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EXHIBIT 10.9
(CISCO SYSTEMS LOGO)
CISCO SYSTEMS, INC.
CISCO VOICE APPLICATION PARTNER
MULTI-THEATRE SYSTEMS INTEGRATOR AGREEMENT
This CISCO VOICE APPLICATION PARTNER (CVAP) Multi-Theatre Systems Integrator
Agreement (the "Agreement") by and between Cisco Systems, Inc., ("Cisco") a
California corporation having its principal place of business at 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx, 00000, and Golden Xxxxxx.xxx,
("Integrator") a Florida corporation having its principal place of business at
0000 Xxxx Xxxxxx Xxxxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000 is entered into as of
the date last written below ("the Effective Date").
This Agreement consists of this signature page and the following attachments,
which are incorporated in this Agreement by this reference:
1. CVAP Multi-Theatre Systems Integrator Agreement Terms and Conditions
2. EXHIBIT A: Integrator Profile
3. EXHIBIT B: Discount Schedule
4. EXHIBIT C: N/A
5. EXHIBIT D: Support Exhibit
6. EXHIBIT E: Ordering and Shipping Terms
7. EXHIBIT F: Shipping
8. EXHIBIT G: Networked Commerce Enrollment Addendum
9. EXHIBIT H: Integrator Affiliates
10. EXHIBIT S: Software License Agreement
This Agreement is the complete agreement between the parties hereto concerning
the subject matter of this Agreement and replaces any prior oral or written
communications between the parties. There are no conditions, understandings,
agreements, representations, or warranties, expressed or implied, which are not
specified herein. This Agreement may only be modified by a written document
executed by the parties hereto. Any orders accepted or Products delivered by
Cisco after the date this Agreement is signed by Integrator but before the
Effective Date, shall upon the Effective Date be deemed covered by the terms
and conditions of this Agreement, except for any deviation in price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed. Each party warrants and represents that its respective signatories
whose signatures appear below have been and are on the date of signature duly
authorized to execute this Agreement.
GOLDEN XXXXXX.XXX ("INTEGRATOR") CISCO SYSTEMS, INC. ("CISCO")
/s/ Xxxxxxxx X. Xxxxxx, President A.P. Cailes
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Authorized Signature Authorized Signature
/s/ Xxxxxxxx X. Xxxxxx, President A.P. Cailes, Director W.W. Sales Finance
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Name Name
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Date Date
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MULTI-THEATRE SYSTEMS INTEGRATOR AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS.
Products are those products identified as the VCO 4K, 5300, 5800 and AccessPath
product families in Cisco's then current global price list. To the extent
Integrator desires to purchase and/or license other Cisco products and Cisco
agrees to sell and/or license such products to Integrator, any such sale(s)
and/or license(s) shall be governed by Cisco's standard terms and conditions,
at prices to be negotiated by the parties.
Added Value is the non-Cisco component portion of Integrator's total solution,
which Integrator provides to End User. Providing financing options is not
considered Added Value.
Affiliates means a corporation, partnership or venture, more than fifty (50)
percent of whose voting stock or ownership interest is owned directly or
indirectly by Integrator.
Canadian Price List is Cisco's published Price List, revised to include freight
charges and published in Canadian currency.
CIP, ...named place of destination (Carriage and Insurance Paid to, ...)
(INCOTERMS 1990)
Cisco Connection Online (CCO) is Cisco's on-line, Internet-based communications
medium, and successor media as Cisco may introduce from time to time.
Documentation is the Cisco documentation made available in hard copy or in
electronic form with the Products or otherwise under this Agreement.
DDU, ...named place of destination (Delivered Duty Unpaid, ...) (INCOTERMS 1990)
Cisco Certified Network Professional ("CCNP") is the status granted to
Integrator employees who successfully complete the then-current CCNP Curriculum
offered by Cisco.
End User is the entity to which Integrator sells or licenses Product for such
entity's own internal use.
FCA, ...named place (Free Carrier, ...named place) (INCOTERMS 1990)
Hardware is the tangible Products made available to Integrator by Cisco.
Integrator is the legal entity, which signs this Agreement.
Price List is Cisco's published global price list.
Product is Hardware and/or Software.
Purchase Order is a written or electronic order from Integrator to Cisco for
Hardware, Software or services to be purchased, licensed or provided under this
Agreement.
Sales Expert is the status granted to Integrator employees who successfully
complete the then-current Sales Expert training curriculum offered by Cisco.
Software is the machine readable (object code) version of the computer programs
listed from time to time on the Price List and made available by Cisco for
license by Integrator, and any copies, updates to, or upgrades thereof.
Spare Parts means those items of Hardware designated as spare parts in the
Price List.
Territory is comprised of those regions or countries listed on Exhibit A.
2. SCOPE.
2.1 This Agreement sets forth the terms and conditions for Integrator's
purchase of Hardware and license of Software during the term of this Agreement
solely for:
A. Integrator's Internal Business Use.
Integrator may purchase Products listed in Cisco's then-current Price
List for its internal business use in the Territory during the term of
this Agreement.
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B. Commercial Integration and Resale.
B.1 Cisco grants Integrator a non-exclusive, nontransferable right to
resell Hardware and distribute Software as a component of a total
solution of Products and additional significant Integrator Added
Value to End Users in the vertical market segments in the
Territory. Integrator agrees not to solicit Product orders,
engage salesmen, establish warehouses or other distribution
centers outside of the Territory, except to the extent
advertising is placed in a particular advertising medium which is
distributed both inside and outside the Territory. Integrator
further agrees that Integrator's Added Value shall, at all times,
be the primary reason for the End User's purchase of Products
from Integrator.
B.2 Notwithstanding the foregoing, for any Products included in the
Price List, including but not limited to Products which become or
have become Cisco Products as a result of an acquisition by Cisco
of another entity, Cisco may impose certification, installation,
or training requirements on Integrator prior to allowing
Integrator to purchase Products for resale, and may require
on-going fulfillment of certification requirements to retain the
right to buy, resell and/or support such Products.
2.2 Integrator certifies that except as set forth in Section 2(A) hereof, it
is acquiring the Products solely for resale to End Users, in accordance with
this Agreement, and that Integrator intends to resell the Products as part of
an Added Value solution.
2.3 Integrator will not distribute the Products to the United States Federal
Government either directly or indirectly, or through General Services
Administration ("GSA").
2.4 Cisco does not accept any flowdown provisions including but not limited
to United States Government Federal Acquisition Regulations ("FARs"), Defense
FARs, or NASA FARs notwithstanding the existence of such provisions on
Integrator's Purchase Orders or supplementary documentation or Cisco's
acceptance of such Purchase Orders or documentation.
2.5 GSA, California Multiple Award Schedule ("CMAS"), and other schedule
contracts: This Agreement shall not be construed by Integrator as a
representation that Cisco will furnish supplies needed by Integrator to fulfill
any of Integrator's GSA, CMAS, or similar contract obligations under any
schedule.
2.6 Affiliates of Integrator listed on Exhibit H may purchase Products from
Cisco under this Agreement. Integrator 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 an affiliate of Cisco such that the
legal relationship shall be between Cisco's affiliate and Integrator's
affiliate.
3. MULTINATIONAL DEPLOYMENT POLICY.
If Integrator chooses to purchase Product for either internal or resale use in
locations where Integrator cannot provide sales and/or support, purchases shall
be made through Cisco's then-current Global Solution Services (GSS) Program. A
copy of such program is available to Integrator upon request.
4. PRICES.
4.1 Prices for Products shall be those specified in Cisco's then current
Price List less the applicable discounts specified in Exhibit B of this
Agreement. Purchase Orders shall be placed in accordance with the terms and
conditions specified in Exhibit E. Cisco may change prices for the Products at
any time by issuance of a revised Price List (including via electronic posting)
or other announcement of price change. Purchase Orders received before the date
of the announcement of price increases, and those received within thirty (30)
days thereafter which specify a delivery date within ninety (90) days of the
date of announcement, will be invoiced to Integrator without regard to the
price increase. Price decreases will be effective for all Purchase Orders
accepted by Cisco after the date of issuance or announcement of revised prices.
4.2 Integrator is free to determine its own resale prices unilaterally.
Integrator understands that neither Cisco nor any employee or representative of
Cisco may give any special treatment (favorable or unfavorable) to Integrator
as a result of Integrator's selection of resale prices. No employee or
representative of Cisco or anyone else has any authority to determine what
Integrator's resale prices for the Products must be or to inhibit in any way
Integrator's pricing discretion with respect to the Products.
4.3 Except where expressly agreed to the contrary, 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. Integrator shall pay
any taxes
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related to Products purchased or licensed pursuant to this Agreement.
Integrator shall present an exemption certificate acceptable to the taxing
authorities. Applicable taxes shall be billed as a separate item on the
invoice, to the extent possible.
5. ORDERS.
5.1 Integrator shall purchase Products by issuing a written or electronic
Purchase Order signed (or sent in the case of an electronic order) by an
authorized representative, indicating specific Products, quantity, price, total
purchase price, shipping instructions, requested delivery dates, xxxx-to and
ship-to addresses, tax exempt certifications, if applicable, and any other
special instructions, and shall identify the End User for each Product. A
signed copy of the Networked Commerce Agreement (Exhibit F) must be on file
with Cisco customer service prior to acceptance of electronic Purchase Orders
via the Cisco Internetworking Product Center (IPC). Any contingencies contained
on such Purchase Order are not binding upon Cisco. The terms and conditions of
this Agreement prevail regardless of any conflicting terms on the Purchase
Order or other correspondence. All Purchase Orders are subject to approval and
acceptance by the Cisco customer service order administration office of the
Cisco entity which shall supply the Products, and no other office is authorized
to accept orders on behalf of Cisco.
5.2 Integrator has the right to defer Product shipment for no more than
thirty (30) days from the scheduled shipping date, provided written notice is
received by Cisco at least ten (10) days prior to the originally scheduled
shipping date. Canceled orders, rescheduled deliveries or Product configuration
changes made by Integrator within ten (10) days of the original shipping date
will be subject to (a) acceptance by Cisco, and (b) a charge of fifteen percent
(15%) of the total invoice amount. Cisco reserves the right to reschedule
delivery in cases of configuration changes made within ten (10) days of
scheduled shipment.
5.3 Integrator shall pay all invoices issued by the appropriate Cisco entity.
In the event that Integrator issues an order to an entity other than the entity
indicated in Exhibit E, Cisco may either a) require orders to be resubmitted to
the appropriate Cisco entity, or b) assign such orders to the appropriate Cisco
entity. The legal relationship with respect to orders shall be between
Integrator and the Cisco entity listed in Exhibit E which shall be subject to
all the terms and conditions of this Agreement as if entered into between
Integrator and the Cisco entity.
6. SHIPPING AND DELIVERY.
6.1 Shipping dates will be established by Cisco upon receipt of Purchase
Order from Integrator. Shipping dates will be assigned as close as practicable
to the Integrator's requested date, based on Cisco's then current lead-times
for the Product(s). Cisco will use commercially reasonable efforts to notify
Integrator of the actual scheduled shipping date within five (5) days by
posting such notification on CCO, or provide written notification within ten
(10) working days after receipt of order. Unless given written instruction by
Integrator, Cisco shall select the carrier.
6.2 In no event shall Cisco have any liability in connection with shipment,
nor shall the carrier be deemed to be an agent of Cisco. Cisco shall not be
liable for damage or penalty for delay in delivery or for failure to give
notice of any delay.
6.3 During the term of this Agreement, Cisco may make the Products, which are
to be supplied outside of the United States available for order in and delivery
from an alternate central location and/or a Cisco affiliate, if it chooses. In
the event that Cisco does so, Integrator will order the Products according to
the procedures set forth at the time such delivery becomes available. At such
time, Purchase Orders in conformance with Cisco's policies will be shipped
according to the availability and expedited lead-times described in the
procedures. Cisco shall have the right to change delivery terms and include
additional charges, if any, at the time such alternate order and delivery
process is implemented by Cisco.
7. PAYMENT.
Upon and subject to credit approval by Cisco, payment terms shall be net thirty
(30) days from shipping date. All payments shall be made in U.S. currency,
excepting orders originating in and shipping to Canada, or in the event a Local
Currency Agreement (LCA) is appended to this Agreement. In such cases, payment
shall be made in Canadian currency, or as agreed to in the LCA. If at any time
Integrator is delinquent in the payment of any invoice or is otherwise in
breach of this Agreement, Cisco may, in its discretion, and without prejudice
to its other rights, withhold shipment (including partial shipments) of any
order or may, at its option, require Integrator to prepay for further
shipments. Any sum not paid by Integrator when due shall bear interest until
paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted
by law, whichever is less. Integrator grants Cisco a security interest in
Products purchased under this Agreement to secure payment for those Products
purchased. If requested by Cisco, Integrator agrees to execute financing
statements to perfect this security interest.
8. INTEGRATOR OBLIGATIONS.
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In a manner satisfactory to Cisco and at Integrator's sole expense, Integrator
shall:
A. employ competent and aggressive sales, technical support, and
maintenance organizations, employees of which shall be full-time direct
employees of Integrator who sell, install, secure acceptance of, and
maintain the Products;
B. purchase Demonstration/Evaluation/Lab Units for each appropriate selling
location as mutually agreed to by the parties;
C. within nine (9) months of the effective date of the Agreement, qualify
for, and then maintain throughout the term of this Agreement, the sales,
support and training/certification requirements at a a minimum of Level
3 Voice Development Partner as described in the Channel Tier Incentive
Section of Exhibit B;
D. maintain at least one (1) Cisco trained technical support person per
servicing location;
E. maintain adequate manpower and facilities to ensure prompt handling of
inquiries, orders, and shipments for Products;
F. validate End User network configuration design and associated components
and assist End User with system design;
G. keep Cisco informed as to any problems which involve Cisco Products and
technologies and require Cisco's support or impact Integrator's ability
to deliver service or solutions to the End User, to communicate such
problems promptly to Cisco, and to assist Cisco in the resolution of
such problems;
H. participate in quarterly business meetings with Cisco to review the
progress of the relationship and Integrator's achievement as related to
commitments such as, but not limited to: volume purchases, training and
certification, support, and reporting;
I. appoint a relationship manager whose primary responsibility will be to
work with the designated Cisco channel sales manager to manage the
implementation of the Agreement, act as the focal point for day-to-day
channel business issues and problem escalations, and participate in
Cisco channel-related activities, and;
J. on a monthly basis, prepare and forward a non-binding forecast for the
subsequent three (3) month period; in a format as reasonably specified
by Cisco. Cisco may also reasonably require additional reports.
K. within nine (9) months of signing the Agreement, integrator will
complete the training requirements commensurate with the appropriate
program level as stated in the then-current Cisco Voice Applications
Partner Program requirements.
9. PROPRIETARY RIGHTS AND SOFTWARE LICENSING.
9.1 Subject to the terms and conditions of this Agreement, Cisco grants to
Integrator a non-exclusive, non-transferable license (a) to use the Software
for Integrator's internal business use under the terms of Part (i) of Exhibit
S, and (b) during the term of this Agreement, to market and distribute the
Software, solely as permitted by Section 2 of this Agreement, in the Territory.
The license granted herein shall be for use of the Software in object code
format only and solely as provided in Part (i) of Exhibit S. Integrator may not
sublicense to any person or entity (including its affiliates) its rights to
distribute the Software.
9.2 Integrator shall provide a copy of the Software License Agreement
(inclusive of Parts (i) and (ii)) (a copy of which is attached hereto as
Exhibit S) to each End User of the Software prior to the installation.
Integrator agrees to notify Cisco promptly of any breach of the Software
License Agreement and further agrees that it will diligently pursue or, at
Cisco's request, assist Cisco to diligently pursue, an action against any third
parties in breach of the license.
10. LIMITED WARRANTY
10.1 Hardware. Cisco warrants that for a period of twelve (12) months from the
date of shipment from Cisco that the Hardware will be free from defects in
material and workmanship under normal use. This limited warranty extends only
to Integrator as original purchaser. Integrator'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 an advance
replacement within five (5) working days at Cisco's expense, or a refund of the
purchase price if the Hardware is returned to the party supplying it to
Integrator, if different than Cisco, freight and insurance prepaid. Cisco
replacement parts used in Hardware repair may be new or equivalent to new. All
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articles must be returned in accordance with Cisco's then-current Return
Material Authorization (RMA) procedure.
Software. Cisco warrants that for a period of twelve (12) months from the date
of shipment from Cisco: (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. Except for the
foregoing, the Software is provided AS IS. This limited warranty extends only
to Integrator as the original licensee. Integrator'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. In no event does Cisco warrant that the Software is
error free or that Integrator will be able to operate the Software without
problems or interruptions.
Notwithstanding any other provision hereof except as set out in Section 10.2,
Cisco's sole and exclusive warranty and obligation with respect to the Products
sold hereunder are set forth in Cisco's Limited Warranty Statement delivered
with the Product. INTEGRATOR SHALL NOT MAKE ANY WARRANTY COMMITMENT, WHETHER
WRITTEN OR ORAL, ON CISCO'S BEHALF. Integrator shall indemnify Cisco for any
warranties made in addition to Cisco's standard warranty and for any
misrepresentation of Cisco's reputation or Cisco's Products.
10.2 Cisco represents that Products which it has designated as "Year 2000
Compliant," as set forth in the "Compliance Table" (including accompanying
Notes) located in Cisco's "Year 2000 Compliance" web pages beginning at
xxxx://xxx.xxxxx.xxx (the "Year 2000 Pages") are "Year 2000 Compliant," meaning
that, as delivered to Integrator:
A. The Products accurately process data and time calculations before
and during the years 1999 and 2000;
B. All manipulation of time-related data yields the desired results
for valid date values within the application domain;
X. Xxxx elements in those Products use four digit storage and
indicate century to eliminate the chance for errors;
D. If a date element exists without a century indication, the
correct century continues to be unambiguous and produces accurate
results; and
E. Software accurately processes date and time data when used in
conjunction with other Year 2000 compliant software products.
Should a Product that is so identified as "Year 2000 Compliant" not be Year
2000 Compliant or should Cisco otherwise breach the foregoing representation,
Cisco will, as Integrator's sole and exclusive remedy, repair or replace the
Product so that it becomes Year 2000 Compliant or, if Cisco is unable to repair
or replace the Product to make it Year 2000 Compliant, Cisco will refund the
purchase price of the Product paid to Cisco by Integrator as depreciated or
amortized by an equal annual amount over the lifetime of the Product, as
established by Cisco, provided that Integrator returns the Product to Cisco as
originally delivered by Cisco (except for normal wear and tear) and pursuant to
Cisco's then-current RMA policy. The foregoing representation and remedy shall
only apply to Products returned prior to January 31, 2001, or to Products
returned before the Products are no longer supported pursuant to Cisco's
standard support policies, whichever event first occurs. Integrator
acknowledges that: (i) the Internet URL address and the web pages referred to
above may be updated by Cisco from time to time and (ii) each Product ordered
will be subject to Cisco's then-current "Year 2000 Pages."
10.3 CISCO DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR
IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR AGAINST INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICE.
11. TRADEMARK USAGE.
11.1 Integrator is permitted to use the name, logo, trademarks, and other
marks of Cisco (collectively, the "Marks") for all proper purposes in the sale
of Cisco Products to End Users and the performance of Integrator's duties
hereunder only so long as this Agreement is in effect. Integrator's use of such
Marks shall be in accordance with Cisco's policies including, but not limited
to trademark usage and advertising policies, and be subject to Cisco's
approval. Integrator agrees not to attach to any Products any trademarks, trade
names, logos, or labels other than an aesthetically proper label identifying
the Integrator, its location and its relationship to Cisco. Integrator further
agrees not to affix any Cisco Marks to products other than genuine Products.
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11.2 Integrator shall have no claim or right in the Marks, including but not
limited to trademarks, service marks, or trade names owned, used or claimed now
or in the future by Cisco. Integrator shall not make any claim to the Cisco
Marks or lodge any filings with respect to such Marks or marks confusingly
similar to the Marks, whether on behalf of Cisco or in its own name or
interest, without the prior written consent of Cisco.
12. CONFIDENTIAL INFORMATION.
12.1 Integrator acknowledges that, in the course of selling the Products and
in connection with this Agreement and its relationship with Cisco, it may
obtain information relating to the Products or to Cisco, which is of a
confidential and proprietary nature ("Confidential Information"). Such
Confidential Information may include, but is not limited to, trade secrets,
know how, inventions, techniques, processes, programs, schematics, software
source documents, data, customer lists, financial information, and sales and
marketing plans or information which Integrator knows or has reason to know is
confidential, proprietary or trade secret information of Cisco, as well as any
information posted on CCO. Integrator shall at all times, both during the term
of this Agreement and for a period of at least three (3) years after its
termination, keep in trust and confidence all such Confidential Information,
and shall not use such Confidential Information other than as expressly
authorized by Cisco under this Agreement, nor shall Integrator disclose any
such Confidential Information to third parties without Cisco's written consent.
Integrator further agrees to immediately return to Cisco all Confidential
Information (including copies thereof) in Integrator's possession, custody, or
control upon termination of this Agreement at any time and for any reason. The
obligations of confidentiality shall not apply to information which (a) has
entered the public domain except where such entry is the result of Integrator's
breach of this Agreement; (b) prior to disclosure hereunder was already
rightfully in Integrator's possession; or (c) subsequent to disclosure
hereunder is obtained by Integrator on a nonconfidential basis from a third
party who has the right to disclose such information to the Integrator.
12.2 Neither party shall disclose, advertise, or publish the terms and
conditions of this Agreement without the prior written consent of the other
party. Any press release or publication regarding this Agreement is subject to
prior review and written approval of the parties.
13. PATENT AND COPYRIGHT INDEMNITY.
13.1 Cisco will have the obligation and right to defend any claim, suit or
proceeding brought against Integrator so far as it is based on a claim that any
Product supplied hereunder infringes a United States copyright or an existing
United States patent (issued as of the Effective Date). Cisco's obligation
specified in this paragraph will be conditioned on Integrator's notifying Cisco
promptly in writing of the claim and giving Cisco full authority, information,
and assistance for the defense and settlement thereof. If such claim has
occurred, or in Cisco's opinion is likely to occur, Integrator agrees to permit
Cisco, at its option and expense, either to: (a) procure for Integrator the
right to continue using the Product; (b) replace or modify the same so that it
becomes non-infringing; or (c) if neither of the foregoing alternatives is
reasonably available, immediately terminate Cisco's obligations (and
Integrator's rights) under this Agreement with regard to such Products, and, if
Integrator returns such Product to Cisco refund to Integrator the price
originally paid by Integrator to Cisco for such Products as depreciated or
amortized by an equal annual amount over the lifetime of the Products as
established by Cisco.
13.2 Notwithstanding the foregoing, Cisco has no liability for, and
Integrator will indemnify Cisco against, any claim based upon (a) the
combination, operation, or use of any Product supplied hereunder with
equipment, devices, or software not supplied by Cisco; (b) alteration or
modification of any Product supplied hereunder; or (c) Cisco's compliance with
Integrator's designs, specifications or instructions.
13.3 Notwithstanding any other provisions hereof, Cisco shall not be liable
for any claim based on Integrator's use of the Products as shipped after Cisco
has informed the Integrator of modifications or changes in the Products
required to avoid such claims and offered to implement those modifications or
changes, if such claim would have been avoided by implementation of Cisco's
suggestions.
13.4 THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO AND ITS SUPPLIERS
AND THE EXCLUSIVE REMEDY OF INTEGRATOR, WITH RESPECT TO INFRINGEMENT OF
PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO INTEGRATOR SOLELY FOR ITS BENEFIT
AND IN LIEU OF, AND CISCO DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH
RESPECT TO THE PRODUCTS.
14. TERM AND TERMINATION.
14.1 This Agreement shall commence on the Effective Date and continue
thereafter for a period of one (1) year. Without prejudice to either party's
right to terminate this Agreement as set forth in Section 14.2, Cisco may by
written notice to Integrator given at least thirty (30) days prior to the end
of the then-current term of the Agreement, extend the term of the Agreement for
the period set forth in such notice, up to a maximum of one (1) year beyond the
then-current expiration date. Any extension shall be on the same terms and
conditions then in force except as may be mutually agreed in writing by the
parties.
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14.2 Either party may terminate this Agreement by providing the other party
with forty-five (45) days prior written notice of termination. Cisco may, upon
twenty (20) days written notice, terminate this Agreement in the event (a)
there is a change of ownership of Integrator (i.e. purchase or sale by one
person or other entity) of ten percent (10%) or more of Integrator's market
valuation, (b) there is an acquisition or transfer of a controlling interest in
Integrator, or (c) there is any investment in Integrator by a competitor of
Cisco.
14.3 This Agreement may be terminated immediately by either party through
written notice under any of the following conditions:
A. Either party ceases to carry on business as a going concern,
either party becomes the object of the institution of voluntary
or involuntary proceedings in bankruptcy or liquidation, or a
receiver is appointed with respect to a substantial part of its
assets.
B. Either party breaches any of the material provisions of this
Agreement and fails to remedy such breach within thirty (30) days
after written notification by the other party of such breach, or,
except in the case of breach of payment obligations, such longer
period as may be reasonably required to cure the breach, up to a
maximum of forty five (45) days, provided that the breaching
party within thirty days of receiving the notice commenced
diligent efforts to cure the breach.
14.4 Notwithstanding the foregoing, this Agreement may be terminated
immediately by Cisco in the event of Integrator's breach of Section 9,
Proprietary Rights and Software Licensing, or Section 12, Confidential
Information.
14.5 Upon termination of this Agreement, (a) Cisco reserves the right to cease
all further deliveries due against existing orders unless Integrator agrees to
pay for such deliveries by certified or cashier's check prior to shipment, (b)
all outstanding invoices immediately become due and payable by certified or
cashier's check, and (c) subject to Section 24.6, all rights and licenses of
Integrator hereunder shall terminate except that Integrator may continue to
distribute, in accordance with normal business practices and the terms of this
Agreement, Products shipped to it by Cisco prior to the date of termination.
14.6 Additionally, upon termination, Integrator shall immediately return to
Cisco all Confidential Information and data (including all copies thereof) then
in Integrator's possession or custody or control including, without limitation:
A. All technical materials and business plans supplied by Cisco;
B. All manuals covering Products; and
C. Any customer or prospect lists provided by Cisco
retaining only sufficient material to fulfill remaining orders and to service
the installed base of customers as mutually agreed upon by Cisco and
Integrator.
14.7 INTEGRATOR AGREES IN THE EVENT OF TERMINATION OF THIS AGREEMENT FOR ANY
REASON, IT SHALL HAVE NO RIGHTS TO DAMAGES OR INDEMNIFICATION OF ANY NATURE
RELATED TO SUCH TERMINATION (BUT NOT LIMITING ANY CLAIM FOR DAMAGES IT MIGHT
HAVE ON ACCOUNT OF CISCO'S BREACH OF THIS AGREEMENT, EVEN IF THE BREACH GAVE
RISE TO TERMINATION, SUCH LIABILITY BEING GOVERNED BY AND SUBJECT TO THE
LIMITATIONS SET FORTH ELSEWHERE IN THIS AGREEMENT), SPECIFICALLY INCLUDING NO
RIGHTS TO DAMAGES OR INDEMNIFICATION FOR COMMERCIAL SEVERANCE PAY, WHETHER BY
WAY OF LOSS OF FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF THE CISCO
PRODUCTS, OR OTHER COMMITMENTS IN CONNECTION WITH THE BUSINESS AND GOOD WILL OF
INTEGRATOR. INTEGRATOR EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION
OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS RELATIONSHIP.
15. SUPPORT.
Integrator shall provide support to End Users and shall meet all requirements
set forth in Exhibit D. Cisco reserves the right to directly support any End
User. Attached as Exhibit D are the terms and conditions of the support that
Cisco shall make available to Integrator.
16. AUDIT.
Integrator shall keep full, true, and accurate records and accounts, in
accordance with generally-accepted accounting principles, of each Product
purchased and distributed, including information regarding Software usage and
export. Integrator shall make these records available for audit by Cisco upon
fifteen (15) days prior written notice, during regular business hours at
Integrator's principal place of business.
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17. EXPORT LAW COMPLIANCE.
17.1 Integrator hereby acknowledges that the Products and technology or
direct products thereof (hereafter referred to as "Products and Technology"),
supplied by Cisco hereunder are subject to export controls under the laws and
regulations of the United States (U.S.). Integrator shall comply with such laws
and regulations and agrees not to export, re-export or transfer Products and
Technology without first obtaining all required U.S. Government authorizations
or licenses. Cisco and Integrator each agree to provide the other such
information and assistance as may reasonably be required by the other in
connection with securing such authorizations or licenses, and to take timely
action to obtain all required support documents.
A. End-Use/User: Integrator hereby certifies that none of the
Products and Technology supplied by Cisco to Integrator hereunder
will be exported, re-exported, or otherwise transferred by
Integrator:
A.1 to a U.S. embargoed or highly restricted destination, (15
United States Code of Federal Regulations ("CFR") Part
746)
A.2 for use by or for any military end-user, or in any
military end-use located in or operating under the
authority of any country identified in Country Group D1
under 15 CFR, Supplement Xx. 0 xx Xxxx 000, (00 XXX Part
740)
A.3 to, or made available by Integrator for use by or for, any
entity that is engaged in the design, development,
production, stockpile or use of nuclear, biological or
chemical weapons or missiles, (15 CFR Part 744)
A.4 to parties on any of the U.S. Government's lists of denied
persons, (15 CFR Part 764)
without first obtaining all required U.S. Government
authorizations or licenses.
B. Integrator's obligation under this clause shall survive the
expiration or termination of this Agreement.
C. Integrator agrees to maintain a record of exports, re-exports,
and transfers of the Products and Technology for five years and
to forward within that time period any required records to Cisco
or, at Cisco's request, the U.S. Government. Integrator agrees to
permit audits by Cisco or the U.S. Government as required under
the regulations to ensure compliance with this Agreement.
18. FORCE MAJEURE.
Except for the obligation to pay monies due and owing, neither party shall be
liable for any delay or failure in performance due to events outside the
defaulting party's reasonable control, including without limitation acts of
God, earthquake, labor disputes, shortages of supplies, riots, war, fire,
epidemics, or delays of common carriers or other circumstances beyond its
reasonable control. The obligations and rights of the excused party shall be
extended on a day to day basis for the time period equal to the period of the
excusable delay.
19. PRODUCT CHANGES.
Modifications which do not affect the form, fit or function of a Product or
which Cisco deems necessary to comply with specifications, changed safety
standards or governmental regulations, to make the Product non-infringing with
respect to any patent, copyright or other proprietary interest, or to otherwise
improve the Product may be made at any time by Cisco without prior notice to or
consent of Integrator and such altered Product shall be deemed fully
conforming. Cisco shall employ commercially reasonable efforts to announce,
including by electronic posting, Product discontinuance or changes other than
those set forth in the previous sentence at least ninety (90) days prior to the
effective date of the changes (the "Announcement Period"). Integrator may make
a last-time purchase of such Products within the Announcement Period.
20. COMPLIANCE WITH LAWS
Integrator shall obtain all licenses, permits and approvals required by any
government and shall comply with all applicable laws, rules, policies and
procedures including requirements applicable to the use of Products under
telecommunications and other laws and regulations, of any government where the
Products are to be sold, used or deployed (collectively "Applicable Laws").
Integrator will indemnify and hold harmless Cisco for any violation or alleged
violation of any Applicable Laws. Integrator hereby represents and warrants
that: (a) it shall comply with all Applicable Laws; (b) this Agreement and each
of its terms are in full conformance and in compliance with such laws; and (c)
it shall not act in any fashion or take any action or permit or authorize any
action which will render Cisco liable for a violation of the U.S. Foreign
Corrupt Practices Act, which prohibits the offering, giving or promising to
offer or give, directly or indirectly, money or anything of value to any
official of a government,
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political party or instrumentality thereof in order to assist it or Cisco in
obtaining or retaining business and (i) it will not violate or cause Cisco to
violate such act in connection with the sale or distribution of Cisco Products
and/or services; and (ii) it will notify Cisco in writing if any of its owners,
partners, principals, officers, and employees are or become during the term of
this Agreement officials, officers or representatives of any government or
political party or candidates for political office. Integrator shall use its
best efforts to regularly and continuously inform Cisco of any requirements of
laws, statutes, ordinances, governmental authorities directly or indirectly
affecting this Agreement, the sale, use and distribution of Products, or
Cisco's trade name, trademarks or other commercial, industrial or intellectual
property interests, including, but not limited to, certification of the
Products from the proper authorities in the Territory.
21. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO CLAIMS OR CAUSES OF ACTION INVOLVING DEATH, PERSONAL
INJURY, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY, ALL LIABILITY OF CISCO AND ITS
SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID
TO CISCO UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE
EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF
LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
22. CONSEQUENTIAL DAMAGES WAIVER.
IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT
DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
EVEN IF CISCO OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.
23. NOTICE.
All notices required or permitted under this Agreement will be in writing and
will be deemed given: (a) when delivered personally; (b) when sent by confirmed
facsimile (followed by the actual document in air mail/air courier); (c) three
(3) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid (or six (6) days for international mail); or (d) one
(1) day after deposit with a commercial express courier specifying next day
delivery (or two (2) days for international courier packages specifying 2-day
delivery), with written verification of receipt. All communications will be
sent to the addresses set forth on the signature page 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.
24. GENERAL.
24.1 CHOICE OF LAW. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California, United States of America, as if performed wholly within the state
and without giving effect to the principles of conflict of law. The parties
specifically disclaim the UN Convention on Contracts for the International Sale
of Goods.
24.2 NO WAIVER. No waiver of rights under this Agreement by either party
shall constitute a subsequent waiver of this or any other right under this
Agreement.
24.3 ASSIGNMENT. Neither this Agreement nor any rights under this Agreement,
other than monies due or to become due, shall be assigned or otherwise
transferred by Integrator (by operation of law or otherwise) without the prior
written consent of Cisco. Cisco shall have the right to assign all or part of
this Agreement without Integrator's approval. This Agreement shall bind and
inure to the benefit of the successors and permitted assigns of the parties.
24.4 SEVERABILITY. In the event that any of the terms of this Agreement
become or are declared to be illegal or otherwise unenforceable by any court of
competent jurisdiction, such term(s) shall be null and void and shall be deemed
deleted from this Agreement. All remaining terms of this Agreement shall remain
in full force and effect. Notwithstanding the foregoing, if this paragraph
becomes applicable and, as a result, the value of this Agreement is materially
impaired for either party, as determined by such party in its sole discretion,
then the affected party may terminate this Agreement by written notice to the
other.
24.5 ATTORNEYS' FEES. In any suit or proceeding relating to this Agreement
the prevailing party will have the right to recover from the other its costs
and reasonable fees and expenses of attorneys, accountants, and other
professionals incurred in connection with the suit of proceeding, including
costs, fees and expenses upon appeal, separately from and in addition to any
other amount included in such judgment. This provision is intended to be
severable from the other provisions of this Agreement, and shall survive and
not be merged into any such judgment.
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24.6 NO AGENCY. This Agreement does not create any agency, partnership, joint
venture or franchise relationship. Neither party has the right or authority to,
and shall not, assume or create any obligation of any nature whatsoever on
behalf of the other party or bind the other party in any respect whatsoever.
24.7 URL. Integrator hereby confirms that it has the ability to access, has
accessed and has read, the information made available by Cisco at all of the
world wide web sites/URLs/addresses/pages referred to anywhere throughout this
Agreement (including any of the Exhibits hereto).
24.8 SURVIVAL. Sections 10, 12, 13, 14, 16, 17, 18, 21, 22 and 24, and the
license to use the Software set out in Section 9 and Part (i) of Exhibit S
(subject to the termination provisions set forth in Part (i) of Exhibit S)
shall survive the termination of this Agreement.
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EXHIBIT A
INTEGRATOR PROFILE
INTEGRATOR'S ASSIGNED SALES TERRITORY:
World Wide.
INTEGRATOR'S ADDED VALUE PRODUCTS AND SERVICES:
Software Development company with fully integrated IP Telephony Software
packages and value added IP applications. ITSP Software Applications
Development, Network of existing ITSPs, Clearing house for ITSP minute traffic
payments, Web based applications Software Developer for VoIP and other
functions.
VERTICAL MARKETS ADDRESSED BY INTEGRATOR'S ADDED VALUE PRODUCTS AND SERVICES:
Internet Telephony Service Providers (ITSPs), Internet Service Providers
(ISPs), Corporate Virtual Private Networks, NextGen Telcos
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EXHIBIT B -- DISCOUNT SCHEDULE
The discount schedule set forth below shall be applied to all Product purchased
from Cisco by Integrator during the term of this Agreement.
===============================================================================
BASE DISCOUNT: 26%
VOLUME INCENTIVE:
Volume Achievement (see matrix below)
Forecast: $ 250,000. 0%
---------
CHANNEL TIER INCENTIVE:
Level 1 - Global Voice Solutions Partner (5%)
LEVEL 2 - VOICE SOLUTIONS PARTNER (4%)
Level 3 - Voice Development Partner (2%) 4%
IC/POS (1%): 1%
TOTAL VALUE ADDED RESALE DISCOUNT - GENERAL (NON FOCUS AREAS) AND INTERNAL USE: 31%
AUSTRALIA ONLY: (FOR PURCHASES MADE OFF OF GLOBAL LIST PRICE)(1)
TOTAL VALUE ADDED RESALE DISCOUNT - GENERAL (NON FOCUS AREAS) AND INTERNAL USE: 21%
FOCUS INCENTIVE:
Integrator's Focus Areas: Indicate one (1) or both below: (6%)
1) Service Provider (SERVICE PROVIDER)
-------------------
2) Voice Market (VOICE MARKET)
-------------------
Total Focus Incentive discount points: +6%
TOTAL VALUE ADDED RESALE DISCOUNT - RESALES TO FOCUS AREA(S): 37%
AUSTRALIA ONLY: (FOR PURCHASES MADE OFF OF GLOBAL LIST PRICE)(2)
TOTAL VALUE ADDED RESALE DISCOUNT - RESALES TO FOCUS AREA(S): 27%
===============================================================================
Additionally, Integrator's discount for the following types of purchases, as
described in detail below shall be:
NON-VALUE ADDED RESALE 10%
DEMONSTRATION/EVALUATION EQUIPMENT 45%
LAB DEVELOPMENT SWITCH PRODUCT 65%
(1), (2) Discount for purchases to be made utilizing Global List Price for
shipment to and deployment in Australia is ten percent (10%) less than other
applicable discount. Integrator may choose to amend Agreement to allow for
purchases to be made utilizing Australian Price List upon request. In such case,
all Purchase Orders will be placed with and fulfilled through Cisco Systems
Australia Pty. Ltd., and payment shall be made in Australian currency.
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VOLUME INCENTIVE MATRIX:
Total annual volume of Products forecasted to be purchased from Cisco by
Integrator for resale in accordance with this Agreement:
Applicable to the List Price:
-------------------------------------------------------------------------------
Actual Net Purchase Forecast/Achieved Volume Incentive
$1,000,000 or greater +1%
$2,000,000 or greater +2%
$3,000,000 or greater +3%
$4,000,000 or greater +4%
===============================================================================
The above discounts are based on Integrator's mutually agreed total volume
forecast.
Cisco reserves the right to adjust the volume incentive discount for the second
six (6) month period of the initial term and of any subsequent year of the
Agreement based on the actual volume of Products purchased for distribution in
accordance with this Agreement and delivered during the first six (6) month
period of the initial term or subsequent years of the Agreement. Changes in
discount level are not retroactive.
CHANNEL TIER INCENTIVE*:
(Refer to Cisco's then current Channel Tier Incentive Program for Complete
Details)
-------------------------------------------------------------------------------------------------
GLOBAL VOICE VOICE SOLUTIONS VOICE
SOLUTIONS PARTNER DEVELOPMENT
PARTNER PARTNER
-------------------------------------------------------------------------------------------------
SUPPORT
- Availability of support 24x7 (manned 24x7 (pager Local Business
site access) access) Hours
- Response time 1 hour 2 hour 4 hour
Same day Next day 48 hours
- On-site support
In place In place In place
- Must maintain upgraded
development In place and maintenance
Lab with Cisco equipment fully
configured to represent all
solutions offered (applies to
partners who develop
applications for specific Cisco
Hardware platforms)
In place In place In place
- Defined escalation procedure for
Xxxxx 0 & 2 support
-------------------------------------------------------------------------------------------------
TRAINING & INDIVIDUAL PERSONNEL
CERTIFICATION REQUIREMENTS
ESMBU HARDWARE PLATFORMS
- Maintenance & Operations
trained/certified personnel 6 4 2
- Application Development
trained/certified personnel 6 4 2
Voice Product Line (Access Path in
all it's configurations, 5200, 5300,
5400) 4 CCNP (Cisco 3 CCNP 2 CCNP
Certified
Network
-------------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------------
(Professional)
-------------------------------------------------------------------------------------------------
GEOGRAPHIC SALES & SUPPORT
COVERAGE ** Global Regional Regional
-------------------------------------------------------------------------------------------------
* Eligibility for Channel Tier Discount to be verified by Cisco.
** REGIONAL: Serves primarily a regional geographic location (e.g. N.A.,
Europe, SE Asia, etc.); GLOBAL: serves all regions (Americas, EMEA, ASIA)
through 3+ major sales and support organizations
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IC/POS:
IC (Internet Commerce)/POS (Point of Sale). Cisco will apply one (1) additional
discount point when Integrator commits to and actually meets, the following
requirements:
Ninety percent (90%) of Integrator's orders shall be submitted
electronically, and; Ninety percent (90%) of Integrator's orders shall
contain POS information
"Submitted electronically" means Integrator uses IC or EDI (Electronic
Data Interchange) technology in a format agreed in advance with Cisco to
submit orders electronically, and collect and transmit relevant End User
information.
POS information must include the following:
1. Integrator's Purchase Order number.
2. Cisco's Product name and number.
3. End User (name of business or organization), ship-to and xxxx-to address
(country, state or province (US and Canada only), zip or postal code),
phone number.
Cisco may withdraw the applicability of the IC/POS discount point to all
unshipped and/or future orders if it determines that the commitment has not
been fulfilled in any three (3) month period. Restoration of any withdrawn
point shall be at Cisco's sole discretion. Cisco shall have the right to verify
the information so provided and shall be provided with reasonable proof
(shippers' documentation, invoices, etc.) confirming the information on
request.
FOCUS INCENTIVE:
Integrator must qualify for one or both of the two (2) Focus areas (as defined
below or such other medium of communication as Cisco may elect) during the term
of the Agreement and subject to Territory. Focus Incentive applies only to
Products which either:
1. Integrator sells to an End-User located in the in the U.S. whose primary
business, as classified by the North American Industry Classification
System (NAIC) (xxxx://xxx.xxxx.xxx/xxxxxxxx/0xxx000.xxx), qualifies such
primary business as eligible for inclusion in one of Cisco's specified
Focus area, or sells to an End User located elsewhere which is deemed by
Cisco to qualify in accordance with classification criteria equivalent to
those set forth by the NAIC, and such Focus area has been selected as one
of Integrator's Focus areas (Focus Incentive applies to all Product on the
Purchase Order), or;
2. are part of a product set that Integrator has selected in accordance with
the applicable requirements for Focus Areas as one of Integrator's Focus
areas (Focus Incentive applies to only those Products which are included
in the product set).
No more than one Focus Incentive may be applied against an individual line item
on a Purchase Order, including in the event such Product qualifies for Focus
Incentive based on the End User's primary business and is also part of a
selected and qualified Focus area based on product set.
---------------------------------------------------------------------------
VERTICAL MARKET - U.S. DEFINITION
---------------------------------------------------------------------------
Service Provider Companies involved in providing telephone, internet,
wireless and radio communications services.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
PRODUCT SET - U.S. DEFINITION
---------------------------------------------------------------------------
Voice Market VCO4/K Programmable Switch, 5300, 5800,
Access Path, VSC
---------------------------------------------------------------------------
Cisco may change the availability or definition of Focus areas. Any such
changes shall not affect this Agreement during the balance of the initial term.
Cisco reserves the right to audit End User information to verify the
information reported regarding sales made for a specified Focus area. In the
event Cisco determines, in its sole discretion, that Integrator has reported
sales as being within a Focus area whereas they were not, Cisco may, without
prejudice to any other rights under the Agreement, withdraw Focus Incentive
points to be applied to any future purchase and reclaim points falsely claimed.
Such misrepresentation shall be deemed a material breach of the Agreement.
Cisco may change the availability or definition of Focus areas. Any such
changes shall not affect this Agreement during the balance of the initial term.
Cisco reserves the right to audit End User information to verify the
information reported regarding sales made for a specified Focus area. In the
event Cisco determines, in its sole discretion, that Integrator has reported
sales as being within a Focus area whereas they were not, Cisco may, without
prejudice to any other rights under the Agreement, withdraw Focus
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Incentive points to be applied to any future purchase and reclaim points
falsely claimed. Such misrepresentation shall be deemed a material breach of
the Agreement.
INTERNAL USE:
Integrator shall be entitled to purchase Product from Cisco for internal use at
the established "Total Value Added Resale Discount (General)". No focus area
discount incentive points shall apply to Product purchased for internal use.
NON-VALUE ADDED DISCOUNT:
In the event that Cisco determines in its sole discretion that Integrator is
selling Cisco Product without significant added value as defined in the
Agreement, the total discount for any such opportunity will be reduced to a
total of ten percent (10%) off of Cisco's List Price. This remedy is without
prejudice to and in addition to all other rights and remedies available to
Cisco at law.
DEMONSTRATION/EVALUATION PRODUCT:
To assist Integrator in its sales and marketing efforts, Integrator shall be
entitled to a discount of forty-five percent (45%) for a maximum of twenty-five
(25) demonstration/evaluation units per year. Integrator agrees to use such
units solely for demonstration/evaluation (non-production) purposes and any
software received with or for such units may not be distributed further, and
software for such units which is upgraded by Integrator is licensed to
Integrator solely for use for demonstration and evaluation purposes.
LAB DEVELOPMENT SWITCH PRODUCT:
Cisco shall provide a sixty five percent (65%) discount on Hardware and
Software components for VCO/4K switches that are being installed in a
laboratory environment, and any subsequent Hardware and Software purchased for
such laboratory units.
POS REPORTING:
In the event Integrator does not provide POS information at the time of order
entry, Integrator shall prepare and forward such POS information to Cisco on a
monthly basis in a format as reasonably specified by Cisco. The information
shall include all that which is set forth above under "IC/POS". Cisco shall
have the right to verify the information in such reports and shall be provided
with reasonable proof (shippers' documentation, invoices, etc.) confirming the
information on request.
Such reports are due by the twentieth of the following month to Cisco at the
following address:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Reporting Coordinator, Channel Operations
Fax: 000.000.0000
or such other address as Cisco may specify.
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EXHIBIT C
(EXHIBIT C DOES NOT APPLY TO THIS AGREEMENT)
EXHIBIT D
CVAP SUPPORT EXHIBIT
This CVAP Support Exhibit ("Exhibit") supplements the CISCO VOICE APPLICATION
PARTNER (CVAP) Multi-Theatre Systems Integrator Agreement, ("the Agreement")
and all the terms and conditions of the Agreement apply to this Exhibit;
provided, this Exhibit supersedes any prior or contemporaneous agreement that
covers the same subject matter. Further, to the extent there is a conflict
between the Agreement and this Exhibit, the terms of this Exhibit shall take
precedence over the terms and conditions of the Agreement with regard to the
subject matter described herein.
1. DEFINITIONS.
1.1. "ADVANCE REPLACEMENT" means a service to ship replacement
Service Parts in advance of receipt of failed Product.
1.2. "CATEGORY A, B, C AND D" means Cisco-determined Product
categories used for assessment of service fees. Refer to CCO
for details on the categorization of each Product.
1.3. "CATEGORY S" means Cisco's non-embedded/stand alone Application
Software Products. Refer to CCO for details on the
categorization on each product.
1.4. "CCO" means Cisco Connection Online, Cisco's online information
web server (xxx.xxxxx.xxx).
1.5. "FIRST LEVEL SUPPORT" means the ability to provide general
Product information (pre-sales and post-sales), Hardware and
Software configuration, installation, and upgrade support;
collect relevant technical problem identification information;
perform base problem determination; provide basic support on
the standard protocols and features; provide regular problem
resolution status reports to the End User; maintain knowledge
of the End User's network.
1.6. "HARDWARE" means tangible Cisco Product made available to
Integrator.
1.7. "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)].
1.8. "MAJOR RELEASE" means a release of a Cisco Software product
that is designated by Cisco as a change in the ones digit of
the Software version number [(x).x.x].
1.9. "OTHER PRODUCT" means Product an End User acquired from sources
other than Integrator.
1.10. "PRODUCT" means both Cisco Hardware and/or Software.
1.11. "RMA" means Return Material Authorization.
1.12. "SECOND LEVEL SUPPORT" means First Level Support plus the
ability in relation to the Products to resolve the majority of
misconfigurations, troubleshoot and simulate complex
configuration, Hardware, and Software problems, support problem
isolation and determination of Product specification defects;
provide lab simulation and interoperability and compatibility
testing for new Software and Hardware releases prior to being
deployed into an End User's production network; define a
problem resolution action plan; do preliminary analysis of
traces and log files, diagnose problems remotely and provide
Cisco with complete steps to reproduce problems which cannot be
resolved at 1st or 2nd level.
1.13. "SERVICE PART" means a component or sub-assembly of a Product
and is also referred to as Field Replaceable Unit (FRU).
1.14. "SOFTWARE" means the machine-readable object code Software
programs licensed by Cisco.
1.15. "STANDARD BUSINESS HOURS" means 6:00 AM to 6:00 PM Pacific
Standard Time, Monday through Friday, excluding Cisco-observed
holidays.
1.16. "TAC" means Cisco's Technical Assistance Center.
1.17. "THIRD LEVEL SUPPORT" means fixing or generating workarounds
for Hardware and Software bugs and troubleshooting bugs that
were not diagnosed or resolved during Second Level Support;
providing advanced support on all protocols and features and
analysis of traces, log files and core dumps.
1.18. "UPDATE" means Maintenance Releases, Version Releases and/or
Major Releases which contain the same configuration as
originally acquired.
1.19. "VERSION RELEASE" means an incremental release of Cisco
Software that provides maintenance fixes and additional
Software features. Version releases are designated by Cisco as
a change in the tenths digit(s) of the Software version number
[x.(x.).x].
2. SCOPE
2.1. SUPPORT SERVICES. The support hereunder is intended for an
Integrator who support End Users. Cisco will provide services
described hereunder to Integrator as backup to its technical
capabilities; provided however,
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that Integrator will retain primary responsibility for
providing support to its End Users and Cisco shall have no
obligation to provide support directly to End Users.
2.2. CERTIFICATION. Integrator must be certified in Cisco's channel
certification program in order to participate in the support
program described herein and must have individual personnel
certified in the following courses:
1. VCO/Series 20 and 80-System Configuration and Management;
2. VCO/4K System Configuration and Management;
3. Advanced Troubleshooting;
4. Introductory Software and the Summa API;
5. ISDN Templates, Commands and Reports; and
6. Appropriate SS7 courses may also be required.
3. CISCO RIGHTS AND OBLIGATIONS. In consideration of the service fee paid
by Integrator, Cisco will provide the following services to Integrator:
3.1. TECHNICAL SUPPORT.
3.1.1. Cisco shall provide 24-hour 7-day a week access to Cisco's TAC.
Cisco will use its best endeavors to respond to Integrator
within one (1) hour for all calls received during Standard
Business Hours and to 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.
3.1.2. Cisco will provide Third Level Support on all Category A
Products.
3.1.3. Cisco will supply the appropriate level of technical resources
based on problem priority and elapsed time to assist Integrator
with problem resolution and to ensure adherence to Cisco's
Problem Prioritization and Escalation Guideline as described in
Appendix A. If mutually agreed that Cisco on-site technical
resources are required for resolution, Cisco will dispatch the
necessary level of technical support to assist Integrator.
3.2. SOFTWARE SUPPORT.
3.2.1. SOFTWARE RELEASES. Cisco will make available Software Updates as
follows:
3.2.1.1. All major releases, version releases and maintenance
releases, if released by Cisco, will be provided to
Integrator upon request.
3.2.2. RELEASE SUPPORT. Cisco will support each Major Release and
Version Release for a period of thirty-six (36) months from the
first commercial shipment of that release. Cisco, in meeting
any support obligations, may require an upgrade to a subsequent
release.
3.2.3. SOFTWARE PATCHES. When required, Cisco will provide new
Software to Integrator to correct a problem.
3.3. HARDWARE SUPPORT. Cisco will provide Advance Replacement
service for Hardware as follows:
3.3.1. Cisco shall provide Advance Replacement service as follows:
Cisco will ship the replacement non-configured Service Part the
same business day providing the request for shipment is made
prior to 3:00 PM, Pacific Standard Time, Monday through Friday,
excluding Cisco-observed holidays. For requests after 3:00 PM
Pacific Standard Time, the Advance Replacement will be shipped
the following Cisco business day. The Advance Replacement will
be shipped, with shipping instructions, to arrive the next
business day. Standard Advanced Replacement service will be
available on VCO 4K, SS7 and later hardware products.
3.3.2. All replacements are shipped using Cisco's preferred carrier,
freight prepaid by Cisco.
3.3.3. Product used for replacement may be new or equivalent to new,
at Cisco's discretion.
3.3.4. The Advance Replacement Service described in Section 3.3.1 for
Product supported by Integrator which was purchased prior to
the effective date of this Exhibit will take effect thirty (30)
days after the Effective Date, provided that Cisco may refuse
to provide such service for any Product where Cisco in its sole
discretion is not satisfied that all required support fees with
respect to such Product have been paid.
3.4. CCO ACCESS. Cisco will provide an appropriate level of
Integrator access to CCO. CCO is available to End Users upon
approval by Integrator pursuant to the process in Appendix B
("Partner Initiated Customer Access" "PICA").
3.5. SPECIAL REQUIREMENTS. For some Products added to the Price
List, including Products which become Cisco Products as a
result of an acquisition by Cisco of another entity, Cisco may
impose certification, installation, or training requirements on
Integrator prior to allowing Integrator to buy and/or support
such Products from Cisco.
3.6. Notwithstanding anything in the Agreement to the contrary,
Cisco reserves the right to provide support directly to End
Users, even if Integrator is providing support to such End
Users.
4. INTEGRATOR RIGHTS AND OBLIGATIONS.
4.1. STAFF. Integrator shall maintain minimum requirements of
certified and trained technical support personnel who are
full-time direct employees to provide Software and Hardware
support. Integrator shall maintain at least one (1) trained
technical support person per servicing location.
4.2. SERVICES TO END USERS. Integrator shall provide the following
services to its End Users:
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4.2.1. SERVICE TIME PERIOD. Integrator shall provide services to End
Users in accordance with local business hours.
4.2.2. TECHNICAL SUPPORT.
4.2.2.1. Integrator will provide First Level Support and Second
Level Support to End Users on all Products.
4.2.2.2. During local business hours Integrator shall provide
telephone call back to the End User within one (1)
hour. For calls received outside local business hours,
Integrator will respond to the End User within one (1)
hour for Priority 1 and 2 calls, and no later than the
next business day for Priority 3 and 4 calls.
4.2.2.3. Integrator shall establish problem priorities with End
Users consistent with Cisco's problem priority
definitions described in Appendix A and will report
unresolved cases to Cisco as follows:
PRIORITY 1: No later than four (4) hours from
initial End User notification to Integrator.
PRIORITY 2: No later than three (3) business days
from initial End User notification to Integrator.
PRIORITY 3: No later than five (5) business days
from initial End User notification to Integrator.
PRIORITY 4: No later than ten (10) business days
from initial End User notification to Integrator.
4.2.3. ADVANCE REPLACEMENT: Integrator shall offer next business day
Advance Replacement to its End Users.
4.2.4. INSTALLATION. Integrator shall offer installation services to
each End User who purchases Products.
4.2.5. WARRANTY SERVICE. Integrator shall provide to the End User, at
no charge, all warranty service for a minimum of the warranty
period set forth in the then-current published Product
warranty.
4.3. CCO ACCESS. Integrator will administer CCO access for its
employees including disabling CCO access upon employee
termination. Additionally, Integrator will be responsible for
administering and authorizing registered End-User access to CCO
pursuant to the process in Appendix B. In no event shall
Integrator disclose its level of CCO access information.
4.4. Integrator shall facilitate access to the Products included
herein such that problems may be diagnosed and corrected
remotely via the internet or via modem access.
4.5. ON-SITE PROBLEM RESOLUTION. Integrator will have the ability to
go to the End User's site to provide problem resolution.
4.6. SOFTWARE SUPPORT.
4.6.1. DUPLICATION RIGHTS.
4.6.1.1. For the Releases specified in Section 3.2.1.1, no
duplication rights of any kind are granted by Cisco.
4.6.2. DISTRIBUTION RIGHTS. Cisco grants Integrator the right to
distribute software only to End Users currently licensed to use
the Software.
4.6.3. REASONABLE EFFORT. Integrator will use reasonable efforts to
(i) generate work-around solutions to reported Software
problems or (ii) implement a Cisco-developed patch to the
Software.
4.7. SERVICE PARTS INVENTORY. Integrator shall maintain a sufficient
Service Parts inventory to support its End User base. Service
Parts may only be used for remedial maintenance purposes. Cisco
may periodically request a Service Parts inventory report from
Integrator. Integrator is responsible for maintaining up to
date revisions of service parts inventory.
4.8. ADVANCE REPLACEMENT. Integrator shall request Advance
Replacement by using Cisco's Service order Agent on CCO.
4.9. RECEIPT OF REPLACEMENTS. Integrator is responsible for the
following when receiving replacement Product:
4.9.1. Importation import duties, taxes, fees, inspections and any
other import requirements applicable to the country of import.
4.9.2. Testing to verify any damage in transit and reporting Product
failures and/or mis-shipments to Cisco within ten (10) business
days of receipt.
4.10. RETURNS COORDINATION.
4.10.1. Integrator shall return all failed Product that has been
Advance Replaced within ten (10) business days of receipt of
the replacement Product; otherwise, Advance Replacement
Products will be invoiced to Integrator at the then current
list price.
4.10.2. Integrator shall coordinate the return of all failed Product,
freight and insurance prepaid, to the Cisco designated
location.
4.10.3. Integrator shall comply with the following RMA procedure:
4.10.3.1. Integrator will ensure all Products are properly
packaged prior to being shipped, and will include a
written description of the failure and 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.
4.10.3.2. Integrator shall tag each Product returned with the
RMA transaction number and a brief description of the
problem.
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4.10.3.3. Cisco will not accept any Product returned which is
not accompanied by an RMA number.
4.11. INTEGRATOR SUPPORT FOR OTHER PRODUCT. Integrator may receive
support service from Cisco hereunder for Other Product under
the following conditions: Integrator provides Cisco a request
to support Other Product and a list including the Product(s)
and serial number(s) to be supported, and pays the fees set
forth in this Agreement for Other Product. Cisco reserves the
right to approve or reject such request.
4.12. FOCAL POINTS. Integrator will identify individuals to serve as
focal points for Cisco's monitoring of support services
provided under this Exhibit and any day-to-day service issues,
including escalations under the Prioritization and Escalation
Guideline (Appendix A).
4.13. RECORDS. Integrator will maintain records of Product in use at
all End User sites.
4.14. CUSTOMER SATISFACTION SURVEY. Cisco reserves the right to
survey End Users under Integrator support for Cisco Products
for the limited purpose of ensuring customer satisfaction with
Cisco Products and Integrator support. For such purposes,
Integrator agrees to provide End User contact information.
5. SERVICES NOT COVERED UNDER THIS AGREEMENT.
5.1. Any customization of or labor to install Software.
5.2. Major Releases and Version Releases for Category S Product.
5.3. On-site Support. Cisco shall not be required to perform any
on-site support under this Agreement. If Cisco is requested to
perform on-site diagnostic and remedial maintenance, except
where mutually agreed under Section 3.1.3, integrator shall
reimburse Cisco for all labor and travel expenses at Cisco's
then-current time and material rates.
5.4. Support or replacement of Product that is altered, modified,
mishandled, destroyed or damaged by natural causes or damaged
during unauthorized use.
5.5. Services to resolve software or hardware problems resulting
from third party product or causes beyond Cisco's control.
5.6. Services for non-Cisco software installed on any Cisco Product.
5.7. Any Hardware upgrade required to run new or updated Software.
6. CISCO SERVICE FEE, PAYMENT TERMS AND CHANGES.
6.1. INTEGRATOR SHALL PAY THE FOLLOWING FEES:
6.1.1. For Category A Product, subject to Section 6.5 below (including
all such Products supported by Cisco under any predecessor
version of this Exhibit) a recurring annual fee, charged on
Integrator's cumulative net purchases billed quarterly.
Cumulative net purchases includes; (i) product purchased under
this Agreement or previously, (ii) Product purchased by
Integrator from a supplier other than directly from Cisco, and
(iii) Other Product; regardless of when Product or Other
Product was purchased. All products covered under this CVAP
support exhibit are Category A.
6.1.2. For Category B, C, D and S Product a one-time fee charged on
Integrator's net purchases. Net purchase includes; (i) Product
purchased under this Agreement (in which case the fee shall be
charged upon Product purchase), (ii) Product purchased by
Integrator from a supplier other than directly from Cisco (iii)
Other Product. In cases of (ii) and (iii) the fee shall be due
thirty (30) days after invoice date of such fee.
CATEGORY MAINTENANCE FEE. % OF NET PAYMENT SCHEDULE
-------- ------------------------- ----------------
Category A 5.5% Annual recurring
Category B 10% One-time as per 6.1.2.
Category C 7.5% One-time as per 6.1.2.
Category D 2% One-time as per 6.1.2.
Category S 2.5% One-time as per 6.1.2.
6.1.3. Within thirty (30) days after invoicing of such amount by
Cisco, Integrator will pay the amount due for any quarterly
xxxxxxxx remaining on Product purchased by Integrator as an
authorized Integrator prior to the Effective Date of this
Exhibit, up to the total of the twelve quarterly installments
required to be paid for such Product under the System
Integrator Support Exhibit to which Integrator was a party
prior to the Effective Date of this Exhibit, notwithstanding
that such prior Exhibit is replaced by this Exhibit. Such fees
shall be due for all such Product with respect to which
Integrator has provided support, even if such Product was
originally purchased by Integrator from a source other than
directly from Cisco, and with respect to Other Product, the fee
due shall be the fee applicable to Other Product under the
prior System Integrator Support Exhibit. Any such fees
remaining on Product will be billed as a one-time fee.
6.2. For Product purchased from a supplier other than Cisco,
Integrator will be charged the applicable maintenance fee in
accordance with Section 6.1, except that such fee will be
calculated on the then-current Product list price (as of the
date of purchase by Integrator) less Integrator's discount.
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6.3. In the cases described in this Section 6.3, the recurring fees
specified in Section 6.1.2 for Category A Product will not be
charged and the one-time fee for Categories B,C,D and S
specified in Section 6.1.2 will not be charged and, if already
paid, will be subject to refund in accordance with Section 6.5
below:
6.3.1. Support on Product in Integrator's installed base is
transferred to another Cisco authorized Integrator under the
following conditions:
6.3.1.1. Integrator provides Cisco with a notification
including the Product(s) (i) and serial number(s) on
which support is being transferred, (ii) the date of
the transfer and the Cisco Integrator to whom support
is being transferred and (iii) letter from the End-User
stating the End User's request to have service
transferred to another Cisco Integrator.
6.3.1.2. Cisco receives confirmation of such transfer and
payment of the service fee for those Products from the
Cisco Integrator who will be assuming support.
6.4. For Other Product an administration fee of 10% of the fee
described in 6.1.1 and 6.1.2 for such Other Product.
Additionally, an inspection fee may be charged per unit, if
applicable, as determined by Cisco at the then-current time and
material rates.
6.5. For Category A Product only, support fee will not be charged if
(i) Product has reached end-of-maintenance and Cisco no longer
offers support services for the Product or (ii) Integrator
provides Cisco a letter from End-user stating that product has
been permanently removed from the network.
6.6. The one-time maintenance fees specified in Section 6.1.2 paid
by Integrator will be refunded for the situations described in
section 6.3.1 as follows:
6.6.1. Integrator will receive a 100% refund of the one-time service
fee for affected Product in Category B, C, D, and S if the
event described in Sections 6.3.1 occurs during the initial 12
months after Product shipment from Cisco.
6.6.2. Integrator will receive a 60% refund of the one-time service
fee for affected Product in Category B, C, D, and S if the
event described in Sections 6.3.1 occurs during the period more
than 12 months and less than 24 months after the date of
Product shipment from Cisco.
6.6.3. There will be no refund if the event described in Sections
6.3.1 occurs after the initial 24 month period after Product
shipment from Cisco.
6.7. With respect to Product purchased, resold or supported by
Integrator prior to becoming an authorized Integrator,
Integrator shall pay all applicable fees hereunder within
thirty (30) days of invoice by Cisco.
6.8. Cisco will provide information necessary for prompt issuance of
a purchase order or similar document by Integrator, where
required. Integrator will provide (i) a purchase order for the
services defined herein no later fifteen (15) days from Cisco's
request; and (ii) a blanket purchase order for the purpose of
billing non-returned Products and time and materials services,
if any.
6.9. Integrator is responsible for all applicable taxes, fees and
duties associated with the delivery of services under this
Exhibit.
7. TERMINATION/SUSPENSION OF PERFORMANCE. In addition to all rights and
remedies which it may have under the Agreement, Cisco may suspend its
performance or services hereunder for all Products covered under this
Exhibit, whether the Products were purchased prior to or subsequent to
the Effective Date of this Exhibit, immediately upon Notice if (i)
Integrator fails to pay for the Services when due and fails to make
such payment within fifteen (15) days after Notice from Cisco of such
past due payment, or (ii) if Integrator breaches the provisions of
Section 9, or hereof (iii) for particular Products, if Cisco ends
support for such Products or (iv) the Agreement terminates. Upon
expiration or termination as specified in the Agreement, (i) all rights
and licenses of Integrator hereunder shall terminate, (ii) Integrator
shall immediately discontinue all representations that it provides
Cisco-supported maintenance services for Cisco Product, and (iii) End
User access to CCO shall terminate.
8. SOFTWARE LICENSE. Integrator acknowledges that it may receive Software
as a result of services provided under this Exhibit. Integrator agrees
that it is licensed to distribute such Software only on Product covered
under this Exhibit and subject to the terms and conditions of the
Software license granted with the original purchase of the Product and
with respect to which all applicable fees have been paid. Integrator
shall not copy, in whole or in part, Software or documentation; modify
the Software, reverse compile or reverse assemble all or any portion of
the Software; or rent, lease, distribute, sell, or create derivative
works of the Software. Integrator shall not upgrade to a feature set
other than that which was licensed at the time of original Product
purchase unless applicable license fees are paid.
9. GENERAL.
9.1. DISCLOSURE OF CONTRACT INFORMATION. Integrator acknowledges and
agrees that in no event shall any of the information contained
in this Exhibit, Integrator's Agreement number, or CCO access
information be disclosed to any third party. Such information
shall be considered Confidential Information under the
Agreement.
9.2. REPRESENTATIONS AND WARRANTIES. Integrator shall not make any
representations or warranties on behalf of Cisco, except as
expressly authorized herein or as expressly authorized by Cisco
in writing. Neither Integrator nor Cisco will make any
obligation to provide services to End Users on behalf of the
other, nor commit the resources of the other to End Users.
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9.3. SERVICE MARKS. Cisco support provided to Integrator is not in
any way to be considered or presented as a service from Cisco
directly to the End User. Integrator will not use Cisco's
service marks in any manner except as mutually agreed upon in
writing.
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APPENDIX A
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.
Integrator must assign a priority to all problems submitted to Cisco.
PROBLEM PRIORITY DEFINITIONS:
PRIORITY 1: An existing network is down or there is a critical
impact to the End User's business operation. Cisco,
Integrator and End User will commit full-time resources
to resolve the situation.
PRIORITY 2: Operation of an existing network is severely
degraded, or significant aspects of the End User's
business operation are being negatively impacted by
unacceptable network performance. Cisco, Integrator and
End User 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.
Cisco, Integrator and End User 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 the End User's
business operation. Cisco, Integrator and End User are
willing to provide resources during Standard Business
Hours to provide information or assistance as
requested.
Cisco encourages Integrator to reference this guide when Integrator-initiated
escalation is required. If Integrator does not feel that adequate forward
progress or the quality of Cisco service is satisfactory, Cisco encourages
Integrator 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
--------------------------------------------------------------------------------------------
Customer
1-Hour Engineering Manager
--------------------------------------------------------------------------------------------
Technical Support Customer Engineering
4-Hour Director Manager
--------------------------------------------------------------------------------------------
Vice President Technical Support
24-Hour Customer Advocacy Director
--------------------------------------------------------------------------------------------
President (CEO) Vice President
48-Hour Customer Advocacy
--------------------------------------------------------------------------------------------
Customer Engineering
72-Hour Manager
--------------------------------------------------------------------------------------------
President (CEO) Technical Support Customer
96-Hour Director Engineering
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 Integrator with updates. Cisco
recommends that Integrator-initiated escalation begins at the Customer
Engineering Manager level and proceeds 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.
ACCESSING TAC:
North America, South America: x0-000-000-0000 (within the United States)
x0-000-000-0000
Europe, Middle East, and Africa: x00-0-000-0000
Asia Pacific: x0-000-000-000 (within Australia)
x00-0-0000-0000
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XXXXXXXX X
CISCO CONNECTION ONLINE
PARTNER INITIATED CUSTOMER ACCESS (PICA)
INTEGRATOR RESPONSIBILITY
Integrator shall nominate two (2) employees to enable End User CCO access
using CCO administration tools.
Integrator shall forward the following information to Cisco (via
electronic mail to "xxx-xxxx@xxxxx.xxx"), as soon as practicable, for the
nominated persons:
1. Current Service Agreement number with Cisco
2. CCO user ID(s)
3. Internet email addresses (if established)
The Integrator's two (2) employees will be responsible for:
1. Providing CCO access to End Users
2. Assisting Cisco in verifying CCO users previously registered,
whereby Integrator submitted End User CCO Access Requests on behalf
of their End Users. Assist in moving End Users from the older
process to the PICA process.
3. Integrator is responsible for disabling End User's PICA access when
the End User is no longer eligible.
4. Integrator shall be responsible for ensuring that End User only
downloads software for use with Products for which applicable
support fees have been paid, and shall pay to Cisco applicable
support fees for any Products for which support is received through
use of the procedures described in this Appendix B, regardless of
whether or not such Product was originally sold by Integrator to
End User.
INTEGRATOR EMPLOYEE REGISTRATIONS
Employees within the Integrator organization must continue to use the
existing system of registering (i.e. with their Service Agreement
number). To ensure correct access, Integrator employees should never use
a special PICA account number for registering online.
END USER ELIGIBILITY FOR CCO ACCESS
End User eligibility for CCO access commences when the End User has
purchased a Cisco Product, or service for Cisco Product(s) from the
Integrator, and has a support agreement with that Integrator.
PICA PROCESS OVERVIEW
1. Cisco will assign a unique account number prefix to the nominated
person(s) if one does not already exist.
2. This prefix is the basis of the new account numbering scheme for
End Users (i.e. FJLxxxx). Each End-User will have a different
number following the prefix (i.e. FJL2001, FJL2004, FJL2035 etc.)
3. If the Integrator wishes to entitle End User access to CCO, the
nominated person logs onto CCO and uses the PICA administration
tool to entitle End-User.
4. This option is selected and 3 fields will appear. The first field
is an input field for the name of the End User, the second field is
a selectable list of countries and the third is a selectable field
for Software download entitlement for this End User [yes|no].
5. When correctly entered, selected and executed, CCO will generate a
unique account number just for that End User, and display it on
screen. e.g. FJL1012
6. After it is generated online, the account number may only be
published within the End User organization. Only one number per End
User organization is normally permitted.
7. Any number of End User employees may register on CCO with that
account number e.g. FJL1012. A unique user ID will be generated for
each user that registers.
8. For security reasons, generic or group accounts are not permitted
under any circumstances.
9. For each registration performed, an email can be sent to the
nominated person automatically with the newly registered user's
online entered details.
10. Disabling End User CCO access will also be an online option.
CONFIDENTIALITY. Integrator acknowledges that, in the course of performing its
duties, Integrator or the End Users to whom Integrator authorizes CCO access
may obtain information relating to the Products and to Cisco which is of a
confidential and proprietary nature ("Proprietary Information"). Such
Proprietary Information may include, but is not limited to, trade secrets, know
how, invention techniques, processes, programs, schematics, Software source
documents, data, financial information, and sales and marketing plans.
Integrator shall at all times keep in trust and confidence all such Proprietary
Information, and shall not use such Proprietary Information other than in the
course of its duties under the Agreement, nor shall Integrator disclose any
such Proprietary Information without Cisco's written consent. Integrator
further agrees to immediately return to Cisco all Proprietary Information
(including copies thereof) in Integrator's possession, custody, or control upon
termination of this Agreement at any time and for any reason. Integrator will
indemnify Cisco for unauthorized disclosures of Proprietary Information by
Integrator or its End User.
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EXHIBIT E
ORDERING AND SHIPPING TERMS
Discount
Ordering Locations: Price List: Schedule: Place Orders With: Shipping terms:
----------------------------------------------------------------------------------------------------------------------------------
United States, Mexico, Central Global Price List Exhibit B Cisco Systems, Inc. FCA, San Jose, CA
America, Latin America, Asia, San Jose, CA, U.S.A.
New Zealand, Japan, Australia***
EU Countries* Global Price List** Exhibit B Cisco Systems International B.V. CIP, duty paid, named
destination Amsterdam, Netherlands
Norway, Switzerland Global Price List** Exhibit B Cisco Systems International BV CIP, duty unpaid, named
destination Amsterdam, Netherlands
Other countries in Cisco's Europe, Global Price List** Exhibit B Cisco Systems International BV DDU, Border-Port of Entry
Middle East, and Africa theatre, Amsterdam, Netherlands
Pakistan
Canada Canadian Price List Exhibit B Cisco Systems Company Ltd. CIP, duty unpaid, named
destination Toronto, Canada in Canada
*E/U Countries - Austria, Belgium, Denmark, Finland, France, Germany, Greece,
Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, United
Kingdom
**Actual price will be based on currency, freight, and applicable duties, taxes
and fees.
***Please note: The discount for purchases to be shipped to and deployed in
Australia is ten percent (10%) less than Integrator's other applicable
discount.
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EXHIBIT F
SHIPPING TERMS AND CHARGES
DEFINITIONS
DEFINITION OF GOLD AND PLATINUM SERVICES FOR CISCO PRODUCTS TRANSITING THE
EUROPEAN LOGISTICS CENTER (FOR DELIVERY IN EU, NORWAY, SWITZERLAND ONLY) OR
DIRECTLY FULFILLED FROM OUR EUROPEAN MANUFACTURING SITE (UK):
GOLD SERVICE is defined as shipment designed to achieve 1-3 business day
delivery from the European Logistics Center/ European Manufacturing Site to the
customer delivery site. Variation in business delivery days is possible
depending on country of destination or geographical location within the country
or other factors.
PLATINUM SERVICE is defined as shipment ordered for next day delivery Monday
through Friday for EU countries only from the European Logistics Center/
European Manufacturing Site to the customer delivery site. Norway and
Switzerland Platinum Service is defined as shipment for next day delivery
Monday through Friday assuming import arrangements are made in advance.
DEFINITION OF CONSOLIDATION AND DIRECT SERVICES FOR CISCO PRODUCTS TRANSITING
THE CROSS DOCK / MERGE CENTER OR DIRECTLY FULFILLED FROM THE EUROPEAN
MANUFACTURING SITE (USA/UK):
CONSOLIDATION SERVICE is defined as shipment via the next available freight
forwarder airfreight consolidation to the destination country.
DIRECT SERVICE is defined as shipment via the next available air freight
carrier to the destination country.
DEFINITION OF PIKPAK:
Within the ELC Cisco intends to hold a limited Build to Stock inventory, which
is available to order for those partners within the EU, Norway or Switzerland
and who are using Cisco's ELC delivery logistics services program. PikPak
requests must be stated on the order, but will be fulfilled subject to
availability. The PikPak uplift charge described below applies where the order
has specified PikPak and the fulfillment was through the PikPak stock, even if
the Product originated in the European Manufacturing facility.
DEFINITION OF MERGE IN TRANSIT:
MERGE IN TRANSIT (MiT) is a customer driven logistics program that will provide
Cisco's customers in the EMEA with a way to receive shipments from a single
purchase order on the same day, in the same delivery, regardless of the number
of factories involved in building the order. The MiT uplift charge described
below applies where the order has specified Merge in Transit.
FREIGHT UPLIFT CHARGE:
THE FOLLOWING DESTINATION COUNTRIES WILL TRANSIT THE EUROPEAN LOGISTICS CENTER
(ELC) IN THE NETHERLANDS FOR DELIVERY OF PRODUCT OR BE FULFILLED DIRECTLY FROM
THE EMEA MANUFACTURING SITE:
-----------------------------------------------------------------------------------------------------
Terms of Delivery
-----------------
Austria Belgium Denmark CIP, Duty Paid**/Duty Unpaid
----------------------------
Finland France Germany 1.0% + duty Gold Service Level
Greece Ireland Italy 1.3% + duty Gold Service Level + MiT
Luxembourg Netherlands Portugal 1.5% + duty Platinum Service Level
Spain Sweden United Kingdom 1.8% + duty Platinum Service Level + MiT
-----------------------------------------------------------------------------------------------------
Duty paid or Duty unpaid election, which must be on purchase order, applies to
EU countries ONLY. Shipments outside EU are available only as duty unpaid.
**= plus duty rates applicable according to the Brussels Nomenclature and other
European Union regulation, if duty paid option is selected. Please note that
all products shipped from our European Manufacturing site (UK) will be in EU
(duty) free circulation (i.e. duty, if any, is paid for by Cisco), even if they
are merged in transit, and the duty rate will only apply to the portion
originating outside the EU.
----------------------------------------------------------------------------------------------
Terms of Delivery - CIP, Duty Unpaid
------------------------------------
Norway Switzerland 1.0% Gold Service Level
1.3% Gold Service Level + Mit
1.5% Platinum Service Level
1.8% Platinum Service Level + Mit
----------------------------------------------------------------------------------------------
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28
For all other destinations in the EMEA, products will ship via our Cross-dock /
Merge center in Amsterdam to the customer. Delivery Terms for these countries
are DDU (INCOTERMS 1990) (Border-Port of Entry) and subject to the uplift
charge as indicated below.
CONSOLIDATED 2.1%
CONSOLIDATED + MIT 2.4%
DIRECT 3.4%
DIRECT + MIT 3.7%
THESE CHARGES ARE SUBJECT TO CHANGE UPON ANNOUNCEMENT BY CISCO, INCLUDING BY
ELECTRONIC POSTING.
ELC Terms as of November 9, 1998
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EXHIBIT G
NETWORKED COMMERCE ENROLLMENT ADDENDUM
This Networked Commerce Agents Enrollment Addendum ("Addendum") supplements the
Agreement and all the terms and conditions of the Agreement apply to this
Addendum; provided, that to the extent that there is conflict between the
Agreement and this Addendum, the terms of this Addendum shall take precedence
over the terms and conditions of the Agreement with regards to the subject
matter described herein.
TERMS AND CONDITIONS
1. Integrator may enroll in Cisco's MarketPlace Internetworking Product
Center (the "Program") by returning the form set forth in Attachment 1
indicating the users of Integrator who are authorized to submit
electronic orders on behalf of Integrator ("Authorized Users"). Upon
execution of the Agreement by Cisco and Integrator, Cisco will entitle
those users to submit electronic orders. The Program allows direct
Integrators and partners to configure, price, and route orders and
then submit them electronically.
2. Integrator 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 Integrator, and
Program password security is the responsibility of Integrator. Cisco
and Integrator agree that an order placed through the Program is the
equivalent of a signed purchase order.
3. Integrator 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. Integrator's participation in the Program may be terminated by Cisco,
with or without cause, upon fifteen (15) days written notice to
Integrator.
5. Cisco reserves the right to accept or decline any purchase order
submitted via the Program.
6. Integrator 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.
8. 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.
9. Integrator 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.
10. Integrator 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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ATTACHMENT 1
NETWORKED COMMERCE AGENTS ENROLLMENT ADDENDUM
INTEGRATOR AUTHORIZED USER FORM
Please indicate the names of the users of Integrator who are authorized to
submit electronic orders on behalf of Integrator (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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Special Instructions/Restrictions:
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EXHIBIT H
INTEGRATOR AFFILIATES
Name: Country: Primary Contact:
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EXHIBIT S
SOFTWARE LICENSE AGREEMENT
PART (i)
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT 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 AGREEMENT. IF YOU DO NOT
AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE
THE SOFTWARE. YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND. 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. THE RIGHT TO RETURN AND REFUND
EXTENDS ONLY TO 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 process.
SINGLE USER LICENSE. Subject to the terms and conditions of this Agreement,
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 solely as embedded in
Cisco equipment, on a single hardware chassis, or on a single central
processing unit, as applicable, owned or leased by Customer.
Customer may make and use in accordance with the foregoing up to the number of
copies of the Software specified on the master copy of such Software provided
by Cisco, or for which Customer has received a product authorization key
("PAK"), provided Customer has paid Cisco the required license fee for such
master copy or PAK.
MULTI-USER LICENSE. If Customer has purchased a multi-user license from Cisco,
then, subject to the terms and conditions of this Agreement, Cisco and its
suppliers grant to Customer a nonexclusive and nontransferable license to use
the Software, in object code form only, in ONLY ONE of the following manners:
installed in a single location on a hard disk or other storage device of up to
the number of Customer's computers or simultaneous users authorized under such
license and for which Customer has paid Cisco the required license fee
("Permitted Number of Computers" or "Permitted Number of Users", as
applicable); or
provided the Software is configured for network use, installed on a single file
server for use on a single local area network for either (but not both) of the
following purposes: (a) permanent installation onto a hard disk or other
storage device of up to the Permitted Number of Computers or Permitted Number
of Users, as applicable; or (b) use of the Software over such network, provided
the number of computers or users connected to the server does not exceed the
Permitted Number of Computers or Permitted Number of Users, as applicable.
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.
LIMITATIONS. Except as otherwise expressly provided under this Agreement,
Customer shall have no right, and Customer specifically agrees not to:
(i) transfer or sublicense its license rights to any other person, or use
the Software on unauthorized or secondhand Cisco equipment;
(ii) 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
(iii) copy, in whole or in part, decompile, decrypt, reverse engineer,
disassemble or otherwise reduce the Software to human-readable form.
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.
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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; (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.
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 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.
TERM AND TERMINATION. This Agreement is effective until terminated. Customer
may terminate this Agreement at any time by destroying all copies of Software
including any Documentation. Customer's license rights under this Agreement
will terminate immediately without notice from Cisco if Customer fails to
comply with any provision of this Agreement. Upon termination, Customer must
destroy all copies of Software in its possession or control.
PART (ii)
LIMITED WARRANTY. If Customer obtained the Software directly from Cisco, then
Cisco warrants that for a period of ninety (90) days from the date of shipment
from Cisco: (i) the media on which the Software is furnished will be free of
defects in materials and workmanship under normal use; and (ii) the Software
will substantially conform to its published specifications. This limited
warranty extends only to Customer as 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 Cisco or its designee. Except as expressly granted in this Agreement, the
Software is provided AS IS. Cisco does not warrant that the Software is error
free or that Customer will be able to operate the Software without problems or
interruptions.
This warranty does not apply if the Software (a) is licensed for beta,
evaluation, testing or demonstration purposes for which Cisco does not receive
a license fee, (b) has been altered, except by Cisco, (c) has not been
installed, operated, repaired, or maintained in accordance with instructions
supplied by Cisco, (d) has been subjected to abnormal physical or electrical
stress, misuse, negligence, or accident, or (e) is used in ultrahazardous
activities.
If Customer obtained the Software from a Cisco distributor, the terms of any
warranty shall be as provided by such distributor, and Cisco provides Customer
no warranty with respect to such Software. DISCLAIMER. 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, USAGE, OR TRADE
PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
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 THE SOFTWARE EVEN IF CISCO OR ITS SUPPLIERS HAVE
BEEN ADVISED OF THE
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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.
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, is 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.
GENERAL. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, United States of America, as if performed
wholly within the state and without giving effect to the principles of conflict
of law. If any portion hereof is found to be void or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect.
This Agreement constitutes the entire agreement between the parties with
respect to the use of the Software.
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