EXHIBIT 10.4
CISCO SYSTEMS
SYSTEMS INTEGRATOR AGREEMENT-UNITED STATES
This U.S. Systems Integrator Agreement (the "Agreement") by and between Cisco
Systems, Inc., ("Cisco") a California corporation having its principal place of
business at 170 West Tasman Drive, San Jose, California, 95134, and Internetwork
Experts, Inc. ("Integrator"), a Texas corporation having its principal place of
business at 15960 Midway Road, Suite 101, Addison, Texas 75001 is entered into
as of the date last written below ("the Effective Date").
This Agreement consists of this signature page and the following attachments,
which are incorporated in this Agreement by this reference:
1. Systems Integrator Agreement Terms and Conditions
2. EXHIBIT A: Integrator Profile
3. EXHIBIT B: Discount Schedule
4. EXHIBIT C: Support
5. EXHIBIT D: Networked Commerce Attachment
8. EXHIBIT F: Special Software License Terms
9. EXHIBIT S: Software License Agreement
This Agreement is the complete agreement between the parties hereto concerning
the subject matter of this Agreement and replaces any prior oral or written
communications between the parties. There are no conditions, understandings,
agreements, representations, or warranties, expressed or implied, which are not
specified herein. This Agreement may only be modified by a written document
executed by the parties hereto. Any orders accepted or Products delivered by
Cisco after the date this Agreement is signed by Integrator but before the
Effective Date, shall upon the Effective Date be deemed covered by the
provisions of this Agreement, except for any deviations in price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duty
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.
Internetwork Experts, Inc. CISCO SYSTEMS, INC. ("CISCO")
- ------------------------------
("Integrator")
/s/ Paul Klotz /s/ Rick Timmins
- ------------------------------ ----------------------------------------
Authorized Signature Authorized Signature
Paul Klotz Rick Timmins, VP WW Sales/Finance
- ------------------------------ ----------------------------------------
Name Name
November 2, 2001 November 13, 2001
- ------------------------------ ----------------------------------------
Date Date
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1.0 DEFINITIONS.
Added Value is the non-Cisco component portion of Integrator's total
solution, which Integrator provides to End User. Examples of Added
Value are pre- and post-sales network design, configuration,
trouble-shooting, and support and the sale of complementary products
and services that comprise a significant portion of the total revenues
received by Integrator from an End User of Cisco Products. Integrator
acknowledges that telesales, catalog sales, and sales over the Internet
do not include Added Value if inbound communications from the
prospective End User purchaser were prompted by something other than a
face-to-face interaction between Integrator's sales representative and
such prospective End User. Integrator further acknowledges that
providing financing options is not considered Added Value.
An Approved Source means (a) Cisco or (b) a distributor that is
authorized by Cisco to redistribute Products and Services within the
Territory to Integrator.
CCO is Cisco's suite of on-line services and information at
http://www.cisco.com.
Cisco Certified Internetworking Engineer ("CCIE") is the status granted
to Integrator employees who successfully complete the then-current CCIE
Program offered by Cisco.
Documentation is user manuals, training materials, Product descriptions
and specifications, technical manuals, license agreements, supporting
materials and other printed information relating to Products and/or
Services offered by Cisco, whether distributed in print, electronic,
CD-ROM or video format.
End User is the final purchaser or licensee which has acquired Products
or Services for its own internal use and not for resale, remarketing or
distribution. An entity which performs stocking, sparing or warehousing
activities for third parties or procures Cisco Services or Software for
delivery to third parties, is not an End User.
Hardware is the tangible product made available to Integrator.
Internal Use is any use of a Product or Service which is outside the
definition of Resale provided below.
Price List is Cisco's published global price list.
Product means, individually or collectively as appropriate, Hardware,
licensed Software, Documentation, developed products, supplies,
accessories, and other commodities related to any of the foregoing,
listed on the then current Price List.
Purchase Order is a written or electronic order from Integrator to
Cisco for Hardware, Software or support services therefor to be
purchased, licensed or provided under this Agreement.
Resale is any of the following sales or dispositions of a Product or
Service: (a) transfer of title (or, for Software, a license conferring
the right to use the Software, and, for Services, the entitlement to
receive such Services) to the End User of such Product or Service; (b)
transfer of title (or, for Software, a license conferring the right to
use the Software, and, for Services, the entitlement to receive such
Services) to a financial intermediary such as a leasing company, even
if such leasing company is affiliated with Integrator, where the
Product or Service is used by an unaffiliated End User; or (c)
retention of title (or, for Software, a license conferring the right to
use the Software,
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and, for Services, the entitlement to receive such Services) by
Integrator, but only where the Product or Service is deployed
(including in connection with hosting, outsourcing or provisioned
services offered by Integrator) for the use of End Users who are not
affiliated with Integrator and who contract with Integrator for the
provision of such services. In no event shall the term Resale include
use of a Product or Service for the provision of network services to
the general public. The verb "Resell' means to engage in Resale. For
Special License Software, the transfer of a license conferring the
right to use such Software means a Sublicense.
Sales Expert is the status that is granted to Integrator employees who
successfully complete the then-current Sales Expert training curriculum
offered by Cisco.
Services means any maintenance, or technical support and any other
services performed or to be performed by Cisco, asset forth in this
Agreement or the Exhibits hereto.
Software 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.
Special License Terms are the terms and conditions set forth on Exhibit
F with respect to the Special License Software described therein, or
other terms and conditions applicable to other Special License Software
to which Integrator may be asked to provide assent, electronically or
in writing, prior to Cisco providing such Special License Software to
Integrator.
Special License Software is Software, which is subject to the Special
License Terms and the other provisions applicable thereto which are set
forth in this Agreement and which shall be made accessible to third
parties only by means of a Sublicense.
Sublicense is a written and signed license between Integrator and its
End User(s) for use of and access to Special License Software meeting
the requirements set forth in Section 9.0 of this Agreement.
Territory is those regions or countries identified in Exhibit A.
2.0 SCOPE.
This Agreement sets forth the terms and conditions for Integrator's purchase
and/or license of Products and Services during the term of the Agreement. Cisco
authorizes Integrator to purchase and/or license Products and Services solely
from an Approved Source, and to Resell or internally to use such Products and
Services, solely as permitted in this Section 2.0. The provisions of Sections
4.0 through 7.0 of these Terms and Conditions, as well as Exhibit B to this
Agreement, shall apply only with respect to Products and Services purchased
directly from Cisco. All other provisions shall apply both to Products and
Services purchased and/or licensed directly from Cisco and to Products and
Services purchased or obtained from another Approved Source.
2.1 Integrator's Internal Use.
Integrator may purchase and/or license, as the case may be, all
Products and Services for its Internal Use in the Territory. For any
Products purchased from Cisco for Internal Use, (a) the "Internal Use"
discount specified in Exhibit B shall apply, and (b) Exhibit C may
prohibit the purchase of particular Services for use by Integrator in
connection with Products purchased for
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Internal Use. In the event Integrator purchases or licenses Products or
Services for its Internal Use, Integrator shall be deemed to be the End
User of such Products.
2.2 Commercial Integration And Resale. Subject to the terms and conditions
of this Agreement, Cisco grants Integrator a non-exclusive,
nontransferable right to Resell Products and Services directly to End
Users in the Territory.
2.3 Added Value.
2.3.1 Integrator will, in each of its Resales of Cisco Products and
Services, Resell such Products and Services with Integrator's
Added Value.
2.3.2 Integrator must at all times during the term of this
Agreement, (a) be able to demonstrate products to prospective
End Users at End User location; and (b) provide post-sales
support.
2.4 Resale Outside the Territory. Integrator agrees not to solicit Product
or Service orders, engage salespersons, or establish warehouses or
other distribution centers outside of the Territory.
2.5 Sales to End Users. Integrator certifies that, except as set forth in
sub-section 2.1, above, it is acquiring the Products and Services
solely for, Resale to End Users, in accordance with this Agreement.
Integrator will not resell Products or Services to other resellers of
Cisco Products or Services, whether or not such Resellers are
authorized by Cisco to Resell Products or Services purchased from an
Approved Source.
2.6 Redistribution of Software. Subject to and as authorized by the terms
applicable to Special License Software in Section 9.0 ct this
Agreement, Integrator may sublicense Special License Software to End
Users who may have access to and/or control over such Special License
Software. Such End Users' right to use Special License Software must be
granted via a Sublicense.
2.7 Future Products and Services.
2.7.1 For any Products and Services included in the Price List,
including but not limited to Products and Services which
become or have become Cisco Products or Services as a result
of an acquisition by Cisco of another entity, Cisco may
require Integrator to comply with training requirements
(including requirements included in a specialization or
Advanced Technology Provider program) prior to allowing
Integrator to purchase and/or license Products and Services
for Resale, and may require on-going fulfillment of
certification requirements to retain the right to purchase,
license, Resell or support such Products.
2.7.2 Cisco reserves the right, during the term of this Agreement,
to license and distribute additional items of Software. Such
items of Software may be licensed under additional or
different policies and license terms, which will be made
available to Integrator at the time such items of Software,
are provided to Integrator.
2.8 Resale to Government End Users.
2.8.1 Integrator will not Resell Products or Services to the United
States Federal Government either directly or indirectly, or
through the General Services Administration ("GSA").
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2.8.2 Cisco does not accept any government flowdown provisions,
including but not limited to, the United States Government
Federal Acquisition Regulations ("FARs") and its supplements,
Defense FARs, or NASA FARs, whether for Resale or Internal
Use, notwithstanding the existence of such provisions on
Integrator's Purchase Orders or supplementary documentation or
Cisco's acceptance of such Purchase Orders or documentation.
2.8.3 With respect to GSA, California Multiple Award Schedule
("CMAS"), and other schedule contracts, this Agreement shall
not be construed by Integrator as a representation that Cisco
will furnish supplies needed by Integrator to fulfill any of
Integrator's GSA, CMAS, or similar contract obligations under
any schedule contract.
3.0 MULTINATIONAL DEPLOYMENT POLICY. Unless mutually agreed in writing by
the parties, Integrator shall procure equipment for deployment outside
of the Territory only in accordance with Cisco's then-current
multinational deployment policies and procedures.
http://www.cisco.com/warp/customer/687/cust_service/Multinational/
4.0 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, subject to the
transition rules set out in Part 1 of Exhibit B. Prices for
Services shall be as stated in Exhibit C. All prices are FOB
per the Uniform Commercial Code (for international shipments,
Ex Works per INCOTERMS 2000), at Cisco's site, San Jose,
California, or other Cisco-designated shipping location. Cisco
may change prices for the Products or for Services at any time
by issuance of a revised Price List (including via electronic
posting) or other announcement of price change.
4.2 Purchase Orders received before the date of Cisco's
announcement of price changes, and those received within
thirty (30) days thereafter which specify a delivery date
within ninety (90) days of the date of Cisco's announcement,
will be invoiced to Integrator without regard to the price
change, provided however, price decreases will be effective
for all Purchase Orders accepted by Cisco after the date of
issuance or announcement of revised prices.
4.3 Integrator is free to determine its minimum 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 minimum resale prices. No
employee or representative of Cisco or anyone else has any
authority to determine what Integrator's minimum resale prices
for the Products or Services must be, or to limit Integrator's
pricing discretion with respect to the Products and Services.
Cisco may make additional discount available to Integrator
with respect to specific Products and Services in return for
Integrator's agreement to resell such Products and Services
below a particular price. No such agreement shall limit
Integrator's ability to sell any such Products or Services for
any price below the maximum price identified by Cisco.
4.4 All stated prices are exclusive of any taxes, fees and duties
or other amounts, however designated, and including without
limitation value added and withholding taxes which are levied
or based upon such charges, or upon this Agreement. Any taxes
related to Products purchased or licensed pursuant to this
Agreement shall be paid by Integrator (except for taxes based
on Cisco's income) unless 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.
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5.0 ORDERS.
5.1 Integrator shall purchase or license, as appropriate, Products and
Services by issuing a written or electronic Purchase Order signed (or
in the case of electronic transmission, sent) by its authorized
representative, indicating specific Products and Services; Cisco's
product numbers; quantity; unit price; total purchase price; shipping
instructions; requested delivery dates; bill-to and ship-to addresses;
tax exempt certifications, if applicable; identification of the End
User for each Product; and any other special instructions.
5.2 The terms of the Networked Commerce Attachment (Exhibit D) shall apply
for any orders submitted electronically, via CCO. No contingencies
contained on such Purchase Order will be binding upon Cisco. The terms
and conditions of this Agreement prevail regardless of any additional
or conflicting terms on the Purchase Order or other correspondence
submitted by Integrator to Cisco, and any such additional or
conflicting terms are deemed rejected by Cisco unless expressly agreed
to in writing.
5.3 All Purchase Orders are subject to approval and acceptance by the Cisco
Integrator service order administration office of the Cisco entity,
which shall supply the Products and Services. No other office is
authorized to accept orders on behalf of Cisco. Cisco shall use
commercially reasonable efforts to provide information regarding
acceptance or rejection of such orders within ten (10) days from
receipt thereof, or within three (3) business days, where orders are
placed under CCO.
5.4 Integrator has the right to defer Product shipment for no more than
thirty (30) days from the originally scheduled shipping date, provided
written notice is received by Cisco at least ten (10) days before the
originally scheduled shipping date. Cancelled orders, rescheduled
deliveries or Product configuration changes made by Integrator less
than ten (10) days before the original shipping date will be subject to
(a) acceptance by Cisco, and (b) a charge of fifteen percent (15%) of
the total invoice amount. Cisco reserves the right to reschedule
delivery in cases of configuration changes made within ten (10) days of
scheduled shipment.
5.5 During the term of this Agreement, Cisco may make the Products that are
to be supplied outside the United States available for order in and
delivery from an alternate central location and/or a Cisco affiliate,
if it chooses. In the event that Cisco does so, Integrator will order
the Products according to the procedures set forth at the time such
ordering or delivery process becomes available. At such time, orders in
conformance with Cisco's policies will be shipped according to the
availability, pricing, and expedited lead-times described in the
procedures.
6.0 SHIPPING AND DELIVERY.
6.1 Shipping dates will be established by Cisco upon acceptance of Purchase
Orders from Integrator. Shipping dates will be assigned as close as
practicable to the Integrator's requested date based on Cisco's
then-current lead times for the Products. Unless, given written
instruction by Integrator, Cisco shall select the carrier.
6.2 Shipping terms are FOB Origin per Uniform Commercial Code (for
international shipments, Ex Works per INCOTERMS 2000) at Cisco's site,
San Jose, California, or other Cisco-designated shipping location,
which shall appear on Cisco's order acknowledgement and/or be
accessible via CCO.
6.3 Title and risk of loss shall pass from Cisco to Integrator upon
delivery to the common carrier or Integrator's representative at the
delivery point per the applicable shipping term.
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6.4 Delivery shall be deemed made upon transfer of possession to the
carrier.
6.5 Integrator shall be responsible for all freight, handling and insurance
charges subsequent to delivery. If Integrator requests delivery of
Products to Integrator's forwarding agent or other representative in
the country of shipment, Integrator shall assume sole responsibility
for compliance with applicable export laws and regulations, including
the preparation and filing of shipping documentation necessary for
export clearance.
6.6 Cisco shall not be liable for damage or penalty for delay in delivery
or for failure to give notice of any delay. Except in accordance with
the applicable delivery terms set forth in this Agreement, Cisco shall
not have any liability in connection with shipment, nor shall the
carrier be deemed to be an agent of Cisco.
6.7 All sales are final. Products are provided with written limited
warranty statements that set out the terms under which Cisco will, at
its option, repair, replace, or refund the purchase price of a
defective or damaged product.
7.0 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 unless otherwise agreed. If at any time, Integrator is
delinquent in the payment of any invoice, or is otherwise in breach of
this Agreement, Cisco may, at 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 and Services purchased or
licensed under this Agreement and any proceeds realized by Integrator
upon any resale or redistribution of those Products and Services. If
requested by Cisco, Integrator agrees to execute any financing
statements Cisco may require to perfect this security interest.
8.0 INTEGRATOR OBLIGATIONS.
In a manner satisfactory to Cisco and at Integrator's sole expense,
Integrator agrees to:
8.1 employ competent and aggressive sales, technical support, and
maintenance organizations, employees of which shall be full-time direct
employees of Integrator who sell, deploy, install, secure acceptance
of, and maintain the Products and Services;
8.2 purchase Demonstration/Evaluation Units for each appropriate selling
location as mutually agreed to by the parties;
8.3 have a majority of the appropriate Integrator sales and technical
support personnel participate in and successfully complete mandatory
training course identified by Cisco as well as such additional training
courses identified in an initial training plan which shall be mutually
agreed to by the parties and implemented within the initial term of
this Agreement;
8.4 maintain at least one (1) Cisco trained technical support person per
servicing location;
8.5 maintain adequate manpower and facilities to ensure prompt handling of
inquiries, orders, and shipments for Products and Services;
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8.6 validate End User network configuration design and associated
components, and assist End Users with system design;
8.7 keep Cisco informed as to any problems which involve Products or
Services and/or Cisco technologies and require Cisco's support or
impact Integrator's ability to deliver service or solutions to the End
User, to communicate such problems promptly to Cisco, and to assist
Cisco in the resolution of such problems;
8.8 provide non-binding monthly forecasts to Cisco for the subsequent four
(4) month period, monthly Inventory, and Point of Sale "POS reports and
such other information as is required under this Agreement;
8.9 participate in quarterly business meetings with Cisco to review the
progress of the relationship and Integrator's achievement as related to
commitments such as, but not limited to: volume purchases, training and
certification, support, and reporting;
8.10 appoint a relationship manager whose primary responsibility will be to
work with the designated Cisco channel sales manager to manage the
implementation of the Agreement, act as the focal point for day-to-day
channel business issues and problem escalations, and participate in
Cisco channel-related activities;
8.11 employ a minimum of one (1) CCIE, and (b) have the relationship manager
identified in the preceding sub-section complete Sales Expert training;
and
8.12 comply with all requirements set out in Exhibit A.
9.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING.
9.1 Subject to the terms and conditions of this Agreement, Cisco grants to
Integrator a nonexclusive, non-transferable license (a) to use the
Software and Documentation for Integrator's Internal Use under the
terms of Exhibit S, and, with respect to Special License Software and
related Documentation, the Special License Terms, and (b) during the
term of this Agreement, to market and Resell the Software (including
related Documentation) directly to End Users, solely as permitted by
this Section of this Agreement, in the Territory, or, in the case of
Special License Software, to grant to End Users Sublicenses to the
Special License Software (including related Documentation) subject to
the terms and conditions of this Section and the Special License Terms.
Any Resale of any item of Software or Documentation to any person or
entity, other than Integrator itself that is not an End User, including
to any other Cisco Integrator, is expressly prohibited.
9.2 The license granted herein shall be for use of the Software and
Documentation in object code format only and solely as provided in Part
(i) of Exhibit S and, with respect to Special License Software and
related Documentation, the Special License Terms. Integrator may not
sublicense, to any person or entity, its rights to distribute or
sublicense the Software or Documentation.
9.3 Integrator shall provide a copy of the Software License Agreement
(inclusive of Parts (i) and (ii)) (a copy of which is attached hereto
as Exhibit S) to each End User of the Software prior to installation of
the Software.
9.4 For Special License Software (and related Documentation), Cisco grants
Integrator the right to grant its End Users a Sublicense to use the
Special License Software (and related Documentation)
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pursuant to these terms and conditions and the Special License Terms.
Redeployment of these licenses between End Users shall be subject to
any restrictions set forth in the applicable Special License Terms. End
Users' right to use this Software (and related Documentation) must be
granted via a Sublicense.
9.5 Integrator shall notify Cisco promptly of any breach of the Software
License Agreement or Special License Terms 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.
9.6 The Special License Terms contain certain terms, which apply to certain
current Special License Software product offerings by Cisco. In the
future, Cisco may develop or acquire new Special License Software
products, which may be governed by other Special License Terms, or
Cisco may change its current terms, which will govern future license
purchases by Integrator. With respect to these new Special License
Terms, Cisco may require that Integrator acknowledge and accept these
new terms prior to purchase by methods chosen by Cisco, including by
electronic means.
10.0 LIMITED WARRANTY.
10.1 Cisco Products are provided with written limited warranties. Integrator
will pass through to End Users all written limited warranties provided
by Cisco with Products purchased by Integrator.
10.2 Notwithstanding any other provision hereof, 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.
10.3 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL
EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT,
SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE,
OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY
APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED,
SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. This
disclaimer and exclusion shall apply even if the express warranty set
forth above fails of its essential purpose. The date of shipment of a
Product by Cisco is set forth on the packaging material in which the
Product is shipped. Integrator acknowledges that the Internet URL
address and the web pages referred to above may be updated by Cisco
from time to time; the version in effect at the date of delivery of the
Products to the Integrator shall apply.
11.0 TRADEMARK USAGE.
11.1 Cisco grants to Integrator the right to use the name, logo, trademarks,
and other marks of Cisco (collectively, the "Marks") for all proper
purposes in the sale of Cisco Products and Services 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
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than an aesthetically proper label identifying the Integrator, its
location and its relationship to Cisco. Integrator further agrees not
to affix any Marks to products other than genuine Products.
11.2 Integrator shall have no claim or right in the Marks, including but not
limited to trademarks, service marks, or trade names owned, used or
claimed now or which Cisco has authority to grant Integrator the right
to use in the future. 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.
Integrator shall discontinue its use of any Mark promptly upon request
of Cisco.
12.0 CONFIDENTIAL INFORMATION.
12.1 Integrator acknowledges that, in the course of selling the Products and
Services, and in connection with this Agreement and its relationship
with Cisco, Integrator may obtain information relating to the Products
and Services, and/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 posted on CCO which Integrator
knows or has reason to know is confidential, proprietary or trade
secret information of Cisco.
12.2 Integrator 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, 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.
12.3 Integrator further agrees to immediately return to Cisco all
Confidential Information (including copies thereof) in Integrator's
possession, custody, or control upon termination or expiration of this
Agreement at any time and for any reason.
12.4 The obligations of confidentiality set forth herein 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 non-confidential basis from a third party who has the
right to disclose such information to the Integrator. 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.
13.0 PATENT AND COPYRIGHT INFRINGEMENT.
13.1 Cisco will have the obligation and right to defend any claim, suit or
proceeding brought against Integrator so far as it is based on a claim
that any Product supplied hereunder infringes a United States copyright
or an existing United States patent issued as of the Effective Date.
Cisco's obligation specified in this paragraph will be conditioned on
Integrator notifying Cisco promptly in writing of the claim or threat
thereof and giving Cisco full and exclusive authority for, and
information for and assistance with, the defense and settlement
thereof.
13.2 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
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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 Product,
and, if Integrator returns such Product to Cisco, refund to Integrator
the price originally paid by Integrator to Cisco for such Product as
depreciated or amortized by an equal annual amount over the lifetime of
the Products as established by Cisco.
13.3 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) services
offered or used by Integrator through operation of the Products or
revenue received by Integrator from its services; (c) alteration or
modification of any Product supplied hereunder; or (d) Cisco's
compliance with Integrator's designs, specifications, or instructions.
13.4 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 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.
13.5 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.
14.0 TERM AND TERMINATION.
14.1 This Agreement shall commence on the Effective Date and continue
thereafter for a period of one (1) year, unless extended by written
agreement of both parties or sooner terminated as set forth below.
Without prejudice to either party's right to terminate this Agreement
as set forth in Sections 14.2 to 14.5 below. Cisco may, by written
notice to Integrator, given at least thirty (30) days prior to the end
of the then-current term of the Agreement, extend the term of the
Agreement for the period set forth in such notice, up to a maximum of
one (1) year beyond the then-current expiration date. Any extension
shall be on the same terms and conditions then in force, except as may
be mutually agreed in writing by the parties. Notwithstanding Cisco's
right to extend the term of this Agreement, each party acknowledges
that this Agreement shall always be interpreted as being limited in
duration to a definite term and that the other party has made no
commitments whatsoever regarding the duration or renewal of this
Agreement beyond those expressly stated herein.
14.2 Either party may at any time terminate this Agreement for convenience,
for any reason or no reason, by providing the other party with
forty-five (45) days prior written notice of termination.
14.3 Cisco may, upon twenty (20) days written notice, terminate this
Agreement in the event (a) there is a change of ownership of Integrator
(i.e. entering into a binding agreement for purchase or sale by one
person or other entity) of ten percent (10%) or more of Integrator's
voting shares or securities, (b) there is an entering into a binding
agreement for acquisition or transfer of a controlling interest in
Integrator, or (c) there is an entering into a binding agreement for
any investment in Integrator by a competitor of Cisco or an investment
in a competitor by Integrator.
Page 11 of 54
14.4 This Agreement may at any time be terminated immediately by either
party by providing the other party with written notice under any of the
following conditions:
14.4.1 Either party ceases to carry on business as a going concern,
either party becomes the object of the institution of
voluntary or involuntary proceedings in bankruptcy or
liquidation, or a receiver or similar officer is appointed
with respect to a substantial part of its assets.
14.4.2 Either party breaches any of the material provisions of this
Agreement and fails to remedy such breach within thirty (30)
days, after written notification by the other party of such
breach.
14.5 Notwithstanding the foregoing, this Agreement may be terminated
immediately by Cisco in the event of Integrator's breach of Section
9.0, "Proprietary Rights and Software Licensing", or Section 12.0,
"Confidential Information".
14.6 Unless otherwise agreed in writing by Cisco after the effective date of
termination of this Agreement, upon either the expiration of this
Agreement or the issuance by either party of notice of termination of
this Agreement: (a) Cisco may cease all further deliveries due against
existing orders; (b) Cisco may accelerate all outstanding invoices
immediately to become due and may require payment by certified or
cashier's check; (c) subject to subsection 24.8, "Survival", all rights
and licenses of Integrator hereunder shall terminate, including any
right to provide or Resell Services, except that Integrator may
continue to use Products and Services purchased for Internal Use, and
distribute, in accordance with normal business practices and the terms
and conditions of this Agreement, Products received from Cisco prior to
the date of expiration or termination; and (d) Integrator shall no
longer identify itself or hold itself out as being an authorized
re-seller of Products except for the limited purpose described in this
sentence.
14.7 Upon termination or expiration of this Agreement, Integrator shall
immediately return to Cisco all Confidential Information and data
(including all copies thereof) then in Integrator's possession or
custody or control including, without limitation:
14.7.1 All technical materials and business plans supplied by Cisco;
14.7.2 All manuals and agreements covering Products and Services; and
14.7.3 Any customer or prospect lists provided by Cisco.
14.8 IN THE EVENT OF TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY
REASON, INTEGRATOR SHALL HAVE NO RIGHTS TO DAMAGES OR INDEMNIFICATION
OF ANY NATURE RELATED TO SUCH TERMINATION OR EXPIRATION (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 REVENUES OR PROFITS, EXPENDITURES FOR PROMOTION OF
THE CISCO PRODUCTS, OR OTHER COMMITMENTS IN CONNECTION WITH THE
BUSINESS AND GOOD WILL OF INTEGRATOR OR INDEMNITIES FOR ANY TERMINATION
OR EXPIRATION OF A BUSINESS RELATIONSHIP.
Page 12 of 54
15.0 SUPPORT.
Integrator shall provide all warranty support to End Users as required
in the provisions of Exhibit C titled "Warranty Service," provided that
Integrator may obtain technical assistance from Cisco in connection
with its provision of warranty support. In addition, Integrator shall
make available all support offerings identified in Exhibit C.
16.0 AUDIT.
Integrator shall keep full, true, and accurate records and accounts, in
accordance with generally-accepted accounting principles, of each
Product and Service purchased and deployed, resold, or distributed,
including information regarding compliance with Cisco marketing and
sales programs, Software usage, and export or transfer. Integrator
shall make these records available for audit by Cisco upon fifteen (15)
days prior written notice, during regular business hours, at
Integrators principal place of business or such other of Integrator's
location where Integrator may maintain relevant records.
17.0 USE, EXPORT, RE-EXPORT, & TRANSFER CONTROLS.
Integrator hereby acknowledges that the Products, Services, and
technology or direct products thereof ("Products and Technology"),
supplied by Cisco under this Agreement are subject to export controls
under the laws and regulations of the United States (US.). Integrator
shall comply with such laws and regulations governing use, export,
re-export, and transfer of Cisco Products and Technology and will
obtain all required U.S. and local authorizations, permits, or
licenses. Cisco and 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. Integrator
agrees to maintain full, true, and accurate records of exports,
re-exports, and transfers of the Products and Technology, purchased and
deployed or distributed, according to U.S. and local laws for a minimum
of 5 years following exportation. Integrator acknowledges that detailed
information regarding compliance with U.S. use, export, re-export, and
transfer laws may be found at
http://www.cisco.com/wwl/export/compliance_provision.html.
18.0 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, actions of governmental entities, riots, war, fire,
epidemics, or delays of common carriers or other circumstances beyond
its reasonable control. The obligations and rights of the excused party
shall be extended on a day to day basis for the time period equal to
the period of the excusable delay.
19.0 PRODUCT CHANGES.
Modifications which do not affect the compliance of a Product with the
terms of this Agreement 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,
Page 13 of 54
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 purchased such Products
within the Announcement Period.
20.0 COMPLIANCE WITH LAWS.
20.1 Integrator shall obtain all licenses, permits and approvals required by
any government, including any recycling or take-back programs
applicable to packaging or Products, and shall comply with all
applicable laws, rules, policies and procedures including requirements
applicable to the use of Products under telecommunications and other
laws and regulations, of any government or other competent authority
where the Products are to be sold or used (collectively "Applicable
Laws").
20.2 Integrator will indemnify and hold harmless Cisco for any violation or
alleged violator of any Applicable Laws.
20.3 Integrator hereby represents and warrants that: (a) it shall comply
with all Applicable Laws; (b) this Agreement and each of its terms are
in full conformance and in compliance with such laws; and (c) it shall
not act in any fashion or take any action or permit or authorize any
action which will render, Cisco liable for a violation of the U.S.
Foreign Corrupt Practices Act, which prohibits the offering, giving or
promising to offer or give, directly or indirectly, money or anything
of value to any official of a government, political party or
instrumentality thereof in order to assist it or Cisco in obtaining or
retaining business and (i) it will not violate or cause Cisco to
violate such act in connection with the sale or distribution of Cisco
Products and/or services; and (ii) if Integrator is a non-governmental
entity, it will notify Cisco in writing if any of its owners, partners,
principals, and officers are or become during the term of this
Agreement officials, officers or representatives of any non-United
States government or political party or candidate for political office
outside the United States and are responsible for a decision regarding
obtaining or retaining business for Cisco Products by such government.
20.4 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.
21.0 LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF CISCO AND ITS
SUPPLIERS FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE SHALL BE
LIMITED TO THE MONEY PAID BY INTEGRATOR 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.
22.0 WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES.
IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS,
OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT
Page 14 of 54
(INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF CISCO OR ITS SUPPLIERS
HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.
23.0 NOTICES.
Except where this Agreement provides that notices may be provided by
posing on CCO, all notices required or permitted under this Agreement
will be in writing and will be deemed given: (a) when delivered
personally; (b) when sent by confirmed facsimile or electronic mail (in
the case of Cisco to "contract-notice@cisco.com", and in the case of
Integrator to ____________) (provided that the original document is
placed in air mail/air courier or delivered personally, within seven
days of the facsimile electronic notice); (c) three (3) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid (or six (6) days for international mail; or
(d) one (1) day after deposit with a commercial express courier
specifying next day delivery (or two (2) days for international courier
packages specifying 2-day delivery). All communications will be sent to
the addresses set forth on the cover sheet of this Agreement or such
other address as may be designated by a party by giving written notice
to the other party pursuant to this paragraph.
24.0 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
conflicts of law, and the State and federal courts of California shall
have jurisdiction over any claim arising hereunder. Notwithstanding the
foregoing, either party may seek interim injunctive relief in any court
of appropriate jurisdiction with respect to any alleged breach of such
party's proprietary rights. The parties specifically disclaim the
application of the UN Convention on Contracts for the International
Sale of Goods to the interpretation or enforcement of this Agreement.
24.2 NO WAIVER. No waiver of rights under this Agreement by either party
shall constitute a subsequent waiver of such right or any other right
under this Agreement.
24.3 ASSIGNMENT. Neither this Agreement nor any rights under this Agreement,
other than the right to receive 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 or proceeding,
including costs, fees and expenses upon appeal, separately from and in
addition to any other
Page 15 of 54
amount included in such judgement. This provision is intended to be
severable from the other provisions of this Agreement, and shall
survive and not be merged into any such judgement.
24.6 NO AGENCY. This Agreement does not create any agency, partnership,
joint venture, or franchise relationship. No employee of either party
shall be or become, or shall be deemed to be or become, an employee of
the other party by virtue of the existence or implementation of this
Agreement. Each party hereto is an independent contractor. Neither
party has the right or authority to, and shall not, assume or create
any obligation of any nature whatsoever on behalf of the other party or
bind the other party in any respect whatsoever.
24.7 URL. Integrator hereby confirms that it has the ability to access, has
accessed and has read, the information made available by Cisco at all
of the world wide web sites/URLs/addresses/pages referred to anywhere
throughout this Agreement (including any of the Exhibits hereto).
Integrator acknowledges that Cisco may modify any URL address or
terminate the availability of any information at any address without
notice to Integrator.
24.8 SURVIVAL. Sections 9.0, 10.0, 12.0, 13.0, 14.0, 16.0, 17.0, 18.0, 20.0,
21.0, 22.0, 24.0 and the license to use the Software set out in Section
9 and Exhibit S (subject to the termination provisions set forth in
Exhibit S shall survive the termination of this Agreement.
24.9 HEADINGS. Headings of sections have been added only for convenience and
shall not be deemed part of this agreement.
Page 16 of 54
EXHIBIT A
INTEGRATOR PROFILE
INTEGRATOR'S ASSIGNED SALES TERRITORY:
United States, excluding Puerto Rico.
VERTICAL MARKETS ADDRESSED BY INTEGRATOR'S ADDED VALUE:
Service Providers
Enterprise
INTEGRATOR'S ADDED VALUE:
Consulting, Professional Services, Network Design & Implementation, Service
Management Systems
INTEGRATOR'S VOLUME REQUIREMENT:
During first twelve (12) months of Agreement, Integrator will purchase at least
ten million dollars ($10,000,000) of Cisco Products and Services.
INTEGRATOR'S CERTIFICATION REQUIREMENT:
As of the Effective Date, and throughout the term of this Agreement, Integrator
will maintain at least Cisco Silver certification in the Territory.
Page 17 of 54
EXHIBIT B
DISCOUNT SCHEDULE
CONTENTS
PART 1: TRANSITION RULES
PART 2: "OLD" DISCOUNT EXHIBIT
SUB-PART A: SPECIALIZATION OPTION RULES
SUB-PART B: FOCUS OPTION RULES
SUB-PART C: DISCOUNT SUMMARY
PART 3: "NEW" DISCOUNT EXHIBIT
PART 1: TRANSITION RULES
1. TRANSITION RULES
A. If the Effective Date of this Agreement is before September 4,
2001, the discount applicable to Integrator's purchases of
Products from the Effective Date until March 29, 2002 will be
governed by the "Old' Discount Exhibit, Part 2 of this Exhibit
B. Beginning April 1,2002, Cisco will apply the "New" Discount
Exhibit, Part 3 of this Exhibit B, to Integrators purchases.
However, at anytime after September 4, 2001, Integrator may,
by written notice to Cisco, elect to have its discount
governed instead by the "New" Discount Exhibit by providing
written notice to Cisco. Such notice must be provided to:
contract_notice_us @ cisco.com.
Cisco will notify Integrator within fifteen (15) days
following Integrators notice that its election has become
effective.
B. If the Effective Date of this Agreement is on or after
September 4, 2001, Integrator shall choose before the
Effective Date whether it prefers to purchase under the "Old"
Discount Exhibit set out in Part 2 or the "New" Discount
Exhibit set out in Part 3. If Integrator chooses the" Old
Discount Exhibit, it will be effective through March 29, 2002.
Beginning April 1, 2002, Cisco will apply the "New" Discount
Exhibit to Integrators purchases. In the event Integrator
initially chooses the "Old" Discount Exhibit, Integrator may
subsequently communicate its election to transition to the
"New" Discount Exhibit at any time prior to April 1, 2002 by
providing written notice to Cisco. NOTICE SHALL BE PROVIDED BY
E-MAIL TO:
CONTRACT_NOTICE_US@ CISCO.COM.
Cisco will notify Integrator within fifteen (15) days
following Integrators notice that its election has become
effective.
Page 18 of 54
PART 2: "OLD" DISCOUNT EXHIBIT
SUB-PART A. SPECIALIZATION OPTION
If Integrator selects the Specialization Option, this discount schedule shall
apply to all Product purchased from Cisco by Integrator during the time period
set out in the Transition Rules provided in Part 1 of this Exhibit B. I.
1. VOLUME INCENTIVE MATRIX
Discounts will be based on the total annual volume of Products forecasted to be
purchased by Integrator (a) from an Approved Source, and (b) for value-added
resale and not for Internal Use in accordance with this Agreement. Note that
Cisco does not control the pricing that Integrator receives on Products
purchased from a Cisco Authorized Distributor.
ACTUAL NET PURCHASE FORECAST VOLUME INCENTIVE
- ---------------------------- ----------------
$ 1,000,000 to $2,000,000 +1%
$ 2,000,001 to $4,000,000 +2%
$ 4,000,001 to $8,000,000 +3%
$ 8,000,001 to $16,000,000 +4%
$ 16,000,001 to $32,000,000 +5%
$ 32,000,001 to $64,000,000 +6%
$ 64,000,001 to $128,000,000 +7
$128,000,001 or greater +8%
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 will not be applied retroactively.
2. CERTIFICATION INCENTIVE
Cisco Premier Certified, Silver Certified and Gold Certified Partner Programs
are designed to recognize and reward Partners who achieve the highest expertise
in selling, designing, supporting, and servicing Cisco solutions. Certified
Partners have completed comprehensive training that ensures a consistently high
level of Product knowledge, technical expertise and service capabilities. Cisco
will apply two {2) additional discount points for Silver Certification, and
three (3) additional discount points for Gold Certification, at such time that
all of the requirements for Certification have been completed. Certification
points will not be applied retroactively.
3. SPECIALIZATION INCENTIVE
Cisco will apply two (2) additional discount points per Specialization up to a
maximum of four percent (4%), against all purchases made by Integrator, provided
however, that all of the requirements for such
Page 19 of 54
Specialization(s) have been completed prior to the placement of the Purchase
Order for the Products to which the Specialization discount shall apply.
Specialization points will not be applied retroactively.
Information about Specializations can be obtained at:
www.cisco.com/go/specialization
Cisco may change the availability or definition of Specializations. Such changes
may adversely impact the availability of a particular Specialization to
Integrator. Any such changes shall not affect this Agreement during the balance
of the initial term.
4. IC/POS
Integrator will submit IC (Internet Commerce)/POS (Point of Sale) information to
Cisco electronically, at time of order. "Submitted electronically" means (a)
Integrator uses IC or EDI (Electronic Data Interchange) technology in a format
agreed in advance with Cisco to submit orders electronically, and (b) Integrator
collects and transmits all required POS information.
POS information must include the following:
A. Integrator's Purchase Order number.
B. Cisco's Product name and number.
C. End User (name of business or organization), ship-to and
bill-to address (country, state or province (and, in US and
Canada only, zip or postal code), phone number.
Cisco shall have the right to verify the IC/POS information provided by
Integrator and, upon request, shall be provided with reasonable proof (shippers'
documentation, invoices, etc.) confirming the information.
5. FOCUS INCENTIVE
Integrator may qualify for a Focus Incentive of up to four percent (4%);
provided however, that the total of any Volume Incentive plus Focus Incentive
cannot exceed eight percent (8%). Integrator may select up to two (2) Focus
areas (as defined at the website listed 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:
A. Integrator sells to an End-User located in the in the
Territory identified in Exhibit A whose primary business, as
classified by the North American Industry Classification
System (NAIC) (http://www.ntis.aov/vellowbk/l_nty205.htm),
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;
B. 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).
Page 20 of 54
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 upon 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
- ---------------------- -----------------------------------------------------
Energy/Utilities Companies involved in the extraction and delivery of
oil and gasoline, natural gas electricity,
and/or water
Finance/Insurance Finance - (Retail & Investment Banking) Companies
that provide financial services, such as all
types of banks, credit institutions and
investment funds.
Insurance - Companies providing insurance services.
Federal Government(1) Entities which are legislative bodies, or
provide/administer civic functions.
Healthcare Companies involved in administering medical care.
Retail Companies involved in providing goods to retail
companies.
Transportation Companies providing means of shipment of goods or
people (shipping Companies, airlines
railroads).
(1) Integrator must meet the following criteria before qualifying for
Federal Government Focus: Integrator must be Silver or Gold Certified;
or Integrator must employ a minimum of one hundred (100) systems
engineers dedicated to providing services to the Federal Government.
PRODUCT SET - U.S. DEFINITION
- ------------------ ----------------------------------------------
Multiservice 700, 800, 1700, 2600, 3600, 3800, BPX, IGX
Remote Access 5200, 5300, 5800, Access Path,(1) 6100,
6200, 6400, 6500, CISCO90, UBR, UBR900, SC2200
LAN Switching C2800, C2900, C2900XL, C3500XL, C4000, C5000,
C6000, CSS 11000
(1) Access Path is comprised of 3640, 5300, AP400, and AP 531 Series
Products.
Cisco may change the availability or definition of Focus areas. Such changes may
adversely impact the availability of a particular Focus area to Integrator.
Cisco will provide Integrator with at least thirty (30) days prior written
notice of any such changes that adversely affect the availability of Focus
discounts to Integrator. 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.
Page 21 of 54
6. INTERNAL USE DISCOUNT
Integrator may purchase Products for Internal Use at a discount of twenty-five
percent (25%) off of Cisco's then-current list price for such Products.
7. DEMONSTRATION/EVALUATION/LAB DISCOUNT
To assist Integrator in its sales and marketing efforts, Integrator shall be
entitled to a discount of forty-five percent (45%) for its purchases of
demonstration, evaluation, and lab equipment. This discount may be applied to a
maximum total value of Cisco Products as follows:
INTEGRATOR'S MAXIMUM TOTAL VALUE OF CISCO PRODUCTS* INTEGRATOR MAY PURCHASE USING
CERTIFICATION LEVEL 45 PERCENT DEMONSTRATION/EVALUATION/LAB DISCOUNT
- ------------------- --------------------------------------------------------------------
Gold $150,000 in any 12-month period.
Silver $100,000 in any 12-month period.
Premier $ 75,000 in any 12-month period.
*Based on purchase price paid by Integrator to Cisco.
Integrator agrees to use such Products solely for demonstration/evaluation
(non-production) purposes and any software received with or for such Products
may not be distributed further, and software for such Products is licensed to
Integrator solely for use for demonstration and evaluation purposes.
8. 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.
9. POS REPORTING
In the event Integrator does not provide POS information at the time of order
entry, Integrator shall prepare such information in an electronic format as
specified by Cisco and forward such POS information to Cisco within seven (7)
days following the submission of an Order. 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 shall be sent to the following e-mail address:
us1_tier_Dos@cisco.com
or such other address as Cisco may specify.
SUB-PART B: FOCUS OPTION
If Integrator selects the Focus Option, this discount schedule shall apply to
all Product purchased from Cisco by Integrator during the time period set out in
the Transition Rules provided in Part 1 of this Exhibit B.
Page 22 of 54
1. VOLUME INCENTIVE MATRIX
Discounts will be based on the total annual volume of Products forecasted to be
purchased by Integrator (a) from an Approved Source, and (b) for value-added
resale and not for Internal Use in accordance with this Agreement. Note that
Cisco does not control the pricing that Integrator receives on Products
purchased from a Cisco Authorized Distributor.
ACTUAL NET PURCHASE FORECAST VOLUME INCENTIVE
- ---------------------------- ----------------
$ 1,000,000 to $ 2,000,000 +1%
$ 2,000,001 to $ 4,000,000 +2%
$ 4,000,001 to $ 8,000,000 +3%
$ 8,000,001 to $ 16,000,000 +4%
$ 16,000,001 to $ 32,000,000 +5%
$ 32,000,001 to $ 64,000,000 +6%
$ 64,000,001 to $128,000,000 +7
$128,000,001 or greater +8%
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 will not be applied retroactively.
2. CERTIFICATION INCENTIVE
Cisco Premier Certified, Silver Certified and Gold Certified Partner Programs
are designed to recognize and reward Partners who achieve the highest expertise
in selling, designing, supporting, and servicing Cisco solutions. Certified
Partners have completed comprehensive training that ensures a consistently high
level of Product knowledge, technical expertise and service capabilities. Cisco
will apply two (2) or three (3) additional discount points (for Silver or Gold
Certification, respectively) at such time that all of the requirements for
Certification have been completed. Certification points will not be applied
retroactively.
3. SPECIALiZATION INCENTIVE
Cisco will apply two (2) additional discount points per Specialization up to a
maximum of two percent (2%), against all purchases made by Integrator, provided
however, that all of the requirements for such Specialization(s) have been
completed prior to the placement of the Purchase Order for the Products to which
the Specialization discount shall apply. Specialization points will not be
applied retroactively.
Page 23 of 54
Cisco may change the availability or definition of Specializations. Such changes
may adversely impact the availability of a particular Specialization to
Integrator. Any such changes shall not affect this Agreement during the balance
of the initial term.
Information about Specializations can be obtained at:
www.cisco.com/go/specialization
4. IC/POS INCENTIVE
Integrator will submit IC (Internet Commerce)/POS (Point of Sale) information to
Cisco electronically, at time of order. "Submitted electronically" means (a)
Integrator uses IC or EDI (Electronic Data Interchange) technology in a format
agreed in advance with Cisco to submit orders electronically, and (b) Integrator
collects and transmits all required POS information.
POS information must include the following:
A. Integrator's Purchase Order number.
B. Cisco's Product name and number.
C. End User (name of business or organization), ship-to and
bill-to address (country, state or province (and, in US and
Canada only, zip or postal code), phone number.
Cisco shall have the right to verify the IC/POS information provided by
Integrator and, upon request, shall be provided with reasonable proof (shippers'
documentation, invoices, etc.) confirming the information.
5. FOCUS INCENTIVE
Integrator may qualify for a Focus Incentive of up to six percent (6%); provided
however, that the total of any Volume Incentive plus Focus Incentive cannot
exceed ten percent (10%). Integrator many select up to two (2) Focus areas (as
defined at the website listed 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:
A. Integrator sells to an End-User located in the in the
Territory identified in Exhibit A whose primary business, as
classified by the North American Industry Classification
System (NAIC) (http://www.ntis.gov/yellowbk/1nty205.htm),
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
B. 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 upon the End User's primary business and is also part of a
selected and qualified Focus area based on product set.
Page 24 of 54
VERTICAL MARKET - U.S. DEFINITION
- --------------------- -----------------------------------------------------
Energy/Utilities Companies involved in the extraction and delivery of
oil and gasoline, natural gas electricity, and/or
water
Finance/Insurance Finance - (Retail & Investment Banking) Companies
that provide financial services, such as all types
of banks, credit institutions and investment funds.
Insurance - Companies providing insurance services.
Federal Government(1) Entities which are legislative bodies, or
provide/administer civic functions.
Healthcare Companies involved in administering medical care.
Retail Companies involved in providing goods to retail
companies.
Transportation Companies providing means of shipment of goods or
people (shipping Companies, airlines railroads).
(1) Integrator must meet the following criteria before qualifying for
Federal Government Focus: Integrator must be Silver or Gold Certified;
or Integrator must employ a minimum of one hundred (100) systems
engineers dedicated to providing services to the Federal Government.
PRODUCT SET - U.S. DEFINITION
- ------------------ ----------------------------------------------
Multiservice 700, 800, 1700, 2600, 3600, 3800, BPX, IGX
Remote Access 5200, 5300, 5800, Access Path,(1) 6100,
6200, 6400, 6500, CISCO90, UBR, UBR900, SC2200
LAN Switching C2800, C2900, C2900XL, C3500XL, C4000, C5000,
C6000, CSS 11000
(1) Access Path is comprised of 3640, 5300, AP400, and AP 531 Series
Products.
Cisco may change the availability or definition of Focus areas. Such changes may
adversely impact the availability of a particular Focus area to Integrator.
Cisco will provide Integrator with at least thirty (30) days prior written
notice of any such changes that adversely affect the availability of Focus
discounts to Integrator. 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.
6. INTERNAL USE DISCOUNT
Integrator may purchase Products for Internal Use at a discount of twenty-five
percent (25%) off of Cisco's then-current list price for such Products.
7. DEMONSTRATION/EVALUATION PRODUCT
Page 25 of 54
To assist Integrator in its sales and marketing efforts, Integrator shall be
entitled to a discount of, forty-five percent (45%) for its purchases of
demonstration, evaluation, and lab equipment. This discount may be applied to a
maximum total value of Cisco Products as follows:
INTEGRATOR'S MAXIMUM TOTAL VALUE OF CISCO PRODUCTS* INTEGRATOR MAY PURCHASE USING
CERTIFICATION LEVEL 45 PERCENT DEMONSTRATION/EVALUATION/LAB DISCOUNT
- ------------------- ---------------------------------------------------------------------
Gold $150,000 in any 12-month period.
Silver $100,000 in any 12-month period.
Premier $75,000 in any 12-month period.
*Based on purchase price paid by Integrator to Cisco.
Integrator agrees to use such Products solely for demonstration/evaluation
(non-production) purposes and any software received with or for such Products
may not be distributed further, and software for such Products is licensed to
Integrator solely for use for demonstration and evaluation purposes.
8. 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.
9. POS REPORTING
In the event Integrator does not provide POS information at the time of order
entry, Integrator shall prepare such information in an electronic format as
specified by Cisco and forward such POS information to Cisco within seven (7)
days following the submission of an Order. 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 shall be sent to the following e-mail address:
usl_tier_Dos8cisco.com
or such other address as Cisco may specify.
Page 26 of 54
SUB-PART C. DISCOUNT SUMMARY
OPTION:
[X] SPECIALIZATION
[ ] FOCUS
BASE DISCOUNT: 26%
VOLUME INCENTIVE:
Volume Achievement
Forecast: $12M 4%
CERTIFICATION INCENTIVE:
Gold (3%)
Silver (2%) 3%
SPECIALIZATION INCENTIVE:
WAN (2%) ___%
Security (including Advanced Security and VPNs) (2%) ___%
SNA/IP (2%) ___%
Voice Access (2%) ___%
Network Management (2%) ___%
Wireless LAN (2%) 2%
Cable (2%) ___%
IP Telephony (2%) 2%
FOCUS INCENTIVE:
Integrator's Focus Areas:
First Focus Area: LAN Switching (Vertical Market or Product Set)
Second Focus Area: Multiservice (Vertical Market or Product Set)
Total Focus Incentive discount points: 4%
NOTE: Total of Volume Incentive plus Focus Incentive cannot exceed
ten percent (10% for Focus, eight (8%) for Specialization
IC/POS (1%) 1%
TOTAL VALUE ADDED RESALE DISCOUNT - GENERAL (NON FOCUS AREAS): 38%
TOTAL VALUE ADDED RESALE DISCOUNT - RESALES TO FOCUS AREA(s): 42%
SUMMARY OF OTHER DISCOUNTS:
INTERNAL USE 25%
DEMONSTRATION/EVALUATION EQUIPMENT 45%
NON-VALUE ADDED RESALE 10%
Page 27 of 54
PART 3: "NEW" DISCOUNT EXHIBIT
1. CERTIFICATION INCENTIVE
Cisco Premier, Silver and Gold Certified Partner Programs are designed to
recognize and reward Partners who achieve the highest expertise in selling,
designing, supporting, and servicing Cisco solutions. Certified Partners have
completed comprehensive training that ensures a consistently high level of
Product knowledge, technical expertise and service capabilities. Integrator's
discount will be set based on the certification level Integrator has been
awarded at the time it submits a particular purchase order for Products.
Attainment of certification levels is governed by the requirements of Cisco's
Channel Partner Program. Effective July 2, 2001, these requirements will be
changed as part of the new Channel Partner Program. The new and old requirements
for each certification level are provided in the URLs identified in the
following table:
PROGRAM VERSION URL
- ------- ------- ---------------------------------------------------------------------
Gold Old www.cisco.com/warp/public/765/partner_programs/certification/old/gold
/requirements.shtml
New www.cisco.com/warp/public/765/partner_programs/certification/gold/
requirements.shtml
Silver Old www.cisco.com/warp/public/765/partner_programs/certification/old/
silver/requirements.shtml
New www.cisco.com/warp/public/765/partner_programs/certification/silver
/requirements.shtml
Premier Old www.cisco.com/warp/public/765/partner_programs/certification/old/
premier/requirements.shtml
New www.cisco.com/warp/public/765/partner_programs/certification/premier
/requirements.shtml
Partner must comply with the requirements of a particular Program as outlined in
the information provided at the associated URL in order to achieve and retain
all program benefits, including any associated increase in discount.
Integrator's participation in a particular certification Program may be subject
to additional requirements, including compliance with Program audit
requirements. Certification requires the submission of an electronic
application. The application and program transition guidelines are available at:
www.cisco.com/go/channelprograms/
Certifications are granted by country, and discount points attributable to
certification will be provided based on the country specified in point of sale
information provided by Integrator at time of order. Cisco may designate larger
geographical areas in which certifications are effective. Such multi-national
areas will be identified by Cisco to Integrator at
www.cisco.com/go/channelprograms/
2. DISCOUNT MATRICES
Discounts for Products will be as follows:
Page 28 of 54
INTEGRATOR'S DISCOUNT (PERCENTAGE OFF OF CISCO'S
INTEGRATOR'S CERTIFICATION LEVEL THEN-CURRENT GLOBAL PRICE LIST LIST PRICE)
- -------------------------------- ------------------------------------------------
Gold 42 percent
Silver 40 percent
Note: Cisco reserves the right to introduce future Product families at different
discounts. Cisco will notify Integrator in writing (including by posting on CCO)
at least thirty (30) days prior to the introduction of such a new family of
Products.
3. INTERNET COMMERCE/POINT OF SALE REPORTING
Integrator will submit electronically complete Point of Sale information with
each of its Resales of Products under this Agreement.
POS information is submitted electronically when Integrator uses IC or EDI
(Electronic, Data Interchange) technology in a format agreed in advance with
Cisco to submit orders electronically.
POS information must include the following:
A. Integrator's Purchase Order number.
B. Cisco's Product name and number.
C. End User (name of business or organization), ship-to and
bill-to address (country, state or province (US and Canada
only), zip or postal code), phone number.
Cisco shall have the right to verify all POS information provided; Integrator
shall provide Cisco with reasonable proof (shippers' documentation, invoices,
etc.) confirming the information on Cisco's written request.
In the event Integrator does not provide POS information at the time of order
entry, Integrator shall prepare such information in an electronic format as
specified by Cisco and forward such POS information to Cisco within seven (7)
days following the submission of an Order. 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 shall be sent to the following e-mail address:
us1_tier_DosQcisco.com
or such other address as Cisco may specify.
4. INTERNAL USE DISCOUNT
Integrator may purchase Products for Internal Use at a discount of twenty-five
(25) percent off of Cisco's then current list prices for such Products.
Page 29 of 54
5. DEMONSTRATION/EVALUATION/LAB PRODUCT DISCOUNT
To assist Integrator in its sales and marketing efforts, Integrator shall be
entitled to a discount of forty-five percent (45%) for its purchases of
demonstration, evaluation, and lab equipment. This discount may be applied to a
maximum total value of Cisco Products as follows:
INTEGRATOR'S MAXIMUM TOTAL VALUE OF CISCO PRODUCTS* INTEGRATOR MAY PURCHASE USING
CERTIFICATION LEVEL 45 PERCENT DEMONSTRATION/EVALUATION/LAB DISCOUNT
- ------------------- --------------------------------------------------------------------
Gold $150,000 in any 12-month period.
Silver $100,000 in any 12-month period.
Premier $ 75,000 in any 12-month period.
*Based on purchase price paid by Integrator to Cisco.
Integrator agrees to use such Products solely for demonstration/evaluation
(non-production) purposes and any software received with or for such Products
may not be distributed further, and software for such Products is licensed to
Integrator solely for use for demonstration and evaluation purposes.
Page 30 of 54
EXHIBIT C
SUPPORT EXHIBIT
[SVC-10012 REV. F (1) RELEASE DATE: 07/19/01]
CISCO BRAND SERVICES RESALE EXHIBIT
This Support Exhibit ("Exhibit") supplements the Agreement and all the terms and
conditions of the Agreement apply to this Exhibit; provided, that 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 "Bug Fix" means an error correction, patch or workaround for
the Software which Cisco provides to Distributor.
1.2 "CCO" means Cisco Connection Online, Cisco's online
information web server.
1.3 "Equipment Schedule" means the approved Cisco-provided list of
Product covered under each End User's Support Agreement, where
applicable.
1.4 "First Call" means the initial call made by the End User when
requesting assistance with Product.
1.5 "Other Product" means Product which an End User acquired from
sources other than Integrator.
1.6 "Services" mean the Cisco brand services listed in Attachment
1 which are available for resell to End User.
1.7 "Support Agreement" means the then-current agreement for the
Services.
2. SCOPE The support hereunder is intended for Integrators which do not
support End Users under their own brand of service. Integrator, in lieu
of providing service directly, will resell Cisco brand Services to be
delivered directly by Cisco to the End User as described herein.
3. CISCO RIGHTS AND OBLIGATIONS. For each End User to which Integrator
resells Cisco brand services, Cisco will provide, in accordance with
the following terms and conditions, Services directly to Integrator's
End User as described herein.
3.1 CCO Access. Cisco will provide an appropriate level of partner
access to CCO. This system provides Integrator with technical
and general information on Products.
3.2 Warranty. For the duration of the Cisco warranty period, Cisco
will provide Bug Fixes and Hardware replacement service to
Integrator as follows:
3.2.1 Bug Fixes.
3.2.1.1 When required, Cisco will provide new
Software to Integrator to correct a problem,
or provide a network-bootable Software
image, as determined by Cisco.
Page 31 of 54
3.2.1.2 Distribution Rights. Cisco grants Integrator
the right to distribute Bug Fixes to its End
Users provided the End User is currently
licensed to use the Software.
3.2.2 Hardware Support. Cisco will replace Product in
accordance with the warranty terms set forth in the
published Product warranty provided with the original
Product.
3.3 Resale of Services.
3.3.1 Service Availability. Cisco will make the Services
listed in Attachment 1 to this Exhibit available to
Integrator to resale to Integrator's End Users.
Services are subject to the availability limitations
specified in Attachment 1.
3.3.2 Resale Options. Cisco provides two means of reselling
Cisco brand services to End Users, a partner managed
option and a pass through option as described below.
3.3.2.1 Partner Managed. Under this option,
Integrator may take the First Call from the
End User and may open a case with Cisco on
behalf of the End User using End User's
Support Agreement number. At all times the
End User has the option of calling Cisco
directly for support. In addition,
Integrator may request email notification
whereby Cisco notifies Integrator of End
User activity with Cisco.
3.3.2.2 Pass Through. Under this option, all
interaction is solely between Cisco and the
End User. The End User calls and open cases
directly with Cisco.
3.3.2.3 Option Selection. Integrator must choose
either the partner managed or pass through
option on the Cisco Support Resale Form
(Attachment 2). If Integrator does not
select an option, Cisco will assume the pass
through option applies.
3.4 Support Agreements. Support will be provided to End Users
pursuant to a Support Agreement between Cisco and End User.
The Support Agreements to be used are provided by Cisco.
Notwithstanding anything to the contrary, nothing in this
Exhibit shall require Cisco to execute a Support Agreement
with an End User.
3.4.1 Prior to commencing Services for an End User, Cisco
must receive the documents specified in Section 4.12
of this Exhibit whereupon Cisco will:
3.4.1.1 Validate Product model and serial numbers.
3.4.1.2 Confirm by executing and returning the
Support Agreement, and providing an
Equipment Schedule (excluding charges) and
the Support Agreement number to the End
User.
3.4.1.3 Provide a copy of the Equipment Schedule
(including charges) and Support Agreement
number to Integrator.
Page 32 of 54
4. INTEGRATOR RIGHTS AND OBLIGATIONS.
4.1 Resale of Services. Subject to the terms and conditions of
this Exhibit, Integrator is authorized on a non-exclusive
basis to resell the Services to End Users, according to the
following process:
4.1.1 Integrator resells the Services to an End User,
providing the End User with a copy of the relevant
Support Agreement for review and signature.
Integrator may not make any modification(s) to the
Support Agreement.
4.1.2 Cisco requires the following documents from
Integrator prior to commencing Services to End Users:
4.1.2.1 Completion and submission of a Resale Form
(Attachment 2 to this Exhibit).
4.1.2.2 Signed Support Agreement by the End User
sent to the following address:
Cisco Systems, Inc.
Service Business Operations (Contracts)/Customer
Advocacy
170 West Tasman Drive
San Jose, CA 95134
4.1.2.3 Valid purchase order for the applicable
service price from Integrator.
4.1.2.4 Completed Letter of Assurance, a copy of
which is provided with the Support Agreement
when applicable.
4.1.2.5 Integrator's submission of incomplete or
incorrect documents, including unauthorized
modifications to a Support Agreement, will
delay execution and return of the Support
Agreement.
4.1.3 Renewal of Support Agreements. The End User's Support
Agreement will be renewed according to whether the
pass through or the partner managed option has been
selected by Integrator as follows:
4.1.3.1 Partner Managed. Under the partner managed
option, Cisco renews the Support Agreement
through Integrator. Forty five (45) days
prior to renewing the Equipment Schedule to
the Support Agreement, Cisco will send a
renewal notice to Integrator. Upon receipt
of Cisco's notice of renewal of the
Equipment Schedule for the End User,
Integrator will forward to Cisco either (i)
the completed renewal with purchase order or
(ii) notice of cancellation. If renewal or
notice of cancellation is not received by
Cisco by the renewal date of the Equipment
Schedule, Cisco reserves the right to renew
directly with the End User.
4.1.3.2 Pass Through. Under the pass through option,
Cisco will renew all Support Agreements
directly with the End User. Integrator is
not involved in the renewal of Service
delivered through the pass through option.
Page 33 of 54
4.1.4 Responsibilities under Partner Managed Option.
4.1.4.1 All calls opened by Integrator on behalf of
the End User shall be handled and escalated
in accordance with the Cisco's Problem
Prioritization and Escalation Guideline
(Appendix A).
4.1.4.2 Equipment Schedule.
4.1.4.2.1 For all Services, Product covered
under an End User's Support
Agreement is listed in the
Equipment Schedule(s).
4.1.4.2.2 Integrator must provide, thirty
(30) days notice of requested
addition(s) to the Equipment
Schedule. In addition, thirty (30)
days notice is required for
Product relocations and service
level/Product configuration
changes, where applicable. For
Product on the Equipment Schedule
which End User has moved to a new
location, Integrator will notify
Cisco in writing (i.e., facsimile,
electronic mail or using CCO).
4.1.4.2.3 The Equipment Schedule may be
revised for new Product, service
level upgrades and Product
configuration changes by
Integrator's purchase order
requesting such revisions and
Cisco's acceptance thereof (based
on availability). For changes,
Cisco will charge the pro-rated
difference from when the change is
requested to the end of the
impacted Equipment Schedule's
term.
4.2 Warranty Service.
4.2.1 Integrator shall provide to its End Users, at no
charge, all warranty service for a minimum of the
warranty period set forth in the published Product
warranty provided with the original Product. Warranty
shall commence upon shipment to the End User.
Warranty service consists of the following Software
and Hardware replacement services:
4.2.1.1 Integrator will distribute Bug Fixes to the
End User during the warranty period.
4.2.1.2 Integrator will meet the replacement
obligations as set forth in the then-current
published Product warranty applicable to the
particular Product sold to the End User.
4.2.2 Returns Coordination. For Product returned to Cisco
for replacement under warranty, Integrator will
comply with the following:
4.2.2.1 Coordinate the return of all failed parts,
freight and insurance prepaid, to the Cisco
designated location. For Product that has
been advance replaced pursuant to the
Product warranty terms, Integrator shall
return failed/defective Product within ten
(10) days of receipt of the
Page 34 of 54
replacement Product; otherwise, Product will
be invoiced to Integrator at the then
current list price.
4.2.2.2 Comply with the following RAM procedure:
4.2.2.2.1 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.
4.2.2.2.2 Tag each Product returned with
the RMA transaction number and
a brief description of the
problem.
4.3 Unsupported End User List. Integrator must provide information
on all End Users who have purchased Product from Integrator
without also purchasing Services. Each quarter, Cisco will
provide a report identifying the model types and serial
numbers of Product purchased by Integrator for which the
following information is required: End User name, address and
phone number. Integrator will complete and return this
information to Cisco no later than twenty (20) business days
from the date the report is provided to Integrator.
5. PRICE AND PAYMENT TERMS.
5.1 Discount for Initial Term. For the initial term of the
Equipment Schedule(s) to the Support Agreement, the price of
Services to Integrator is the then-current service list price
less the applicable discount based on Integrator's penetration
rate calculated as follows:
5.1.1 Determination of Service Penetration Rate. Service
penetration rate is calculated by Integrator's total
number of Products covered by Cisco brand services
(per Attachment 1) as a percentage of the total
number of Products purchased over a period of twelve
(12) months, starting from fourteen (14) months prior
to the Effective Date of the Agreement.
Penetration Rate Discount
- ---------------- --------
0%-35% 10%
36%-55% 15%
56%-74% 20%
75%+ 25%
5.1.2 Integrator's resale discount is listed in Appendix B
to this Exhibit. Cisco will review Integrator's
actual service sales penetration at six month
intervals and reserves the right to adjust
Integrator's resale discount at the time of review.
5.1.3 Integrator must have purchased Product for a minimum
of twelve months in order to determine the
penetration rate.If Integrator has less than twelve
months of Product purchases, Integrator's discount
will be ten percent (10%).
5.1.4 Integrator's discount on Services shall be determined
by calculating the rate of Services penetration
solely on Product purchased by Integrator under this
Agreement.
Page 35 of 54
5.2 Upon renewal of the Equipment Schedule(s), the discount will
be as follows: Under the partner-managed resale option, the
discount shall be the corresponding discount associated with
the Penetration Rate. Under the pass through option,
Integrator will not receive a discount as Cisco renews
directly with End User.
5.3 The discounts listed above do not apply when Integrator
resells Cisco brand services for Other Product. Integrator
discount for Other Product shall be fifteen percent (15%).
5.4 All Services are invoiced annually in advance, payable thirty
(30) days from the invoice date in U.S. Dollars unless
otherwise agreed to in the Agreement.
5.5 All prices in the Equipment Schedule(s) are exclusive of any
taxes and duties which, if applicable, shall be paid by
Integrator. Applicable taxes are billed as a separate item. In
addition, the following items will be billed to Integrator:
time and material fees and Product list price of replaced
Product not returned pursuant to the terms of End User's
Support Agreement.
5.6 This Agreement may be terminated by Cisco and/or Cisco may
suspend its performance immediately upon Notice if (i)
Integrator does not provide the Unsupported End User List
pursuant to Section 4.3 within thirty (30) days after the end
of the previous quarter and after Notice from Cisco or (ii)
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. Notwithstanding the above,
Cisco shall have the right to seek payment for Services
directly from the End User in the event Integrator does not
remit payment to Cisco pursuant to the payment terms.
5.7 Integrator is free to determine its 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
specify what Integrator's resale prices for the Services must
be, or to inhibit in any way, Integrator's pricing discretion
with respect to the Services.
5.8 Support for Other Product. Integrator may support Other
Product under the following conditions: Integrator provides
Cisco (i) a request to support Other Product and (ii) a letter
from the End User including a request for Service from the
Integrator and a list of the Product(s) and serial number(s)
to be supported.
6. GENERAL
6.1 Entitlement. Integrator acknowledges that an End User is
entitled to receive support services only on Product for which
Integrator has paid the applicable support fees. Integrator
agrees to assist Cisco with enforcement of End User
entitlement as necessary.
6.2 Disclosure of Contract Information. Integrator acknowledges
and agrees that in no event shall any of the information
contained in this Exhibit or integrator's Agreement number be
disclosed to any third party.
6.3 Representations and Warranties. Integrator shall not make any
representations or warranties on behalf of Cisco, except as
expressly
Page 36 of 54
authorized herein or as expressly authorized by Cisco in
writing. Neither Integrator nor Cisco will make any obligation
to End Users on behalf of the other, nor commit the resources
of the other to End Users.
6.4 Independent Contractors. The relationship of Cisco and
Integrator established by this Exhibit is that of independent
contractors, and nothing contained in this Exhibit shall be
construed to (i) give either party the power to direct and
control the day-to-day activities of the other, (ii)
constitute the parties as joint venturers, co-owners or
otherwise as participants in a joint or common undertaking,,
or (iii) allow Integrator to create or assume any obligation
on behalf of Cisco for any purpose whatsoever. All financial
obligations associated with Integrators business are the sole
responsibility of Integrator. All sales and other agreements
between Integrator and its End Users are Integrator's
exclusive responsibility and shall have no effect on
Integrator's obligations under this Agreement. Integrator
shall be solely responsible for, and shall indemnify and hold
Cisco free and harmless from, any and all claims, damages or
lawsuits (including Cisco's attorneys' fees) arising out of
the acts of Integrator, its employees or its agents.
6.5 Indemnification. Integrator hereby indemnifies and holds Cisco
harmless from any claim, loss, damage or expense, including
reasonable court costs and attorney's fees, resulting from any
claim made by End User against Cisco hereunder under claim of
a third party beneficiary or otherwise. This shall not limit
Cisco's obligations, subject to the terms and conditions of
this Agreement, to provide the Services described herein.
Page 37 of 54
ATTACHMENT 1 TO EXHIBIT D
SERVICES AVAILABILITY
Service Availability
- -------------------------------------- --------------------------------------------------
SMARTnet 8x5xNext Business Day ("NBD") Available in the U.S., Canada, Australia, European
Union, Switzerland, Norway
SMARTnet 8x5x4(1) Available in the U.S., Canada and Australia
SMARTnet 24x7x4(1) Available in the U.S., Canada and Australia
SMARTnet Onsite 8x5xNBD Available in the US., Canada and Australia
SMARTnet Onsite 8x5x4(1,2) Available in the U.S, Canada and Australia
SMARTnet Onsite 24x7x4(1,2) Available in the U.S., Canada and Australia
Software Application Services ("SAS) Available in the U.S., Canada, Australia, European
Union, Switzerland, Norway
Software Application Services with Updates
((degree)SASU')
A CURRENT FIST OF SERVICES IS PROVIDED ABOVE. LIST MAY BE UPDATED FROM
TIME TO TIME. CURRENT INFORMATION IS AVAILABLE UPON REQUEST.
1. Availability is restricted to within one hundred (100) miles of a parts
depot.
2. Availability is restricted to within fifty (50) miles of an authorized
service location.
Page 38 of 54
ATTACHMENT 2 TO EXHIBIT D
CISCO SUPPORT RESALE FORM
This form MUST be completed by Integrator for each order to resell Cisco brand
Services to End Users.
Completion of this form will ensure:
- - Integrators receive the appropriate discounts.
- - Integrator's End Users receive the entitled level of service and support.
- - Partner Notification e-mail is setup for Integrator.
STEP 1- Select Resale Option
[ ] Pass-through Option: Cisco delivers support, Cisco renews direct with
End User.
[ ] Partner Managed Option: Cisco delivers support, Integrator manages
renewal, Integrator first call optional Partner
Notification optional.
STEP 2 -Complete Integrator billing information. (required for both resale
options)
INTEGRATOR: Name and Billing Address (as they appear on Purchase Order):
[ ] Same as Sales Order Bill-to
Name:___________________________________________________________________________
Address:________________________________________________________________________
City/State:_____________________________________________________________________
Country:________________________________________________________________________
Postal Code:____________________________________________________________________
Contact/ Phone No.:_____________________________________________________________
Channel Certification Level:____________________________________________________
PARTNER NOTIFICATION E-MAIL ADDRESS OR ALIAS (for Partner Managed Option)
Address or Alias: _____________________(i.e. Integrator_TAC@Integrator.com)
Required if you would like to receive automatic notification of End User
activity with Cisco on this Support Agreement.
Page 39 of 54
Step 3 - Complete End User billing information (required for pass-through option
only)
END USE: Name and Billing Address (as they appear on Purchase Order): ? Same as
Sales Order Ship-to
Name:___________________________________________________________________________
Address:________________________________________________________________________
City/State:_____________________________________________________________________
Country:________________________________________________________________________
Postal Code:____________________________________________________________________
Contact/Phone No.:______________________________________________________________
STEP 4 - Complete Coverage Type, site details and existing contract information
(required for both resale options
End Customer Name: Product Type:
Str: Original Product Purchase Order:
City: Serial Number:
State/Postal Code: End User Existing Support Agreement Number:
ATTN:
Phone/Fax:
Product/Serial No.
Page 40 of 54
ADDITIONAL SITES WORKSHEET
End Customer Name: Product Type:
Str: Original Product Purchase Order:
City: Serial Number:
State/Postal Code: End User Existing Support Agreement Number:
ATTN:
Phone/Fax:
Product/Serial No.
End Customer Name: Product Type:
Str: Original Product Purchase Order:
City: Serial Number:
State/Postal Code: End User Existing Support Agreement Number:
ATTN:
Phone/Fax:
Product/Serial No.
End Customer Name: Product Type:
Str: Original Product Purchase Order:
City: Serial Number:
State/Postal Code: End User Existing Support Agreement Number:
ATTN:
Phone/Fax:
Product/Serial No.
[ ] SMARTnet 8x5xNBD [ ] SMARTnet8x5x4 [ ] SMARTnet24x7x4
End Customer Name: Product Type:
Str: Original Product Purchase Order:
City: Serial Number:
State/Postal Code: End User Existing Support Agreement Number:
ATTN:
Phone/Fax:
Product/Serial No.
Page 41 of 54
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 Users
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 Customer Technical Support Director
24-Hour Advocacy
President (CEO) Vice President Customer
48-Hour Advocacy
Customer Engineering
72-Hour Manager
President (CEO) Technical Support Customer
96-Hour Director Engineering Manager
Page 42 of 54
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 begin at the Customer Engineering Manager level and proceed
upward using the escalation guideline shown above for reference. This
will allow those most closely associated with the support resources to
correct any service problems quickly.
ACCESSING TAC:
North America, South America: +1-800-553-2447 (within the United States)
+1-408-526-7209
Europe, Middle East, Africa: +32-2-778-4242
Asia Pacific: +1-800-805-227 (within Australia)
+61-2-9935-4107
Page 43 of 54
APPENDIX B
CISCO BRAND SERVICES RESALE DISCOUNT
Integrator's discount 25%
Page 44 of 54
EXHIBIT D
NETWORKED COMMERCE ATTACHMENT
This Networked Commerce Attachment ("Attachment") supplements the Agreement and
all the terms and conditions of the Agreement apply to this Attachment;
provided, that to the extent that there is conflict between the Agreement and
this Attachment, the terms of this Attachment shall take precedence over the
terms and conditions of the Agreement with regards to the subject matter
described herein.
1. 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.
7. The parties agree that Cisco shall not be liable for any incidental,
consequential or special damages arising from, or as a result of, the
electronic transmission of orders or other information even if Cisco
has been advised of the possibility of such damages.
8. 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.
9. Integrator is responsible for all costs and charges, including without
limitation, phone charges and telecommunications equipment, incurred in
order to use the Program.
Page 45 of 54
EXHIBIT D
ATTACHMENT 1
NETWORKED COMMERCE AGENTS ENROLLMENT ATTACHMENT
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
- ------------------ --------- -------
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
__________________ _________ _______
Special Instructions/Restrictions:
Page 46 of 54
EXHIBIT F
SPECIAL LICENSE TERMS
DEFINITIONS APPLICABLE TO ALL SPECIAL LICENSES
Service Provider means an entity which has acquired Cisco's Products in
order to create and provide Network Services to End Users.
Network Services include the following services: access to the Internet
and data transmission and value-added telecommunications services
related to such transmission, including managed network services
whereby Service Provider manages network elements belonging to or
located at the premises of End Users in conjunction with
telecommunications services to End Users by Service Provider.
CISCO NAM SOFTWARE
1.0 DEFINITIONS
Central NAM Software means a software system that is configured to
handle initial route requests from the Integrator network. Central NAM
Software is capable of handling a variety of initial routing requests
to completion, and uses scripting logic to return a network label to
the Integrator network. This label instructs the network on where to
deliver the call. The Central NAM Software also forwards some route
requests to dedicated CICM Software.
Central Site Software means the Software known as the Central NAM
Software and CICM Software which must be centrally located at
Integrator's site in order to provide call center services to
Integrator's End Users.
CICM Software means the Software known as the Customer Intelligent
Contact Management ("CICM") Software which are installed at
Integrator's central site, dedicated to a specific End User and
connected to Remote Site Software.
CISCO NAM Software means Software, which Cisco designates as the
Network Applications Management ("AM) Software and associated tools
and utilities.
Remote Site Software(s) means that portion of the CISCO NAM Software
that must be installed at an End User site in order for such End User
to receive call center services from the Integrator or which is
installed centrally at Integrator's central site and End User has
access to same. Rernote Site Software means the Software known as the
CISCO Peripheral Gateway, CISCO Admin Workstation, CISCO Gateway
Partitioning and other CISCO Software deployed to a specific Customer
and a specific CICM Software instance.
2.0 LICENSE RESTRICTIONS
2.1 If CISCO NAM Software is licensed to a Service Provider by an
Integrator, Integrator may grant Service Provider the non-exclusive,
non-transferable license to distribute Remote Site Software in the
Territory to its End Users subject to these Special License Terms on a
temporary basis while Service Provider is providing call center
services via the CISCO NAM Software to such End User. Service
Provider's license to such End User must be via a Sublicense between
Service Provider and End User where this Sublicense meets the
requirements set forth in the Agreement to which this Exhibit is
attached. Integrator shall ensure that Service Provider is bound and
will abide by the Special License Terms for CISCO NAM Software.
Page 47 of 54
2.2 CISCO NAM Software may be used internally in Integrator's organization
and may be used as a component of a service offering to third parties.
2.3 Integrator may only distribute and grant access to Remote Site Software
via a Sublicense to End Users who may use this Software only during the
period where an Integrator is providing call center services to the End
User via the Software.
2.4 Once call center services between Integrator and End User have ceased,
End User will cease using and return the Remote Site Software to
Integrator. Once returned, integrator may redeploy the CICM Software
and redeploy Remote Site Software which were dedicated to that former
End User to another End User subject to Cisco's then-current
redeployment policies and fees.
2.5 If Integrator has purchased Advanced Services Customer Program
Licenses, then Integrator may only deploy the total number of Advanced
Services Customers listed on the Order. Each Advanced Services Customer
must be entered as a customer in the CICM configuration and correspond
to an entry in the Customer Definition Table for the CICM instance in
which that Customer is defined. Each Advanced Services Customer entry
in a Customer Definition Table (Central NAM or CICM Software) must have
an Advanced Services Customer Program License.
2.6 If Integrator has purchased a CICM Software license, then Integrator
may install a single instance of the CICM application under this
license. A CICM instance has an independent CICM database, its own set
of Windows NT registry configuration entries, and its own set of TCP/IP
service ports for communication with other CICM system components. Each
such instance is an independent CICM for purposes of the license grant,
whether there is a single CICM instance or multiple CICM instances
installed on the underlying hardware.
2.7 The End Users license to use the Software(s) shall terminate by (1) End
User's breach of the terms and conditions of the Software License
Agreement as modified or (2), if Integrator ceases performing call
center services via the Software to End User. Once End Users license
terminates, End User shall discontinue using the Software and return
any Software in its possession to Integrator.
3.0 REDEPLOYMENT POLICIES AND FEES
3.1 Integrator may only redeploy each CICM Software from supporting one End
User to supporting another End User once in each twelve (12) month
period with the first such redeployment period beginning upon the
shipping date of such Software and ending twelve (12) months thereafter
and the second such redeployment period commencing on the expiration of
the first such period and so on. The redeployment fees due Cisco as the
result of such redeployment shall equal twenty (20%) of the list price
of such CICM Software at the time this redeployed Software was first
ordered.
3.2 The redeployment fees due Cisco as the result of a redeployment of
Remote Site Software from supporting one End User CICM Software
instance to another shall equal twenty (20%) of the list price of such
Remote Site Software at the time this redeployed Software was first
ordered.
3.3 With respect to the redeployment of Remote Site Software, should this
software be redeployed by connecting it to a different type of target
platform, Cisco will charge Integrator a license conversion fee equal
to ten (10%) of the list price of the Software connecting to the new
target platform at the time the licenses are converted. Furthermore,
should this software be redeployed by connecting it to a new target
platform and there is a difference between the list price of the
Page 48 of 54
Software connecting to the existing platform at the time this Software
was first ordered and the list price of the Software connecting to the
new target platform at the time of conversion and the list price for
the Software connecting to the new target platform is greater,
Integrator will pay Cisco the difference between these two prices after
applying Integrator's current discount for the Software. No credit will
be given to Integrator should the list price for the Software
connecting to the new target platform be less than the list price for
the Software connecting to the existing platform.
3.4 The redeployment and conversion fees specified herein do not include
any charges or expenses for any services Cisco performs at the request
of Integrator in relation to the redeployed or converted Software.
Redeployment and conversion fees shall be due upon redeployment or
conversion as the case may be.
3.5 Should Integrator need to inventory CICM Software and Remote Site
Software because same cannot be redeployed immediately, Integrator may
take these inventoried items off support; however, to reestablish
support for these items, Cisco will charge Integrator a reinstatement
fee equal to the support fees not paid that would have been paid, if
the Software had been continuously covered by support plus twenty-five
(25) percent of same.
CISCO ICM SOFTWARE
CISCO ICM Software may only be used internally to Integrator's or End User's
organization and may not be used as a component of a service offering to third
parties; additionally, Integrators may distribute this ICM Software to Service
Providers or End Users via a Sublicense for its internal use under the terms and
conditions of the Agreement to which this Exhibit is attached.
If customer, whether an Integrator or End User, has purchased an ICM Software
license, then such customer may install a single instance of the ICM application
under this license. An ICM instance has an independent ICM database, its own set
of Windows NT registry configuration entries, and its own set of TCP/IP service
ports for communication with other ICM system components. Each such instance is
an independent ICM for purposes of the license grant, whether there is a single
ICM instance or multiple ICM instances installed on the underlying hardware.
CISCO CUSTOMER INTERATION SUITE SOFTWARE
The CISCO Customer Interaction Suite Software may only be used internally to
Integrator's or End User's organization and may not be used as a component of a
service offering to third parties; additionally, Integrators may distribute this
Software to Service Providers or End Users via a Sublicense under the terms and
conditions of the Agreement to which this Exhibit is attached.
Page 49 of 54
EXHIBIT S
END USER LICENSE AND SOFTWARE WARRANTY
SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR
USING CISCO OR CISCO-SUPPLIED SOFTWARE.
BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING THE EQUIPMENT THAT CONTAINS
THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU DO NOT
AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN (A) DO NOT DOWNLOAD, INSTALL OR
USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, OR, IF
THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE
PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER
PURCHASE FROM CISCO OR AN AUTHORIZED CISCO RESELLER, AND APPLIES ONLY IF YOU ARE
THE ORIGINAL PURCHASER.
The following terms govern your use of the Software except to the extent a
particular program (a) is the subject of a separate written agreement with Cisco
or (b) includes a separate "click-on" license agreement as part of the
installation and/or download procem To the extent of a conflict between the
provisions of the foregoing documents, the order of precedence shall be (1) the
written agreement, (2) the click-on agreement, and (3) this Software License.
LICENSE. Subject to the terms and conditions of and except as otherwise provided
in this Agreement, Cisco Systems, Inc. or the Cisco Systems, Inc. subsidiary
licensing the Software, if sale is not directly by Cisco Systems, Inc.
("Cisco'), and its suppliers grant to Customer ("Customer") a nonexclusive and
nontransferable license to use the specific Cisco program modules, feature
set(s) or feature(s) for which Customer has paid the required license fees (the
"Software"), in object code form only. In addition, the foregoing license shall
also be subject to the following limitations, as applicable:
- - Unless otherwise expressly provided in the documentation, Customer
shall use the Software solely as embedded in, for execution on, or
(where the applicable documentation permits installation on non-Cisco
equipment) for communication with Cisco equipment owned or leased by
Customer;
- - Customer's use of the Software shall be limited to use on a single
hardware chassis, on a single central processing unit, as applicable,
or use on such greater number of chassises or central processing units
as Customer may have paid Cisco the required license fee; and
- - Customer's use of the Software shall also be limited, as applicable and
set forth in Customer's purchase order or in Cisco's product catalog,
user documentation, or web site, to a maximum number of (a) seats (i.e.
users with access to the installed Software), (b) concurrent users,
sessions, ports, and/or issued and outstanding IP addresses, and/or (c)
central processing unit cycles or instructions per second. Customer's
use of the Software shall also be limited by any other restrictions set
forth in Customer's purchase order or in Cisco's product catalog, user
documentation or web site for the Software.
NOTE: For evaluation or beta copies for which Cisco does not charge a license
fee, the above requirement to pay a license fee does not apply.
Page 50 of 54
GENERAL LIMITATIONS. Except as otherwise expressly provided under this
Agreement, Customer shall have no right, and Customer specifically agrees not
to:
(i) transfer, assign or sublicense its license rights to any other person,
or use the Software on unauthorized or secondhand Cisco equipment, and
any such attempted transfer, assignment or sublicense shall be void;
(ii) make error corrections to or otherwise modify or adapt the Software or
create derivative works based upon the Software, or to permit third
parties to do the same; or
(iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce
the Software to human-readable form to gain access to trade secrets or
confidential information in the Software.
To the extent required by law, at Customer's request, Cisco shall provide
Customer with the interface information needed to achieve interoperability
between the Software and another independently created program, on payment of
Cisco's applicable fee. Customer shall observe strict obligations of
confidentiality with respect to such information.
UPGRADES AND ADDITIONAL COPIES. For purposes of this Agreement, "Software" shall
include (and the terms and conditions of this Agreement shall apply to) any
upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or
backup copies of the Software licensed or provided to Customer by Cisco or an
authorized distributor for which Customer has paid the applicable license fees.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO
LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER,
AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO
THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE; (2) USE
OF UPGRADES IS LIMITED TO CISCO EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END
USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE
SOFTWARE WHICH IS BEING UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS LIMITED TO
BACKUP PURPOSES ONLY.
PROPRIETARY NOTICES. Customer agrees to maintain and reproduce all copyright and
other proprietary notices on all copies, in any form, of the Software in the
same form and manner that such copyright and other proprietary notices are
included on the Software. Except as expressly authorized in this Agreement,
Customer shall not make any copies or duplicates or any Software without the
prior written permission of Cisco. Customer may make such backup copies of the
Software as may be necessary for Customer's lawful use, provided Customer
affixes to such copies all copyright, confidentiality, and proprietary notices
that appear on the original.
PROTECTION OF INFORMATION. Customer agrees that aspects of the Software and
associated documentation, including the specific design and structure of
individual programs, constitute trade secrets and/or copyrighted material of
Cisco. Customer shall not disclose, provide, or otherwise make available such
trade secrets or copyrighted material in any form to any third party without the
prior written consent of Cisco. Customer shall implement reasonable security
measures to protect such trade secrets and copyrighted material. Title to
Software and documentation shall remain solely with Cisco.
TERM AND TERMINATION. This License is effective until terminated. Customer may
terminate this License at any time by destroying all copies of Software
including any documentation. Customer's rights under this License will terminate
immediately without notice from Cisco if Customer fails to comply with any
provision of this License. Upon termination, Customer must destroy all copies of
Software in its possession or control.
Page 51 of 54
CUSTOMER RECORDS. Customer grants to Cisco and its independent accountants the
right to examine Customer's books, records and accounts during Customer's normal
business hours to verify compliance with this Agreement. In the event such audit
discloses non-compliance with this Agreement, Customer shall promptly pay to
Cisco the appropriate licensee fees.
EXPORT. Software, including technical data, may be subject to U.S. export
control laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. Customer agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
U.S. GOVERNMENT END USERS. The Software and associated software documentation
qualify as "commercial items," as that term is defined at 48 CF.R. 2.101,
consisting of "commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48
C.F.R. 12212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide
to Government end user, or, if this Agreement is direct Government end user will
acquire, the Software and software documentation with only those rights set
forth herein that apply to nongovernmental customers. Use of this Software and
software documentation constitutes agreement by the government entity that the
computer software and computer software documentation is commercial, and
constitutes acceptance of the rights and restrictions herein.
LIMITED WARRANTY
Cisco Systems, Inc. or the Cisco Systems, Inc. subsidiary licensing the
Software, if sale is not directly by Cisco Systems, Inc. ("Cisco") warrants that
commencing from the date of delivery to Customer (but in case of resale by a
Cisco reseller, commencing not more than ninety (90) days after original
shipment by Cisco), and continuing for a period of the longer of (a) ninety (90)
days or (b) the period set forth in the Warranty Card accompanying the Product
(if any): (a) the media on which the Software is furnished will be free of
defects in materials and workmanship under normal use; and (b) the Software
substantially conforms to its published specifications. The date of shipment of
a Product by Cisco is set forth on the packaging material in which the Product
is shipped. Except for the foregoing, the Software is provided AS IS. This
limited warranty extends only to the Customer who is the original licensee.
Customer's sole and exclusive remedy and the entire liability of Cisco and its
suppliers under this limited warranty will be, at Cisco or its service center's
option, repair, replacement, or refund of the Software if reported (or, upon
request, returned) to the party supplying the Software to Customer, if different
than Cisco. In no event does Cisco warrant that the Software is error free or
that Customer will be able to operate the Software without problems or
interruptions. In addition, due to the continual development of new techniques
for intruding upon and attacking networks, Cisco does not warrant that the
Software or any equipment, system or network on which the Software is used will
be free of vulnerability to intrusion or attack.
RESTRICTIONS. This warranty does not apply if the Product (a) has been altered,
except by Cisco, (b) has not been installed, operated, repaired, or maintained
in accordance with instructions supplied by Cisco, (c) has been subjected to
abnormal physical or electrical, stress, misuse, negligence, or accident; or (d)
is licensed, for beta, evaluation, testing or demonstration purposes for which
Cisco does not receive a payment of purchase price or license fee.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A
COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE
EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE
EXCLUDED, SUCH WARRANTY IS LIMITED IN
Page 52 of 54
DURATION TO THE WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION
MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY
ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This
disclaimer and exclusion shall apply even if the express warranty set forth
above fails of its essential purpose.
GENERAL TERMS APPLICABLE TO THE LIMITED WARRANTY STATEMENT AND SOFTWARE LICENSE
DISCLAIMER OF LIABILITIES. IN NO EVENT WILL CISCO OR ITS SUPPLIERS BE LIABLE FOR
ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF
LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE EVEN IF CISCO
OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no
event shall Cisco's or its suppliers' liability to Customer, whether in
contract, tort (including negligence), or otherwise, exceed the price paid by
Customer. The foregoing limitations shall apply even if the above-stated
warranty fails of its essential purpose. BECAUSE SOME STATES OR JURISDICTIONS DO
NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Warranty and the Software License shall be governed by and construed in
accordance with the laws of the State of California, without reference to
principles of conflict of laws, provided that for Customers located in a member
state of the European Union, Norway or Switzerland, English law shall apply. The
United Nations Convention on the International Sale of Goods shall not apply. If
any portion hereof is found to be void or unenforceable, the remaining
provisions of the Warranty and the Software License shall remain in full force
and effect. Except as expressly provided herein, the Software License
constitutes the entire agreement between the parties with respect to the license
of the Software and supersedes any conflicting or additional terms contained in
the purchase order.
If Customer has entered into a contract directly with Cisco for supply of the
Products subject to this warranty, the terms of that contract shall supersede
any terms of this Warranty or the Warranty Card, or the Software License, which
are inconsistent with that contract. Customer acknowledges that: the Internet
URL address and the web pages referred to in this document may be updated by
Cisco from time to time; the version in effect at the date of delivery of the
Products to the Customer shall apply.
Page 53 of 54
STANDARD SALES AGREEMENT SUMMARY FORM/NON-NEGOTIATED
Company Name/Address: Internetwork Experts, Inc.
15960 Midway Road, Suite 101
Addison, Texas 75001
Attn: Gary Derheim
(469) 791-4800
[X] No terms require compliance
Contract Type: [X] SI [ ] SP [ ] SP Telco
[ ] Dist [ ] VPA [ ] Gov't
[ ] ICSG [ ] LOI/LOA/MOU
[ ] Affiliate [ ] Other
SI Agreement renewal the Dual Discount exhibit.
Payment Currency:
[ ] LCA signed Currency: [X] USD [ ] CAD [ ] AUD [ ] Japan [ ] Other
________________________________________________________________________________
Account Manager: Valerie Corniello Contract Negotiator: Emilie Fukada
Page 54 of 54