Exhibit 10.20
Certain portions of this exhibit have been omitted and filed separately with
the Securities and Exchange Commission, pursuant to a request for
confidential treatment under Rule 406 under the Securities Act of 1933, as
amended.
CISCO SYSTEMS
Cisco PSS Agreement Number ___________
Cisco PSS SOW Number ___________
Professional Services Subcontract (PSS)
Professional Services Subcontract Agreement ("Agreement") is made and
entered into between Cisco Systems, Inc., a California corporation, with offices
at 170 West Tasman Drive, San Jose, California 95134 ("Cisco"), and Predictive
Systems, Inc., a Delaware corporation, with its principal place of business at
145 Hudson Street, New York, New York 10013 ("Subcontractor").
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have caused this Agreement to be duly executed.
CISCO SYSTEMS, INC. PREDICTIVE SYSTEMS, INC.
By: /s/ Inder Sidhu By: /s/ Robert Belau
Name: Inder Sidhu Name: Robert Belau
Title: Vice President Title: President
WorldWide Professional Services
Date: 5/14/99 Date: 5/13/99
GENERAL TERMS AND CONDITIONS
In consideration of the mutual covenants and promises set forth below, the
parties agree as follows:
1. DEFINITIONS; RULES OF INTERPRETATION.
1.1. "Customer" means the entity with which Cisco has entered into a PSA (as
defined below) and which is the recipient of the Services and
Deliverables provided by Subcontractor pursuant to this Agreement and
an SOW. A Customer shall be identified in each Statement of Work issued
hereunder.
1.2. "Deliverables" means, with respect to each SOW, the items specified in
such SOW as deliverables.
1.3. "Effective Date" means the last date written on the first page of this
Agreement.
1.4. [Reserved].
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment
pursuant to Rule 406 under the Securities Act of 1933, as amended.
1
1.5. "Professional Services Agreement" or "PSA" means, with respect to each
SOW, the contract between Cisco and the Customer in connection with
which such SOW is issued to Subcontractor, as amended from time to
time.
1.6. "Results" means all works of authorship, copyrightable works and
inventions made, created, developed, conceived or reduced to practice
by Subcontractor, either alone or jointly with others, during the term
of this Agreement (i) in connection with the Services or Subcontractor
Work Product or (ii) which relate to any Cisco or Customer Confidential
Information (as defined in Section 3, Confidentiality, below).
1.7. "Services" means that portion of the services required under the PSA
which Subcontractor shall provide to Customer and/or Cisco as
subcontractor to Cisco and which are described in any SOW issued
pursuant to this Agreement.
1.8. "Software" means any Cisco software in object code form, which is
listed from time to time on Cisco price list(s) and made available for
license by Cisco, and any new releases (such as standard releases of
the Software which may include bug fixes and new features), updates to,
or upgrades thereof made available by Cisco to its Customers with or
without charge.
1.9. "Statement of Work" ("SOW") means each document agreed upon by Cisco
and Subcontractor which further specifies Services to be performed and
the Deliverables to be provided to Cisco or the Customer, and any other
performance requirements mutually agreed to between the parties. Each
SOW shall be issued substantially in the form shown in Exhibit A and
shall be incorporated herein in its entirety by reference.
1.10. "Subcontractor Work Product" means any and all items and information
delivered to Cisco or generated by Subcontractor or its
subcontractor(s) in the course of providing Services under this
Subcontract, whether in hard copy or electronic form, including all
Deliverables, works of authorship, programming tools, reports, designs,
analyses, source and object code, user or procedural manuals and other
supporting material, summaries, literature, test results,
recommendations, drawings and workpapers.
1.11. The following rules of interpretation shall apply to this Agreement and
each SOW:
1.11.1. The term "including" and its derivatives means "including,
without limitation" unless the context clearly states
otherwise.
1.11.2. Words importing persons include firms, associations, limited
liability companies, partnership, trusts, corporations and
other legal entities, including public bodies, as well as
natural persons.
1.11.3. Any headings preceding the text of the Articles and Sections
of this Agreement are solely for convenience or reference and
do not constitute a part of this Agreement, nor do they affect
the meaning, construction or effect of this Agreement.
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1.11.4. Words importing the singular shall include the plural and vice
versa. Words of the masculine gender shall be deemed to
include the correlative words of the feminine gender.
1.11.5. All references to a number of days mean calendar days, unless
expressly indicated otherwise.
1.11.6. All reference herein to the "Agreement" shall include the
appendices, exhibits and schedules to this Agreement,
including all SOWs.
1.11.7. The word "shall" when used in this Agreement is word of
mandate, construed as "must."
2. DUTIES OF SUBCONTRACTOR.
2.1. Subcontractor shall provide the Services and the Subcontractor Work
Product during the term of this Agreement in accordance with the terms
and conditions of this Agreement, any SOW and the PSA. Subcontractor
shall comply with all obligations of Cisco contained in the terms and
conditions of the PSA which are provided in writing to Subcontractor,
its agent or subcontractor prior to entering into the applicable SOW
that relate to the Services and the Subcontractor Work Product as if
Subcontractor were substituted for Cisco with respect to such terms and
conditions. Subcontractor shall not perform any act with respect to the
Services or the Subcontractor Work Product that Cisco is prohibited
from performing under the PSA which are provided in writing to
Subcontractor, its agent or subcontractor prior to entering into the
applicable SOW. Subcontractor shall not perform any act, or fail to
take any act, that would cause Cisco to be in breach of the PSA so long
as Subcontractor, its agent or subcontractor has been provided with the
applicable provisions of the PSA. Subcontractor will provide all
resources, facilities, management, labor, expertise, skills, tools and
equipment necessary for the performance of this Agreement and any SOW.
2.2. [****] with respect to this Agreement, any SOW, and any PSA. [****]
any SOW or a PSA, then [****] shall coordinate and communicate with
[****] This limitation does not apply to [****]. Subcontractor will
provide to Cisco all relevant operational information regarding the
Services, will participate in meetings with Customer and Cisco as
requested by Cisco and will take all reasonable action requested by
Cisco to enable Cisco to comply with the PSA.
2.3. Subcontractor shall:
(i) keep Cisco advised of the progress of the delivery of the
Services and the status of the Deliverables,
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.
3
(ii) permit any designated representative of Cisco periodically to
review the work of Subcontractor personnel performing Services
and preparing Deliverables,
(iii) timely perform the Services in a timely manner and provide the
Deliverables in accordance with each SOW, and
(iv) keep accurate records of work performed on each SOW, evidence
of which Subcontractor shall provide to Cisco upon Cisco's
request, consistent with Section 19.2 hereof.
2.4. Subcontractor shall comply with all reasonable instructions given by
Cisco in connection with performance of this Agreement or any SOW.
2.5. Subcontractor has obtained all licenses, permits and approvals required
by any federal, state or local licensing, regulatory, or other agency
for performance of the work required by this Agreement or any SOW.
2.6. Subcontractor's duties and responsibilities under this Agreement shall
not be subcontracted to any other person or entity, in whole or in
part, without prior written notice to and approval by Cisco and, if
required by the PSA, the Customer.
2.7. If Subcontractor's use of subcontractor(s), consultants or other third
parties is authorized under this Agreement or a particular SOW,
Subcontractor shall execute an agreement with such parties which
requires compliance with the terms of this Agreement and the SOW under
which work is subcontracted. Such agreement shall provide that (i)
Cisco shall have the right to enforce the provisions of such agreement
and (ii) Cisco's audit rights as provided for in Section 19.2 below
shall include access to records of Subcontractor's subcontractor(s) to
assess compliance with this provision.
3. CONFIDENTIALITY.
3.1. Subcontractor acknowledges that, in connection with this Agreement and
its relationship with Cisco, it may obtain information relating to
Cisco or Cisco's hardware, software, services or products 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
Subcontractor knows or has reason to know is confidential, -
proprietary or trade secret information of Cisco, its affiliates and
suppliers. Subcontractor shall at all times, both during the term of
this Agreement and for a period of at least three (3) years after its
expiration or termination or the completion of the last SOW, whichever
is later, 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
Subcontractor disclose any such Confidential Information to third
parties without Cisco's written consent. Subcontractor further agrees
to immediately return to Cisco all Confidential Information (including
copies thereof) in
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Subcontractor's possession, custody, or control upon expiration or
termination of this Agreement at any time and for any reason or the
completion of the last SOW, whichever is later. The obligations of
confidentiality shall not apply to information which (a) has entered
the public domain except where such entry is the result of
Subcontractor's breach of this Agreement or other applicable
confidentiality agreement; (b) prior to disclosure hereunder was
already rightfully in Subcontractor's possession under no obligation of
confidentiality; (c) subsequent to disclosure hereunder is obtained by
Subcontractor on a nonconfidential basis from a third party who has the
right to disclose such information to the Subcontractor; or (d) is
independently developed without restriction on disclosure and without
the use of any Confidential Information. Nothing contained in this
Section 3.1 shall prohibit Subcontractor from making disclosure of
Confidential Information to the extent (but only to the extent)
required by court order, provided that Subcontractor shall use its best
efforts to give Cisco at the earliest practicable time prior notice as
to the nature of the required disclosure or request for such
disclosure, whichever is earlier, so as to afford Cisco the maximum
possible opportunity to challenge the need for such disclosure; and
provided further that Subcontractor shall cooperate with Disco in
resisting such disclosure.
For purposes of this Agreement, Confidential Information of Cisco is
deemed to include (i) any information provided to Subcontractor which
Cisco is required to keep confidential pursuant to the terms of the PSA
and (ii) any Confidential Information of a Customer which Cisco or the
Customer may provide to Subcontractor in order to propose or perform
work in accordance with any SOW hereunder (collectively (i) and (ii)
are referred to herein as "Customer Confidential Information").
Subcontractor shall comply with the confidentiality provisions of the
PSA related to all Customer Confidential Information.
3.2. Neither party shall disclose, advertise, or publish the terms and
conditions of this Agreement or any SOW without the prior written
consent of the other party. Any press release or publication regarding
this Agreement or any SOW is subject to prior review and written
approval of the parties. Subcontractor shall not disclose the existence
of any relationship with Cisco without Cisco's prior written approval.
3.3. Notwithstanding anything in this Agreement to the contrary, neither
party shall use the other party's name, logo, trademarks, service
marks, or other proprietary symbols or designations (the "Marks")
without the prior consent of the other party. Subcontractor shall have
no claim or right in Cisco's Marks, including but not limited to
trademarks, service marks, or trade names owned, used or claimed now or
in the future by Cisco. Subcontractor shall not make any claim to
Cisco's Marks or lodge any filings with respect to Cisco's Marks or
marks confusingly similar to Cisco's Marks, whether on behalf of Cisco
or in its own name or interest, without the prior written consent of
Cisco.
4. SUBCONTRACTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Subcontractor represents, warrants and covenants as follows:
5
4.1. Subcontractor's performance of this Agreement and all SOWs will not
breach any agreement Subcontractor has with another party and there is
no other contract or duty on Subcontractor's part now in existence that
is inconsistent with this Agreement. Subcontractor warrants to Cisco
that the performance of the services shall not cause Cisco to be in
breach of any representation, warranty, covenant or other obligation of
Cisco in the PSA which relate to the Services or the Subcontractor Work
Product. Subcontractor makes the same representations, warranties and
covenants to Cisco as Cisco makes to Customer pursuant to the PSA
(subject to the disclaimers and exclusions therein), which relate to
the Services or the Subcontractor Work Product; provided that
Subcontractor shall have been previously furnished with the relevant
portions of a copy thereof in accordance with Section 2.1.
4.2. Subcontractor, its employees and subcontractor(s), during the term of
the Agreement:
4.2.1. shall comply with all applicable state and local laws,
ordinances, codes, regulations, rules, policies and procedures
and all applicable federal laws, Presidential Executive
Orders, and government regulations, and the requirements of
any other public or private authority, respecting the
performance by Subcontractor of its duties and
responsibilities under this Agreement;
4.2.2. shall (i) have obtained all licenses, permits and approvals
required by any federal, state or local licensing, regulatory,
or other agency or authority for performance of the work
required by this Agreement or any SOW; (ii) maintain, in full
force and effect, all such licenses, permits, authorizations
and approvals during the Term of this Agreement and until all
the Subcontractor Work Product and Services have been accepted
pursuant to Article 8 of this Agreement or such later time as
Cisco may reasonably require (collectively, (i) and (ii) of
this Section 4.2.2 are referred to as "Authorizations"), (iii)
coordinate with Cisco to the extent necessary to obtain
Cisco's or Customer's cooperation in obtaining any
Authorizations, and (iv) inform Cisco immediately of the
expiration, termination, non-renewal, denial or revocation of
any Authorization;
4.2.3. shall not act in any fashion or take any action which will
render Cisco liable for a violation of the U.S. Foreign
Corrupt Practices Act, the provisions of which include a
prohibition against the offering, giving or promising to offer
or give, directly or indirectly, money or anything of value to
any non-U.S. official or a non-U.S. government, political
party or instrumentality thereof in order to assist
Subcontractor or Cisco in obtaining or retaining business;
4.2.4. shall not, directly or through a third party, remove, alter,
change or interface with the Subcontractor Work Product for
the purpose of preventing Cisco or the Customer from utilizing
the Subcontract Work Product; and
6
4.2.5. shall take no action, nor fail to take any action, which
action or failure to act could result in Cisco's being in
violation of any law or regulation relating to the performance
of either party's obligations under this Agreement, including
the PSA and any SOW.
4.3. Subcontractor will use qualified individuals with suitable training,
experience, capabilities, skill and licenses to perform its obligations
under this Agreement and any SOW. Notwithstanding Subcontractor's
compliance with this provision, such individuals shall be subject to
approval by Cisco and, if required by the PSA, by Customer' and shall
be removed (and immediately replaced by Subcontractor with personnel
meet under requirements of this Section 4.3) at Cisco or Customer
request.
4.4. Subcontractor will perform this Agreement and any SOW hereunder in a
manner consistent with industry standards reasonably applied to the
performance of such work.
4.5. All Deliverables developed or supplied by Subcontractor hereunder shall
meet the requirements of Section 4.6 and
4.5.1. shall not contain any intentionally designed timer, clock,
counter or other limiting design, function or routine which
causes it to be erased, inoperable, or otherwise incapable of
being used fully in the manner for which it was designed after
the occurrence or lapse of any triggering event;
4.5.2. shall comply with the terms of Cisco's Year 2000 Compliance
Agreement, a copy of which shall be executed by Subcontractor
upon execution of this Agreement and appended hereto as
Exhibit B. and Subcontractor shall cause its subcontractor(s)
and any other third parties who may provide products or
services in support of Subcontractor's performance of this
Agreement or any SOW hereunder to execute and deliver to Cisco
the Year 2000 Compliance Agreement; and
4.5.3. if consistent with the requirements of this Agreement and any
SOW hereunder (including Year 2000 Compliance), shall be in
conformance with Subcontractor's published specifications or,
in the case of purchased software, the specifications of the
third party source.
4.6. The Services and Subcontractor Work Product provided hereunder shall:
4.6.1. be of good and marketable quality;
4.6.2. be free from all defects in design, materials, workmanship,
performance and title; and
4.6.3. meet the applicable specifications, drawings, samples,
descriptions and requirements specified in each SOW and this
Agreement and as required by the PSA.
7
4.7. In the event of a breach of the warranties in this Section 4,
Subcontractor shall without charge and without delay repair, replace,
re-perform or modify the affected Services or Subcontractor Work
Product so as to promptly correct such breach or default. All
warranties shall survive inspection, acceptance and payment. Nothing in
this Section 4 shall be construed to limit any other rights or remedies
available to Cisco at law, in equity or otherwise.
4.8. Subcontractor has, or will obtain, confidentiality, non-disclosure,
assignment of rights and other appropriate agreements with its
employees, suppliers, consultants and subcontractor(s) sufficient to
protect Cisco confidential information and Customer Confidential
Information and sufficient to allow Subcontractor to provide Cisco with
the ownership, assignments and licenses required or otherwise provided
for in this Agreement and any SOW hereunder. Such agreements shall
contain terms and conditions no less restrictive than the terms and
conditions set forth in this Agreement and the applicable SOW.
4.9. Subcontractor shall ensure that its personnel and subcontractors, if
any, shall comply with Customer's requests, rules and regulations(i)
regarding conduct of Subcontractor's personnel, (ii) regarding security
at Customer sites or in connection with Customer's systems, and (iii)
regarding document retention. Unless otherwise agreed by Cisco,
Subcontractor's personnel will observe the working hours, working
rules, and holiday schedules of Customer while working on Customer's
premises.
5. INFRINGEMENT.
Other than the Customer Confidential Information obtained in
performance of any SOW, in performing the Services or preparing
Subcontractor Work Product, Subcontractor will not (i) use or bring
onto Cisco's or Customer's premises any confidential or proprietary
information of a third party except to the extent Subcontractor has the
right to use or bring onto Cisco's or Customer's premises such
information, (ii) infringe upon the intellectual property rights
(including, without limitation, patent, copyright, trademark or trade
secret rights) of a third party, or, (iii) disclose or provide to Cisco
or Customer or induce Cisco or Customer to use any confidential
information that belongs to anyone other than Subcontractor except to
the extent Subcontractor has the right to disclose and permit third
parties to use (as applicable) such information. Subcontractor agrees
to indemnify Cisco for any and all losses or liabilities, fines,
penalties and consequences, including attorneys fees, Cisco may incur
by reason of the alleged breach of this Subsection.
6. OWNERSHIP AND LICENSE.
6.1. SOW WORK PRODUCT OWNERSHIP; CISCO INTELLECTUAL PROPERTY. Cisco or
its assigns shall own all right, title and interest in all
intellectual property that is provided to Subcontractor by or on
behalf of Cisco or, subject to Section 6.2 and Section 6.3, which
Subcontractor uses under this Agreement or any SOW ("Cisco Owned
IP"). Subject to Sections 6.2 and 6.3, Subcontractor acknowledges
and agrees that Cisco or its assigns shall own, and Subcontractor
hereby assigns to Cisco, all intellectual property rights and other
proprietary rights in and to the Services and the Subcontractor Work
Product, and any other materials and information Subcontractor is
required to deliver to Cisco as part of this Agreement and any SOWs
issued hereunder, and any Results created as a result of performance
of this Agreement and any SOW hereunder (the "Developed IP"; the
Developed IP and the Cisco Owned IP are collectively referred to as
the "Cisco Intellectual Proeprty"). Cisco shall own any derivatives,
improvements or modifications to the Subcontractor's intellectual
property developed, designed or discovered under this Agreement or
any SOW and Subcontractor hereby assigns all intellectual property
rights and other proprietary rights in such intellectual property to
Cisco. The intellectual property rights and proprietary rights
described in this Section 6.1 may include, but are not limited to,
all current and future worldwide patents and other patent rights,
utility models, copyrights, trade secrets, trademarks, inventions,
mask work rights, programs, program listings, procedures,
programming tools, documentation, reports and drawings, and the
related documentation or tangible expression thereof. Cisco shall
have the exclusive right to apply for or register any patents, mask
work rights, copyrights, and such other proprietary rights
protections with respect to the intellectual property rights
described in this Section 6.1. Subcontractor shall execute such
documents, render such assistance, and take such other actions as
Cisco may reasonably request, at Cisco's expense, to apply for,
register, perfect, confirm and protect Cisco's rights in any
intellectual property described in this Section 6.1. Without
limiting the foregoing, Cisco shall have the exclusive right to
commercialize, prepare and sell products based upon, sublicense,
prepare derivative works from, or otherwise use or exploit the
intellectual property rights granted to it under this Section 6.1.
6.2. OWNERSHIP BY SUBCONTRACTOR. Except as otherwise set forth below,
Subcontractor shall own or retain its rights in all right, title and
interest in Subcontractor intellectual property which is used in the
performance of this Agreement or any SOW hereunder that is wholly
developed and owned by or licensed to Subcontractor prior to the
Effective Date of this Agreement. Cisco grants to Subcontractor a
perpetual, irrevocable, worldwide, fully paid up, royalty-free,
non-exclusive, personal and nontransferable license to use
intellectual property which Subcontractor develops in the course of
performance of the Services and or otherwise develops after the
Effective Date which is discernible by, or disclosed or delivered
to, either Cisco or Customer. Notwithstanding the foregoing, Cisco
shall own all Deliverables pursuant to the provisions of Section 6.1
and the license rights set forth in this Section 6.2 shall not apply
to any such Deliverable (but such license shall apply to the
intellectual property therein).
6.3. SUBCONTRACTOR GRANT OF LICENSE. If any intellectual property used or
developed hereunder or any Services, Subcontractor Work Product or
Results are based on, or incorporate or are improvements or
derivatives of, or cannot reasonably be made, used, reproduced and
distributed without using or violating intellectual property rights,
the rights of which are not assigned or otherwise obtained by Cisco
hereunder, Subcontractor hereby grants to Cisco a perpetual,
irrevocable, worldwide, fully paid up, royalty-free, non-exclusive,
right and license, including the right to sublicense and to
authorize the granting of sublicenses, to exploit and exercise all
such technology and rights (including any modification, improvements
and derivatives thereof).
8
6.4 WAIVER OF MORAL RIGHTS. Subject to Section 6.2, Subcontractor hereby
waives any and all moral rights, including without limitation any
right to identification of authorship or limitation on subsequent
modification that Subcontractor (or its employees, agents,
subcontractors or consultants) has or may have in the Services,
Subcontractor Work Product or Results, and in any other intellectual
property that is or becomes the property of Cisco under this Section.
6.5. CISCO AS ATTORNEY IN FACT. Subcontractor agrees that if Cisco is
unable because of Subcontractor's unavailability, dissolution or
incapacity, or for any other reason, to secure Subcontractor's
signature to apply for or pursue any application for any United
States or foreign patents or mask work or copyright registrations
covering the inventions assigned to Cisco above; then Subcontractor
hereby irrevocably designates and appoints Cisco and its duly
authorized officers and agents as Subcontractor's agent and attorney
in fact, to act for and in Subcontractor's behalf and stead to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations thereon with the same legal
force and effect as if executed by Subcontractor.
7. SOFTWARE LICENSE.
7.1. Subject to the terms of this Agreement, Cisco grants to Subcontractor a
nonexclusive and nontransferable license to use the Software specified
in the SOW in object code form and related documents (e.g. technical
specifications, manuals) for the sole purpose of providing Services and
preparing Subcontractor Work Product pursuant to such SOW. The license
granted herein shall be for use of the Software solely as provided in
this Section 7 and the SOW. Unless expressly authorized in a specific
SOW, this license shall extend only to Software to be integrated into
products delivered to and installed for Customer. EXCEPT AS EXPRESSLY
AUTHORIZED UNDER THIS AGREEMENT AND A SPECIFIC SOW, SUBCONTRACTOR SHALL
NOT (AND SHALL NOT PERMIT A THIRD PARTY TO): COPY, IN WHOLE OR IN PART,
SOFTWARE OR RELATED DOCUMENTS; USE THE SOFTWARE ON UNAUTHORIZED) OR
SECONDHAND CISCO EQUIPMENT; MAKE ERROR CORRECTIONS OR OTHERWISE MODIFY
THE SOFTWARE OR DOCUMENTS; DECOMPILE, DECRYPT, REVERSE ENGINEER,
DISASSEMBLE OR OTHERWISE REDUCE ALL OR ANY PORTION OF THE SOFTWARE TO
HUMAN-READABLE FORM; OR TRANSFER, SUBLICENSE, RENT, LEASE, DISTRIBUTE,
SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE OR DOCUMENTS.
7.2. Section 3 of this Agreement, Confidentiality, applies to the Software
licensed herein above. Subcontractor shall 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. Subcontractor 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. Subcontractor shall
not disclose, provide, or otherwise make available such trade secrets
of copyrighted material in any form to any third party without the
prior written consent of Cisco. Subcontractor shall implement
reasonable security measures
9
to protect such trade secrets and copyrighted material. Title to
Software and documentation shall remain solely with Cisco.
7.3. This license is effective until terminated either separately or upon
termination of this Agreement. Upon termination Subcontractor shall
destroy or return to Cisco all copies of Software and documents
relating thereto in its possession. If Subcontractor destroys licensed
materials, it shall certify in writing to Cisco that such destruction
has occurred. Termination of the license granted in this Section 7 is
automatic upon expiration or termination of this Agreement. Cisco also
may terminate this license upon written or oral notice to
Subcontractor, with or without prior notice. Subcontractor also may
terminate this license at any time by destroying all copies of Software
and documents relating thereto which are in Subcontractor's possession
and notifying Cisco of the termination. This license will terminate
immediately without notice from Cisco if Subcontractor fails to comply
with any provision of this license.
7.4. If any portion of this license section is found to be void or
unenforceable, the remaining provisions of this license shall remain in
full force and effect. This license constitutes the entire license
between the parties with respect to the use of Software.
7.5. Cisco's commercial software and commercial computer software
documentation is provided to United States Government agencies in
accordance with the terms of this software license, 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.
8. ACCEPTANCE.
For purposes of this Agreement, acceptance of the Services and
Subcontractor Work Product described in each SOW shall occur on the
date such Services and Subcontractor Work Product have met the
completion criteria specified in the Statement of Work to the
reasonable satisfaction of Cisco, as evidenced by issuance of written
confirmation of completion and acceptance by Cisco. Final acceptance of
Services or Subcontractor Work Product may, in Cisco's discretion, be
held in abeyance pending acceptance of same by the Customer.
9. FEES FOR SERVICES PERFORMED.
9.1. Subcontractor shall be paid the amounts determined in accordance with
this Section 9 and the SOW for the Services and Subcontractor Work
Product . Such payments shall be Subcontractor's sole compensation,
including travel and all other expenses, for its rendering of the
Services and preparation and delivery of the Subcontractor Work
Product, including the Subcontractor Work Product and Results required
to be delivered to Cisco under this Agreement and the applicable SOW.
9.2. Except as otherwise set forth in an applicable SOW, Subcontractor shall
determine the amount due for each category of resource listed in the
following chart by multiplying the
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hourly rate for each such category times the number of hours [****]
spent by such resource in providing Services for the project
specified in the SOW (the "Project"). Subject to Subcontractor
approval, additional discounts may apply.
DESCRIPTION OF QUALIFICATIONS,
RESOURCE CATEGORY RATE PER HOUR RESPONSIBILITIES AND TASKS
----------------- ------------- --------------------------
Project Manager US $ [****]
Senior Project Engineer US $ [****]
Project Engineer US $ [****]
___________________ US$
___________________ US$
9.3. Cisco shall notify Subcontractor in writing within 5 days following the
later of (i) completion of the Services and acceptance of the Services
and Deliverables by Cisco and Customer and (ii) final acceptance of the
Project by Customer. Subcontractor shall invoice Cisco at the address
set forth in the SOW for the Services provided with respect to the
Project in an amount determined in accordance with this Section 9 and
the SOW. Payment terms are thirty days from receipt of a correct
invoice. If Cisco shall send to Vendor payment for an invoice within
10 days of receipt of an invoice from Vendor, the amounts otherwise
due Subcontractor pursuant to such invoice shall be [****] and payment
of such [****] amount by Cisco shall constitute payment in full of
the invoiced amount.
9.4. Subcontractor represents and warrants to Cisco that the [****] set
forth in this Agreement are not and will not [****]. In the event
that Subcontractor enters into an agreement with a third party
pursuant to which [****] to assume in writing and perform all
material terms governing consideration and other obligations, and
satisfy any material conditions, [****] The provisions so
substituted and terms and conditions so assumed by [****] in which
event Subcontractor shall comply with [****] with respect to any
[****].
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
11
10. INDEPENDENT CONTRACTOR
Cisco and Subcontractor are independent contractors and have no power
or authority to bind the other or to create any obligation or
responsibility on behalf of the other. Under no circumstances shall any
employee of one party be deemed to be the employee of the other for any
purpose. Nothing herein shall be construed as implying a joint venture,
agency, employer-employee or partnership relationship between the
parties hereto. Subcontractor is solely responsible for all of its own
taxes, withholdings, and other similar statutory obligations related to
this Agreement and any SOW.
11. RELATIONSHIP TO THE PSA.
Selection of subcontractors to perform the work required under a
particular Customer PSA shall be in the sole discretion of Cisco, and
is, if required by the PSA, subject to Customer approval. Subcontractor
agrees that all its personnel who, pursuant to this Agreement, will be
on Cisco's or a Customer's premises shall have appropriate
authorization issued by Cisco and/or Customer prior to being accorded
access to such premises. Denial of access because of failure to comply
with either Cisco's or Customer's security procedures shall not be the
basis of a claim for breach, nor substantiate any other claim
whatsoever by Subcontractor.
12. CHANGES TO A SOW.
Cisco may at any time by written request make changes to a SOW,
provided such changes are within the general scope of the SOW, and
Subcontractor shall proceed without delay to evaluate requested changes
and notify Cisco promptly (but in all cases within twenty-four (24)
hours after receiving such request) of any objections to the requested
changes. Should any change to an SOW directly result in a change to the
time, place or cost of performance of the SOW, Subcontractor shall,
within the earlier of the time specified in such request or fifteen
(15) days of being directed to implement the change, notify Cisco that
there will be an impact to the SOW cost or schedule and describe such
impact. In the event the Parties reasonably determine such a change
increases or decreases the cost of, or the time required for,
performance of the Services or preparation of the Subcontractor Work
Product under any SOW, the Parties shall agree upon an equitable
adjustment to the SOW, including possible adjustment of prices or
delivery schedules. For changes requested by Cisco at Customer's
request or direction, such equitable adjustment shall be subject to
Customer's approval and funding.
13. TERM.
This Agreement will commence on the Effective Date and will continue in
effect for a period of four (4) years or for the period of any
incomplete SOW in existence on the expiration date, whichever is later,
unless amended to establish a later expiration date by
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a written agreement signed by both parties, or until terminated as
provided in this Agreement.
14. TERMINATION.
14.1. Cisco may terminate this Agreement or any individual SOW at any
time, with or without cause, by giving ten (10) days written notice
to Subcontractor. In the event of a termination due to breach by
Subcontractor of this Agreement or any SOW, Cisco may, in its sole
discretion, offer Subcontractor the opportunity to cure within the
ten (10) day notice period. In the event of a termination or failure
to cure under this subsection, as of the tenth day after receipt of
notice of termination, Subcontractor shall immediately cease work on
the terminated matter(s), performing only efforts reasonably
necessary to wind down and preserve work that has been performed or
as specified in Section 14.4. In the event of a termination of this
Agreement, or any SOW, for any reason, Subcontractor shall be
obligated to deliver, and Cisco will be obligated to pay
Subcontractor for, only Services and Subcontractor Work Product
actually performed or prepared by Subcontractor prior to the date of
termination, and delivered to and accepted by Cisco (such acceptance
by Cisco to not be unreasonably withheld) and by Customer within a
reasonable time after the effective date of termination, consistent
with the payment terms in the SOW. Subcontractor shall also take all
actions required to protect and preserve new property in the
possession of Subcontractor in which Cisco or Customer has an
interest. Cisco may, upon notice to Subcontractor, deduct from the
amounts otherwise payable by Cisco to Subcontractor any undisputed
amounts payable by Subcontractor to Cisco.
14.2. Subcontractor may terminate this Agreement and/or any individual SOW
if Cisco breaches a material provision of this Agreement or any SOW
and fails to cure such breach within thirty (30) days of receipt of
written notice of the breach from Subcontractor.
14.3. Notwithstanding the foregoing, this Agreement and/or any SOW hereunder
may be terminated immediately by Cisco in the event of (i)
Subcontractor's breach of Subsection 2.5 (licenses and permits),
Section 3 (Confidentiality), Section 4 (Subcontractor's
Representations, Warranties and Covenants), Section 6 (Ownership and
License), Section 7 (Software License), or Subsection 19.10 (Export Law
Control), (ii) in the event of a sale of all or substantially all of
Subcontractor's assets, or transfer of a controlling interest in
Subcontractor to an unaffiliated third party or (iii) expiration or
termination of the PSA for any reason.
14.4. Notwithstanding the foregoing, upon termination of this Agreement for
any reason, Cisco reserves the right to determine whether to require
Subcontractor to complete any SOWs previously executed by Cisco and
Subcontractor. If completion is required by Cisco, Subcontractor shall
perform the relevant SOW(s) in conformance with their respective terms
and conditions, and this Agreement, including this termination section,
will continue to apply to that performance.
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14.5. Subcontractor shall, if requested by Cisco, take all reasonable steps
to achieve an orderly transition upon termination and shall, if
requested by Cisco, provide reasonable training for Cisco or third
party personnel and other support and assistance to ensure continuity
in the performance of the obligations set forth in the PSA. If the
efforts required are more than nominal transfers of residual materials
and information, Cisco will pay Subcontractor a reasonable fee for such
training and other services as may be mutually agreed by the parties;
provided, however that Subcontractor shall not refuse to provide such
training and other services prior to agreement by the parties with
respect to such fees.
14.6. Subcontractor and Cisco shall continue performing its obligations under
this Agreement while any dispute with Cisco is being resolved unless
and until this Agreement and all SOWs expire or terminate.
14.7. The rights and remedies of each party provided in this Section shall
not be exclusive and are in addition to other rights and remedies
provided at law, in equity or otherwise under this Agreement.
15. INDEMNIFICATION.
15.1. Subcontractor shall defend, indemnify and hold harmless Cisco, its
corporate affiliates and their officers, directors, employees and
agents and their successors and assigns, against and from any and all
claims, judgments, liabilities, losses, injuries, penalties, fines and
damages of every nature (including, without limitation, incidental
costs and expenses, reasonable attorney's fees, reasonable costs of
investigation and litigation, interest and penalties) to the extent
caused by the acts or failure to act of Subcontractor, its officers,
directors, employees, agents, consultants, subcontractors or vendors,
directly or indirectly arising out of or in conjunction with
Subcontractor's performance of this Agreement or related SOWs,
including without limitation failing to comply with any applicable law
or regulation or failing to obtain or maintain the validity of any
state, local or federal permit, license, or approval required for
performance of either party's obligations hereunder.
15.2. This indemnity protection includes any claims of infringement of
intellectual property rights and claims of use of confidential or
proprietary information of third parties, as provided in Section 5
hereof. In such cases, as for other indemnifiable actions,
Subcontractor will pay the costs of defense and settlement and any
costs and damages finally awarded by a court, arbitrator, mediator, or
the other decision making authority of competent jurisdiction against
Cisco. If such a claim is made or appears likely to be made,
Subcontractor may procure the right for Cisco to continue using the
allegedly infringing item, may modify the item or may replace it. If
use of the alleged infringing item by Cisco or a Customer is enjoined,
and Subcontractor determines that none of these alternatives is
reasonably available, Subcontractor will take back the infringing item
and refund its depreciated value, and replace the item or re-perform
the affected work with non-infringing items. The rights and remedies of
Cisco provided in this Section shall not be Cisco's exclusive remedy
and are in addition to all ocher rights and remedies of Cisco provided
at law, in equity or otherwise.
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Subcontractor shall not settle any claims under this Section 15 without
Cisco's prior written consent. Cisco shall reasonably cooperate with
Subcontractor, at Subcontractor's expense, in the defense of any claims
under this Section 15.
16. CONSEQUENTIAL DAMAGES WAIVER
EXCEPT FOR LIABILITY ARISING OUT OF OR IN CONNECTION WITH
SUBCONTRACTOR'S BREACH OF SECTION 3 (CONFIDENTIALITY), SECTION 6
(OWNERSHIP AND LICENSE) ) OR SECTION 7 (SOFTWARE LICENSE) OR SECTION
8.10 (EXPORT LAW CONTROL) OR ANY OTHER BREACH OF CISCO'S PROPRIETARY
RIGHTS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY OR ITS
SUPPLIERS BE LIABLE TO THE Old PARTY FOR ANY PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, OR ANY
OTHER INDIRECT DAMAGES AS A RESULT OF A BREACH OF THIS AGREEMENT EVEN
IF SUCH PARTY OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY
THEREOF. Payments based on the indemnification obligations of
Subcontractor shall be considered direct damages and are not subject to
the foregoing waiver of consequential damages without regard to the
nature of the third party claim giving rise to the indemnification
obligation.
17. INSURANCE.
17.1. Subcontractor shall at all times during the term of this Agreement and
at its own expense provide and maintain, and shall require each
subcontractor (regardless of tier) to provide and maintain, in effect
those insurance policies and minimum limits of coverage as designated
below or such additional policies or higher amount as required (and
subject to any additional terms) as are required by the PSA, and any
other insurance required by an SOW or by law in any state where
Subcontractor or its subcontractor(s) (regardless of tier) provides
Services under this Agreement, in insurance companies with an A.M.
Best's Insurance Rating of A:VIII or better or otherwise acceptable to
Cisco, and will comply with all those requirements as stated herein. In
no way do these minimum requirements limit the liability assumed
elsewhere in this Agreement.
17.1.1. Workers' Compensation and Employers Liability Insurance.
Workers' Compensation insurance shall be provided as required
by any applicable law or regulation and, in accordance with
the provisions of the laws of the nation, state, territory or
province having jurisdiction over Subcontractor's employees.
Employers Liability insurance shall be provided in amounts not
less than $1,000,000. If there is an exposure to injury of
Subcontractor's employees under the US Longshoremen's and
Harbor Workers' Compensation Act, the Jones Act or under laws,
regulations or statutes applicable to maritime employees,
coverage shall be included for such injuries or claims.
17.1.2. General Liability Insurance. Subcontractor shall carry a
policy of Commercial General Liability or Public Liability
insurance covering all operations by or on behalf of
Subcontractor arising out of or connected with
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this Agreement providing insurance for bodily injury liability
and property damage liability for the limits of liability
indicated below and including but not limited to coverage for:
o premises and operations
o products-completed operations
o contractual liability (including advertising and
personal injury) insuring the obligations assumed by
Subcontractor in this Agreement
o broad form property damage (including completed
operations) personal injury liability (with deletion
of the exclusion for liability assumed
o under contract)
o independent contractor's protective liability
The limits of liability shall not be less than:
$1,000,000 each occurrence combined single limit (for bodily
injury and property damage)
$2,000,000 general aggregate
17.1.3. AUTOMOBILE LIABILITY INSURANCE. Subcontractor shall carry
Business Automobile Liability insurance, including bodily
injury and property damage for all vehicles used in the
performance of Subcontractor's SOWs under this Agreement,
including but not limited to all owned, hired and non-owned
vehicles. The limits of liability shall be $1,000,000
combined single limit for each accident or whatever is
required by statute, whichever is greater.
17.1.4. ERRORS AND OMISSIONS LIABILITY INSURANCE (PROFESSIONAL
LIABILITY). Subcontractor shall provide evidence of insurance
for design and professional liability evidencing coverage with
a limit of not less than $2,000,000 per claim and $5,000,000
in the aggregate.
17.1.5. UMBRELLA LIABILITY AND/OR EXCESS LIABILITY INSURANCE.
Subcontractor shall carry Umbrella Liability and/or Excess
Liability insurance for not less than the following limits in
excess of the limits provided by the Subcontractor's
Employer's Liability, Commercial General Liability, and
Automobile Liability insurance policies. The Umbrella/Excess
policy shall not contain an exclusion for contractual
liability.
$5,000,000 each occurrence (combined single limit for bodily
injury and property damage)
$10,000,000 general aggregate
17.1.6. Subcontractor shall continue to maintain liability insurance
for the products-completed operations hazard and for the
errors and omissions hazard for three years following
completion of and acceptance of the Services and
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Subcontractor Work Product by Cisco. Subcontractor shall
furnish Certificates of Insurance annually to Cisco at the
beginning of each of these subsequent three years as evidence
of this required insurance.
17.1.7. Cisco, its officers, directors, employees and agents shall be
named as Additional Insureds for General Liability and
Excess/Umbrella liability policies above. The policy(s) shall
be endorsed to stipulate that Subcontractor's insurance shall
be primary insurance and that any other insurance maintained
by Cisco shall be excess only and non-contributing.
17.1.8. Certificates of Insurance shall be furnished by Subcontractor
to Cisco before work on any Services or Subcontractor Work
Product are commenced hereunder by Subcontractor and thirty
(30) days prior to policy renewal. The Certificates of
Insurance shall provide that there will be no cancellation or
non-renewal of coverage without thirty (30) days prior written
notice to Cisco. Copies of the endorsements required hereunder
shall be furnished with the certificates. If reasonably
requested by Cisco, a certified copy of the actual policy(s)
with appropriate endorsement(s) shall be provided to Cisco.
17.1.9. If Subcontractor does not comply with the insurance
requirements of this Section, Cisco may, at its option,
provide insurance coverage to protect Cisco and Subcontractor
and charge Subcontractor for the cost of that insurance. The
required insurance shall be subject to the approval of Cisco,
but any acceptance of insurance certificates by Cisco shall
not limit or relieve Subcontractor of the duties and
responsibilities assumed by it under this Agreement.
17.1.10. Except where prohibited by law, Subcontractor does hereby and
its insurers and its subcontractor(s), consultants, suppliers,
and agents (regardless of tier) and their respective insurers
do hereby, waive all rights of recovery or subrogation against
Cisco, its affiliates and their respective officers,
directors, employee, agents, and insurers. Subcontractor shall
cause its subcontractor(s), consultants, suppliers and agents
(regardless of tier) and their respective insurers to
acknowledge and agree to such waiver and shall provide Cisco
with a copy of such waiver.
17.1.11. Subcontractor shall obtain insurance or shall reimburse Cisco
or Customer, as appropriate, for loss or damage to any
Cisco-owned or Customer-owned property in the care, custody,
or control of Subcontractor, for all losses including, but not
limited to theft, loss, misappropriation or destruction caused
by Subcontractor, its employees, agents, members or
consultants whether intentional or through negligence.
17.1.12. In the event Subcontractor utilizes the services of
subcontractors of any type to perform the Services
contemplated hereunder, Subcontractor shall require from or
provide for all subcontractors the same minimum insurance
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requirements detailed above. Cisco reserves the right to
request copies of subcontractor certificates and/or certified
copies of insurance policies from Subcontractor when deemed
necessary.
18. INJUNCTIVE RELIEF.
The parties agree unauthorized use of Confidential Information,
Subcontractor Work Product, or any information contained therein could
irreparably diminish the value to Cisco of its trade secrets or
proprietary information such that Cisco will have no adequate remedy in
damages. Therefore, if Subcontractor breaches any of its
confidentiality obligations hereunder, Cisco shall be entitled to
equitable relief to protect its interests therein, including but not
limited to injunctive relief, as well as monetary damages.
19. GENERAL.
19.1. NOTICES. All notices intended for the parties shall be effective if
sent to their respective addresses set forth in the preamble to this
Agreement; if to Cisco, Attention: Senior Vice President, Customer
Advocacy; if to Subcontractor, Attention: Kimberly King. Notices
under this Agreement will be sufficient only if personally
delivered, delivered by a major commercial rapid delivery courier
service with next business day delivery and tracking capabilities
and costs prepaid, or mailed by prepaid certified or registered
mail, return receipt requested, to a party at its address first set
forth in this Agreement. If not received sooner, notices by mail
shall be deemed received three (3) days after deposit in the U.S.
mails.
19.2. AUDIT. Subcontractor shall maintain accurate records of all amounts
billable to and payments made by Cisco hereunder in accordance with
recognized accounting practices and the requirements of the PSA. Cisco
shall have the right to audit any and all records of Subcontractor
relating to this Agreement and any SOW hereunder, including all
documents related to Subcontractor's compliance with Sections 2.5, 2.9,
4.2 and employee timecards upon reasonable notice, during business
hours and with minimal disruption to Subcontractor's business.
Subcontractor agrees that such records will be available for audit by
Cisco or its agents during nonnal business hours upon reasonable
notice. Customer shall have the right to audit the records and
operations of Subcontractor in accordance with the applicable
provisions of the PSA; provided that Subcontractor is furnished with
the applicable portions of the PSA prior to entry into an SOW.
19.3. CHOICE OF LAW. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the
State of California, United States of America, as if performed
wholly within the state and without giving effect to the principles
of conflicts of laws. The parties specifically disclaim the UN
Convention on Contracts for the International Sale of Goods.
19.4. NO WAIVER. No waiver of rights under this Agreement or any SOW
hereunder by either party shall constitute a subsequent waiver of this
or any other right under this Agreement or any SOW.
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19.5. ASSIGNMENT. Neither this Agreement nor any rights or obligations under
this Agreement (nor any SOW hereunder), other than monies due or to
become due, shall be assigned or otherwise transferred by Subcontractor
(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 Subcontractor's approval. This Agreement and any SOW
shall bind and inure to the benefit of the successors and permitted
assigns of the parties.
19.6. ILLEGALITY. In the event that any of the terms of this Agreement or any
SOW hereunder or the performance of any obligation by either party
thereunder becomes or is declared to be illegal by any court of
competent jurisdiction or other governmental body, such term(s) shall
be null and void and shall be deemed deleted from this Agreement or the
SOW. All remaining terms of this Agreement or the SOW shall remain in
full force and effect. Notwithstanding the foregoing, if this paragraph
becomes applicable and, as a result, the value of this Agreement or any
SOW is substantially impaired for either party, then the affected party
may terminate this Agreement or the SOW by written notice to the other.
19.7. ATTORNEYS' FEES. In any suit or proceeding between the parties redating
to this Agreement or any SOW hereunder, the prevailing party will have
the right to recover from the other its costs and reasonable fees and
expenses of attorneys, accountants, and other professionals incurred in
connection with the suit or proceeding, including costs, fees and
expenses upon appeal, separately from and in addition to any other
amount included in any judgment in its favor issued by a court or other
tribunal or decision maker of competent jurisdiction. 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.
19.8. NO AGENCY. 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.
19.9. SURVIVAL. Sections 3, 4, 5, 6, 14, 15, 16, 17.1.6, 17.1.10, 17.2, 18
and 19 shall survive termination or expiration of this Agreement.
19.10. EXPORT LAW CONTROL
19.10.1. Subcontractor hereby acknowledges that the Services,
Subcontractor Work Product, Results, Cisco products and
technology or direct products thereof (hereafter referred to
as "Products and Technology"), supplied by Cisco or used or
created by Subcontractor under this Agreement are subject to
export controls under the laws and regulations of the United
States (U.S.). Subcontractor 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
Subcontractor 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.
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19.10.2. Subcontractor hereby certifies that none of the Products and
Technology supplied by Cisco or used or created by
Subcontractor under this Agreement will be exported,
re-exported, or otherwise transferred by Subcontractor:
(i) to a U.S. embargoed or highly restricted destination,
(15 United States Code of Federal Regulations ("CFR")
Part 746)
(ii) 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 No. 1 to Part 740, (15
CFR Part 740)
(iii) to, or made available by Subcontractor 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)
(iv) 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.
Subcontractor's obligation under this Section 19 shall survive the
expiration or termination of this Agreement. Subcontractor 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. Subcontractor agrees to permit audits by Cisco or the U.S.
Government as required under the regulations to ensure compliance with
this Agreement.
19.11. MISREPRESENTATION WARRANTY. Subcontractor hereby agrees to indemnify
Cisco for the cost of satisfying any warranties made by Subcontractor
to Customer in performance of this Agreement or any SOW hereunder, and
for any representation or misrepresentation regarding Cisco's
reputation or Cisco's products.
19.12. FORCE MAJEURE. Neither party shall be liable for any delay or failure
in performance due to acts of God, earthquake, flood, riots, fire,
epidemics, war or terrorism (a "Force Majeure Event"). Each party shall
immediately notify the other party of the occurrence of Force Majeure
Event affecting such party and shall use all reasonable efforts to !
recommence performance as soon as possible. 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.
19.13. ENTIRE AGREEMENT. This Agreement, together with the terms of the PSA
with which Subcontractor must comply pursuant to this Agreement and all
SOWs expressly incorporated herein, 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,
and expressly supersedes that Professional Services Subcontract
Agreement between the parties dated November 24, 1998 and such
agreement shall be terminated as of the date hereof and be of no
further force or effect. There are no
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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.
19.14. NO THIRD PARTY BENEFICIARIES. Except as expressly set forth herein,
nothing expressed or referred to in this Agreement shall be construed
to give any person or entity other than the parties to this Agreement
any legal or equitable right, remedy, or claim under or with respect to
this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive
benefit of the parties to this Agreement.
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