THE SYMBOL "**" IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT THE PORTION
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CISCO SYSTEMS
[LOGO]
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SERVICE PROVIDER AGREEMENT
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This 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 XX.Xxx Corp. ("Customer"), a Delaware
corporation having its principal place of business at 0000 Xxxxxxxxx Xxxx Xxxxx,
0xx Xxxxx, Xxxxxx, XX 00000, shall become effective in accordance with the
provisions of Exhibit V hereto.
This Agreement consists of this signature page and the following attachments,
which are incorporated in this Agreement by this reference:
1. Service Provider Agreement Terms and Conditions
2. EXHIBIT A: Customer Territory
3. EXHIBIT B: Discount Schedule
4. EXHIBIT B-1: Product Credits
5. EXHIBIT C: Support
6. EXHIBIT C-2: Service Maintenance Fees
7. EXHIBIT D: Networked Commerce Attachment
8. EXHIBIT E: Affiliate List
9. EXHIBIT G: Optical Networking Products
10. EXHIBIT S: Software License Agreement
11. EXHIBIT T: Special Purchase Terms
12. EXHIBIT U: Special Product Pricing
13. EXHIBIT V: Agreement Effective Date
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, including, without limitation, the Velocita
Communications Agreement, dated January 26, 2001, between Cisco and Velocita
Corp. 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.
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.
PF. NET CORP. Cisco Systems, Inc.
("Customer") ("Cisco")
/s/ XXXXX X. XXXXXX /s/ XXXX XXXXXXXXX
--------------------------------- --------------------------------------
Authorized Signature Authorized Signature
/s/ Xxxxx X. Xxxxxx /s/ Xxxx Xxxxxxxxx
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Name Name
April 6, 2001 April 3, 2001
--------------------------------- --------------------------------------
Date Date
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SERVICE PROVIDER AGREEMENT
TERMS AND CONDITIONS
1.0 DEFINITIONS.
Affiliates are the entities listed on Exhibit E to this Agreement of which
at least 50.1% of the voting power is owned directly or indirectly by
Customer, but only for so long ownership remains at 50.1% or above.
CCO is Cisco's suite of on-line services and information at
xxxx://xxx.xxxxx.xxx.
Critical Milestones shall mean any date identified as a Critical Milestone
in a SOW.
Documentation is user manuals, training materials, Product descriptions
and specifications, technical manuals, license agreements, supporting
materials and other printed information relating to Products and/or
services offered by Cisco, whether distributed in print, electronic,
CD-ROM or video format.
Effective Date shall have the meaning set forth in Exhibit V.
End User is the entity to which Customer sells and licenses Products for
such entity's own use in conjunction with Customer's Network Services
and/or to which Customer provides telecommunications services through use
of the Products.
Exclusivity Commitment shall mean Velocita's commitment to purchase
Exclusivity Products as more fully described in Section 1(a) of Exhibit T.
Hardware is the tangible product made available to Customer.
Net Purchase Amount shall have the meaning set forth in Section 25.2.
Network Services are the services offered or that may be offered by
Customer which may include, but are not limited to, the following: access
to the Internet and data transmission and value-added telecommunications
services related to such transmission, including managed network services
whereby Customer manages network elements belonging to or located at the
premises of End Users in conjunction with telecommunications services to
End Users by Customer.
Price List is Cisco's published global price list.
Prime Rate means the Prime Rate as reported by The Wall Street Journal or
other equivalent publication.
Product means, individually or collectively as appropriate, Hardware,
licensed Software, Documentation, developed products, supplies,
accessories, and other commodities related to any of the foregoing, listed
on the then current published Price List.
Purchase Commitment shall have the meaning set forth in Exhibit T.
Purchase Order is a written or electronic order from Customer to Cisco for
Hardware, Software or support services therefor to be purchased, licensed
or provided under this Agreement.
Services means any maintenance, or technical support and any other
services performed or to be performed by Cisco, as set forth in this
Agreement or the Exhibits hereto.
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 Customer, and any copies,
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updates to, or upgrades thereof.
Territory is comprised of those countries listed on Exhibit A.
2.0 SCOPE.
This Agreement sets forth the terms and conditions for Customer's purchase
of Hardware and license of Software solely for:
2.1 Customer's Internal Business Use during the term of the Agreement.
Customer may purchase the Products for the internal business use of
Customer in the Territory.
2.2 Network Services Provisioning and Commercial Resale.
(a) Cisco grants Customer a non-exclusive, non-transferable right to
purchase the Products for use in the Territory in creating and
providing Network Services to End Users. Customer may resell
Products (including embedded Software) to End Users, provided that
the Products are used primarily in connection with access to Network
Services, and provided further that Customer shall (i) (A) indicate
on its Purchase Order any Product units which Customer knows, at the
time of placing the Purchase Order, are to be resold to third
parties or (B) for any Product units which Customer does not know,
at the time of placing the Purchase Order, are to be resold to third
parties, notify Cisco at the time Customer resells such Product
units to third parties, if any, and (ii) shall report all such sales
as otherwise required in this Agreement.
(b) Customer certifies that it is acquiring the Products for the
purpose of providing Network Services and incidental commercial
resale, as set forth in this Agreement, and that Customer intends,
generally, to use the Products to provide Network Services to End
Users.
(c) Customer will not distribute the Products to third parties,
including resellers, other than for use in conjunction with Network
Services; but Customer may dispose of the following types of
Products (including embedded Software):
(i) Products which have been used by Customer for more than
two years and that are either being upgraded or replaced
by Customer in the ordinary course of business; and
(ii) Products included in the Cisco's ********************
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in either case, such permitted disposal shall be subject to Cisco's
then-current re-licensing policies and fees; provided, however, that
notwithstanding anything in Cisco's relicensing policies to the
contrary, in no event shall Customer be absolutely prohibited from
relicensing the Software Customer is permitted to dispose of
pursuant to this Section 2.2(c).
2.3 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 Customer prior to allowing Customer to
purchase Products for resale, and may require on-going fulfillment
of certification requirements to retain the right to resell and/or
support such Products. Cisco does not accept any flowdown provisions
including but not limited to United States Government Federal
Acquisition Regulations
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("FARs"), Defense FARs, or NASA FARs notwithstanding existence of
such provisions on Customer's Purchase Orders or supplementary
documentation or Cisco's acceptance of such Purchase Orders or
documentation.
United States Government General Services Administration ("GSA"),
California Multiple Award Schedule ("CMAS"), and other schedule
contracts: This Agreement shall not be construed by Customer as a
representation that Cisco will furnish supplies needed by Customer
to fulfill any of Customer's GSA, CMAS, or similar contract
obligations under any schedule contract.
3.0 PRICES.
3.1 Prices for Products shall be those specified (a) in Exhibit U, for
the Products listed therein and, (b) for all other Products, in
Cisco's then-current Price List, in either case less the applicable
discounts specified in Exhibit B of this Agreement. Prices for
Services shall be as stated in Exhibit C-2. All prices are Ex Works
per INCOTERMS 2000 at Cisco's site, San Jose, California, or other
Cisco-designated shipping location within the contiguous 00 xxxxxx
xx xxx Xxxxxx Xxxxxx. Other than in the case of the Products listed
in Exhibit U, Cisco may change prices for the Products or for
Services at any time by issuance of a revised Price List (including
via electronic posting) or other announcement of price change.
3.2 *****************************************************************
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********************************************** Price decreases,
including decreases in the prices for the Fixed Price Products, will
be effective for all Purchase Orders accepted by Cisco after the
date of issuance or announcement of such price decreases.
3.3 Customer is free to determine its resale prices unilaterally.
Customer understands that neither Cisco nor any employee or
representative of Cisco may give any special treatment (favorable or
unfavorable) to Customer as a result of Customer's selection of
resale prices. No employee or representative of Cisco or anyone else
has any authority to determine what Customer's resale prices for the
Products must be, or to inhibit, in any way, Customer's pricing
discretion with respect to the Products.
3.4 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 pursuant to this Agreement shall be paid by
Customer (except for taxes based on Cisco's income) unless Customer
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.
3.5 Customer's expectation is that industry prices will decrease over
time, not increase, in accordance with the general trend in the
internetworking hardware and software industry, learning curves,
scope of relationship, and many other factors. If general market
prices for substantially similar technology decrease, Cisco and
Customer reserve the right to renegotiate mutually acceptable
prices.
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4.0 ORDERS.
4.1 Customer shall purchase Products or Services by issuing a written or
electronic Purchase Order, signed or (in the case of electronic
transmission) sent by its authorized representative, indicating
specific Products and Services, quantity, unit 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. The terms of the Networked Commerce
Attachment (Exhibit D) shall apply for any orders submitted
electronically, via the CCO. Any contingencies contained on such
Purchase Orders are not binding upon Cisco. The terms and conditions
of this Agreement prevail, regardless of any additional or
conflicting terms on the Purchase Order, or other correspondence,
submitted by Customer to Cisco and any such conflicting terms are
deemed rejected by Cisco, unless expressly agreed in writing.
4.2 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 Services, 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, or within three (3) business days where
orders are placed under CCO. Cisco will not withhold acceptance of
any Purchase Order which meets Cisco's then-current published
(including posting on CCO) lead times, is for a valid configuration
and is otherwise consistent with the terms and conditions of this
Agreement.
4.3 Customer has the right to defer Product shipment for no more than
thirty (30) days from the originally scheduled shipping date,
provided written notice is received by Cisco at least ten (10) days
before the originally scheduled shipping date. In addition, Customer
has the right to cancel orders, reschedule deliveries, change the
delivery destination and request Product configuration changes prior
to the shipment date, subject to the remaining provisions of this
Section 4.3. Cancelled orders, rescheduled deliveries or Product
configuration changes made by Customer less than ten (10) days
before 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 and changes to the delivery
destination made within ten (10) days of scheduled shipment.
Notwithstanding the foregoing, Customer shall not have the right to
cancel any Purchase Order fewer that 30 days prior to the originally
scheduled shipping date where the Products included in such Purchase
Order are purchased with implementation Services, including but not
limited to design, customization or installation Services, except as
may be set forth in the agreement or Statement of Work under which
the Services are to be rendered. In addition where Products are
purchased with implementation Services, including but not limited to
design, customization or installation Services, configuration
changes and changes in delivery destination may require modification
in the schedule set forth in the agreement or Statement of Work
under which the Services are to be rendered.
5.0 FORECAST
No later than thirty (30) days prior to the beginning of each calendar
quarter, Customer shall provide Cisco with its non-binding forecast of its
projected purchases of Products and Services from Cisco during the
following four quarters. Such forecasts are for planning purposes only and
do not create a binding obligation to purchase or sell. Notwithstanding
the foregoing, Velocita agrees that it shall satisfy the Purchase
Commitment and the Exclusivity Commitment as more fully described and
subject to the limitations set forth in Exhibit T.
6.0 SHIPPING AND DELIVERY; ACCEPTANCE.
6.1 Shipping dates will be established by Cisco upon acceptance of
Purchase Orders from Customer. Shipping dates will be assigned as
close as practicable to the Customer's requested date based on
Cisco's then-current published (including posting on CCO) lead
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times for the Products. Unless given written instruction by
Customer, Cisco shall select the carrier.
6.2 Shipping terms Ex Works per INCOTERMS 2000 at Cisco's site, San
Jose, California, or other Cisco-designated shipping location within
the contiguous 48 states of the United States, which shall appear on
Cisco's order acknowledgement and/or be accessible via CCO. Title
and risk of loss shall pass from Cisco to Customer upon delivery to
the common carrier or Customer's representative at the delivery
point per the applicable shipping term. Delivery shall be deemed
made upon transfer of possession to the carrier. Customer shall be
responsible for all freight, handling and insurance charges
subsequent to delivery.
6.3 Approval for Use and Acceptance Testing Procedures.
6.3.1 This Section 6.3 details an Approval for Use and Acceptance
Testing Procedure which shall apply to Customer's purchase of
Product models which Customer has not deployed previously in
its network and which are purchased together with installation
or other implementation Services pursuant to an SOW entered
into pursuant to this Agreement. Only the initial purchase of
Products for network deployment by Customer in a mutually
agreed configuration (the "Test Configuration") shall be
subject to the provisions of this Section 6.3.
6.3.2 Customer shall indicate on any Purchase Order for which this
Section 6.3 applies that the Purchase Order is subject to
Approval for Use and Acceptance Testing. Cisco may in its sole
discretion accept or reject such Purchase Order, or limit the
quantity of Products so ordered. Customer shall conduct a
pilot test of the Test Configuration in accordance with a
mutually-agreed test plan and acceptance criteria, and advise
Cisco promptly of Acceptance or Non-Acceptance in writing
(including email) within fifteen (15) days after the
applicable Products are delivered. If no test plan and/or
acceptance criteria have been agreed as of the date of
delivery of the Products to Customer's site, the Products
shall not be deemed subject to this Section 6.3, and shall be
deemed accepted on delivery. Service Provider is wholly
responsible for completing the testing of the Products at its
own expense. Notwithstanding the foregoing, "Acceptance" shall
be deemed to have occurred, and Cisco shall be entitled to
render an invoice for the remaining balance of the purchase
price of the Products (and, if applicable, the Services) i)
upon notice of Acceptance by means of the Acceptance
Certificate set forth in the applicable SOW, or such other
form as the parties may agree; ii) if any portion of the
Products comprising the Test Configuration are deployed for
commercial use, or; iii) fifteen (15) days after delivery if
no notice of Acceptance or Non-Acceptance has been received.
6.3.3 If Customer provides Cisco with written notice, within 15 days
of delivery of the applicable Products (a) indicating that the
Test Configuration failed to achieve Acceptance and (b)
detailing the aspects of the Test Configuration which did not
pass in all material respects the agreed test plan, including
a detailed list of non-conformities, Customer may require
reperformance of implementation Services in accordance with
Section 10.4, and/or return the failing portions of the Test
Configuration for replacement or return the entire Test
Configuration and cancel the test, or accept the Products
notwithstanding the failure, in which case remedies shall be
as set forth under the warranty for the Products in Section
10. Upon Acceptance, Cisco may treat the Test Configuration as
"delivered" for all purposes, and Cisco's obligations with
respect to such Products shall be only as otherwise set forth
in this Agreement, including pursuant to the warranty set
forth in Section 10.
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6.4 If Customer requests delivery of Products to Customer's forwarding
agent or other representative in the country of shipment, Customer
shall assume responsibility for compliance with applicable export
laws and regulations, including the preparation and filing of
shipping documentation necessary for export clearance. Except in
accordance with the applicable delivery 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.
6.5 Where Products are purchased without implementation Services, and
Cisco fails to ship the Products within thirty (30) days after the
scheduled shipment date, Customer may cancel its Purchase Order with
respect to such delayed Products. Such cancellation shall be
Customer's sole remedy in case of delayed delivery. Upon request of
Customer, Cisco shall include Customer in any prioritization program
for deliveries as determined in Cisco's discretion.
6.6 In the event that Cisco offers additional delivery terms, including
CIP (Carriage and Insurance Paid) per INCOTERMS 2000 to Customer's
designated site, Customer may elect to utilize such delivery terms
in lieu of the above, in consideration of the payment of Cisco's
then-current charges for such delivery services.
6.7 Cisco reserves the right, without prejudice to its other rights, to
withhold shipment (including partial shipments) of any Products or
performance of any Services or require Customer or an Affiliate to
prepay for further shipments if (a) Customer or an Affiliate fails
to pay any undisputed amount when due, until such undisputed payment
has been made in full, or (b) Customer or an Affiliate is in breach
of (i) Section 12.0 of this Agreement, but only if such breach was
caused by the intentional or grossly negligent conduct of Customer
or such Affiliate or (ii) either of Section 9.0 or Section 18.0 of
this Agreement, for the duration of such breach.
7.0 PAYMENT.
7.1 Except in the case of disputed invoices, which are payable
immediately upon resolution, upon and subject to credit approval by
Cisco, payment terms shall be net thirty (30) days from the date of
invoice. Invoices for Products shall be issued at the time of
shipment by Cisco. All payments shall be made in U.S. currency
unless otherwise agreed. Any sum not paid by Customer, when due,
shall bear interest until paid at an annual rate equal to *********
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7.2 Cisco reserves and Customer agrees that Cisco shall have and hereby
grants, on an invoice-by-invoice basis, a purchase money security
interest in Products heretofore supplied and hereafter supplied to
Customer under this Agreement that are invoiced for payment under
any invoice delivered pursuant to this Section 7 as security for the
payment and charges under this Agreement (including, without
limitation, shipping and installation charges, and all interest) due
to Cisco as set forth in such invoice, until the invoice price for
such Products and all other amounts as set forth in such invoice is
paid in full, on the following terms:
(a) The amount secured by such purchase money security interest in
the Products covered by any particular invoice shall consist
solely of the unpaid purchase price due Cisco as set forth in
such invoice and any other charges due hereunder as set forth
in such invoice (including all interest).
(b) Such purchase money security interest shall automatically be
released and discharged as to the Products covered by any
particular invoice when the purchase price set forth in such
invoice and all other amounts are paid in full to
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Cisco. Such release and discharge shall be effective upon
such payment in full, without any requirement or need for any
additional action or confirmation by Cisco. If any financing
statement is filed in favor of Cisco in respect of any
Products for which the invoices purchase price and all such
other amounts have been paid in full, Cisco shall promptly
upon request of Customer execute a form UCC partial release
(in form reasonably acceptable to Cisco submitted by Customer)
in respect of such financing statement limited to such
Products. In addition, if and as reasonably requested by
Customer from time to time (but not more often than
quarterly), Cisco will deliver a schedule setting forth in
reasonable detail the invoices delivered under Section 7 that
then remain unpaid and the amounts that remain unpaid
thereunder.
(c) In addition, consistent with the provisions of revised Article
9 of the Uniform Commercial Code of the relevant jurisdiction
(as and when adopted), Customer hereby authorizes Cisco to
file (with or without the Customer 's signature), at any time
and from time to time, all financing statements, continuation
financing statements, termination statements and other
documents and instruments under Article 9 of the Uniform
Commercial Code, in form reasonably satisfactory to Cisco, and
take all other action, as Cisco may deem reasonable, to
perfect and continue perfected, maintain the priority of or
provide notice of the security interests of Cisco. Without
limiting the foregoing, Customer hereby constitutes and
appoints Cisco (and any of Cisco's officers, employees or
agents designated by Cisco) as Customer's true and lawful
attorney-in-fact, with full power and authority to execute any
and all of the foregoing on behalf of and in the name of
Customer.
7.3 If Customer, within 38 days of its receipt of an invoice from Cisco,
notifies Cisco that Customer disputes any amount invoiced by Cisco
to Customer, then each party shall provide to the other party all
information reasonably requested by such other party which it has to
support its position regarding the disputed portion of the invoice
and shall proceed in good faith and in a timely manner to resolve
such disputed portion. Customer's obligation to pay the disputed
portion any invoice (including interest accruing on such disputed
portion) to Cisco shall be suspended for such period of time as is
reasonably required to resolve any such dispute.
8.0 AFFILIATES OF CUSTOMER
8.1 Affiliates of Customer listed on Exhibit E may purchase Products
from Cisco under this Agreement. Customer hereby guarantees the
performance by such Affiliates of the financial and other
contractual obligations set forth in this Agreement and represents
and warrants that it is empowered to enter into this Agreement on
behalf of such Affiliates, and to bind such Affiliates to the terms
and conditions of this Agreement. Cisco may require certain of the
listed Affiliates to execute an agreement with Cisco or an affiliate
of Cisco such that the legal relationship shall be between Cisco or
Cisco's affiliate and Customer's Affiliate. Customer may add
entities to Exhibit E without Cisco's consent by providing Cisco
written notice indicating the entity to be added; provided that
Cisco may reject such addition if the entity to be added (a) does
not satisfy the definition of "Affiliate" set forth above; (b) is a
direct competitor of Cisco or (c) does not satisfy Cisco's credit
approval requirements. Each Affiliate that purchases Products or
Services from Cisco as provided by this Section 8.1 shall be
entitled to enforce, as an express third party beneficiary, each of
the obligations of Cisco, including, without limitation, Section
14.0 of this Agreement, but only with respect to the Products and
Services purchased directly by such Affiliate.
8.2 Any breach by Customer or by an Affiliate of this Agreement shall
entitle Cisco to terminate this Agreement and/or any such agreement
with Affiliate and/or any other Affiliate as permitted by Section
15.
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8.3 The limit of liability set forth in this Agreement shall be deemed
an aggregate limit of liability, not per Affiliate, regardless of
whether an Affiliate or Affiliates has executed a separate agreement
with Cisco or a Cisco Affiliate permitting such Affiliate to
purchase under the terms of this Agreement.
9.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING.
9.1 Subject to the remaining provisions of this Section 9.1, Cisco
grants to Customer a perpetual, non-exclusive, non-transferable
license (a) to use the Software for Customer's internal business
use, and to create and provide Network Services to End Users in the
Territory under the terms of Exhibit S; and (b) during the term of
this Agreement, to market and distribute the Software in the
Territory to End Users, solely as permitted in this Section. The
termination of Customer's rights pursuant to section (b) of the
immediately preceding sentence upon termination of this Agreement
shall not affect any software license previously granted pursuant to
this Agreement. The license granted herein shall be for use of the
Software in object code format only and, except to the extent
required to provide Network Services to End User, solely as provided
in Exhibit S. Customer may not sublicense to any person or entity
(including its Affiliates) its rights to distribute the Software.
Cisco may terminate any individual Software license granted
hereunder upon Customer's failure to comply with the terms and
conditions of Section 7.0, Section 11.0, Section 12.0, Section 18.0
and Section 21.0 of this Agreement with respect to such individual
Software license. In addition, Cisco may terminate all Software
licenses granted hereunder upon Customer's failure to comply with
the terms and conditions of this Section 9.0 with respect to any
individual license granted hereunder.
9.2 Customer shall, and shall require its Affiliates to, provide a copy
of the Software License Agreement (a copy of which is attached
hereto as Exhibit S) to each End User of the Software prior to
installation of the Software at such End User site.
9.3 Customer shall notify Cisco promptly of any known breach of the
Software License Agreement and further agrees that it will pursue
or, at Cisco's request, assist Cisco to diligently pursue, an action
against any third parties in breach of the license. Customer agrees
that it shall use good faith efforts to monitor compliance with the
Software License Agreement. For purposes of this Section, "good
faith efforts" shall mean the same degree of care that Customer uses
in monitoring compliance with the terms and conditions of use of
Customer's own intellectual property of a similar nature to the
Software.
10.0 LIMITED WARRANTY.
10.1 Hardware. Cisco warrants that from the date of shipment by Cisco to
Customer, and continuing for a period of the longer of (a) ******
********* or (b) the period set forth in the Warranty Card
accompanying the Product, the Hardware will be free from defects in
material and workmanship, under normal use. Customer's sole and
exclusive remedy and the entire liability of Cisco and its suppliers
under this limited warranty will be, at Cisco's or its service
center's option, shipment of a replacement within the period and
according to the replacement process described in the Warranty Card,
or a refund of the purchase price, if the Hardware is returned to
the party supplying it to Customer, if different than Cisco, freight
and insurance prepaid. Cisco replacement parts, used in Hardware
repair, may be new or equivalent to new. Cisco's obligations
hereunder are conditioned upon the returned of affected Products, in
accordance with Cisco's then-current Return Material Authorization
(RMA) procedures.
10.2 Software. Cisco warrants that from the date of shipment by Cisco to
Customer and continuing for a period of the longer of (a) ******
********* or (b) the period set forth in the Warranty Card
accompanying the Product: (a) the media on which the Software is
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furnished will be free of defects in materials and workmanship,
under normal use; and (b) the Software substantially conforms to its
published specifications. Except for the foregoing, the Software is
provided AS IS. This limited warranty extends only to the Customer
who is the original licensee. Customer's sole and exclusive remedy
and the entire liability of Cisco and its suppliers under this
limited warranty will be, at Cisco or its service center's option,
repair, replacement, or refund of the Software if reported (or, upon
request, returned) to the party supplying the Software to Customer,
if different than Cisco. In no event, does Cisco warrant that the
Software is error free or that Customer will be able to operate the
Software without problems or interruptions. In addition, due to the
continual development of new techniques for intruding upon and
attacking networks, Cisco does not warrant that the Software or any
equipment, system or network on which the Software is used will be
free of vulnerability to intrusion or attack.
10.3 Title. Cisco warrants that it has good title to the Hardware portion
of the Products, free and clear of all liens and encumbrances.
10.4 Services. Services shall be performed in a workmanlike manner
consistent with industry standards. Customer must notify Cisco
promptly, but in no event more than 30 days after completion of the
Services, of any claimed breach of this warranty. Customer's sole
and exclusive remedy for breach of warranty shall be, at Cisco's
option, re-performance of the Services; or return of the portion of
the fees paid to Cisco by Customer for such non-conforming Services.
The provision of Services under this Agreement shall not extend the
warranties provided with any Hardware purchased or Software licensed
by Customer.
10.5 Restrictions. This warranty does not apply to any failure of the
Product or Service to comply with this warranty caused by (a)
alteration of the Product, except by Cisco, (b) installation,
operation, repair, or maintenance of the Product not in accordance
with instructions supplied by Cisco, (c) Product having been
subjected to abnormal physical or electrical stress, misuse,
negligence, or accident; or (d) sale of the Product or, in the case
of Software, license, for beta, evaluation, testing or demonstration
purposes for which Cisco does not receive a payment of purchase
price or license fee.
10.6 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS SECTION 10, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW,
USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED
BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE
EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY
PERIOD. This disclaimer and exclusion shall apply even if the
express warranty set forth above fails of its essential purpose. The
date of shipment of a Product by Cisco is set forth on the packaging
material in which the Product is shipped. Customer acknowledges that
the Internet URL address and the web pages referred to above may be
updated by Cisco from time to time; the version in effect at the
date of delivery of the Products to the Customer shall apply. The
provisions of this Section 10.6 shall not be deemed to limit the
parties' respective rights and obligations under Section 13 or
Section 14.
11.0 TRADEMARK USAGE.
11.1 Customer 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 or the provision of Network Services
to End Users and the performance of Customer's duties hereunder only
so long as this Agreement or a similar agreement between Cisco and
Customer providing for the supply of Products and Services by Cisco
to Customer is in
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effect. Customer'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. Customer
agrees not to attach to any Products any trademarks, trade names,
logos, or labels other than an aesthetically proper label
identifying the Customer, its location and its relationship to
Cisco. Customer further agrees not to affix any Marks to products
other than genuine Products.
11.2 Customer 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 which Cisco has authority to grant Customer the
right to use in the future. Customer 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. Customer shall upon request of Cisco discontinue its use of
any Xxxx.
12.0 CONFIDENTIAL INFORMATION.
12.1 "Confidential Information" to be disclosed by Customer under this
Agreement is information regarding Customer's network operations and
technical plans and marketing and financial data, and "Confidential
Information" to be disclosed by Cisco under this Agreement is
information regarding Cisco's hardware, software and service
products, and technical, financial and marketing data, and
information posted on CCO. The Receiving Party may use the
Confidential Information solely for the purpose of furtherance of
the business relationship between the parties, as provided in this
Agreement and shall not disclose the Confidential Information to any
third party, other than to its Affiliates and to employees or
directors of the Receiving Party and its Affiliates who have a need
to have access to and knowledge of the Confidential Information,
solely for the purpose authorized above. Each party shall take
appropriate measures by instruction and agreement prior to
disclosure to such employees or directors to assure against
unauthorized use or disclosure. Information (other than that on CCO)
disclosed by the Disclosing Party in written or other tangible form
will be considered Confidential Information only if such information
is conspicuously designated as "Confidential," "Proprietary" or a
similar legend. Information disclosed orally shall only be
considered Confidential Information if: (i) identified as
confidential, proprietary or the like at the time of disclosure, and
(ii) confirmed in writing within thirty (30) days of disclosure.
Confidential Information disclosed to the Receiving Party by any
Affiliate or agent of the Disclosing Party is subject to this
Agreement.
12.2 The Receiving Party shall have no obligation with respect to
information which (i) was rightfully in possession of or known to
the Receiving Party without any obligation of confidentiality prior
to receiving it from the Disclosing Party; (ii) is, or subsequently
becomes, legally and publicly available without breach of this
Agreement; (iii) is rightfully obtained by the Receiving Party from
a source other than the Disclosing Party without any obligation of
confidentiality to the disclosing party or its Affiliates; (iv) is
developed by or for the Receiving Party without use of the
Confidential Information and such independent development can be
shown by documentary evidence; (v) is transmitted by a party after
receiving written notification from the other party that it does not
desire to receive any further Confidential Information; (vi) is
disclosed by the Receiving Party pursuant to a valid order issued by
a court or government agency, provided that the Receiving Party
provides (a) prior written notice to the Disclosing Party of such
obligation and (b) the opportunity to oppose such disclosure. Upon
written demand by the Disclosing Party, the Receiving Party shall:
(i) cease using the Confidential Information, (ii) return or destroy
the Confidential Information and all copies, notes or extracts
thereof to the Disclosing Party within seven (7) days of receipt of
demand; provided that Customer shall be permitted to retain those
items of Confidential Information set forth in Section 15.7, and
(iii) upon request of the Disclosing Party, certify in writing that
the Receiving Party has complied
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with the obligations set forth in this paragraph.
12.3 The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or
acquire products without use of the other party's Confidential
Information. The Disclosing Party acknowledges that the Receiving
Party may currently, or in the future be developing information
internally, or receiving information from other parties, that is
similar to the Confidential Information. Accordingly, nothing in
this Agreement will be construed as a representation or agreement
that the Receiving Party will not develop or have developed for it
products, concepts, systems or techniques that are similar to or
compete with the products, concepts, systems or techniques
contemplated by or embodied in the Confidential Information provided
that the Receiving Party does not violate any of its obligations
under this Agreement in connection with such development. Further,
either party shall be free to use for any purpose the residuals
resulting from access to or work with such Confidential Information,
provided that such party shall maintain the confidentiality of the
Confidential Information as provided herein. The term "residuals"
means information in non-tangible form which may be retained by
persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein,
provided such Confidential Information is not expressly incorporated
in a tangible form provided by the Disclosing Party. Neither party
shall have any obligation to limit or restrict the assignment of
such persons or to pay royalties for any work resulting from the use
of residuals.
12.4 Each party shall retain all right, title and interest to such
party's Confidential Information. No license under any trademark,
patent or copyright, or application for same which are now or
thereafter may be obtained by such party is either granted or
implied by the conveying of Confidential Information. The Receiving
Party shall not reverse-engineer, decompile, or disassemble any
software disclosed to it and shall not remove, overprint or deface
any notice of copyright, trademark, logo, legend, or other notices
of ownership from any originals or copies of Confidential
Information it obtains from the Disclosing Party. WITHOUT PREJUDICE
TO THE EXPRESS WARRANTIES PROVIDED ELSEWHERE IN THIS AGREEMENT,
CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS. IN NO
EVENT, SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR
COMPLETENESS OF THE CONFIDENTIAL INFORMATION. None of the
Confidential Information disclosed by the parties constitutes any
representation, warranty, assurance, guarantee or inducement by
either party to the other with respect to the infringement of
trademarks, patents, copyrights, any right of privacy, or any rights
of third persons.
12.5 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; provided, however, that notwithstanding the provisions of
this Section 12, both parties agree that any disclosure of the terms
of this Agreement to lenders to the disclosing party which are bound
by confidentiality undertakings at least as protective as those
required by this Section 12, shall not constitute a violation of
this Section 12. In addition, either party may request consent,
which consent shall not be unreasonably withheld, from the other
party to disclose information related to this Agreement to any
securities or other regulatory authority or to holders or
prospective purchasers of the requesting parties' securities. Any
consent provided pursuant to the immediately preceding sentence to
disclose this Agreement to a securities or other regulatory
authority shall constitute consent to make such disclosure to the
same securities or other regulatory authority each time such
disclosure is required.
13.0 GENERAL INDEMNITY.
13.1 Each party shall defend, indemnify and hold harmless the other, its
corporate affiliates and their respective officers, directors,
employees, and agents and their respective
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successors and assigns from and against any and all claims, losses,
liabilities, damages, and expenses (including, without limitation,
reasonable attorneys' fees), including without limitation, those
based on contract or tort, arising out of or in connection with a
claim, suit or proceeding brought by a third party based upon bodily
injury (including death) or damage to tangible personal property
(not including lost or damaged data) arising from the negligent or
intentional acts or omissions of the indemnifying party or its
subcontractors, or the officers, directors, employees, agents,
successors and assigns of any of them. In the event that the
indemnified party's or a third party's negligent or intentional acts
or omissions contributed to cause the injury or damage for which a
claim of indemnity is being asserted against the indemnifying party
hereunder, the damages and expenses (including, without limitation,
reasonable attorneys' fees) shall be allocated or reallocated, as
the case may be, between the indemnified party, the indemnifying
party and any other party bearing responsibility in such proportion
as appropriately reflects the relative fault of such parties, or
their subcontractors, or the officers, directors, employees, agents,
successors and assigns of any of them, and the liability of the
indemnifying party shall be proportionately reduced.
13.2 The foregoing indemnification obligations are conditioned upon the
indemnified party, cooperating with, assisting and providing
information to, the indemnifying party as reasonably required, and
granting the indemnifying party the exclusive right to defend or
settle such claim, suit or proceeding. The indemnified party shall
promptly notify the indemnifying party in writing of the claim, suit
or proceeding for which the indemnifying party is obligated to
provide indemnification under this Section, provided that failure of
the indemnified party to provide timely notice hereunder shall not
affect rights of indemnification hereunder, except to the extent
that the indemnifying party is detrimentally prejudiced thereby. No
indemnifying party may enter into any settlement of a claim for
which it is providing indemnification hereunder to the extent that
it would have a material adverse effect on the indemnified party
without the prior written approval of the indemnified party, which
approval shall not be unreasonably withheld.
14.0 PATENT AND COPYRIGHT INFRINGEMENT.
14.1 Cisco will have the obligation and right to defend any claim, suit
or proceeding brought against Customer, so far as it is based on a
claim that any Product supplied hereunder, including any Product
supplied under any of the Exhibits or Appendices hereto, (a)
infringes a ******************************************************
******************************************************************
******************************************************************
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******************************************* and shall indemnify
Customer against final judgments entered in such a suit by a court
of competent jurisdiction or proceeding and against settlements
arising out of such a claim, suit, or proceeding. Cisco's
obligations specified in this paragraph will be conditioned on
Customer notifying Cisco promptly in writing of the claim or threat
thereof and giving Cisco full and exclusive authority for, and
information for and assistance with the defense and settlement
thereof, provided that failure of Customer to provide timely notice
hereunder shall not affect Customer's rights of indemnification
hereunder, except to the extent that Cisco is detrimentally
prejudiced thereby. Customer may participate in the defense of any
such claim, but may do so at its own expense and Cisco shall have
sole responsibility with respect to any such claim.
14.2 If such claim has occurred, or in Cisco's opinion is likely to
occur, Customer agrees to permit Cisco, at its option and expense,
either to: (a) procure for Customer 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
Customer's rights) under this Agreement with regard to such
Products, and, if Customer returns such Product to Cisco, refund to
Customer the price originally paid by Customer to Cisco for such
Product as depreciated or amortized by an equal annual amount over
the lifetime of the Products as established
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by Cisco.
14.3 Notwithstanding the foregoing, Cisco has no liability for, and
Customer will indemnify Cisco against, any claim to the extent that
it is based upon: (a) the combination, operation, or use of any
Product supplied hereunder with, equipment, devices, or software not
supplied by Cisco; (b) services offered or used by Customer through
operation of the Products or revenue received by Customer from its
services (this exclusion shall not limit Cisco's obligation under
Section 14.1 with respect to the Product itself); (c) alteration or
modification of any Product supplied hereunder; or (d) Cisco's
compliance with Customer's designs, specifications, or instructions.
14.4 Notwithstanding any other provisions hereof, Cisco shall not be
liable for any claim based on Customer's use of the Products as
shipped after Cisco has informed Customer 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.
14.5 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO AND ITS
SUPPLIERS WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS. THE
FOREGOING IS GIVEN TO CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU
OF, AND CISCO DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH
RESPECT TO THE PRODUCTS.
15.0 TERM AND TERMINATION.
15.1 This Agreement shall commence on the Effective Date and continue
thereafter for a period of two (2) years, unless extended by written
agreement of both parties or sooner terminated as set forth below
(the "Initial Term"). Without prejudice to either party's right to
terminate this Agreement as set forth in Sections 15.2 to 15.5
below, the parties may, by mutual written agreement, extend the term
of the Agreement for the period set forth in such agreement, 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.
15.2 Cisco may, upon twenty-(20) days written notice, terminate this
Agreement in the event Customer enters into a binding agreement for
acquisition or transfer of a 20% interest in Customer to a direct
competitor of Cisco.
15.3 This Agreement may be terminated immediately by either party through
written notice if the other party ceases to carry on business as a
going concern or becomes the object of the institution of voluntary
or involuntary proceedings in bankruptcy or liquidation, or a
receiver or similar officer is appointed with respect to a
substantial part of its assets.
15.4 Cisco may terminate this Agreement immediately if Customer
materially breaches a material provision of this Agreement and fails
to remedy such material breach within 30 days after written
notification by Cisco of such material breach. Notwithstanding the
foregoing, this Agreement may be terminated immediately by Cisco
without notice (a) in the event of Customer's (i) breach of Section
9, Proprietary Rights and Software Licensing, or (ii) intentional or
grossly negligent breach of Section 12, Confidential Information or
(b) if Exhibit T terminates.
15.5 Customer shall have the right to terminate this Agreement as
follows:
15.5.1 pursuant to the provisions of Section 25.2; or
15.5.2 if (a) Cisco withholds acceptance of any Purchase Order for
Products which Purchase Order meets Cisco's then-current published
(including posting on CCO) lead
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times, is for a valid configuration and is otherwise consistent with
the terms and conditions of this Agreement and (b) Customer, if
Customer placed the Purchase Order or, if an Affiliate placed the
Purchase Order, such Affiliate, is not then subject to a credit hold
by Cisco (an "Invalid Rejection") and Cisco fails to cure such
Invalid Rejection within 30 days after written notification by
Customer of such Invalid Rejection, which notice references this
Section 15.5.2. For purposes of this Section 15.5.2, Cisco shall be
permitted to place Customer or an Affiliate on credit hold if
Customer or the applicable Affiliate (a) fails to pay any sum
payable under this Agreement when due, unless such sum is disputed
in good faith by Customer, (b) ceases to carry on business as a
going concern or becomes the object of the institution of voluntary
or involuntary proceedings in bankruptcy or liquidation, or a
receiver or similar officer is appointed with respect to a
substantial part of its assets; or (c) fails to respond within 10
days to a written notice from Cisco or an affiliate of Cisco
inquiring about any other indicator of severe financial difficulty.
15.6 Upon termination of this Agreement, (a) Cisco reserves the right to
cease all further deliveries due against existing orders unless
Customer 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 26.8, Survival, all rights and licenses of
Customer hereunder shall terminate except that Customer may continue
to use, sell and distribute to End Users, in accordance with normal
business practices and the terms of this Agreement, Products shipped
to it by Cisco prior to the date of termination, or pursuant to (a)
above.
15.7 Additionally, upon termination of this Agreement Customer shall
immediately return to Cisco all Confidential Information and data
(including all copies thereof) then in Customer's possession or
custody or control including, without limitation:
15.7.1 All technical materials and business plans supplied by Cisco;
15.7.2 All manuals covering Products; and
15.7.3 Any customer or prospect lists provided by Cisco.
retaining only sufficient material to fulfill remaining orders, to
service and use, for the purposes contemplated by this Agreement,
the Products and Services purchased pursuant to this Agreement.
15.8 EACH PARTY AGREES IN THE EVENT OF TERMINATION OF THIS AGREEMENT FOR
ANY REASON, NEITHER PARTY SHALL HAVE ANY 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 THE OTHER
PARTY'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 REVENUES OR PROFITS,
EXPENDITURES FOR PROMOTION OF THE CISCO PRODUCTS, OR OTHER
COMMITMENTS IN CONNECTION WITH THE BUSINESS AND GOOD WILL OF SUCH
PARTY. EACH PARTY EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO
COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS
RELATIONSHIP. NOTHING IN THIS SECTION SHALL RELEASE EITHER PARTY
FROM ANY OBLIGATION WHICH SURVIVES TERMINATION OF THIS AGREEMENT
PURSUANT TO SECTION 26.8.
16.0 SUPPORT AND DOCUMENTATION.
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16.1 Support. Services shall be provided by Cisco as set forth in Exhibit
C. Upon the expiration of this Agreement, including any renewal
terms thereof, support Services shall be available at Cisco's
standard rates for such Services for the period for which Cisco is
obligated to provide support for Products, provided that Cisco shall
not be required to provide such support where this Agreement was
terminated due to breach of Sections 7.0, 9.0, 12.0, 18.0 of this
Agreement or Exhibit C hereto by Customer.
16.2 Documentation. Cisco shall, upon request, provide or make available
to Customer one copy (which may be in electronic form) of its
standard Product documentation free of charge, including user guide
and CD-ROM. Cisco hereby grants Customer a fully paid, non-exclusive
license to modify, use, incorporate and reproduce a reasonable
quantity of such documentation, provided that Cisco's or Customer's
copyright notice is included in all such copies, but only for the
purposes of supporting the Products for internal use and Network
Services and not for distribution to End Users. Customer shall be
solely responsible for the accuracy of all of its modifications.
16.3 Manuals. Cisco grants Customer the right to modify, use, incorporate
and reproduce Cisco's manuals as reasonably required in whole or in
part for use in connection with Products purchased under this
Agreement, provided that Cisco's or Customer's copyright notice is
included in all such copies. Customer shall be solely responsible
for the accuracy of all of its modifications.
17.0 RECORDS AND AUDIT.
17.1 If Customer resells any Products as permitted by this Agreement, on
a quarterly basis, Customer shall prepare and forward reports,
reasonably required by Cisco, including but not limited to a Point
of Installation (POI) report by country/by product/by quantity of
Customer's monthly sales and deployments with respect to such resale
Products, including all requested End User and Product information.
17.2 Customer shall keep full, true, and accurate records and accounts,
in accordance with generally-accepted accounting principles, of each
Product purchased and deployed or distributed, including information
regarding Software usage and export or transfer. If Customer
resells, exports or transfers any Products, Customer shall make
these records available for audit by Cisco upon fifteen (15) days
prior written notice, during regular business hours, at Customer`s
principal place of business. Any such audit by Cisco shall be
limited to determining to whom Products were sold, Software usage,
and any export or transfer of Products.
18.0 USE, EXPORT, RE-EXPORT, & TRANSFER CONTROLS.
Customer hereby acknowledges that the Products and technology or direct
products thereof ("Products and Technology"), supplied by Cisco under this
Agreement are subject to export controls under the laws and regulations of
the United States (U.S.). Customer shall comply with such laws and
regulations governing use, export, re-export, and transfer of Cisco
Products and Technology and will obtain all required U.S. and local
authorizations, permits, or licenses. Cisco and Customer 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. Customer agrees to maintain full, true, and accurate records of
exports, re-exports, and transfers of the Products and Technology,
purchased and deployed or distributed, according to U.S. and local laws
(minimum 5 years). Customer acknowledges that detailed information
regarding compliance with U.S. use, export, re-export, and transfer laws
may be found at:
xxxx://xxx.xxxxx.xxx/xxx/xxxxxx/xxxxxxxxxx_xxxxxxxxx.xxxx.
19.0 FORCE MAJEURE.
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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, actions of
governmental entities, 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.
Each party will use commercially reasonable efforts to notify the other of
a Force Majeure event including, in the case of notice by Cisco, by
electronic posting on CCO. If a Force Majeure event affecting Cisco's
ability to perform lasts more than an aggregate of 90 days during any
360-day period during the Initial Term, the Exclusivity Commitment set
forth in Exhibit T shall be suspended with respect to the Products
affected for the remainder of time and to the extent that such Force
Majeure event is affecting Cisco's ability to perform.
20.0 PRODUCT CHANGES AND CONTINUING SUPPORT.
20.1 Cisco may make modifications which do not affect compliance of a
Product with the terms of this Agreement, or which are necessary to
comply with health, environmental or safety standards or
governmental regulations or to make the Product non-infringing,
without prior notice to or consent of Customer and such altered
Product shall be deemed fully conforming. In cases other than those
set forth in the foregoing sentence where Cisco announces, including
by electronic posting, Product discontinuance or changes, Cisco
shall allow Customer to place a final purchase order for such
Products for a period of ninety (90) days from the date of
announcement, with delivery to occur within ************************
days from date of order.
20.2 Customer may propose modifications to Products to Cisco at any time.
Cisco may in its sole discretion accept or reject any proposed
modification. Unless expressly agreed in writing to the contrary,
Cisco shall own all intellectual property rights, including patent,
copyright and trade secret, to any proposed modification or the
implementation thereof which is based on, adapts, relies upon, is
made with reference to or uses any Confidential Information or
intellectual property rights of Cisco.
20.3 In the event that Cisco discontinues the availability of a Product,
Cisco shall:
20.3.1 with respect to Cisco's ONG 15800 optical Product, (a)
make available spare/replacement parts and/or repair Services
for the discontinued Hardware for five (5) years from the date
of announcement of the discontinuance; and (b) provide an
opportunity for Customer to purchase a one-time supply of
spare parts to support its reasonable, estimated requirements,
in each case subject to availability of component parts and
services from third party vendors necessary to provide such
spare parts and support; and
20.3.2 for all Products other than Cisco's 15800 optical
networking Product, if no Product with equivalent or better
functionality is available, use commercially reasonable
efforts to (a) make available spare/replacement parts and/or
repair Services for the discontinued Hardware for five (5)
years from the date of announcement of the discontinuance; and
(b) provide an opportunity for Customer to purchase a one-time
supply of spare parts to support its reasonable, estimated
requirements.
In addition, technical support for each revision of Cisco's standard
Software for a Product shall be available for three (3) years from
the date of first commercial shipment of such revision. Cisco agrees
that during the period for which Cisco is required to provide parts
and support pursuant to Section 20.3.2, Cisco will use reasonable
efforts to provide Customer advanced written notice of any pending
unavailability of component parts or services for the ONG 15800
optical Product from third party vendors. In addition, if Cisco
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is unable to provide the spare parts and/or support required by
Section 20.3.1 above as a result of unavailability of component
parts or services from third party vendors, Cisco will use
commercially reasonable efforts to locate a reasonable alternative
for such third party components and/or services.
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21.0 COMPLIANCE WITH LAWS.
21.1 Cisco shall comply with all standards that Cisco has placarded on
the Products and shall comply with all laws and regulations
applicable at the site of manufacture to the manufacture of the
Products, not including non-mandatory standards body
recommendations. Cisco shall not be responsible for noncompliance
with laws arising out of combination, operation or use of the
Products with Products not supplied by Cisco where use of the
Products without such combination, operation or use would be in
compliance with such laws. In the event of any third party claim
against Customer relating to the foregoing, Cisco shall provide
reasonable information and assistance in the resolution of the
claim. Cisco shall comply with all Customer's reasonable internal
security rules and procedures; however, Cisco and Cisco's personnel
or agents shall not be required to sign individual agreements with
Customer or waive any personal rights regarding same.
21.2 Except as set forth in Section 21.1 above, Customer 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
telecommunications and other laws and regulations of any government
or other competent authority where the products are to be sold or
deployed (collectively, "Applicable Laws"). Customer 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.
22.0 LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF EACH PARTY AND ITS
SUPPLIERS FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE SHALL BE
LIMITED TO THE GREATER OF THE MONEY PAID TO CISCO UNDER THIS AGREEMENT
DURING THE ******************** PRECEDING THE EVENT OR CIRCUMSTANCE GIVING
RISE TO SUCH LIABILITY OR ***********. THIS LIMITATION OF LIABILITY SHALL
NOT APPLY TO (A) LIABILITY ARISING OUT OF CUSTOMER'S BREACH OF SECTION 9.0
OR EXHIBIT S, (B) AMOUNTS DUE FOR PRODUCTS AND SERVICES PURCHASED OR
SOFTWARE USED OR TRANSFERRED WITH RESPECT TO THE PAYMENT OF WHICH NO BONA
FIDE DISPUTE EXISTS, (C) AMOUNTS DUE UNDER EXHIBIT T OR (D) AMOUNTS PAID
OR PAYABLE BY CISCO PURSUANT TO ITS OBLIGATIONS UNDER SECTION 14.0. THIS
LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
23.0 WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES.
IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST
REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY
HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANYTHING
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ELSE TO THE CONTRARY SET FORTH HEREIN, NONE OF THE FOLLOWING SHALL BE
CONSIDERED CONSEQUENTIAL DAMAGES FOR PURPOSES OF THIS SECTION 23.0: (A)
LIABILITY ARISING OUT OF CUSTOMER'S BREACH OF SECTION 9.0 OR EXHIBIT S,
(B) AMOUNTS DUE FOR PRODUCTS AND SERVICES PURCHASED OR SOFTWARE USED OR
TRANSFERRED WITH RESPECT TO THE PAYMENT OF WHICH NO BONA FIDE DISPUTE
EXISTS, (C) AMOUNTS DUE UNDER EXHIBIT T OR (D) AMOUNTS PAID OR PAYABLE BY
CISCO PURSUANT TO ITS OBLIGATIONS UNDER SECTION 14.0.
24.0 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 or electronic mail (in the case of Cisco to
"xxxxxxxx-xxxxxx@xxxxx.xxx", and in the case of Customer to
xxxxx.xxxxxxxxx@xxxxxxxx.xxx) (provided that the original document is
placed in air mail/air courier or delivered personally, within seven days
of the facsimile electronic notice); (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 2-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.
25.0 PERFORMANCE FAILURES
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26.0 GENERAL.
26.1 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 conflicts of law, and the State and federal courts of California
shall have jurisdiction
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over any claim arising hereunder. The parties specifically disclaim
the UN Convention on Contracts for the International Sale of Goods.
Notwithstanding the foregoing, either party may seek interim
injunctive relief in any court of appropriate jurisdiction with
respect to any alleged breach of such party's proprietary rights.
26.2 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.
26.3 ASSIGNMENT. Neither party may assign its rights or obligations or
delegate its duties under this Agreement (other than the right to
receive any amount due, which shall be freely assignable) except to
a majority-owned parent or subsidiary company without the prior
written consent of the other. Either party may withhold consent to
assignment to a third party which the party reasonably believes is
or is likely to be a competitor, for any reason or no reason, and
any such assignment shall not relieve the assigning entity of any
obligation to pay monies which were owed prior to the date of the
assignment.
26.4 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.
26.5 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 or proceeding, including costs, fees and expenses upon appeal,
separately from and in addition to any other amount included in such
judgement. This provision is intended to be severable from the other
provisions of this Agreement, and shall survive and not be merged
into any such judgement.
26.6 NO AGENCY. This Agreement does not create any agency, partnership,
joint venture, or franchise relationship. No employee of either
party shall be or become, or shall be deemed to be or become, an
employee of the other party by virtue of the existence or
implementation of this Agreement. Each party hereto is an
independent contractor. 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.
26.7 URL. Customer hereby confirms that it has the ability to access the
information made available by Cisco at CCO and the world wide web
sites/URLs/addresses/pages referred to in Section 18.0 or Exhibit S
of this Agreement. Any terms and conditions found on such
websites/URLs/addresses/pages shall apply to this Agreement only to
the extent they are not inconsistent with any of the express terms
and conditions of this Agreement. Customer acknowledges that Cisco
may modify any URL address or terminate the availability of any
information at any address without notice to Customer.
26.8 SURVIVAL. Sections 10, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23,
24, 26, the license to use the Software set out in Section 9 and
Exhibit S (subject to the termination provisions set forth in
Exhibit S) and Exhibit B-1 shall survive the termination of this
Agreement.
26.9 HEADINGS. Headings of sections have been added only for convenience
and shall not be deemed part of this agreement.
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EXHIBIT A
CUSTOMER TERRITORY
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United States
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B-1
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EXHIBIT C
PROVISIONED NETWORK SUPPORT PROGRAM ("Support Agreement")
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1.0 DEFINITIONS
a) "Application Software" means non-resident/stand alone Software
products which include Cisco's network management Software, security
Software and internet appliance Software. Maintenance for such
Product is available on a per Product basis.
b) "CCO" means Cisco Connection Online, Cisco's suite of online
services and information.
c) "Depot Time" means Central European Time for parts shipping into
Europe, Australia's Eastern Standard Time for parts shipping into
Australia, and Pacific Standard Time for parts shipping into all
other locations.
d) "Equipment Schedule" means the list of Product covered under this
Support Agreement.
e) "Maintenance Release" means an incremental release of Cisco Software
that provides maintenance fixes and may provide additional Software
features. Maintenance releases are designated by Cisco as a change
in the digit(s) to the right of the tenths digit of the Software
version number [x.x.(x)].
f) "Major Release" means a release of Cisco Software that provides
additional Software features and/or functions. Major Releases are
designated by Cisco as a change in the ones digit of the Software
version number [(x).x.x].
g) "Minor Release" means an incremental release of Cisco Software that
provides maintenance fixes and additional Software features. Minor
releases are designated by Cisco as a change in the tenths digit(s)
of the Software version number [x.(x.).x].
h) "Optical Networking Group (ONG)" means Products with optical
solutions comprising Internet scale, carrier class switch/routers,
transport platforms and extenders, and wavelength routers capable of
supporting optical networking applications with reliability,
availability, and serviceability.
i) "RMA" means Return Material Authorization, which is further
described in Section 2e of SP Base Appendix.
j) "Service" means all services provided by Cisco under this Support
Agreement.
k) "Standard Business Hours" means 6:00 AM to 6:00 PM Monday through
Friday, excluding Cisco-observed holidays, in the U.S. and Canada
and outside the U.S. and Canada, means 8:00 AM to 5:00 PM
Australia's Eastern Standard Time and Central European Time, Monday
through Friday, excluding local Cisco-observed holidays.
l) "Update" means Maintenance Releases, Minor Releases and/or Major
Releases that contain the same configuration as originally acquired.
2.0 SERVICE RESPONSIBILITIES OF THE PARTIES
According to the support selected and in consideration of the applicable
service fees paid by Customer, Cisco shall provide the support services as
set forth in the base support program ("SP Base") and the support options
selected under Appendices A-2 to A-7. Customer shall pay applicable fees
for SP Base and any support options selected and shall comply with the
respective support obligations identified thereunder. The Appendices
supplement the Support Agreement, and all the terms and conditions of
Support Agreement apply to the Appendices; provided, that to the extent
that there is a conflict between Support Agreement and the Appendices, the
terms of this Appendices shall take precedence over the terms and
conditions of the Support Agreement with regards to the subject matter
described therein.
3.0 SERVICES NOT COVERED UNDER THIS SUPPORT AGREEMENT
a) Any customization or installation of Software (including
installation of Updates).
b) Support or replacement of Product that is altered, modified,
mishandled, destroyed or damaged by natural causes or damaged due to
a negligent or willful act or omission by Customer or use by
Customer other than as specified in the applicable Cisco-supplied
Documentation.
c) Any Hardware, or third party hardware or software, upgrade required
to run new or updated Software.
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d) Import and/or customs duties, taxes and fees.
e) Electrical or site work external to the Products.
f) Services to resolve software or hardware problems resulting from
third party product or causes beyond Cisco's control, or Customer's
failure to perform its responsibilities under this Support
Agreement.
g) Any non-IOS(TM)Software Updates including for Application Software,
unless stated otherwise.
h) Services for non Cisco Software installed on any Hardware.
i) Furnishing of supplies, accessories or the replacement of expendable
parts (e.g., cables, blower assemblies, power cords, rack mounting
kits).
j) Any expenses incurred to visit Customer's location, except as
required during escalation of problems by Cisco.
k) Additional Services are provided at the then-current time and
materials rates.
l) Major, minor, and maintenance releases of Microsoft(R) software
platforms. Customers should contact their Microsoft(R) software
vendor directly to obtain information on acquiring releases and/or
bug fixes related to Microsoft(R) software platforms.
4.0 SERVICE FEES AND PAYMENT TERMS
a) Pricing for Services provided under this Support Agreement shall be
as set forth in Exhibit C-2, except that in the case of Professional
Services provided under this Support Agreement the pricing of such
Professional Services shall be at Cisco's then current list price at
the time the Statement of Work is executed by both Cisco and the
Customer, or as specified in the Statement of Work. 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 Support Agreement (other than taxes based on the net
income of Cisco). Any taxes related to Services purchased or
licensed pursuant to this Support Agreement shall be paid by
Customer or Customer 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.
b) Upon and subject to credit approval by Cisco, payment terms shall be
net thirty (30) days from invoice date. Unless otherwise specified,
all Services shall be invoiced annually in advance. Professional
Services shall be invoiced as set forth in the Statement of Work.
All payments shall be made in U.S. currency. If at any time Customer
is delinquent in the payment of any invoice or is otherwise in
breach of this Support Agreement, Cisco may, in its discretion, and
without prejudice to its other rights, withhold entitlement to any
Services. Any sum not paid by Customer when due shall bear interest
until paid at an annual rate equal to the Prime Rate plus 2% per
annum or the maximum rate permitted by law, whichever is less.
5.0 SOFTWARE LICENSE
a) Customer acknowledges that it may receive Software as a result of
Services provided under this Support Agreement. Customer agrees that
it is licensed to use such Software only on Hardware covered under
this Support Agreement (except as otherwise authorized in the
Software documentation) and subject to the terms and conditions of
the Software license contained in the Agreement. Customer shall not:
(i) copy, in whole or in part, Software or documentation, except
that Customer may make one copy of the Software for archival
purposes; provided that Customer affixes to such copy all copyright,
confidentiality and proprietary notices that appear on the original;
(ii) modify the Software, reverse compile or reverse assemble all or
any portion of the Software; or (iii) rent, lease, distribute, sell,
or create derivative works of the Software. Software will be
delivered electronically via a download from Cisco's CCO web site
unless otherwise specified by Cisco.
b) When Customer upgrades Software to a new release, it shall not be
permitted to continue to use a previous release and the new release
concurrently, e.g., only one licensed copy of the Software may be
used at a time, except for a limited amount of time for parallel
testing, but under no circumstances may more than one release be in
production at any one time.
6.0 ENTITLEMENT
Customer acknowledges that it is only entitled to receive Services on
Product for which it has paid a separate support fee. Cisco reserves the
right, upon reasonable advance notice, to perform an audit of Customer's
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Products and records to validate such entitlement and to charge for
support if Cisco determines that unauthorized support is being provided ,
as well as interest penalties at the highest rate permitted by law, and
applicable fees including, without limitation, attorneys' fees and audit
fees.
7.0 LIMITATION OF LIABILITY
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8.0 SECURITY
Cisco agrees to comply with all Customer's reasonable internal security
rules and procedures; however, Cisco's personnel or agents shall not be
required to sign individual agreements with Customer or waive any personal
rights.
9.0 THIRD PARTY MAINTENANCE PROVIDERS
Cisco reserves the right to subcontract services to a third party
maintenance organization to provide Services to Customer.
10.0 CONFLICT OF TERMS
To the extent that there is a conflict between this Support Agreement and
the Agreement, the terms of this Support Agreement shall take precedence
over the terms and conditions of the Agreement with regards to the subject
matter described herein.
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APPENDIX A
SP BASE SUPPORT
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1.0 SERVICE RESPONSIBILITIES OF CISCO
In consideration for the service fee, Cisco shall provide the following
services:
a) SP Base Support. SP base support is available for all Products, and
includes:
i) CCO Access. Cisco will provide registered user access to CCO.
ii) Technical Support.
(1) Assisting the Customer by telephone, facsimile, or
electronic mail (for information related to
Product use, configuration and troubleshooting).
(2) Providing 24 hours per day, 7 days per week access
to Cisco's Customer Technical Assistance Center
(TAC). Cisco will respond to the Customer within
thirty (30) minutes for Priority 1 and Priority 2
calls and within one (1) hour for Priority 3 and
Priority 4 calls received during Standard Business
Hours. For Priority 1 and 2 calls received outside
Standard Business Hours, Cisco will respond within
one (1) hour and for Priority 3 and 4 calls
received outside Standard Business Hours, Cisco
will respond no later than the next business day.
(3) Generating work-around solutions to reported
Software problems or implement a patch to the
Software using reasonable commercial efforts. For
a Software patch, unless otherwise stated in this
Appendix, Cisco will provide a Maintenance Release
to the Customer for the Software experiencing the
problem or provide a Software image, as Customer
and Cisco agree.
(4) Managing the Problem Prioritization and Escalation
Guideline described in Appendix B.
iii) Software Support.
(1) Providing Updates (exclusive of ONG Products), if
available, via CCO and/or upon request. Software
support of ONG Products under SP Base is limited
to Minor and Maintenance Releases. Major Releases
of ONG Software are available at Cisco's then
current list price under this Agreement.
(2) Providing supporting documentation, if available,
via CCO, and upon request, one (1) paper copy of
supporting documentation for each Update provided
hereunder. Additional copies of supporting
documentation may be purchased.
(3) Cisco, in meeting any support obligations, may
require Customer to upgrade to a supported
release.
2.0 SERVICE RESPONSIBILITIES OF CUSTOMER
Customer will meet the obligations below and in any applicable appendices.
a) Customer will request Product to be covered by submitting a
Equipment Schedule as described in Appendix C.
b) Customer will provide a priority level as described in Appendix B
for all calls placed with Cisco.
c) Customer shall provide, at no charge to Cisco, reasonable electronic
access to Customer's network or the Software, as applicable, through
the Internet or via modem, as determined by Cisco to be required in
accordance with Cisco's remote access procedures in order to
establish a data communication link between Customer and Cisco, such
that problems may be diagnosed and corrected remotely. Customer also
agrees to make available to Cisco current system passwords as
necessary to provide such remote diagnosis and support.
d) Customer agrees to use the latest Update and latest third party
software release if required to correct a reported Software problem.
e) Returns Coordination. Customer will comply with the following
procedure for all failed Hardware returned by Customer:
i) Coordinate the return of all failed Product, freight and
insurance prepaid by Customer, to the Cisco designated repair
center.
ii) Customer shall comply with Cisco's RMA procedure:
(1) Customer will ensure all Products are properly packaged
prior to being shipped, and will include a description
of the failure and written specification of any changes
or alterations made to the Product. Product returned to
Cisco will conform in quantity and serial number to the
RMA request.
(2) Customer shall tag each Product returned with the RMA
transaction number and a brief description of the
problem.
(3) Cisco will not accept any Product returned which is not
accompanied by an RMA number.
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f) Customer shall test all repaired or replacement Product received to
determine if any damage occurred in transit. Products damage and/or
misshipments must be reported to Cisco within ten (10) business days
of receipt.
g) Customer agrees to pay all travel and out-of-pocket expenses if
Cisco is requested by Customer to perform on-site services or
services outside the scope of this Appendix. Engineering time will
be billed at the then-current applicable time and materials rates.
Cisco reserves the right to charge for travel time.
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APPENDIX A-2
SERVICE OPTIONS - HARDWARE REPLACEMENT
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1.0 ADDITIONAL DEFINITIONS
a) "Advance Replacement" means a process to ship replacement Product
components in advance of receipt of failed/defective Product
components.
b) "Four-Hour Response" means the four (4) hour time period commencing
upon Cisco's problem diagnosis and determination that a replacement
part is required and ending when such replacement part is delivered
onsite.
c) "Two-Hour Response" means the two (2) hour time period commencing
upon Cisco's problem diagnosis and determination that a replacement
part is required and ending when such replacement part is delivered
onsite
2.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CISCO UNDER THIS APPENDIX HARDWARE
REPLACEMENT SERVICE.
In addition to SP Base Support, Cisco shall provide the following Hardware
replacement options. Where available, and as selected by Customer, Cisco
will provide the following Hardware support services. Replacement Hardware
will be either new or equivalent to new at Cisco's discretion.
a) Hardware Return for Replacement. Cisco will provide Return for
Replacement service whereby Customer returns failed Hardware to
Cisco for replacement. Cisco will use commercially reasonable
efforts to replace Hardware within ten (10) business days after
receipt from Customer.
b) Advance Replacement Service. Except for Next Business Day ("NBD") or
Same Day Shipment ("SDS"), availability of the Four-Hour Response
services is restricted to within one hundred (100) miles of a parts
depot and availability of the Two-Hour Response service is
restricted to within twenty-five (25) miles of a parts depot. These
services are available for CPE Product at additional cost. Hardware
will be shipped using Cisco's preferred carrier, freight prepaid by
Cisco, excluding import duties, taxes and fees.
(i) NBD/SDS Advance Replacement is shipped the same business day
provided the request for shipment is made prior to 3:00 PM,
Depot Time, excluding Cisco holidays. For requests after 3:00
PM Depot Time, the Advance Replacement will be shipped the
following business day. Where available (within the United
States, Canada, European Community, Norway, Switzerland, and
Australia), Cisco will ship the Hardware for delivery on the
next business day. In all other locations, Hardware arrival
times are subject to destination country importation and
customs processes.
(ii) 8x5x4 Advance Replacement service provides Hardware delivered
onsite from 9:00 a.m. to 5:00 p.m., Depot Time, Monday through
Friday (excluding Cisco-observed holidays).
Cisco will use commercially reasonable efforts to
provide Four-Hour Response the same business day if failed
Hardware is reported to the TAC before 1:00 p.m., Depot Time.
For calls placed after 1:00 p.m., Cisco will deliver the
Hardware part the next business day.
(iii) 24x7x4 Advance Replacement service provides Hardware delivered
onsite twenty-four (24) hours per day, seven (7) days per
week, including Cisco-observed holidays.
Cisco will use commercially reasonable efforts to
provide Four-Hour Response for onsite delivery of the
replacement part.
(iv) 24x7x2 Advance Replacement service provides Hardware delivered
onsite twenty-four (24) hours per day, seven (7) days per
week, including Cisco-observed holidays.
Cisco will use commercially reasonable efforts to provide
Two-Hour Response for onsite delivery of the replacement part.
3.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CUSTOMER UNDER THIS
APPENDIX
a) Customer will provide sixty (60) days Notice to Cisco of any
requested addition(s) to the Equipment Schedule.
b) Customer will notify Cisco of Product on the Equipment Schedule
which Customer has moved to a new location. Customer agrees to make
such notification within thirty (30) days of Product relocation.
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APPENDIX A-3
SERVICE OPTIONS - ONSITE SUPPORT
--------------------------------------------------------------------------------
1.0 ADDITIONAL DEFINITIONS
a) "Four-Hour Response" means the four (4) hour time period commencing
upon Cisco's determination that a replacement part is required and
ending when such replacement part is delivered and/or service
personnel arrives onsite.
b) "Remedial Hardware Maintenance" means diagnosis and replacement of
Hardware or Product components.
c) "Two-Hour Response" means the two (2) hour time period commencing
upon Cisco's problem diagnosis and determination that a replacement
part is required and ending when such replacement part is delivered
and/or personnel arrives onsite
2.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CISCO UNDER THIS APPENDIX ONSITE
SUPPORT.
In addition to SP Base Support, where available, Cisco shall provide the
following Onsite Remedial Hardware Maintenance options. Availability of
Onsite Four-Hour Response support is restricted to within fifty (50) miles
(in the U.S.) or seventy-five (75) kilometers (outside the U.S.) of an
authorized service location. Availability of Onsite Two-Hour Response
support is restricted to within twenty-five (25) miles of an authorized
service location. Hardware will be either new or equivalent to new at
Cisco's discretion. In addition, for Cisco's optical networking Products,
availability of the following service options may be further restricted.
a) All onsite support services include the following basic services:
(i) All parts, labor, and material required for Hardware support,
(ii) Escalation of Customer-defined critical problems, according to
the Cisco Problem Prioritization and Escalation Guideline; and
(iii) Installation of all mandatory engineering modifications.
b) Level 1 onsite support provides, in addition to the basic services:
(i) Onsite Hardware support from 9:00 AM to 5:00 PM local time
Monday through Friday excluding Cisco-observed holidays; and
(ii) Next-business-day service by 10:00 A.M. local time for onsite
Hardware support requests, provided the call was placed before
3:00 P.M. Depot Time the prior day (second business day for
calls placed after 3:00 P.M. Pacific Time).
c) Level 2 onsite support provides, in addition to the basic services:
(i) Onsite Hardware support 9:00 AM to 5:00 PM local time Monday
through Friday excluding Cisco-observed holidays; and
(ii) Cisco will use commercially reasonable efforts to provide
Four-Hour Response for onsite Hardware support requests.
d) Level 3 onsite support provides, in addition to the basic services:
(i) Onsite Hardware support twenty-four (24) hours per day, seven
(7) days per week, including Cisco-observed holidays; and
(ii) Cisco will use commercially reasonable efforts to provide
Four-Hour Response for onsite Hardware support requests.
e) Level 4 onsite support provides, in addition to the basic services:
(i) Onsite Hardware support twenty-four (24) hours per day, seven
(7) days per week, including Cisco-observed holidays; and
(ii) Cisco will use commercially reasonable efforts to provide
Two-Hour Response for onsite Hardware support requests.
3.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CUSTOMER UNDER THIS APPENDIX
a) Customer will provide sixty (60) days Notice to Cisco of any
requested addition(s) to the Equipment List.
b) Customer agrees to be responsible for any import and/or customs
duties, taxes and fees.
c) Customer agrees to notify Cisco, using CCO, of Product on the
Equipment List, which Customer has
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moved to a new location. Customer agrees to make such notification
within thirty (30) days of Product relocation.
d) Customer agrees to provide an appropriate work environment and
reasonable access, working space including heat, light, ventilation,
electric current and outlets, and local telephone extension (or toll
free domestic and international access to Cisco) for the use of
service personnel in the Product's physical location.
e) Customer agrees to back up Software images and configurations on a
regularly scheduled basis and to provide such images and
configurations to on-site personnel in connection with Remedial
Hardware Maintenance activities.
f) Customer agrees to provide Telnet File Transfer Protocol ("TFTP")
capabilities or internet access for the purpose of downloading
Software images by on-site personnel as necessary.
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APPENDIX A-4
SERVICE OPTIONS - CPE SUPPORT
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1.0 ADDITIONAL DEFINITIONS.
a) "CPE" means low end local area network (LAN) or low end wide area
network (WAN) products installed at Customer's end user premises or
high end LAN/WAN products installed at Customer's end user premises
as specified under Categories C and D in the current Cisco Product
price list.
b) "Level 1 Support" means having the necessary technical staff with
the appropriate skills to perform installations, remedial hardware
maintenance and basic hardware and software configurations on Cisco
products. Xxxxx 0 issues will be escalated internally before
requesting additional support from Cisco.
c) "Level 2 Support" means having the necessary technical staff with
the appropriate skills to perform isolation, replication and
diagnosis of internetworking based problems on Cisco equipment.
Customer shall not report software bugs to Cisco prior to attempting
to identify the source of such bugs and testing in Customer's
network where appropriate. If the Customer cannot duplicate the bug
in Customer's network, Customer and Cisco will cooperate in
attempting to replicate and resolve related software bugs in either
Customer's or Cisco's test facility as mutually agreed. In all cases
Customer will address software bugs on a best effort basis to
replicate same in Customer's network and document activity to Cisco
before seeking further resolution with Cisco's participation.
d) "Level 3 Support" means fixing or generating workarounds for Product
bugs and troubleshooting bugs that were diagnosed but not resolved
during Customer's Level 1 or Level 2 support.
2.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CISCO UNDER THIS APPENDIX HARDWARE
SUPPORT FOR CPE's
In addition to SP Base Support, Cisco shall provide the following Hardware
replacement option for CPE. Replacement Hardware will be either new or
equivalent to new at Cisco's discretion.
a) Assisting the Customer by providing Level 3 Support by telephone,
facsimile, or electronic mail (for information related to CPE
product use, configuration and troubleshooting).
b) Customer may return failed hardware to Cisco for replacement.
c) Cisco will use commercial reasonable efforts to replace the hardware
within ten (10) business days after receipt of failed Hardware from
the Customer. Cisco will ship replacement parts to the Customer's
facility. This support service is included in the CPE fee for three
years. Additional hardware replacement options are available at
additional cost.
3.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CUSTOMER UNDER THIS APPENDIX
a) Customer will manage all CPE support-related calls and address all
Level 1 and Level 2 calls prior to calling into the TAC.
b) Customer is responsible for shipment of replacement parts, provided
by Cisco, to its customer's premises.
c) Returns Coordination. Customer shall comply with procedure described
in Appendix A, SP Base Support for all failed Hardware returned by
Customer.
d) Customer will provide sixty (60) days Notice to Cisco of any
requested addition(s) to the Equipment Schedule.
e) Customer will notify Cisco, of Product on the Equipment Schedule
which Customer has moved to a new location. Customer agrees to make
such notification within thirty (30) days of Product relocation.
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APPENDIX A-5
SERVICE OPTIONS - SOFTWARE APPLICATION SERVICE
--------------------------------------------------------------------------------
1.0 ADDITIONAL DEFINITIONS
1.1 "ICSG Software" means the Software made available by Cisco's
Internet Communications Software Group ("ICSG") and includes but is
not limited to the Software in the following product lines: Cisco
NAM software, Cisco ICM software, Cisco Customer Interaction Suite
software, Cisco uOne software and other Software which Cisco
designates as ICSG Software.
1.2 "Third Party Products" means third party hardware and software, and
all upgrades thereto, that are designated by Cisco as required for
(i) the operation of Software in conformance with Cisco's applicable
Software documentation, and (ii) Cisco's support of the Software in
accordance with this Appendix.
2.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CISCO UNDER THIS APPENDIX SOFTWARE
APPLICATION SERVICE
This Appendix is intended to supplement a current maintenance agreement
(SP Base) for Software. Where available and upon selection, Cisco will
provide the following for Applications Software supported under this
Appendix as follows:
2.1 Software Application Support includes:
2.1.1 Assist the Customer by telephone, facsimile, or electronic
mail (for information related to Software use, configuration
and troubleshooting).
2.1.2 Provide 24 hours per day, 7 days per week access to Cisco's
Technical Assistance Center (TAC). Cisco will respond to the
Customer within one (1) hour for all calls received during
Standard Business Hours and for Priority 1 and 2 calls
received outside Standard Business Hours. For Priority 3 and 4
calls received outside Standard Business Hours, Cisco will
respond no later than the next business day.
2.1.3 Manage the Problem Prioritization and Escalation Guideline
described in Appendix B.
2.1.4 Generate work-around solutions to reported Software problems
using reasonable commercial efforts or implement a patch to
the Software. For a Software patch, Cisco will provide a
Maintenance Release to the Customer for the Software
experiencing the problem, as follows: (a) via download from
CCO (as available), and/or (b) shipment of Software media via
express transportation (freight and insurance charges
included). Requests for alternate carriers will be at
Customer's expense.
2.1.5 Support any release of Software (except ICSG Software) for a
period of thirty-six (36) months from the date of first
commercial shipment of that release, meaning that for that
time period, errors in that release will be corrected either
by means of a patch or correction to that release, or in a
subsequent release. Support the most current Major Release and
the immediately preceding Major Release of ICSG Software, and
all Minor Releases released subsequent thereto, meaning that
errors in such releases will be corrected either by means of a
patch or correction to such releases, or in a subsequent
release. Notwithstanding the foregoing, in the event that
Cisco no longer makes an ICSG Software program commercially
available for sale to its customers, then Cisco shall provide
Support for the last Major Release and the immediately
preceding Major Release for two (2) years following the date
Cisco withdraws such ICSG Software from commercial
availability.
2.1.6 Provide access to CCO. This system provides the Customer with
technical and general information on Cisco Software and access
to Cisco's on-line Software library.
2.1.7 Provide, upon request, supporting documentation as follows:
(a) on CD-ROM; or (b) one paper copy for each Maintenance
Release for Software supported hereunder. Additional copies of
supporting documentation may be purchased at Cisco's
then-current list price.
2.2 Software Application Support Plus Updates:
In consideration of the fee paid by the Customer for Software
Application Support Plus Updates, the following Services shall be
provided in accordance with the provisions of this Appendix. Except
with respect to ICSG Software, the fee for Software Application
Support Plus Updates shall be in addition to the fee for Software
Application Support. With respect to ICSG Software, the fee for
Software Application Support Plus Updates includes the Services
described in Section 2.1 for Software Application
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Support.
2.2.1 Provide Updates for Software supported under this Appendix, as
follows: (a) via download from CCO (as available), and/or (b)
shipment of Software media to Customer via express
transportation (freight and insurance charges included).
Requests for alternate carriers will be at Customer's expense.
2.2.2 Provide supporting documentation with each Update as follows:
(a) on CD-ROM; or (b) one paper copy, which shall be included
in each shipment to Customer. Additional copies of supporting
documentation may be purchased at Cisco's then-current list
price.
3.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CUSTOMER UNDER THIS APPENDIX
3.1 Customer will provide current Major Release shipment contact
information (as necessary), as follows; contact name, title,
address, email address, or FAX number.
3.2 For ICSG Software, in addition to the other responsibilities in this
Appendix, Customer:
o shall designate at least one (1), but not more than three (3), technical
representative(s) at Customer's centralized ICSG Software site, who have
attended appropriate ICSG Software courses at Cisco, to act as the primary
technical interface to the TAC;
o is responsible for all reasonable efforts to verify the existence of an
ICSG Software problem prior to requesting support from the TAC;
o shall be responsible for acquiring, installing, configuring and providing
technical support for all (i) Third Party Products, including upgrades
thereto required by Cisco or the supplier of Third Party Products or
services related thereto, and (ii) network infrastructure, including but
not limited to local and wide area data networks and Customer premise
equipment required by Cisco for operation of the ICSG Software. Customer
shall obtain authorization from Cisco prior to making any software,
hardware or network configuration changes relative to the ICSG Software;
and
o acknowledges that certain ICSG Software requires that Customer must
maintain its entire ICSG Software implementation currently in use under
Software Application Services in order for Cisco to provide Software
Application Services for any portion of such ICSG Software implementation.
4.0 ADDITIONAL SERVICES NOT COVERED UNDER THIS APPENDIX
4.1 With respect to ICSG Software, Software Application Support (as
described in Section 2.1 of this Appendix) is provided only as part
of Software Application Support Plus Updates (as described in
Section 2.2). Software Application Support may not be purchased.
4.2 Support of Deliverables.
4.3 Support of Third Party Products.
4.4 Hardware repair and replacements.
5.0 FEES
5.1 Notwithstanding anything to the contrary, Services fees for ICSG
Software are non-discountable.
5.2 Services fees for ICSG Software shall be invoiced annually in
advance.
5.3 Certain Software for which support has lapsed may be subject to
Cisco's prevailing reinstatement fees.
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APPENDIX A-6
SERVICE OPTIONS - SERVICE PROVIDER-ADVANCED CONSULTING SERVICES ("SP-ACS")
--------------------------------------------------------------------------------
1.0 ADDITIONAL DEFINITIONS
a) "CCIE" means Cisco Certified Internetworking Expert.
b) "Designated Engineer" means, a designated SP-ACS engineer acting as
the primary interface with Customer for its internal network.
c) "Level 1 Support" means having the necessary technical staff with
the appropriate skills to perform installations, remedial hardware
maintenance and basic hardware and software configurations on Cisco
products. Xxxxx 0 issues will be escalated internally before
requesting additional support from Cisco.
d) "Level 2 Support" means having the necessary technical staff with
the appropriate skills to perform isolation, replication and
diagnosis of internetworking based problems on Cisco equipment.
Customer shall not report software bugs to Cisco prior to attempting
to identify the source of such bugs and testing in Customer's
network where appropriate. If the Customer cannot duplicate the bug
in Customer's network, Customer and Cisco will cooperate in
attempting to replicate and resolve related software bugs in either
Customer's or Cisco's test facility as mutually agreed. In all cases
Customer will address software bugs on a best effort basis to
replicate same in Customer's network and document activity to Cisco
before seeking further resolution with Cisco's participation.
e) "Monitoring Tools" means Hardware or Software tools that provide the
Designated Engineer proactive troubleshooting capabilities.
f) "Network Audits" means SP-ACS reports based on network node activity
collected by Monitoring Tools.
g) "Network Reports" means reports produced manually or otherwise as a
result of the use of Monitoring Tools and include but are not
limited to data regarding network performance and availability.
h) "NSA Reports" means Network Audits and Network Reports.
2.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CISCO UNDER THIS APPENDIX.
This Appendix is intended to supplement a current maintenance agreement
(SP Base) for Cisco products and is only available where all Product(s) in
Customer's network is supported under such agreement with Cisco. Upon
selection, a Customer-Advanced Consulting Services ("SP-ACS") engineer is
available for support of multiprotocol networks. Cisco will:
a) Designate a SP-ACS Engineer ("Designated Engineer") to act as the
primary interface with Customer for its internal network.
b) Schedule with Customer, as mutually agreed, quarterly visits to
Customer's site to review Customer's network and operations. Cisco
will also review with Customer all procedures for placing support
calls under this Addendum. Additional visits will be upon mutual
agreement at Cisco's then-current travel and labor rates.
c) Periodically monitor Cisco's bug list and alert Customer to relevant
and severe known bugs that may impact Customer using commercially
reasonable efforts.
d) Review Customer's network design and configuration and will provide
a written summary of Customer's information, change impact analysis
and alternative recommendations using commercially reasonable
efforts.
e) Review Customer's network equipment software versions and provide
recommendations to install alternate revisions based on knowledge of
bugs that may impact Customer.
f) Schedule regular conference calls to review network status, planning
and the support services being provided hereunder.
g) Make available, upon written request, a designated support contact
on a 24-hour 7-day a week standby basis to remotely assist Customer
in major network service changes (e.g. major Hardware or Software
upgrade(s), major site installation(s)). Customer agrees to submit a
detailed request and schedule to Cisco prior to any such activity.
Such requests shall be limited to two (2) events with total standby
time not to exceed forty-eight (48) hours in any one month period.
In the event Customer requires additional services, the parties
agree to negotiate in good faith the terms, conditions and prices
for such additional Services.
h) Provide certain monitoring tools ("Monitoring Tools" means hardware
or software tools that provide the Designated Engineer proactive
troubleshooting capabilities) as Cisco deems appropriate for network
monitoring under this Appendix during the term of the Services,
provided that all payments to Cisco under this Agreement have been
paid. Monitoring Tools may or may not include hardware or software.
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Customer acknowledges that Cisco shall retain full right, title and
interest to the Monitoring Tools.
i) Provide annually the two (2) Network Audits selected by Customer out
of the currently available Network Audits under the SP-ACS Program.
The Network Audits selected by the Customer will be conducted using
the Monitoring tools that have been provided by Cisco.
j) Provide annually up to four technical update meetings with the
customer staff each with a duration of up to 4 hours. These meetings
will be conducted at the customer site by the Designated Engineer or
another senior engineer within the SP-ACS team with a purpose of
providing a technical update training on a topic that is mutually
agreed upon and relevant to the products and technologies existing
on the Customer network.
3.0 ADDITIONAL SERVICE RESPONSIBILITIES OF CUSTOMER UNDER THIS APPENDIX
a) Designate at least two (2) but not more than six (6) senior
technical representatives, who must be Customer's employees in a
centralized Network Support Center ("NSC"), to act as the primary
technical interface to the Designated Engineer. Customer will
designate contacts senior engineers with the authority to make any
necessary changes to the network configuration. Priority 1 and
Priority 2 cases opened with Cisco must be handled by these
representatives.
b) Designate an individual ("Relationship Manager") to manage the
implementation of services under this Appendix (e.g., chair the
weekly conference calls, assist with prioritization of projects and
activities) and serve as focal point to the team.
c) Customer's NSC shall maintain centralized network management for all
networks supported under this Appendix.
d) Provide Level 1 Support and Level 2 Support.
e) Specify the features or technologies and Products desired for the
Customer network equipment prior to Cisco's review of network
equipment software versions.
f) Provide reasonable electronic access to Customer's network to assist
the team in providing support.
g) Customer agrees to maintain not less than two (2) CCIE trained
employees within four (4) months from the commencement date of
service as designated contacts.
h) Customer shall select two (2) of the currently available Network
Audits under the SP-ACS program for network analysis and reporting.
Customer must ensure that Monitoring Tools are permanently in place
to obtain Network Audits.
i) Customer shall inform Cisco of training topics based on Products or
technologies existing on customer networks. Confirm training dates
between Cisco and customers, ensure the presence of Customer
technical representatives at the training sessions and ensure a
conference room suitable for 10 persons with an overhead
projector/data show equipment, in order to facilitate any audio
visual treatment, is available at customer facility.
j) In respect of Monitoring Tools provided by Cisco and located at
Customer's site, Customer shall ensure that such Monitoring Tools
are located in a secure area, within a network environment protected
within a firewall and on a secure LAN, under lock and key and with
access restricted to those Customer employee(s) or contractor(s) who
have a need to access the Monitoring Tools and/or a need to know the
contents of Network Reports or the output of Monitoring Tools.
k) Provide Cisco with the information necessary to support Customer's
network as follows:
i) Provide a network topology map, configuration information, and
updates as required.
ii) Notify Designated Engineer of any major network changes (e.g.,
topology, configuration, new IOS releases.).
l) Customer hereby indemnifies Cisco for any damage to or loss or theft
of Monitoring Tools while in Customer's custody. Customer must
immediately return Monitoring Tool(s) to Cisco, as instructed by
Cisco, upon the earlier of: (i) expiration or termination of this
Appendix; or (ii) Cisco's request to Customer that the Monitoring
Tool(s) be returned to Cisco.
m) LIMITATIONS. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS
SOLELY RESPONSIBLE FOR DETERMINATION AND IMPLEMENTATION OF ITS
NETWORK DESIGN
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REQUIREMENTS. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS
SOLELY RESPONSIBLE FOR DETERMINATION AND IMPLEMENTATION OF ITS
NETWORK DESIGN REQUIREMENTS. IN NO EVENT SHALL CISCO BE LIABLE FOR
(A) ANY DISCLOSURE OF THE CONTENTS OR OUTPUT OF NSA REPORTS AND/OR
MONITORING TOOLS BY CUSTOMER'S EMPLOYEE(S) OR THIRD PARTY(S); (B)
THE SECURITY OF CUSTOMER'S NETWORK OR FOR ANY UNAUTHORIZED ACCESS TO
SUCH NETWORK BY CUSTOMER'S EMPLOYEE(S), CONTRACTOR(S), OR THIRD
PARTY(S); OR (C) 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.
4.0 LICENSE
In the event that Cisco provides Software hereunder (whether on a
Monitoring Tool or otherwise), Cisco grants to Customer a nonexclusive and
nontransferable license to use the Software, in object code form only, on
the Monitoring Tool on which such Software is provided hereunder or, if no
Monitoring Tool is provided hereunder, on a single Hardware chassis, until
the earlier of: (i) the expiration or termination of the Agreement; or
(ii) Cisco's request to Customer that the Monitoring Tool(s) be returned
to Cisco. Customer shall have no right, and Customer specifically agrees
not to: (a) rent, lease, distribute, sell, transfer or sublicense its
license rights to any other person, or use the Software on unauthorized or
secondhand Cisco equipment; (b) make error corrections to or otherwise
modify or adapt the Software nor create derivative works based upon the
Software, or to permit third parties to do the same; or (c) copy, in whole
or in part Software or document (except for one backup copy), decompile,
decrypt, reverse engineer, disassemble or otherwise reduce all or any
portion of the Software to human-readable form. Cisco will make available
any interface information which the Customer is entitled to under
applicable law, upon written notice request and payment of Cisco's
applicable fee.
5.0 SERVICES NOT COVERED BY THIS APPENDIX
a) Additional onsite visits beyond the four (4) visits provided
hereunder and additional standby Services beyond the two (2) events
provided hereunder, except upon Customer's written request and
mutual agreement between Customer and Cisco at Cisco then-current
SP-ACS travel and labor rates on a time and material basis.
b) Except as otherwise provided in this Appendix, Software entitlement,
including media, documentation, binary code, source code or access
in electronic or other form is not covered under this Appendix. In
addition, no right, use or license to Cisco's Software is conveyed
under this Appendix, and Customer acknowledges it will obtain no
such rights hereunder.
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APPENDIX A-7
SERVICE OPTIONS - PROFESSIONAL SERVICES
--------------------------------------------------------------------------------
1.0 ADDITIONAL DEFINITIONS
a) "Deliverables" means all works of authorship, whether in hard copy
or electronic form, including but not limited to programs, program
listings, programming tools, designs, analyses, reports, manuals,
supporting materials, test results, recommendations and drawings to
be provided by Cisco to Customer pursuant to the terms of this
Appendix and any SOW issued hereunder.
b) "Documentation" means, but is not limited to, any and all data other
than Deliverables, whether in hard copy or electronic form,
including reports, designs, analyses, computer programs, user
manuals and other supporting material, summaries, literature, test
results, recommendations or drawings generated by Subcontractor in
the course of providing Services under this Appendix and any SOW
hereunder, including all workpapers and other materials generated in
the course of performance of Services and preparation of
Deliverables.
c) "Statement of Work" ("SOW") means the document(s) agreed upon by
Cisco and Customer which defines the Services to be performed under
this Appendix, and the Deliverables to be provided, in a document
which references the Support Agreement to which this Appendix is
attached.
2.0 NETWORK ROLLOUT PLAN
Within a reasonable amount of time after the Effective Date of this
Agreement, the parties shall develop a document which details the
anticipated deployment by Customer of Products and Services during the
Initial Term (the "Network Rollout Plan"). The Network Rollout Plan shall
include anticipated dates and/or timelines for deployment of Products at
Customer sites and proposed deadlines for other activities contemplated by
the parties in connection with Customer's deployment of Products into its
network. The Network Rollout Plan shall serve as a guide pursuant to which
the Parties shall mutually agree upon Statements of Work to describe in
more detail the binding obligations of the parties with respect to
individual projects related to the Network Rollout Plan (each a
"Project"). A Project may consist of (a) all of the Professional Services
activities Cisco will perform at an individual site or several sites, (b)
a discrete set of activities Cisco will perform at an individual site or
several sites or (c) a combination of (a) and (b). The Network Rollout
Plan shall be a reference document only and is not binding on either
party; provided that the SOWs which are created pursuant to the Network
Rollout Plan shall be mutually binding contractual documents.
3.0 SERVICES AND STATEMENT OF WORK
a) Cisco will make available and manage Services as described in a SOW
which references the Support Agreement to which this Appendix is
attached. Services may be provided by Cisco or individuals or
organizations employed by or under contract with Cisco, at the
discretion of Cisco.
b) A separate SOW will be required for each project, assignment or task
requested by Customer. Each SOW will become part of this Appendix by
this reference when signed by Cisco and Customer and shall include:
i) A detailed description of Cisco's and Customer's respective
responsibilities;
ii) A description of any Deliverables to be delivered by Cisco to
Customer pursuant to the SOW;
iii) An estimated performance schedule including milestones and any
Critical Milestones, if applicable;
iv) Specific completion criteria that Cisco is required to meet to
fulfill its obligations under the SOW;
v) Pricing and payment terms; and
vi) Identification of Cisco and Customer contacts.
A SOW may only be amended or modified by a written document signed
by authorized representatives of Cisco and Customer, in accordance
with the change control procedures set forth therein. All
Installation and IOS Updates provided by Cisco under a service
summary description will be provided in accordance with the terms of
the Appendix.
4.0 PRICES AND FEES.
Customer will pay for all Professional Services rendered and Deliverables
provided pursuant
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to this Appendix as set forth in the Support Appendix and the applicable
SOW. In addition to the fees stated in a SOW, Customer shall reimburse
Cisco for reasonable travel and out-of-pocket expenses actually incurred
for on-site Professional Services requested by Customer. Cisco reserves
the right to charge for travel time.
5.0 OWNERSHIP.
Nothing in this Appendix shall alter or amend the intellectual property
licenses provided with the purchase of Cisco Hardware and license of Cisco
Software products. The following provisions apply only to those further
Services, Deliverables and other intellectual property generated in
performance of this Appendix, whether or not related to Cisco Hardware or
Software.
a) SOW Rights Ownership. Customer acknowledges that Cisco or its
subcontractors(s) own all intellectual property rights and other
proprietary rights in and to the Services, Deliverables, and
Documentation and any other materials and information Cisco provides
to Customer as part of this Appendix whether developed in
performance of a SOW hereunder or pre-existing. These intellectual
property rights and proprietary rights may include, but are not
limited to, all current and future worldwide patents and other
patent rights, copyrights, trade secrets, trademarks, inventions,
mask work rights, programs, program listings, procedures,
programming tools, documentation, reports and drawings, and the
related documentation or tangible expression thereof.
b) License. Cisco grants Customer a license regarding the services and
deliverables as necessary in the conduct of Customer's own business.
Pursuant to the terms of Section 5 of the Support Agreement, this
license is perpetual provided Customer is not otherwise in breach of
this license. This grant of rights does not include the right to
sublicense and is non-transferable.
c) Ownership by Customer. Except as otherwise set forth herein,
Customer shall own all right, title and interest in Customer
intellectual property that is wholly developed and owned by Customer
prior to the Effective Date of this Agreement or independently
developed by Customer without the benefit of any Cisco intellectual
property.
d) Ownership by Cisco. As stated herein, Cisco shall own all right,
title and interest in all Cisco intellectual property provided to
Customer under this Appendix or any SOW hereunder. This shall
include any derivatives, improvements or modifications of Cisco or
Customer intellectual property developed, designed or discovered
under this Appendix or any SOW issued hereunder. Customer agrees to
assign and does hereby assign to Cisco all rights Customer may have
or acquire in all such intellectual property. Cisco shall have the
exclusive right to apply for or register any patents, mask work
rights, copyrights, and such other proprietary rights protections
with respect thereto. Customer shall execute such documents, render
such assistance, and take such other actions as Cisco may reasonably
request, at Cisco's expense, to apply for, register, perfect,
confirm and protect Cisco's rights in any intellectual property
hereunder. Without limiting the foregoing, Cisco shall have the
exclusive right to commercialize, prepare and sell products based
upon, sublicense, prepare derivative works from, or otherwise use or
exploit the intellectual property rights granted to Cisco hereunder.
e) Ownership of Jointly Developed Technology. Subject to the
intellectual property ownership rights specified in the foregoing
subsections, any technology developed pursuant to this Appendix or
any SOW which is jointly created by the parties pursuant to this
Appendix or created by Customer as a direct result of Customer
activities relating to this Appendix or a SOW hereunder, shall be
owned by Cisco unless otherwise mutually agreed in the SOW covering
the effort which led to the development of the technology.
f) Waiver of Moral Rights. Subject to the applicable law, Customer
hereby waives any and all moral rights, including without limitation
any right to identification of authorship or limitation on
subsequent modification that Customer (or its employees, agents,
subcontractors or consultants) has or may have in the Services, or
Deliverables, and in any other intellectual property that is or
becomes the property of Cisco under this Section.
6.0 CUSTOMER SECURITY REGULATIONS/WORK POLICY
a) Customer shall provide to Cisco, and Cisco shall ensure that its
personnel or subcontractors make commercially reasonable efforts to
comply with Customer's security regulations in their activities at
Customer sites or in connection with Customer systems; however,
Cisco's personnel or agents shall not be required to sign individual
agreements with Customer or waive any personal rights such personnel
or agents might have.
b) Unless otherwise agreed to by both parties, Cisco's personnel
(including its subcontractors) will observe the working hours,
working rules, and holiday schedules of Customer while working on
Customer's premises.
7.0 INJUNCTIVE RELIEF
Unauthorized use of Confidential Information, Deliverables, Documentation,
or any information contained therein will diminish the value to Cisco of
its trade secrets or proprietary information. Therefore, if Customer
breaches any of its confidentiality or other obligations hereunder, Cisco
shall be entitled to equitable relief to protect its interests therein,
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including but not limited to injunctive relief, as well as monetary
damages.
8.0 TERMINATION
a) Termination of SOW(s). Failure by either party to comply with any
material term or condition under a SOW issued hereunder shall
entitle the other party to give the party in default written notice
requiring it to cure such default. If the party in default has not
cured such default within thirty (30) days of receipt of notice, the
notifying party shall be entitled, in addition to any other rights
it may have, to terminate this Appendix (and all SOWs issued
hereunder) and/or the individual SOW by giving notice effective
immediately.
b) Upon termination of this Support Agreement and/or any SOWs, Customer
shall pay Cisco for all work performed under the affected SOW(s) up
to the effective date of termination at the agreed upon prices, fees
and expense reimbursement rates set forth in the relevant SOW(s).
c) In addition Customer agrees, within ten (10) days after termination,
to deliver to Cisco at Cisco's discretion either: (i) the original
and all copies of the Deliverables and related materials received by
Customer in connection with the terminated work for which Cisco has
not been paid in the course of performance or under Section 3 above;
or (ii) a certificate certifying that through its best efforts,
Customer has destroyed the original and all copies of such
Deliverables and related materials.
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APPENDIX B
CISCO PROBLEM PRIORITIZATION AND ESCALATION GUIDELINE
--------------------------------------------------------------------------------
To ensure that all problems are reported in a standard format, Cisco has
established the following problem priority definitions. These definitions will
assist Cisco in allocating the appropriate resources to resolve problems.
Customer must assign a priority to all problems submitted to Cisco. With respect
to ICSG Software under the Software Application Services Xxxxxxxx X-0,
references to "network" in the problem priority definitions below shall be
replaced with "ICSG Software implementation" and shall not refer to a network or
in any other way imply that Cisco's obligations under the Software Application
Services Appendix A-5 extend beyond the boundaries of the ICSG Software.
PROBLEM PRIORITY DEFINITIONS:
Priority 1: An existing network is down or there is a critical impact to
ongoing business operation. All parties involved will commit
full-time resources to resolve the situation.
Priority 2: Operation of an existing network is severely degraded,
or significant aspects of a business operation are being
negatively impacted by unacceptable network performance.
The parties involved will commit full-time resources during
Standard Business Hours to resolve the situation.
Priority 3: Operational performance of the network is impaired while
most business operations remain functional. The parties are
willing to commit resources during Standard Business Hours
to restore service to satisfactory levels.
Priority 4: Information or assistance is required on Cisco product
capabilities, installation, or configuration. There is clearly
little or no impact to a business operation. The parties are
willing to provide resources during Standard Business Hours to
provide information or assistance as requested.
Cisco encourages Customer to reference this guide when Customer-initiated
escalation is required. If Customer does not feel that adequate forward
progress, or the quality of Cisco service is not satisfactory, Cisco encourages
Customer to escalate the problem ownership to the appropriate level of Cisco
management by asking for the TAC Duty Manager.
CISCO ESCALATION GUIDELINE:
---------------------------------------------------------------------------------------------------
Elapsed Time Priority 1 Priority 2 Priority 3 Priority 4
---------------------------------------------------------------------------------------------------
1 Hour Customer
Engineering
Manager
---------------------------------------------------------------------------------------------------
4 Hours Technical Customer
Support Engineering
Director Manager
---------------------------------------------------------------------------------------------------
24 Hours Vice Technical
President, Support Director
Customer
Advocacy
---------------------------------------------------------------------------------------------------
48 Hours President/CEO Vice President,
Customer
Advocacy
---------------------------------------------------------------------------------------------------
72 Hours Customer
Engineering
Manager
---------------------------------------------------------------------------------------------------
96 Hours President/CEO Technical Customer
Support Engineering
Director Manager
---------------------------------------------------------------------------------------------------
Note: Priority 1 problem escalation times are measured in
calendar hours 24 hours per day, 7 days per week. Priority
2, 3, and 4 escalation times correspond with Standard
Business Hours.
The Cisco Manager to which the problem is escalated will take ownership of the
problem and provide the Customer with updates. Cisco recommends that
Customer-initiated escalation begin at the Technical Manager level and proceed
upward using the escalation guideline shown above for reference. This will allow
those most closely associated with the support resources to correct any service
problems quickly.
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ACCESSING TAC:
For all Products except ICSG Software:
North America, South America: x0-000-000-0000
x0-000-000-0000
Europe, Middle East, Africa: x00-0-000-0000
x00-0-000-0000
Asia Pacific: x0-000-000-000
x00-0-000-0000
For ICSG Software: x0-000-000-0000 (within the United States)
x0-000-000-0000
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APPENDIX C
EQUIPMENT SCHEDULE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Product Site / Service Level: The information below is needed when an optional
service level is requested. For each Service Level indicated below, Cisco will
issue a Contract Number.
--------------------------------------------------------------------------------
(Cisco will supply)
Service Level Contract # Product Serial Numbers Site Address
---------------------------------------------------------------------------------------------------------------------------
Service Level #1 Contract # ____________ Not Applicable
Hardware Return for Replace
---------------------------------------------------------------------------------------------------------------------------
Service Level #2 Contract # ____________ Not Applicable
Advance Replacement SDS/NBD
---------------------------------------------------------------------------------------------------------------------------
Service Level #3* Contract # ____________ Required
Advance Replacement 8x5x4
---------------------------------------------------------------------------------------------------------------------------
Service Level #4* Contract # ____________ Required
Advance Replacement 24x7x4
---------------------------------------------------------------------------------------------------------------------------
Service Level #5* Contract # ____________ Required
Onsite Level 1 (8x5xNBD)
---------------------------------------------------------------------------------------------------------------------------
Service Level #6* Contract # ____________ Required
Onsite Level 2 (8x5x4)
---------------------------------------------------------------------------------------------------------------------------
Service Level #7* Contract # ____________ Required
Onsite Level 3 (24x7x4)
---------------------------------------------------------------------------------------------------------------------------
SP-ACS Option Contract # ____________ Not Applicable
SP-ACS Designated Account Team
---------------------------------------------------------------------------------------------------------------------------
Software Application Service Option Contract # ____________ Not Applicable
Software Application Service
---------------------------------------------------------------------------------------------------------------------------
CPE Option Contract # Required
CPE Support
---------------------------------------------------------------------------------------------------------------------------
SP TAC Option Contract # Required
SP TAC / Named Account
---------------------------------------------------------------------------------------------------------------------------
SLA Option Contract # Required
Response & Restoration
---------------------------------------------------------------------------------------------------------------------------
PS Option Contract # Not Applicable
Professional Services
---------------------------------------------------------------------------------------------------------------------------
* Must notify within thirty (30) days of moves and/or changes.
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--------------------------------------------------------------------------------
EXHIBIT C-2
*******************************************************************************
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*******************************************************************************
47
-------------------------------------------------------------------------------
EXHIBIT D
NETWORKED COMMERCE ENROLLMENT ATTACHMENT
-------------------------------------------------------------------------------
This Networked Commerce Agents Enrollment Attachment ("Attachment") supplements
the Agreement and all the terms and conditions of the Agreement apply to this
Attachment; provided, that to the extent that there is conflict between the
Agreement and this Attachment, the terms of this Attachment shall take
precedence over the terms and conditions of the Agreement with regards to the
subject matter described herein.
1. Customer may enroll in Cisco's MarketPlace Internetworking Product Center
(the "Program") by returning the form set forth in Attachment 1 indicating
the users of Customer who are authorized to submit electronic orders on
behalf of Customer ("Authorized Users"). Upon execution of the Agreement
by Cisco and Customer, Cisco will entitle those users to submit electronic
orders. The Program allows direct Customers and partners to configure,
price, and route orders and then submit them electronically.
2. Customer agrees that the person using the Program address/password is an
Authorized User and has the capacity and authority to place orders for
Cisco Products and services on behalf of Customer, and Program password
security is the responsibility of Customer. Cisco and Customer agree that
an order placed through the Program is the equivalent of a signed purchase
order.
3. Customer shall have the right to change, add or delete Authorized Users
upon written notification, with verification of receipt, to Cisco. Cisco
agrees to implement such changes, additions or deletions within
twenty-four (24) hours of receipt of such written notification.
4. Customer's participation in the Program may be terminated by Cisco, with
or without cause, upon fifteen (15) days written notice to Customer.
5. Cisco reserves the right to accept or decline any purchase order submitted
via the Program.
6. Customer agrees that a Cisco invoice may be the only documentation
provided by Cisco for purchase and payment of Cisco's Products and
services ordered via the Program.
7. The parties agree that Cisco shall not be liable for any incidental,
consequential or special damages arising from, or as a result of, the
electronic transmission of orders or other information even if Cisco has
been advised of the possibility of such damages.
8. Customer agrees to waive any future challenge to the validity and
enforceability of any order submitted via the Program on the grounds that
it was electronically transmitted and authorized.
9. Customer is responsible for all costs and charges, including without
limitation, phone charges and telecommunications equipment, incurred in
order to use the Program.
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--------------------------------------------------------------------------------
EXHIBIT D
ATTACHMENT 1
NETWORKED COMMERCE AGENTS ENROLLMENT ATTACHMENT
CUSTOMER AUTHORIZED USER FORM
--------------------------------------------------------------------------------
Please indicate the names of the users of Customer who are authorized to submit
electronic orders on behalf of Customer (i.e. Authorized Users) under the
Program. If there are any special circumstances or restrictions that apply to an
Authorized User, please indicate in the area provide at the bottom of the page.
NAME (FIRST & LAST) JOB TITLE USER ID
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
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--------------------------------------------------------------
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--------------------------------------------------------------------------------
Special Instructions/Restrictions:
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
EXHIBIT E
CUSTOMER AFFILIATE LIST
--------------------------------------------------------------------------------
XX.Xxx Supply Corp.
XX.Xxx Network Services Corp.
XX.Xxx Virginia Corp.
XX.Xxx Virginia, LLC
XX.Xxx Construction Corp.
XX.Xxx Property Corp.
Cisco Systems, Inc. -
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--------------------------------------------------------------------------------
EXHIBIT S
END USER LICENSE AND SOFTWARE WARRANTY
--------------------------------------------------------------------------------
PLEASE READ THIS SOFTWARE LICENSE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR
USING CISCO OR CISCO-SUPPLIED SOFTWARE.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING THE EQUIPMENT THAT CONTAINS
THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU DO NOT
AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN (A) DO NOT DOWNLOAD, INSTALL OR
USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, OR, IF
THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE
PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER
PURCHASE FROM CISCO OR AN AUTHORIZED CISCO RESELLER, AND APPLIES ONLY IF YOU ARE
THE ORIGINAL PURCHASER.
The following terms govern your use of the Software except to the extent a
particular program (a) is the subject of a separate written agreement with Cisco
or (b) includes a separate "click-on" license agreement as part of the
installation and/or download process. To the extent of a conflict between the
provisions of the foregoing documents, the order of precedence shall be (1) the
written agreement, (2) the click-on agreement, and (3) this Software License.
License. Subject to the terms and conditions of and except as otherwise provided
in this Agreement, Cisco Systems, Inc. or the Cisco Systems, Inc. subsidiary
licensing the Software, if sale is not directly by Cisco Systems, Inc.
("Cisco"), and its suppliers grant to Customer ("Customer") a nonexclusive and
nontransferable license to use the specific Cisco program modules, feature
set(s) or feature(s) for which Customer has paid the required license fees (the
"Software"), in object code form only. In addition, the foregoing license shall
also be subject to the following limitations, as applicable:
o Unless otherwise expressly provided in the documentation, Customer shall
use the Software solely as embedded in, for execution on, or (where the
applicable documentation permits installation on non-Cisco equipment) for
communication with Cisco equipment owned or leased by Customer;
o Customer's use of the Software shall be limited to use on a single
hardware chassis, on a single central processing unit, as applicable, or
use on such greater number of chassises or central processing units as
Customer may have paid Cisco the required license fee; and
o Customer's use of the Software shall also be limited, as applicable and
set forth in Customer's purchase order or in Cisco's product catalog, user
documentation, or web site, to a maximum number of (a) seats (i.e. users
with access to the installed Software), (b) concurrent users, sessions,
ports, and/or issued and outstanding IP addresses, and/or (c) central
processing unit cycles or instructions per second. Customer's use of the
Software shall also be limited by any other restrictions set forth in
Customer's purchase order or in Cisco's product catalog, user
documentation or web site for the Software.
NOTE: For evaluation or beta copies for which Cisco does not charge a license
fee, the above requirement to pay a license fee does not apply.
General Limitations. Except as otherwise expressly provided under this
Agreement, Customer shall have no right, and Customer specifically agrees not
to:
(i) transfer, assign or sublicense its license rights to any other person, or
use the Software on unauthorized or secondhand Cisco equipment, and any
such attempted transfer, assignment or sublicense shall be void;
(ii) make error corrections to or otherwise modify or adapt the Software or
create derivative works based upon the Software, or to permit third
parties to do the same; or
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(iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the
Software to human-readable form to gain access to trade secrets or
confidential information in the Software.
To the extent required by law, at Customer's request, Cisco shall provide
Customer with the interface information needed to achieve interoperability
between the Software and another independently created program, on payment of
Cisco's applicable fee. Customer shall observe strict obligations of
confidentiality with respect to such information.
Upgrades and Additional Copies. For purposes of this Agreement, "Software" shall
include (and the terms and conditions of this Agreement shall apply to) any
upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or
backup copies of the Software licensed or provided to Customer by Cisco or an
authorized distributor for which Customer has paid the applicable license fees.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO
LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER,
AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO
THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE; (2) USE
OF UPGRADES IS LIMITED TO CISCO EQUIPMENT FOR WHICH CUSTOMER IS
THE ORIGINAL END USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE
TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS
LIMITED TO BACKUP PURPOSES ONLY.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright and
other proprietary notices on all copies, in any form, of the Software in the
same form and manner that such copyright and other proprietary notices are
included on the Software. Except as expressly authorized in this Agreement,
Customer shall not make any copies or duplicates or any Software without the
prior written permission of Cisco. Customer may make such backup copies of the
Software as may be necessary for Customer's lawful use, provided Customer
affixes to such copies all copyright, confidentiality, and proprietary notices
that appear on the original.
Protection of Information. Customer agrees that aspects of the Software and
associated documentation, including the specific design and structure of
individual programs, constitute trade secrets and/or copyrighted material of
Cisco. Customer shall not disclose, provide, or otherwise make available such
trade secrets or copyrighted material in any form to any third party without the
prior written consent of Cisco. Customer shall implement reasonable security
measures to protect such trade secrets and copyrighted material. Title to
Software and documentation shall remain solely with Cisco.
Term and Termination. This License is effective until terminated. Customer may
terminate this License at any time by destroying all copies of Software
including any documentation. Customer's rights under this License will terminate
immediately without notice from Cisco if Customer fails to comply with any
provision of this License. Upon termination, Customer must destroy all copies of
Software in its possession or control.
Customer Records. Customer grants to Cisco and its independent accountants the
right to examine Customer's books, records and accounts during Customer's normal
business hours to verify compliance with this Agreement. In the event such audit
discloses non-compliance with this Agreement, Customer shall promptly pay to
Cisco the appropriate licensee fees.
Export. Software, including technical data, may be subject to U.S. export
control laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. Customer agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
Restricted Rights. Cisco's commercial software and commercial computer software
documentation is provided to United States Government agencies in accordance
with the terms of this Agreement, and per
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subparagraph "(c)" of the "Commercial Computer Software - Restricted Rights"
clause at FAR 52.227-19 (June 1987). For DOD agencies, the restrictions set
forth in the "Technical Data-Commercial Items" clause at DFARS 252.227-7015 (Nov
1995) shall also apply.
Limited Warranty. Cisco Systems, Inc. or the Cisco Systems, Inc. subsidiary
licensing the Software, if sale is not directly by Cisco Systems, Inc. ("Cisco")
warrants that commencing from the date of delivery to Customer (but in case of
resale by a Cisco reseller, commencing not more than ninety (90) days after
original shipment by Cisco), and continuing for a period of the longer of (a)
ninety (90) days or (b) the period set forth in the Warranty Card accompanying
the Product (if any): (a) the media on which the Software is furnished will be
free of defects in materials and workmanship under normal use; and (b) the
Software substantially conforms to its published specifications. The date of
shipment of a Product by Cisco is set forth on the packaging material in which
the Product is shipped. Except for the foregoing, the Software is provided AS
IS. This limited warranty extends only to the Customer who is the original
licensee. Customer's sole and exclusive remedy and the entire liability of Cisco
and its suppliers under this limited warranty will be, at Cisco or its service
center's option, repair, replacement, or refund of the Software if reported (or,
upon request, returned) to the party supplying the Software to Customer, if
different than Cisco. In no event does Cisco warrant that the Software is error
free or that Customer will be able to operate the Software without problems or
interruptions. In addition, due to the continual development of new techniques
for intruding upon and attacking networks, Cisco does not warrant that the
Software or any equipment, system or network on which the Software is used will
be free of vulnerability to intrusion or attack.
Restrictions. This warranty does not apply if the Product (a) has been altered,
except by Cisco, (b) has not been installed, operated, repaired, or maintained
in accordance with instructions supplied by Cisco, (c) has been subjected to
abnormal physical or electrical stress, misuse, negligence, or accident; or (d)
is licensed, for beta, evaluation, testing or demonstration purposes for which
Cisco does not receive a payment of purchase price or license fee.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A
COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE
EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE
EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE
SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if
the express warranty set forth above fails of its essential purpose.
General Terms Applicable to the Limited Warranty Statement and Software
License Disclaimer of Liabilities. IN NO EVENT WILL CISCO OR ITS SUPPLIERS BE
LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF
THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE
EVEN IF CISCO OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. In no event shall Cisco's or its suppliers' liability to Customer,
whether in contract, tort (including negligence), or otherwise, exceed the price
paid by Customer. The foregoing limitations shall apply even if the above-stated
warranty fails of its essential purpose. BECAUSE SOME STATES OR JURISDICTIONS DO
NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Warranty and the Software License shall be governed by and construed in
accordance with the laws of the State of California, without reference to
principles of conflict of laws, provided that for Customers
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located in a member state of the European Union, Norway or Switzerland, English
law shall apply. The United Nations Convention on the International Sale of
Goods shall not apply. If any portion hereof is found to be void or
unenforceable, the remaining provisions of the Warranty and the Software License
shall remain in full force and effect. Except as expressly provided herein, the
Software License constitutes the entire agreement between the parties with
respect to the license of the Software and supersedes any conflicting or
additional terms contained in the purchase order
If Customer has entered into a contract directly with Cisco for supply of the
Products subject to this warranty, the terms of that contract shall supersede
any terms of this Warranty or the Warranty Card, or the Software License, which
are inconsistent with that contract. Customer acknowledges that: the Internet
URL address and the web pages referred to in this document may be updated by
Cisco from time to time; the version in effect at the date of delivery of the
Products to the Customer shall apply.
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CISCO SYSTEMS
[LOGO](R)
--------------------------------------------------------------------------------
EXHIBIT G
TERMS AND CONDITIONS FOR CISCO OPTICAL NETWORKING PRODUCTS
--------------------------------------------------------------------------------
1.0 SCOPE
This Exhibit sets forth the terms and conditions for the purchase of Cisco
15xxx series of optical networking products ("Optical Products"). Except
as otherwise permitted in Section 2.2 of the Agreement, Customer shall
have no right to resell the Optical Products. The terms and conditions of
the Customer Agreement ("Agreement") shall apply to Customer's purchase of
the Optical Product to the extent such terms do not conflict with the
terms and conditions stated herein, in which event the terms of this
Exhibit shall take precedence. This Exhibit shall not apply to Customer's
purchase of any other Cisco Products.
2.0 PRICES.
Prices for the Optical Products shall be as set forth in Exhibit B to the
Agreement.
3.0 LIMITED WARRANTY.
For Customer's purchase of the Optical Products, the warranties shall be
as follows:
3.1 The duration of the Hardware Warranty shall be ***************.
3.2 The duration of the Software Warranty shall be ***************.
3.3 Before returning any Optical Product, Customer shall telephone the
Technical Assistance Center (the "TAC") in the USA at 0-000-000-0000
for a Return Material Authorization ("RMA") number to trace the
Optical Product. Customer must clearly indicate the RMA number on
every communication, including the outside of all return packages,
with respect to returned Optical Products. Cisco shall seek to ship
repaired Optical Products, or ship replacement Optical Products,
within ************************* of receiving defective Optical
Products, unless Customer requests expedited service as described
in Section 4 below. Customer shall be responsible for shipping
Optical Products back to Cisco, and Cisco shall be responsible for
shipping repaired or replacement Optical Products to Customer.
3.4 The foregoing warranty shall not apply to any Optical Products or
Software (a) marked or identified as "sample", (b) loaned or
provided to Customer at no cost, or (c) which is sold "as is."
3.5 While under warranty, Customer shall receive twenty-four (24) hour,
seven (7) day a week technical assistance for the Optical Product at
no charge through the Technical Assistance Center ("TAC") in the
USA. The toll-free phone number is 0-000-000-0000. Equipment
failures should be reported to the TAC during normal business hours,
8:00 a.m. to 7:00 p.m. (Central Standard Time), except for an
emergency equipment failure, which should be reported immediately to
the TAC. When a call is received, the attendant shall determine the
severity and type of problem. The Customer's call shall be assigned
and managed by a technical support engineer for attention and
resolution.
3.6 For Optical Products under warranty, there is no charge for repair
and return in accordance with the standard turn-around time. Cisco
will seek to repair failed Optical Product and ship the repaired
Optical Product to Customer within ************************** of
receipt.
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4.0 WARRANTY UPGRADES
In consideration of the applicable service fees paid by Customer, Warranty
Upgrades for the Optical Products may be available pursuant to Cisco's
then current Advance Replacement/Onsite Support Upgrade Program, if any.
5.0 TRAINING
5.1 Customer may purchase training classes per Cisco's published
schedule.
5.2 Classes may be offered at Cisco's site or Customer's site.
Instructor's travel and living expenses shall be invoiced at
************. Customer shall be responsible for procuring and
installing equipment if classes are held at Customer's location.
5.3 Classes are provided for groups of four (4) to ten (10). With
instructor's approval, additional individuals may attend for a
mutually agreed to fee.
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--------------------------------------------------------------------------------
EXHIBIT T
SPECIAL PURCHASE TERMS
--------------------------------------------------------------------------------
1. Exclusivity Commitment
(a) EXCLUSIVITY PRODUCTS. Subject to the provisions of Sections 19.0 and 25.0 of
the Agreement and Sections 1(c) and 2 of this Exhibit T, during the Initial
Term, Customer will purchase exclusively from Cisco all of its requirements for
(a) the Products listed below under the heading "Exclusivity Products," or (b)
products with substantially equivalent functionality to the Exclusivity
Products.
(b) OTHER PRODUCTS. In addition to the foregoing, if Customer seeks to acquire
any internetworking or other product the material functionality of which is not
satisfied by one of the Exclusivity Products (a "Desired Functionality") but
which may be satisfied by a Cisco Product listed below under the heading "ROFR
Products," Customer shall provide Cisco with a right of first refusal to supply
the Desired Functionality pursuant to the procedure described in this Section
1(b). Prior to acquiring a Desired Functionality from a third party vendor,
Customer shall seek a firm written offer from such vendor setting forth the
terms and conditions pursuant to which the third party vendor is willing to
provide the Desired Functionality, including the total price for which the third
party vendor is offering all products and services necessary to achieve the
Desired Functionality, whether such offer is conditioned on a firm commitment to
purchase, the scope and duration of the purchasing relationship proposed and any
other terms or conditions or arrangements material to the offer or upon which
the offer depends (the "Competitive Offer") and shall provide a copy of the
Competitive Offer to Cisco. If, within ******* of Cisco's receipt of a
Competitive Offer, Cisco provides Customer with a firm offer to sell a ROFR
Product which meets the Desired Functionality which includes a purchase price
and other material terms and conditions which are materially equal to or better
than the Competitive Offer with respect to any Desired Functionality, then
Customer shall purchase the ROFR Product from Cisco on the terms of Cisco's firm
offer. ********************************************************************
***************************************************************************
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EXCLUSIVITY PRODUCTS. The Exclusivity Products shall include the following:
********************************************************************
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Cisco Systems, Inc. -
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00
XXXX Products
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(c) Exceptions. During the Initial Term, the provisions of Section 1(a) and 1(b)
of this Exhibit T shall not apply to products purchased by Customer pursuant to
the following provisions.
(i) **********************************************************************
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(ii) In addition to the exception from Sections 1(a) and 1(b) of this
Exhibit T set forth in Section 1(c)(i) above, Customer shall be permitted
to make purchases of third party internetworking hardware and software
which would otherwise be subject to Sections 1(a) and 1(b) of this Exhibit
T in an aggregate amount not to exceed **********.
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2. CUSTOMER'S CHANGE IN CONTROL. In the event of a sale, transfer, conveyance or
other disposition (including by way of merger or consolidation) in one or a
series of related transactions, of all or substantially all of the assets or
capital stock of either Customer or Velocita Corp., to an unrelated third party
(a "Third Party Buyer") and the Third Party Buyer provides Cisco and Customer
with written notice (the "Acquisition Notice") that the Third Party Buyer will
not acquire the assets of Customer unless the provisions of this Exhibit T are
terminated, Cisco agrees to negotiate in good faith with Customer a mutually
acceptable termination of the provisions of this Exhibit T. If the parties are
unable to come to a mutually acceptable termination of this Exhibit T within 20
days of he date of the Acquisition Notice, this Exhibit T shall immediately
terminate and Customer shall pay Cisco an amount equal to the difference between
(a) the Purchase Commitment and (b) the net purchase price of all Cisco Products
and Services paid to Cisco by Customer from the Effective Date through the
termination of this Exhibit T. If the Third Party Buyer wishes to assume the
obligations of Customer under the Agreement, including this Exhibit T, Cisco
agrees to consider in good faith allowing such Third Party Buyer to assume such
obligations.
3. PURCHASE COMMITMENT. On or before the final day of the Initial Term of the
Agreement, Customer shall have purchased Cisco Products and Services with an
aggregate net purchase price payable to Cisco of $225,000,000 (the "Purchase
Commitment"). Customer may satisfy the Purchase Commitment by (a) placing final
Purchase Orders (the "Final Purchase Orders") for Products and Services on or
prior to the final day of the Initial Term which specify (i) a collective
aggregate net purchase price the sum of which, together with the all amounts
previously invoiced to and paid by Customer under this Agreement for the
purchase of Products and Services, is equal to or greater than $225,000,000 and
(ii) (A) with respect to Final Purchase Orders for Products, specify a requested
shipment date of not greater
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than 120 days after the final day of the Initial Term, (B) with respect to
Maintenance Services, specify a service term of not greater than 1 year after
the final day of the Initial Term and, (C) with respect to Professional
Services, specify a requested completion date for such Professional Services of
not more than 90 days after the final day of the Initial Term and (b) fully
paying all amounts not disputed in good faith and related to such Final Purchase
Orders within 30 days after receipt of such applicable invoices. If Customer
does not satisfy the Purchase Commitment, Cisco shall invoice Customer for, and
Customer shall pay in accordance with Section 7.0 of this Agreement, an amount
equal to the difference between (x) $225,000,000 and (y) the sum of (A) the
total dollars paid by Customer to Cisco for Products and Services during the
Initial Term, (B) the total dollars to be paid by Cisco to Customer pursuant to
the Final Purchase Orders and (C) any amount disputed by Customer in good faith.
4. DISPUTE RESOLUTION. Except as otherwise described in Section 2 above, in the
event that any material dispute (a "Dispute") regarding the parties' respective
obligations under this Exhibit T arises, prior to seeking any other remedies, at
law, in equity or otherwise, the parties shall comply with the procedures set
forth in this paragraph. Either party may give the other notice of a Dispute,
including a detailed description of the Dispute (a "Dispute Notice"). Within 20
days of the date of a Dispute Notice, the First Tier Executives (as defined in
Section 25.2 of the Agreement) shall meet to discuss appropriate resolution of
the Dispute. If, within 10 days of their first meeting under this Section the
First Tier Executives are unable to resolve all material issues surrounding the
Dispute, the discussion shall be escalated to the Second Tier Executives who
shall meet within 10 days. If the Second Tier Executives (as defined in Section
25.2 of the Agreement) have not reached a mutually acceptable resolution of the
Dispute within 20 days after their first meeting, either party shall be free to
seek alternative remedies under the contract or otherwise.
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EXHIBIT U
CISCO GLOBAL PRICE LIST AS OF THE EFFECTIVE DATE
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EXHIBIT V
AGREEMENT EFFECTIVE DATE
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1. Effective Date. Except as provided in Section 2 below, neither this Agreement
nor any of its provisions shall be effective or binding upon either of the
parties hereto unless, prior to 5:00 p.m. on May 31, 2001 (the "End Date"), each
of the following conditions is satisfied:
(a) The Customer, First Union National Bank ("First Union") and Cisco
Systems Capital Corporation ("CSCC") shall have entered into the Amended and
Restated Credit Agreement and other definitive legal documentation for the
financing facility described in the financing commitment letter dated April
[12], 2001, addressed to the Customer by CSCC; all consents thereto required
from the agent and lenders under the Credit Agreement dated as of October 29,
1999, as restated on March 31, 2001, among the Customer, First Union, as
administrative agent, and the lenders party thereto, shall have been duly
delivered; and all conditions precedent to the Initial Drawdown described in
such commitment letter or definitive legal documentation shall have been
satisfied or waived; and
(b) Velocita Corp. shall have received the payment of the purchase price
payable by Cisco under the Series B Senior Cumulative Convertible Preferred
Stock Purchase Agreement dated as of April [12], 2001 between Cisco and Velocita
Corp., for the issuance and sale of preferred stock of Velocita Corp. on the
terms and conditions described therein.
The date of satisfaction of such conditions shall be the Effective Date, for
purposes of the Agreement.
2. Terms Applicable to Purchase Orders. Notwithstanding the foregoing Section 1,
prior to the Effective Date, if any, or the End Date and thereafter, if the
Effective Date does not occur (but only for a period of 2 years after the date
of last signature of this Agreement by a party), Customer at its option may
issue, and Cisco at its option may accept, Purchase Orders for Products or
Services on the terms set forth below and the issuance and acceptance of such
Purchase Orders shall not cause this Agreement to become effective or constitute
a waiver of the conditions set forth in this Exhibit V; provided that the
following provisions shall apply to all such Purchase Orders in the aggregate:
(a) During the period between the date of Cisco's acceptance of such
Purchase Orders and (a) the Effective Date, if any, or (b) the End Date and
thereafter, if the Effective Date does not occur, the terms and conditions of
this Agreement shall be effective for the purpose of such Purchase Orders,
modified as follows:
(i) the following provisions shall not apply: (A) definitions of Critical
Milestones, Exclusivity Commitment, Net Purchase Amount and Purchase
Commitment, (B) the final sentence of Section 5.0, (C) Section 20.4, (D)
Section 25, (E) Exhibit B-1, (F) Section 6.0 of Exhibit G and (G) Exhibit
T.; and
(ii) the following provisions are revised as follows:
(A) Section 20.3 is replaced with the following;
"In the event that Cisco discontinues the availability of a Product
and no Product with equivalent or better functionality is available,
Cisco shall use commercially reasonable efforts to make available
(a) spare/replacement parts and/or repair Services for the
discontinued Hardware for five (5) years from the date of
announcement of the discontinuance; and (b) provide an opportunity
for Customer to purchase a one-time supply of spare parts to support
its reasonable, estimated requirements. Technical support for each
revision of Cisco's standard Software for a Product shall be
available for three (3) years from the date of first commercial
shipment of such revision."
(B) Section 22 is modified by deleting the following words in the
first sentence: "THE GREATER OF" and "OR $**********."
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(b) If the Effective Date is reached, the terms and conditions of this
Agreement in its entirety shall apply to such Purchase Orders retroactively to
the date of Cisco's acceptance of such Purchase Orders and any payments made by
the Customer on or prior to the final day of the Initial Term with respect to
such Purchase Orders shall reduce the Purchase Commitment set forth in Exhibit T
on a dollar-for-dollar basis.
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