labor unrest, including without limitation,
strikes, slowdowns, picketing or boycotts; then either party shall be
excused from its performance on a day-to-day basis to the extent of
such interference; provided, however, that such interference shall not
excuse Buyer from its obligation to pay to Cisco any money due and
owing pursuant to this Agreement prior to such force majeure event.
8. REPRESENTATIONS AND WARRANTIES
A. Cisco represents, warrants and covenants to Buyer that:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the state of
its incorporation and has all requisite power and
authority to enter into and perform its obligations
under this Agreement;
(b) This Agreement when executed will become the legal,
valid and binding obligation of it enforceable
against it in accordance with its terms, except as
enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws
relating to the rights of creditors generally;
(c) There are no material actions, suits, proceedings or
investigations commenced nor, to the best of its
knowledge and belief, contemplated or threatened
against Cisco or its third party licensors, if any,
which could in any way affect the Software or Cisco's
provision of its services hereunder nor, to the best
of its knowledge and belief, are there any existing
facts or conditions which may reasonably be expected
to be a proper basis for any such actions, suits,
proceedings or investigations;
(d) While providing services to Buyer hereunder, Cisco
will comply with (i) the requirements of the State
Urban Development Corp., the New York City Economic
Development Corp. and the Battery Park City Authority
as set forth in Exhibits A, D and F to the Volume
Purchase Agreement; (ii) placarded standards for
safety, emissions and network compliance purposes;
and (iii) all applicable
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laws, regulations and rules to the extent necessary
to ensure that non-compliance with such laws,
regulations and rules would not reasonably be
expected, individually or in the aggregate, to have
any materially adverse effect on the business,
operations, affairs, financial condition, properties
or assets of Customer, its members and its affiliates
taken as a whole or on the ability of Customer to
perform its obligations under this Agreement;
provided, however, that in the event Customer
determines that Cisco is not in compliance with such
aforementioned laws, regulations and rules, Customer
shall provide Cisco with a written notification which
states the exact nature of noncompliance. Cisco shall
have thirty (30) days from the earlier of (i) the
date that Cisco became aware of the non-compliance
and (ii) receipt of the notification to cure the
non-compliance. Such cure period may be extended on a
day-to-day basis upon mutual consent.
(e) Cisco has filed a Vendex Form, substantially in the
form of Exhibit B to the Volume Purchase Agreement,
with the Economic Development Corporation and if such
application is denied, Cisco will forfeit all of its
rights to payment under this Agreement and will
remain liable to Buyer for all damages suffered by
Buyer by reason of such denial;
(f) While providing services to Buyer hereunder, Cisco
shall procure and maintain for itself and its agents
and employees all insurance coverages as required by
applicable law, including without limitation, such
insurance as is set forth in Exhibit C to the Volume
Purchase Agreement, each with an insurer reasonably
acceptable to Buyer and naming Buyer as an additional
insured. The certificates of insurance will include a
provision pursuant to which 30 days' notice must be
afforded Buyer prior to the cancellation by either
Cisco or its insurer. Cisco will promptly replace any
cancelled policy with a substantially similar policy
from an insurer with an A.M. Best Reports rating
which is at least A-VIII that is licensed to do
business in the State of New York and will provide
evidence of the same to Buyer. If Cisco desires to
satisfy its insurance obligations under this
Agreement through self-insurance, it will first
contact Buyer and the terms and conditions of such
self-insurance shall be subject to approval in
writing of Buyer and the Public Parties (as defined
in Exhibit A to the Volume Purchase Agreement) which
approval will not be unreasonably withheld;
(g) The NSA Support Team which will provide coverage and
support to Buyer hereunder will consist of highly
skilled and experienced personnel. The members of the
account team that will be supporting Buyer as of the
date hereof are set forth in Exhibit I to the Volume
Purchase Agreement. In the event Cisco desires to
replace any such member, such replacement shall
possess the same level of skill and experience as the
member being replaced and shall be subject to the
prior approval of Buyer; and
(h) Cisco will provide the NSA Services in a good and
workmanlike manner.
9. TERMINATION
A. In the event of any material breach of this Agreement by Cisco
which shall continue for thirty (30) or more days after
written notice of such breach (which notice shall include a
reasonably detailed statement of the nature of such breach)
shall have been given to Cisco
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by Buyer, Buyer shall have the right to terminate this
Agreement by providing written notice within ten (10) days
thereof to Cisco.
B. In the event Buyer falls to pay the charges for the NSA
Services or additional services when due, or is in material
breach of any term of this Agreement, Cisco shall have the
right to suspend its performance under this Agreement and/or
terminate this Agreement if Buyer falls to make such payments
or cure any such breach, as the case may be, within ten (10)
days of Buyer's receipt from Cisco of a written notice
specifying such failure to pay or such breach, as the case may
be.
C. Subject to Section 11.G below, in the event this Agreement is
terminated by either party, neither party shall have any
further obligations to the other party except that Cisco shall
refund to Buyer on a pro rata basis any portion of the yearly
maintenance charge paid for NSA service for the period
subsequent to the effective date of termination, less any
amounts then due Cisco for NSA services and/or additional
services performed prior to such termination. Termination of
this Agreement by Cisco shall not constitute a waiver by Cisco
for any amounts due Cisco for any NSA service or additional
services or material.
10. INTELLECTUAL PROPERTY INDEMNITY
A. Cisco hereby indemnifies and holds Buyer, its members, its
affiliates, and its and their respective officers, directors,
and employees, harmless from and against any and all damages,
costs, judgments, settlements, attorneys' fees and
disbursements actually paid by Buyer, its members, its
affiliates, and its and their respective officers, directors,
and employees in connection with claims by any third person
(1) that any Software release, any maintenance release or any
component thereof or any services provided by Cisco under this
Agreement infringes a copyright, trademark, servicemark or any
other proprietary right of any third party or any United
States patent (for patents existing as of the date of the
"first customer shipment" (as defined below) of any such
releases), (2) that there has been a misappropriation of a
trade secret by Cisco, (3) arising from or relating to any
breach by Cisco of any representation or warranty contained in
Section 8 above, or (4) in connection with or arising out of
any death, personal injury or damage to tangible property to
the extent caused by Cisco's employees' negligence or willful
misconduct relating to or arising from any services performed
pursuant to this Agreement. As a condition of this Indemnity,
Buyer will provide Cisco with prompt notice of any claim and
Cisco will control the defense and settlement of such claims;
provided, however, that Cisco will not settle any claim, other
than for monetary damages only, without Buyer's prior written
consent which consent will not be unreasonably withheld. Cisco
will permit Buyer to participate in any such defense at
Buyer's expense to the extent such participation is
reasonable. Promptly upon Cisco's request Buyer will provide
all reasonable assistance in the defense of such claims. If a
temporary restraining order, preliminary injunction or a final
injunction is sought or obtained against the use of any new
Software release, any maintenance release or any component
thereof due to an infringement of a patent, copyright,
trademark or other proprietary right, or if Software release,
maintenance release or any component thereof constitutes a
misappropriation of a trade secret or other proprietary right,
Cisco will, at its option and sole expense, either (a) procure
for Buyer the right to continue using the new Software
release, maintenance release or any component thereof or (b)
replace or modify the new Software release, maintenance
release or component thereof so that all new Software
releases, maintenance releases and components thereof no
longer infringe such patent, copyright or trademark
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or constitute a misappropriation of a trade secret; provided,
however, that such replaced or modified Software release,
maintenance release or component thereof will substantially
conform to published specifications; or (c) if Cisco is unable
to perform (a) or (b) above within a commercially reasonable
time period, Cisco will refund to Buyer the monies paid for
the affected new Software release, maintenance release or
component thereof as of the effective date of such
termination, which fees shall be depreciated on a five-year
straight line depreciation basis. For the purposes of this
Section 10(A), "first customer shipment" shall mean the date
of first shipment by Cisco to any commercial customer of any
new Software release, any maintenance release or any component
thereof.
B. Cisco has no liability for any claim to the extent such claim
is based upon the combination, operation or use of any Product
supplied hereunder with equipment, devices or software not
supplied by Cisco; provided, however, that such combination,
operation or use is performed without Cisco's consent.
Further, Cisco has no liability for any claim to the extent
such claim is based upon the alteration or modification of any
Product supplied hereunder without Cisco's consent.
C. Notwithstanding any other provisions hereof, Cisco shall not
be liable for any claim based on Buyer's use of the Product as
shipped after Cisco has informed the Buyer of modifications or
changes in the Product required to avoid such claims and
offered to implement those modifications or changes, if such
Claim would have been avoided by implementation of Cisco's
suggestions; provided, however, that Buyer did not provide
Cisco with a reasonable opportunity to implement Cisco's
suggestions.
D. THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO WITH
RESPECT TO INFRINGEMENT. THE FOREGOING IS GIVEN TO BUYERS
SOLELY FOR THEIR BENEFIT. SUBJECT TO THE EXPRESS WARRANTIES
CONTAINED HEREIN, THE FOREGOING ALSO IS IN LIEU OF, AND CISCO
DISCLAIMS, ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO
THE PRODUCT.
11. LIMITATION OF LIABILITY
A. Notwithstanding Section 11.B below, each party shall be liable
for direct losses incurred by the other party due to bodily
injury or damage to tangible property, including covered
equipment, to the extent resulting from the negligence of each
party's employees or agents; provided, however, that nothing
in this paragraph shall affect or in any way increase Cisco's
obligation under this Agreement with respect to the
performance of the covered equipment.
B. SUBJECT TO 10.A ABOVE, NEITHER PARTY SHALL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY
NATURE WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOST PROFITS
OR LOST DATA, OR ANY COSTS OF OBTAINING SUBSTITUTE GOODS OR
SERVICES, FOR ANY BREACH OF THIS AGREEMENT OR FOR ANY ACTION
ARISING OUT OF ITS PERFORMANCE UNDER THIS AGREEMENT EVEN IF
SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. THE
FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
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C. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
CISCO AGREES THAT RECOURSE BY CISCO FOR SATISFACTION OF CLAIMS
OF ANY NATURE AGAINST BUYER, ITS MEMBERS, ITS AFFILIATES, OR
ANY OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES
OR AGENTS ARISING IN CONNECTION WITH THE PERFORMANCE OF THIS
AGREEMENT SHALL BE LIMITED SOLELY TO RECOURSE AGAINST BUYER.
12. GENERAL
A. Neither party may assign or transfer this Agreement or any
rights or obligations hereunder without the prior written
consent of the other party. This Agreement constitutes the
entire agreement between Cisco and Buyer with respect to the
subject matter hereof and supersedes all previous
negotiations, proposals, commitments, writings, and
understandings of any nature whatsoever. In the event of a
conflict between the terms and conditions of this Agreement
and the requirements of the State Urban Development Corp., the
New York City Economic Development Corp. and the Battery Park
City Authority, as set forth in Exhibits A, D and F to the
Volume Purchase Agreement, such requirements shall control.
B. Any changes or amendments to this Agreement requested either
by Buyer or Cisco may only be effected if mutually agreed upon
by a written instrument signed by duly authorized
representatives of the parties hereto.
C. The rights and obligations of the parties and all
interpretations and performance of this Agreement shall be
governed in all respects by the laws of the State of
California except for its rules with respect to the conflict
of laws.
IF TO CISCO, TO: IF TO BUYER, TO:
Cisco Systems, Inc. Before relocation: 4 World Trade Center
000 Xxxx Xxxxxx Xxxxx Xxx Xxxx, XX
Xxx Xxxx, Xxxxxxxxxx 00000 After relocation: Xxx Xxxxx Xxx Xxxxxx
ATTN: V.P. Customer Advocacy New York, NY
D. Each party hereto shall hold information of any nature which
is obtained by such party from the other party, including,
without limitation, the terms and conditions of this Agreement
in strict confidence and shall not use or disclose, or permit
others to use or disclose, such confidential information
except in connection with the performance of its obligations
to the disclosing party hereunder. The obligations of
confidentiality shall not apply to information which: (i) has
entered the public domain except where such entry is the
result of the recipient party's breach of this Agreement; (ii)
prior to disclosure hereunder was already in recipient party's
possession; (iii) subsequent to disclosure hereunder is
obtained by the recipient party on a nonconfidential basis
from a third party who has the right to disclose such
information to the recipient party; (iv) is developed by or
for the receiving party without access to the confidential
information and such independent development can be shown by
documentary evidence; (v) is ordered to be disclosed by a
court, administrative agency, or other governmental body with
jurisdiction over the parties hereto, provided that the
ordered party will first have provided the disclosing party
with prompt written notice of such required disclosure and
will take reasonable steps to allow the disclosing party to
seek a protective order with respect to the confidentiality of
the information required to be disclosed. The ordered party
will
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promptly cooperate with and assist the disclosing party, at
the disclosing party's expense, in connection with obtaining
such protective order, or (vi) relates solely to the design of
the NYMEX local area network.
E. Section headings are inserted for convenience only and shall
not be used in any way to construe the terms of this
Agreement.
F. All references herein to "$" or "Dollars" are to US Dollars.
G. Notwithstanding the expiration or earlier termination of this
Agreement for any reason whatsoever, the parties' obligations
under Section 10 (Intellectual Property Indemnity), Section 11
(Limitation of Liability) and Section 12 (General) shall
survive such expiration or earlier termination and shall
remain in full force and effect.
H. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal
or unenforceable, the remaining provisions of this Agreement
shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable provision
of like economic intent and effect. No failure or delay by
either Party in exercising any right, power or privilege
hereunder will operate as a waiver or preclude further
exercise thereof.
I. Nothing in this Agreement will be construed to constitute or
appoint either party hereto as the agent, partner, joint
venturer, or representative of the other party for any purpose
whatsoever, or to grant to either party any right or authority
to assume or create any obligation or responsibility, express
or implied, for or on behalf of or in the name of the other,
or to bind the other in any way or manner whatsoever.
J. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all of which, when
taken together, shall constitute one and the same instrument.
K. Exhibits A through G and Exhibit I of the Volume Purchase
Agreement are hereby incorporated by reference and made a part
hereof.
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