EXHIBIT 10.13
CISCO SYSTEMS, INC.
U.S. SYSTEMS INTEGRATOR AGREEMENT
This U.S. Systems Integrator Agreement (the "Agreement') by and between Cisco
Systems, Inc., ("Cisco") a California corporation having its principal place of
business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx, 00000, and EMTEC, Inc.
("Integrator'), a New Jersey corporation having its principal place of business
at 000 Xxxx Xxxx Xxxxx, Xx. Xxxxxx, XX 00000 is entered into as of the date last
written below ("the Effective Date").
This Agreement consists of this signature page and the following attachments,
which are incorporated in this Agreement by this reference:
1 . Systems Integrator Agreement Terms and Conditions
2. EXHIBIT A: Integrator Profile
3. EXHIBIT B: Discount Schedule
4. EXHIBIT C: Support Exhibit
5. EXHIBIT S: Software License Agreement
This Agreement is the complete agreement between the parties hereto concerning
the subject matter of this Agreement and replaces any prior oral or written
communications between the parties. There are no conditions, understandings,
agreements, representations, or warranties, expressed or implied, which are not
specified herein. This Agreement may only be modified by a written document
executed by the parties hereto. Any orders accepted or Products delivered by
Cisco after the date this Agreement is signed by Integrator but before the
Effective Date, shall upon the Effective Date be deemed covered by the
provisions of this Agreement, except for any deviations in price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed. Each party warrants and represents that its respective signatories
whose signatures appear below have been and are on the date of signature duly
authorized to execute this Agreement.
EMTEC, Inc. ("Integrator") Cisco Systems, Inc. ("Cisco")
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Authorized Signature Authorized Signature
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Name Name
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Date Date
SYSTEMS INTEGRATOR AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS.
Added Value is the non-Cisco component portion of Integrator's total
solution, which Integrator provides to End User. Providing financing
options is not considered Added Value.
Cisco Connection Online ("CCO") is Cisco's suite of on-line services
and information.
Documentation is the Cisco documentation made available in hard copy or
in electronic form with the Products or otherwise under this Agreement.
Cisco Certified Internetworking Engineer ("CCIE") is the status granted
to Integrator employees who successfully complete the then-current CCIE
Program offered by Cisco.
End User is the entity to which Integrator sells or licenses Product
for such entity's own internal use.
Hardware is the tangible product made available to Integrator.
Price List is Cisco's published global price list.
Product is Hardware and/or Software.
Purchase Order is a written or electronic order from Integrator to
Cisco for Hardware, Software or services to be purchased, licensed or
otherwise made available under this Agreement.
Sales Expert is the status granted to Integrator employees who
successfully complete the then-current Sales Expert training curriculum
offered by Cisco. Details of such curriculum are available on CCO at:
xxx.xxxxx.xxx.
Software is the machine readable (object code) version of the computer
programs listed from time to time on the Price List and made available
by Cisco for license by Integrator, and any copies, updates to, or
upgrades thereof.
Territory is comprised of those regions or countries listed on Exhibit
A.
2. SCOPE.
This Agreement sets forth the terms and conditions for Integrator's
purchase of Hardware and license of Software during the term of this
Agreement solely for:
2.1 Integrator's Internal Business Use.
Integrator may purchase all Products listed in Cisco's
then-current Price List for its internal business use in the
Territory.
2.2 Commercial Integration and Resale.
2.2.1 Cisco grants Integrator a non-exclusive,
nontransferable right to resell Hardware and
distribute Software as a component of a total
solution of Products and additional significant
Integrator Added Value to End Users in the vertical
market segments in the Territory. Integrator agrees
not to solicit Product orders, engage salesmen,
establish warehouses or other distribution centers
outside of the Territory, except to the extent
advertising is placed in a particular advertising
medium which is distributed both inside
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and outside the Territory. Integrator further agrees
that Integrator's Added Value shall at all times, be
the primary reason for the End User's purchase of
Products from Integrator.
2.2.2 Notwithstanding the foregoing, for any Products
included in the Price List, including but not limited
to Products which become or have become Cisco
Products as a result of an acquisition by Cisco of
another entity, Cisco may impose certification,
installation, or training requirements on Integrator
prior to allowing Integrator to purchase Products for
resale, and may require on-going fulfillment of
certification requirements to retain the right to
buy, resell and/or support such Products.
2.2.3 Integrator certifies that, except as set forth in
Section 2.1 hereof, it is acquiring the Products
solely for resale to End Users, in accordance with
this Agreement, and that Integrator intends to resell
the Products as part of an Added Value solution.
2.2.4 Integrator will not distribute the Products to the
United States Federal Government either directly or
indirectly, or through General Services
Administration ("GSA").
2.2.5 Cisco does not accept any flowdown provisions,
including but not limited to, United States
Government Federal Acquisition Regulations ("FARs"),
Defense FARs, or NASA FARs, notwithstanding the
existence of such provisions on Integrator's Purchase
Orders or supplementary documentation or Cisco's
acceptance of such Purchase Orders or documentation.
2.3 GSA, California Multiple Award Schedule ("CMAS"), and other
schedule contracts: This Agreement shall not be construed by
Integrator as a representation that Cisco will furnish
supplies needed by Integrator to fulfill any of Integrator's
GSA, CMAS, or similar contract obligations under any schedule
contract.
3. MULTINATIONAL DEPLOYMENT POLICY.
Unless mutually agreed in writing by the parties, Integrator shall
procure equipment for multinational deployment outside of the
Territory, for either internal use or resale, only in accordance with
Cisco's then-current multinational deployment policies and procedures.
4. PRICES.
4.1 Prices for Products shall be those specified in Cisco's
then-current Price List less the applicable discounts
specified in Exhibit B of this Agreement. All prices are FOB
(for international shipments, FCA per INCOTERMS 1990) Cisco's
San Xxxx site. Cisco may change prices for the Products at any
time by issuance of a revised Price List (including via
electronic posting) or other announcement of price change.
Purchase Orders received before the date of the announcement
of price changes, and those received within thirty (30) days
thereafter which specify a delivery date within ninety (90)
days of the date of announcement, will be invoiced to
Integrator without regard to the price change, provided
however, price decreases will be effective for all Purchase
Orders accepted by Cisco after the date of issuance or
announcement of revised prices.
4.2 Integrator is free to determine its own resale prices
unilaterally. Integrator understands that neither Cisco nor
any employee or representative of Cisco may give any special
treatment (favorable or unfavorable) to Integrator as a result
of Integrator's selection of resale prices. No employee or
representative of Cisco or anyone else has any authority to
determine what Integrator's resale prices for the Products
must be or to inhibit in any way Integrator's pricing
discretion with respect to the Products.
4.3 All stated prices are exclusive of any taxes, fees and duties
or other amounts, however designated, and including without
limitation value added and withholding taxes which are levied
or based upon such charges, or upon this Agreement. Any taxes
related to Products purchased or licensed
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pursuant to this Agreement shall be paid by Integrator or
Integrator shall present an exemption certificate acceptable
to the taxing authorities. Applicable taxes shall be billed as
a separate item on the invoice, to the extent possible.
5. ORDERS.
5.1 Integrator shall purchase Products by issuing a written or
electronic Purchase Order signed (or sent in the case of an
electronic order) by an authorized representative, indicating
specific Products, quantity, price, total purchase price,
shipping instructions, requested delivery dates, xxxx-to and
ship-to addresses, tax exempt certifications, if applicable,
and any other special instructions, and identity the End User
for each Product. Any contingencies contained on such Purchase
Order are not binding upon Cisco. The terms and conditions of
this Agreement prevail regardless of any conflicting terms on
the Purchase Order or other correspondence. All Purchase
Orders are subject to approval and acceptance by the Cisco
customer service order administration office of the Cisco
entity which shall supply the Products, and no other office is
authorized to accept orders on behalf of Cisco. Cisco shall
use commercially reasonable efforts to provide information
regarding acceptance or rejection of such orders within ten
(10) days from receipt thereof.
5.2 Integrator has the right to defer Product shipment for no more
than thirty (30) days from the scheduled shipping date,
provided written notice is received by Cisco at least ten (10)
days before the originally scheduled shipping date. Canceled
orders, rescheduled deliveries or Product configuration
changes made by Integrator within ten (10) days of the
original shipping date will be subject to (a) acceptance by
Cisco, and (b) a charge of fifteen percent (15%) of the total
invoice amount. Cisco reserves the right to reschedule
delivery in cases of configuration changes made within ten
(10) days of scheduled shipment.
5.3 During the term of this Agreement, Cisco may make the Products
that are to be supplied outside the United States available
for order in and delivery from an alternate central location
and/or a Cisco affiliate, if it chooses. In the event that
Cisco does so, Integrator will order the Products according to
the procedures set forth at the time such delivery becomes
available. At such time, orders in conformance with Cisco's
policies will be shipped according to the availability and
expedited leadtimes described in the procedures. Cisco shall
have the right to change delivery terms and include additional
charges, if any, at the time such alternate order and delivery
process is implemented by Cisco.
6. SHIPPING AND DELIVERY.
6.1 Shipping dates will be established by Cisco upon acceptance of
Purchase Orders from Integrator. Shipping dates will be
assigned as close as practicable to the Integrator's requested
date based on Cisco's then-current lead times for the
Products. Cisco will use commercially reasonable efforts to
notify Integrator, including by electronic posting on CCO, of
the scheduled shipping date within ten (10) working days after
receipt of order. Unless given written instruction by
Integrator, Cisco shall select the carrier.
6.2 Shipping terms are FOB Origin (FCA per INCOTERMS 1990 for
international shipments) at Cisco's site, San Jose,
California. Title and risk of loss shall pass from Cisco to
Integrator upon delivery to the common carrier or Integrator's
representative at the FOB point. Delivery shall be deemed made
upon transfer of possession to the carrier. Integrator shall
be responsible for all freight, handling and insurance
charges. In no event shall Cisco have any liability in
connection with shipment, nor shall the carrier be deemed to
be an agent of Cisco. Cisco shall not be liable for damage or
penalty for delay in delivery or for failure to give notice of
any delay.
7. PAYMENT.
Upon and subject to credit approval by Cisco, payment terms shall be
net thirty (30) days from shipping date. All payments shall be made in
U.S. currency. If at any time Integrator is delinquent in the payment
of
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any invoice or is otherwise in breach of this Agreement, Cisco may, in
its discretion, and without prejudice to its other rights, withhold
shipment (including partial shipments) of any order or may, at its
option, require Integrator to prepay for further shipments. Any sum not
paid by Integrator when due shall bear interest until paid at a rate of
1.5% per month (18% per annum) or the maximum rate permitted by law,
whichever is less. Integrator grants Cisco a security interest in
Products purchased under this Agreement to secure payment for those
Products purchased. If requested by Cisco, Integrator agrees to execute
financing statements to perfect this security interest.
8. INTEGRATOR OBLIGATIONS.
In a manner satisfactory to Cisco and at Integrator's sole expense,
Integrator shall:
8.1 employ competent and aggressive sales, technical support, and
maintenance organizations, employees of which shall be
full-time direct employees of Integrator who sell, install,
secure acceptance of, and maintain the Products;
8.2 purchase Demonstration/Evaluation Units for each appropriate
selling location as mutually agreed to by the parties;
8.3 have a majority of the appropriate Integrator sales and
support personnel participate in and successfully complete the
"Cisco Business Essentials" training course per an initial
training plan which shall be mutually agreed to by the parties
and implemented within the initial term of this Agreement;
8.4 maintain at least one (1) Cisco trained technical support
person per servicing location;
8.5 maintain adequate manpower and facilities to ensure prompt
handling of inquiries, orders, and shipments for Products;
8.6 validate End User network configuration design and associated
components and assist End User with system design;
8.7 keep Cisco informed as to any problems which involve Cisco
Products and technologies and require Cisco's support or
impact Integrator's ability to deliver service or solutions to
the End User, to communicate such problems promptly to Cisco,
and to assist Cisco in the resolution of such problems;
8.8 participate in quarterly business meetings with Cisco to
review the progress of the relationship and Integrator's
achievement as related to commitments such as, but not limited
to: volume purchases, training and certification, support, and
reporting;
8.9 appoint a relationship manager whose primary responsibility
will be to work with the designated Cisco channel sales
manager to manage the implementation of the Agreement, act as
the focal point for day-to-day channel business issues and
problem escalations, and participate in Cisco channel-related
activities;
8.10 on a monthly basis, prepare and forward a non-binding forecast
for the subsequent three (3) month period in a format
reasonably specified by Cisco, and prepare and forward such
additional reports as Cisco may reasonably require; and
8.11 within six (6) months of signing the Agreement, have a minimum
of one (1) CCIE, and the above-mentioned relationship manager
shall have completed the then-current Sales Expert curriculum.
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9. PROPRIETARY RIGHTS AND SOFTWARE LICENSING.
9.1 Subject to the terms and conditions of this Agreement, Cisco
grants to Integrator a nonexclusive, non-transferable license
(a) to use the Software for Integrator's internal business use
under the terms of Part (i) of Exhibit S, and (b) during the
term of this Agreement, to market and distribute the Software,
solely as permitted by Section 2 of this Agreement, in the
Territory. The license granted herein shall be for use of the
Software in object code format only and solely as provided in
Part (i) of Exhibit S. Integrator may not sublicense to any
person or entity (including its affiliates) its rights to
distribute the Software.
9.2 Integrator shall provide a copy of the Software License
Agreement (inclusive of Parts (i) and (ii)) (a copy of which
is attached hereto as Exhibit S) to each End User of the
Software prior to installation of the Software. Integrator
agrees to notify Cisco promptly of any breach of the Software
License Agreement and further agrees that it will diligently
pursue or, at Cisco's request, assist Cisco to diligently
pursue, an action against any third parties in breach of the
license.
10. LIMITED WARRANTY.
10.1 Notwithstanding any other provision hereof except as set out
in Section 10.2, Cisco's sole and exclusive warranty and
obligation with respect to the Products sold hereunder are set
forth in Cisco's Limited Warranty Statement delivered with the
Product. INTEGRATOR SHALL NOT MAKE ANY WARRANTY COMMITMENT,
WHETHER WRITTEN OR ORAL, ON CISCO'S BEHALF. Integrator shall
indemnify Cisco for any warranties made in addition to Cisco's
standard warranty and for any misrepresentation of Cisco's
reputation or Cisco's Products.
10.2 Cisco represents that Products which it has designated as
"Year 2000 Compliant," as set forth in the "Compliance Table"
(including accompanying Notes) located in Cisco's "Year 2000
Compliance" web pages beginning at xxxx://xxx.xxxxx.xxx (the
"Year 2000 Pages") are "Year 2000 Compliant," meaning that, as
delivered to Integrator:
10.2.1 The Products accurately process data and time
calculations before and during the years 1999 and
2000;
10.2.2 All manipulation of time-related data yields the
desired results for valid date values within the
application domain;
10.2.3 Date elements in those Products use four digit
storage and indicate century to eliminate the chance
for errors;
10.2.4 If a date element exists without a century
indication, the correct century continues to be
unambiguous and produces accurate results; and
10.2.5 Software accurately processes date and time data when
used in conjunction with other Year 2000 compliant
software products.
Should a Product that is so identified as "Year 2000
Compliant" not be Year 2000 Compliant or should Cisco
otherwise breach the foregoing representation, Cisco will, as
Integrator's sole and exclusive remedy, repair or replace the
Product so that it becomes Year 2000 Compliant or, if Cisco is
unable to repair or replace the Product to make it Year 2000
Compliant, Cisco will refund the purchase price of the Product
paid to Cisco by Integrator as depreciated or amortized by an
equal annual amount over the lifetime of the Product, as
established by Cisco, provided that Integrator returns the
Product to Cisco as originally delivered by Cisco (except for
normal wear and tear) pursuant to Cisco's then-current RMA
policy. The foregoing representation and remedy shall only
apply to Products returned prior to January 31, 2001, or to
Products returned before the Products are no longer supported
pursuant to Cisco's standard support policies, whichever event
first occurs. Integrator acknowledges that: (i) the Internet
URL address and the web pages referred to
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above may be updated by Cisco from time to time and (ii) each
Product ordered will be subject to Cisco's then-current "Year
2000 Pages."
10.3 CISCO DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED
OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE.
11. TRADEMARK USAGE.
11.1 Integrator is permitted to use the name, logo, trademarks, and
other marks of Cisco (collectively, the "Marks") for all
proper purposes in the sale of Cisco Products to End Users and
the performance of Integrator's duties hereunder only so long
as this Agreement is in effect. Integrator's use of such Marks
shall be in accordance with Cisco's policies including, but
not limited to trademark usage and advertising policies, and
be subject to Cisco's approval. Integrator agrees not to
attach to any Products any trademarks, trade names, logos, or
labels other than an aesthetically proper label identifying
the Integrator, its location and its relationship to Cisco.
Integrator further agrees not to affix any Cisco Marks to
products other than genuine Products.
11.2 Integrator shall have no claim or right in the Marks,
including but not limited to trademarks, service marks, or
trade names owned, used or claimed now or in the future by
Cisco. Integrator shall not make any claim to the Cisco Marks
or lodge any filings with respect to such Marks or marks
confusingly similar to the Marks, whether on behalf of Cisco
or in its own name or interest, without the prior written
consent of Cisco.
12. CONFIDENTIAL INFORMATION.
12.1 Integrator acknowledges that, in the course of selling the
Products and in connection with this Agreement and its
relationship with Cisco, it may obtain information relating to
the Products or to Cisco, which is of a confidential and
proprietary nature ("Confidential Information"). Such
Confidential Information may include, but is not limited to,
trade secrets, know how, inventions, techniques, processes,
programs, schematics, software source documents, data,
customer lists, financial information, and sales and marketing
plans or information which Integrator knows or has reason to
know is confidential, proprietary or trade secret information
of Cisco, as well as any information posted on CCO. Integrator
shall at all times, both during the term of this Agreement and
for a period of at least three (3) years after its
termination, keep in trust and confidence all such
Confidential Information, and shall not use such Confidential
Information other than as expressly authorized by Cisco under
this Agreement, nor shall Integrator disclose any such
Confidential Information to third parties without Cisco's
written consent. Integrator further agrees to immediately
return to Cisco all Confidential Information (including copies
thereof) in Integrator's possession, custody, or control upon
termination of this Agreement at any time and for any reason.
The obligations of confidentiality shall not apply to
information which (a) has entered the public domain except
where such entry is the result of Integrator's breach of this
Agreement; (b) prior to disclosure hereunder was already
rightfully in Integrator's possession; or (c) subsequent to
disclosure hereunder is obtained by Integrator on a
nonconfidential basis from a third party who has the right to
disclose such information to the Integrator.
12.2 Neither party shall disclose, advertise, or publish the terms
and conditions of this Agreement without the prior written
consent of the other party. Any press release or publication
regarding this Agreement is subject to prior review and
written approval of the parties.
13. PATENT AND COPYRIGHT INFRINGEMENT.
13.1 Cisco will have the obligation and right to defend any claim,
suit or proceeding brought against Integrator so far as it is
based on a claim that any Product supplied hereunder infringes
a United States copyright or an existing United States patent
(issued as of the Effective Date). Cisco's
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obligation specified in this paragraph will be conditioned on
Integrator's notifying Cisco promptly in writing of the claim
and giving Cisco full authority, information, and assistance
for the defense and settlement thereof. If such claim has
occurred, or in Cisco's opinion is likely to occur, Integrator
agrees to permit Cisco, at its option and expense, either to:
(a) procure for Integrator the right to continue using the
Product; (b) replace or modify the same so that it becomes
non-infringing; or (c) if neither of the foregoing
alternatives is reasonably available, immediately terminate
Cisco's obligations (and Integrator's rights) under this
Agreement with regard to such Products, and, if Integrator
returns such Product to Cisco refund to Integrator the price
originally paid by Integrator to Cisco for such Products as
depreciated or amortized by an equal annual amount over the
lifetime of the Products as established by Cisco.
13.2 Notwithstanding the foregoing, Cisco has no liability for, and
Integrator will indemnify Cisco against, any claim based upon
(a) the combination, operation, or use of any Product supplied
hereunder with equipment, devices, or software not supplied by
Cisco; (b) alteration or modification of any Product supplied
hereunder; or (c) Cisco's compliance with Integrator's
designs, specifications or instructions.
13.3 Notwithstanding any other provisions hereof, Cisco shall not
be liable for any claim based on Integrator's use of the
Products as shipped after Cisco has informed the Integrator of
modifications or changes in the Products 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.
13.4 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO AND ITS
SUPPLIERS AND THE EXCLUSIVE REMEDY OF INTEGRATOR, WITH RESPECT
TO INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN
TO INTEGRATOR SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO
DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO
THE PRODUCTS.
14. TERM AND TERMINATION.
14.1 This Agreement shall commence on the Effective Date and
continue thereafter for a period of one (1) year. Without
prejudice to either party's right to terminate this Agreement
as set forth in Sections 14.2 to 14.5 below. Cisco may by
written notice to Integrator given at least thirty (30) days
prior to the end of the then-current term of the Agreement,
extend the term of the Agreement for the period set forth in
such notice, up to a maximum of one (1) year beyond the
then-current expiration date. Any extension shall be on the
same terms and conditions then in force except as may be
mutually agreed in writing by the parties.
14.2 Either party may terminate this Agreement by providing the
other party with forty-five (45) days prior written notice of
termination.
14.3 Cisco may, upon twenty (20) days written notice, terminate
this Agreement in the event (a) there is a change of ownership
of Integrator (i.e. purchase or sale by one person or other
entity) of ten percent (10%) or more of Integrator's market
valuation, (b) there is an acquisition or transfer of a
controlling interest in Integrator, or (c) there is any
investment in Integrator by a competitor of Cisco.
14.4 This Agreement may be terminated immediately by either party
through written notice under any of the following conditions:
14.4.1 Either party ceases to carry on business as a going
concern, either party becomes the object of the
institution of voluntary or involuntary proceedings
in bankruptcy or liquidation, or a receiver is
appointed with respect to a substantial part of its
assets.
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14.4.2 Either party breaches any of the material provisions
of this Agreement and fails to remedy such breach
within thirty (30) days after written notification by
the other party of such breach.
14.5 Notwithstanding the foregoing, this Agreement may be
terminated immediately by Cisco in the event of Integrator's
breach of Section 9, Proprietary Rights and Software
Licensing, or Section 12, Confidential Information.
14.6 Upon termination of this Agreement, (a) Cisco reserves the
right to cease all further deliveries due against existing
orders unless Integrator agrees to pay for such deliveries by
certified or cashier's check prior to shipment, (b) all
outstanding invoices immediately become due and payable by
certified or cashier's check, and (c) subject to Section 24.8,
all rights and licenses of Integrator hereunder shall
terminate except that Integrator may continue to distribute,
in accordance with normal business practices and the terms of
this Agreement, Products shipped to it by Cisco prior to the
date of termination.
14.7 Additionally, upon termination, Integrator shall immediately
return to Cisco all Confidential Information and data
(including all copies thereof) then in Integrator's possession
or custody or control including, without limitation:
14.7.1 All technical materials and business plans supplied
by Cisco;
14.7.2 All manuals covering Products; and
14.7.3 Any customer or prospect lists provided by Cisco,
retaining only sufficient material to fulfill remaining orders
and to service the installed base of customers as mutually
agreed upon by Cisco and Integrator.
14.8 INTEGRATOR AGREES IN THE EVENT OF TERMINATION OF THIS
AGREEMENT FOR ANY REASON, IT SHALL HAVE NO RIGHTS TO DAMAGES
OR INDEMNIFICATION OF ANY NATURE RELATED TO SUCH TERMINATION
(BUT NOT LIMITING ANY CLAIM FOR DAMAGES IT MIGHT HAVE ON
ACCOUNT OF CISCO'S BREACH OF THIS AGREEMENT, EVEN IF THE
BREACH GAVE RISE TO TERMINATION, SUCH LIABILITY BEING GOVERNED
BY AND SUBJECT TO THE LIMITATIONS SET FORTH ELSEWHERE IN THIS
AGREEMENT), SPECIFICALLY INCLUDING NO RIGHTS TO DAMAGES OR
INDEMNIFICATION FOR COMMERCIAL SEVERANCE PAY, WHETHER BY WAY
OF LOSS OF FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF THE
CISCO PRODUCTS, OR OTHER COMMITMENTS IN CONNECTION WITH THE
BUSINESS AND GOOD WILL OF INTEGRATOR. INTEGRATOR EXPRESSLY
WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES
FOR ANY TERMINATION OF A BUSINESS RELATIONSHIP.
15. SUPPORT.
Integrator shall provide support to End Users and shall meet all
requirements set forth in Exhibit D. Cisco reserves the right to
directly support any End User. Attached as Exhibit D are the terms and
conditions of the support that Cisco shall make available to
Integrator.
16. AUDIT
Integrator shall keep full, true, and accurate records and accounts, in
accordance with generally-accepted accounting principles, of each
`Product purchased and distributed, including information regarding
Software usage and export. Integrator shall make these records
available for audit by Cisco upon fifteen (15) days prior written
notice, during regular business hours at Integrator's principal place
of business.
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17. EXPORT, RE-EXPORT, AND TRANSFER CONTROLS.
Integrator hereby acknowledges that the Products and technology or
direct products thereof (hereafter referred to as "Products and
Technology"), supplied by Cisco hereunder are subject to export
controls under the laws and regulations of the United States (U.S.).
Integrator shall comply with such laws and regulations and agrees not
to export, re-export or transfer Products and Technology without first
obtaining all required U.S. Government authorizations or licenses.
Cisco and Integrator each agree to provide the other such information
and assistance as may reasonably be required by the other in connection
with securing such authorizations or licenses, and to take timely
action to obtain all required support documents.
17.1 End-Use/User: Integrator hereby certifies that none of the
Products and Technology supplied by Cisco to Integrator,
hereunder will be exported, re-exported, or otherwise
transferred by Integrator:
17.1.1 to a U.S. embargoed or highly restricted destination,
(15 United States Code of Federal Regulations ("CFR")
Part 746)
17.1.2 for use by or for any military end-user, or in any
military end-use located in or operating under the
authority of any country identified in Country Group
D1 under 15 CFR, Supplement Xx. 0 xx Xxxx 000, (00
XXX Part 740)
17.1.3 to, or made available by Integrator for use by or
for, any entity that is engaged in the design,
development, production, stockpile or use of nuclear,
biological or chemical weapons or missiles, (15 CFR
Part 744)
17.1.4 to parties on any of the U.S. Government's lists of
denied persons, (15 CFR Part 764)
without first obtaining all required U.S. Government
authorizations or licenses.
17.2 Integrator's obligation under this clause shall survive the
expiration or termination of this Agreement.
17.3 Integrator agrees to maintain a record of exports, re-exports,
and transfers of the Products and Technology for five years
and to forward within that time period any required records to
Cisco or, at Cisco's request, the U.S. Government. Integrator
agrees to permit audits by Cisco or the U.S. Government as
required under the regulations to ensure compliance with this
Agreement.
18. FORCE MAJEURE.
Except for the obligation to pay monies due and owing, neither party
shall be liable for any delay or failure in performance due to events
outside the defaulting party's reasonable control, including without
limitation acts of God, earthquake, labor disputes, shortages of
supplies, riots, war, fire, epidemics, or delays of common carriers or
other circumstances beyond its reasonable control. The obligations and
rights of the excused party shall be extended on a day to day basis for
the time period equal to the period of the excusable delay.
19. PRODUCT CHANGES.
Modifications which do not affect the form, fit or function of a
Product or which Cisco deems necessary to comply with specifications,
changed safety standards or governmental regulations, to make the
Product non-infringing with respect to any patent, copyright or other
proprietary interest, or to otherwise improve the Product may be made
at any time by Cisco without prior notice to or consent of Integrator
and such altered Product shall be deemed fully conforming. Cisco shall
employ commercially reasonable efforts to announce, including by
electronic posting, Product discontinuance or changes other than those
set forth in the previous sentence at least ninety (90) days prior to
the effective date of the changes (the
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"Announcement Period"). Integrator may make a last-time purchase of
such Products within the Announcement Period.
20. COMPLIANCE WITH LAWS.
Integrator shall obtain all licenses, permits and approvals required by
any government and shall comply with all applicable laws, rules,
policies and procedures including requirements applicable to the use of
Products under telecornmunications and other laws and regulations, of
any government where the Products are to be sold, used or deployed
(collectively "Applicable Laws"). Integrator will indemnify and hold
harmless Cisco for any violation or alleged violation of any Applicable
Laws. Integrator hereby represents and warrants that: (a) it shall
comply with all Applicable Laws; (b) this Agreement and each of its
terms are in full conformance and in compliance with such laws; and (c)
it shall not act in any fashion or take any action or permit or
authorize any action which will render Cisco liable for a violation of
the U.S. Foreign Corrupt Practices Act, which prohibits the offering,
giving or promising to offer or give, directly or indirectly, money or
anything of value to any official of a government, political party or
instrumentality thereof in order to assist it or Cisco in obtaining or
retaining business and (i) it will not violate or cause Cisco to
violate such act in connection with the sale or distribution of Cisco
Products and/or services; and (ii) it will notify Cisco in writing if
any of its owners, partners, principals, officers, and employees are or
become during the term of this Agreement officials, officers or
representatives of any government or political party or candidates for
political office. Integrator shall use its best efforts to regularly
and continuously inform Cisco of any requirements of laws, statutes,
ordinances, governmental authorities directly or indirectly affecting
this Agreement, the sale, use and distribution of Products, or Cisco's
trade name, trademarks or other commercial, industrial or intellectual
property interests, including, but not limited to, certification of the
Products from the proper authorities in the Territory.
21. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF CISCO AND ITS
SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE
MONEY PAID TO CISCO UNDER THIS AGREEMENT DURING THE SIX (6) MONTH
PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH
LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER
INCIDENT.
22. CONSEQUENTIAL DAMAGES WAIVER.
IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE,
INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OF ANY KIND REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, EVEN IF CISCO OR ITS
SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23. NOTICES.
All notices required or permitted under this Agreement will be in
writing and will be deemed given: (a) when delivered personally; (b)
when sent by confirmed facsimile (followed by the actual document in
air mail/air courier); (c) three (3) days after having been sent by
registered or certified mail return receipt requested postage prepaid
(or six (6) days for international mail); or (d) one (1) day after
deposit with a commercial express courier specifying next day delivery
(or two (2) days for international courier packages specifying next day
delivery), with written verification of receipt. All communications
will be sent to the addresses set forth on the cover sheet of this
Agreement or such other address as may be designated by a party by
giving written notice to the other party pursuant to this paragraph.
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24. GENERAL.
24.1 CHOICE OF LAW. The validity, interpretation, and performance
of this Agreement shall be controlled by and construed under
the laws of the State of California, United States of America,
as if performed wholly within the state and without giving
effect to the principles of conflict of law. The parties
specifically disclaim the UN Convention on Contracts for the
International Sale of Goods.
24.2 NO WAIVER. No waiver of rights under this Agreement by either
party shall constitute a subsequent waiver of this or any
other right under this Agreement.
24.3 ASSIGNMENT. Neither this Agreement nor any rights under this
Agreement, other than monies due or to become due, shall be
assigned or otherwise transferred by Integrator (by operation
of law or otherwise) without the prior written consent of
Cisco. Cisco shall have the right to assign all or part of
this Agreement without Integrator's approval. This Agreement
shall bind and inure to the benefit of the successors and
permitted assigns of the parties.
24.4 SEVERABILITY. In the event that any of the terms of this
Agreement become or are declared to be illegal or otherwise
unenforceable by any court of competent jurisdiction, such
term(s) shall be null and void and shall be deemed deleted
from this Agreement. All remaining terms of this Agreement
shall remain in full force and effect. Notwithstanding the
foregoing, if this paragraph becomes applicable and, as a
result, the value of this Agreement is materially impaired for
either party, as determined by such party in its sole
discretion, then the affected party may terminate this
Agreement by written notice to the other.
24.5 ATTORNEYS' FEES. In any suit or proceeding relating to this
Agreement, the prevailing party will have the right to recover
from the other its costs and reasonable fees and expenses of
attorneys, accountants, and other professionals incurred in
connection with the suit of proceeding, including costs, fees
and expenses upon appeal, separately from and in addition to
any other amount included in such judgment. This provision is
intended to be severable from the other provisions of this
Agreement, and shall survive and not be merged into any such
judgment.
24.6 NO AGENCY. This Agreement does not create any agency,
partnership, joint venture or franchise relationship. Neither
party has the right or authority to, and shall not, assume or
create any obligation of any nature whatsoever on behalf of
the other party or bind the other party in any respect
whatsoever.
24.7 URL. Integrator hereby confirms that it has the ability to
access, has accessed and has read, the information made
available by Cisco at all of the world wide web
sites/URLs/addresses/pages referred to anywhere throughout
this Agreement (including any of the Exhibits hereto).
Integrator acknowledges that Cisco may modify any URL address
or terminate the availability of any information at any
address without notice to Integrator.
24.8 SURVIVAL. Sections 10, 12, 13, 14, 16, 17, 18, 21, 22 and 24,
and the license to use the Software set out in Section 9 and
Part (i) of Exhibit S (subject to the termination provisions
set forth in Part (i) of Exhibit S) shall survive the
termination of this Agreement.
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