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Copyright © 2026 Broadcom, where “Broadcom” means Broadcom Inc. and/or its subsidiaries. All Rights Reserved.
Foundation Agreement
1.
INTRODUCTION
1.1.
This Foundation Agreement (“
Foundation Agreement
”) between the applicable Regional
Broadcom Entity set forth in the referencing Transaction Document, a Broadcom Inc. company,
(“
Broadcom
”), and your organization, (“
Customer
”), is effective on the date set forth in the
referencing Transaction Document which identifies the “Start Date” and specifies the terms and
conditions agreed between the Parties as a foundation for their relationship as further defined in
the applicable Modules.
1.2.
With respect to the Broadcom Offering, additional terms shall be included in a Module, while
terms specific to each individual order from Customer or Broadcom Partner shall be set forth in
the Transaction Document(s) for such order.
1.3.
This Foundation Agreement may incorporate any applicable Module referenced in the “Governing
Contract” section of the applicable Transaction Document.
2.
DEFINITIONS
2.1.
“
Agreement
” means this Foundation Agreement, the applicable Module, the applicable
Transaction Document, the URL Terms, and any document incorporated expressly therein by
reference.
2.2.
“
Affiliate
” means any person or entity which directly or indirectly owns, controls, is controlled by,
or is under common control with a party, where control is defined as owning or directing more
than fifty percent (50%) of the voting equity securities or a similar ownership interest in the
controlled entity.
2.3.
“Broadcom Offering
” means the individual offering (such as software, services, education,
software as a service, or support) in the CA, Symantec, or VMware product families.
2.4.
“Broadcom Partner
” means a Broadcom authorized channel partner selected by the Customer.
2.5.
“Broadcom Software
” means the computer software programs in the CA, Symantec, or VMware
product families made generally available and licensed to Customer under the applicable Module
pursuant to the applicable Transaction Document. Broadcom Software may be provided
individually or packaged as a software appliance and includes all versions and releases provided as
part of Broadcom Maintenance, if applicable.
2.6.
“
Confidential Information
” means any information, maintained in confidence by the disclosing
Party, communicated in written or oral form, marked as proprietary, confidential, or otherwise so
identified, or any information that by its form, nature, content, or mode of transmission would be
deemed confidential or proprietary to a reasonable recipient, including, without limitation,
Broadcom Offerings, Documentation, the Agreement, Transaction Documents, Broadcom
provided pricing, and any benchmarking data or results.
2.7.
“
Data Processing Addendum
” or “
DPA
” means Broadcom’s global Data Processing Addendum
available at
https://docs.broadcom.com/docs/global-customers-dpa
(or successor URL).
2.8.
“
Documentation
” means the technical product specifications or user manuals published by
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Broadcom or a Broadcom Affiliate.
2.9.
“
Module
” means the additional terms and conditions applicable to a Broadcom Offering. If a
Broadcom Offering includes both on-premise software and SaaS, then each applicable Module
applies.
2.10.
“
Party
” or “
Parties
” means individually and/or collectively Broadcom and/or the Customer.
2.11.
“
Personal Data
” means any information relating to (i) an identified or identifiable person and, (ii)
an identified or identifiable legal entity (where such information is protected similarly as personal
data or personally identifiable information under applicable data protection laws), provided in
connection with the Agreement.
2.12.
“
Taxes
” means any applicable sales tax, value-added tax (VAT), goods and services tax (GST),
consumption tax, ISS, PIS and COFINS or any other applicable taxes.
2.13.
“
Term
” means the period during which the Broadcom Offering is provided as specified in the
Transaction Document.
2.14.
“
Transaction Document
”, “
Order Form
”, or “
Order
” means a mutually agreed ordering document
such as a Broadcom quote, order form, or statement of work for the specific Broadcom Offering
licensed or purchased. Either Transaction Documents are executed or, in the case of a quote and
purchase order (“PO”), a PO referencing such quote is issued and that issuance constitutes
acceptance of the quote and formation of contract.
2.15.
“
URL Terms
” means, collectively, the Data Processing Addendum, SaaS Listings, Specific Program
Documentation, Third Party Terms, the Broadcom Maintenance Policy Handbook, and any other
content which is referenced within the links contained herein and within the Orders referencing
the End User Agreement available at
https://www.broadcom.com/licensing
(or successor URL).
3.
ORDERING AND DELIVERY
3.1.
Under the terms of this Agreement and subject to the terms of the applicable Module(s),
Customer and any Customer Affiliate incorporated in the same jurisdiction as Customer, may
purchase Broadcom Offerings directly from Broadcom or through a Broadcom Partner, and
Broadcom shall provide the specific Broadcom Offering. All Customer Affiliates incorporated in a
different jurisdiction than Customer, must sign a participation agreement with Broadcom to adopt
and adhere to the terms of this Agreement.
3.2.
The Broadcom Offerings, (and any hardware components if included within your Transaction
Document), will be delivered either in tangible media FCA SD (FCA Shipping Dock), as defined in
INCOTERMS 2020, from Broadcom’s shipping point as indicated in the Transaction Document or by
electronic delivery (ESD). Customer agrees to be responsible for all customs, duties, import
clearances, title, and risk of loss to any Broadcom hardware, if included, will pass upon point of
delivery to Customer’s carrier at Broadcom’s shipping location. For non-US customers, title to the
hardware product transfers when the product leaves the national territory of the US.
3.3.
In the event of a payment or set off issue relating to one Broadcom Offering, such payment issue
will not impact any other obligation to pay for any Broadcom Offering provided to Customer.
4.
CONFIDENTIALITY
4.1.
The Parties agree that, when receiving Confidential Information from the disclosing Party, the
receiving Party shall hold it in confidence and shall not disclose nor use such information except as
necessary to carry out the purpose of this Agreement. The receiving Party shall treat the disclosing
Party’s Confidential Information confidentially and in the same manner as it treats its own
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proprietary and/or confidential information, which shall not be less than a reasonable standard of
care. Confidential Information may be disclosed to receiving Party’s employees, affiliates, agents,
financial advisors, contractors, and attorneys on a need-to know basis and the receiving Party shall
ensure that such persons preserve and use such Confidential Information pursuant to the terms of
the Agreement.
4.2.
The receiving Party may disclose Confidential Information in connection with a judicial or
administrative proceeding to the extent that such disclosure is required under applicable law or
court order, provided that the receiving Party shall, where reasonably possible, give the disclosing
Party prompt and timely written notice of any such proceeding and shall offer reasonable
cooperation in any effort of the disclosing Party to obtain a protective order.
4.3.
For the purposes of the Agreement, Confidential Information excludes: (i) information which the
receiving Party has been authorized in writing by the disclosing Party to disclose without
restriction; (ii) information which was rightfully in the receiving Party’s possession or rightfully
known to it prior to receipt of such information from the disclosing Party; (iii) information which
was rightfully disclosed to the receiving Party by a third party having proper possession of such
information, without restriction; (iv) information which is part of or enters the public domain
without any breach of the obligations of confidentiality by the receiving Party; and
(v) information which is independently developed by the receiving Party without use or reference
to the disclosing Party’s Confidential Information.
4.4.
Nothing in the Agreement will (i) preclude Broadcom from using the ideas, concepts and know-
how which are developed in the course of providing any Broadcom Offerings to Customer or (ii) be
deemed to limit Broadcom’s rights to provide similar Broadcom Offerings to other customers.
Customer agrees that Broadcom may use any feedback provided by Customer related to any
Broadcom Offering for any Broadcom business purpose, without requiring consent including
reproduction and preparation of derivative works based upon such feedback, as well as
distribution of such derivative works.
4.5.
The receiving Party agrees, upon request of the disclosing Party, to return to the disclosing Party
all Confidential Information in its possession or certify the destruction thereof.
4.6.
In the event of a breach of this section 4, the disclosing Party may not have an adequate remedy
at law. The Parties therefore agree that the disclosing Party may be entitled to seek the remedies
of temporary and permanent injunction, specific performance, or any other form of equitable
relief deemed appropriate by a court of competent jurisdiction. For any Confidential Information
that constitutes a trade secret under applicable law, the obligations of this section will continue
for so long as such trade secret status is maintained by the disclosing Party. For all other
Confidential Information, the foregoing obligations shall extend for five (5) years from the date of
initial disclosure.
5.
FEES
5.1.
To the extent permitted by law, Customer shall issue and provide Broadcom a PO, or a series of
POs, for the full term and total fees that are due contemporaneously with the execution of each
Transaction Document. Broadcom, directly or through a Broadcom Partner, reserves the right to
invoice Customer for any use of the Broadcom Offerings in excess of the Authorized Use Limitation
at Broadcom’s then-current list price.
5.2.
Unless an alternative date of payment is set out on the Transaction Document, payment is due
upon the due date specified on the invoice. Customer agrees to pay Taxes in addition to the fees
when such payments are due. Customer (a) may only withhold tax as required by law, subject to
the application of any reduced rate allowed in an income tax treaty or otherwise, (b) shall request
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all documentation required for the reduction of withholding tax, and (c) shall provide proof of
payment of the withholding tax for credit relative to the applicable invoice(s).
5.3.
If indicated on the Transaction Document, Customer may pay any initial payment due to
Broadcom on or before the due date (as stated in the applicable Transaction Document) through a
same day fed wire. For other payments required of Customer due to Broadcom, Broadcom will
send Customer an invoice containing updated wire transfer information at least thirty (30) days
prior to each respective due date. Broadcom reserves the right to change credit or payment terms
at Broadcom’s discretion if Customer’s or Broadcom Partner’s financial condition or previous
payment history so warrant.
5.4.
A Customer issued PO may be used to accept terms of a Transaction Document in place of a
signature on the Transaction Document, provided that Customer references the Transaction
Document in the PO and includes the appropriate reference number, if applicable.
5.5.
If a payment due date falls on a weekend or a holiday the payment shall be payable by Customer
to Broadcom on the business day immediately prior to such date.
5.6.
Failure to timely remit payment of all amounts set forth in a Transaction Document or under any
other agreement with any Broadcom entity after written notice from Broadcom and a reasonable
opportunity to remit such payment by Customer and to the full extent permitted by applicable
law, shall (1) relieve Broadcom of any support obligations hereunder, and (2) suspend all
Customer subscription use rights until payment is tendered at which time use rights and support
shall recommence. Broadcom reserves the right to impose late fees as may be permitted by law
on any past due amounts.
5.7.
Broadcom may assign its payment rights in, or grant a security interest in, this Agreement and any
associated Transaction Document to a third party without requiring such third party to be liable
for the obligations of Broadcom under this Agreement or Transaction Document, provided that (1)
Broadcom remains directly responsible for performance of its duties hereunder, and (2)
Customer’s obligations are not otherwise affected.
5.8.
In the event Customer orders a Broadcom Offering through a Broadcom Partner (or that partner’s
resale channel), this Foundation Agreement, excluding all of Section 5 (except the second
sentence of Section 5.1 and Section 5.6), shall apply to Customer.
6.
TITLE
6.1.
Broadcom retains all right, title, copyright, patent, trademark, trade secret and all other
proprietary interests to all Broadcom Offerings and any derivatives thereof. No title, copyright,
patent, trademark, trade secret or other right of intellectual property not expressly granted under
the Agreement is exchanged between the Parties.
7.
WARRANTY
7.1.
Each Party represents and warrants that it has the legal power to enter into the Agreement.
7.2.
Broadcom represents and warrants that it owns or otherwise has sufficient rights to grant
Customer the rights defined in any Transaction Document and/or Module.
7.3.
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR (1) SELECTING
CONFIGURATIONS, POLICIES, AND PROCEDURES IN THE BROADCOM OFFERING(S) THAT ARE
CONFIGURABLE INCLUDING, WITHOUT LIMITATION, THE SELECTION OF FILTERED CATEGORIES
AND WEB APPLICATION CONTROLS, AND FOR ASSURING THAT THE SELECTION (A) CONFORMS TO
CUSTOMER’S POLICIES AND PROCEDURES AND (B) COMPLIES WITH ALL APPLICABLE LAWS.
7.4.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTIES AND
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THOSE SET FORTH WITHIN THE APPLICABLE TRANSACTION DOCUMENTS AND/OR MODULES ARE
THE SOLE WARRANTIES PROVIDED BY BROADCOM. NO OTHER WARRANTIES, WHETHER EXPRESS,
STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT, SUITABILITY, FITNESS
FOR A PARTICULAR PURPOSE, INCLUDING THAT THE BROADCOM OFFERING WILL OPERATE
UNINTERRUPTED OR IS ERROR FREE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE, RELATING TO THE BROADCOM OFFERINGS, ARE MADE BY
BROADCOM OR ITS SUPPLIERS.
8.
INDEMNIFICATION
8.1.
Broadcom will indemnify, defend and/or, at its option, settle any third party claims that
Customer’s use of the specific Broadcom Offering licensed or purchased by Customer under this
Agreement infringes any valid US patent or copyright within the jurisdictions where Customer is
authorized to use the Broadcom Offering at the time of delivery provided that: (i) Customer gives
Broadcom prompt written notice thereof and reasonable cooperation, information and assistance
in connection therewith; (ii) Broadcom shall have sole control and authority with respect to
defense or settlement thereof; and (iii) Customer takes no action that is contrary to Broadcom’s
interest. Broadcom may, at its option and expense: (a) procure for Customer the right to continue
to use the Broadcom Offering; (b) repair, modify or replace the Broadcom Offering so that it is no
longer infringing; or (c) provide a pro-rated refund of the fees paid for the Broadcom Offering
(directly or through the Broadcom Partner) which gave rise to the indemnity calculated against the
remainder of the Term from the date it is established that Broadcom is notified of the third party
claim. If the Broadcom Offering is Broadcom Software, and is licensed on a perpetual basis, an
amortization schedule of three (3) years shall be used for the basis of the refund calculation.
8.2.
Broadcom shall have no liability: (i) in the event the allegation of infringement is a result of a
modification of the Broadcom Offering except a modification by Broadcom, (ii) if the Broadcom
Offering is not being used in accordance with Broadcom’s specifications, related documentation
and guidelines, (iii) if the alleged infringement would be avoided or otherwise eliminated by the
use of a Broadcom published update or patch, (iv) if the alleged infringement is a result of use of
the Broadcom Offerings in combination with any third party product, (v) for any Deliverable
provided by Broadcom in accordance with Customer’s specifications, (vi) for any claim relating to
open source software or freeware technology that is not embedded by Broadcom into the
Broadcom Offerings, (vii) for any Broadcom Offering provided on a no-charge, beta, or evaluation
basis, or (viii) if the applicable fees due for the specific Transaction Document have not been paid
or Customer is otherwise in breach of this Agreement. The indemnifications contained herein shall
not apply and Broadcom shall have no liability in relation to any Broadcom Offering produced by
Broadcom at the specific direction of Customer. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS
OF BROADCOM REGARDING CLAIMS OF INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE
TO CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.
8.3.
Each Party shall indemnify the other against all damages, fees, (including reasonable attorney’s
fees) fines, judgments, costs and expenses finally awarded as a result of a third party action
alleging a bodily injury or death which arises under the Agreement, provided that such liabilities
are the proximate result of gross negligence or intentional tortious conduct on the part of the
indemnifying Party.
8.4.
Customer shall indemnify Broadcom against any claim that any data, materials, items, or
information supplied to Broadcom under the Agreement infringes any US patent, copyright, or
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trademark within the jurisdictions where Broadcom is provided with such information.
9.
LIMITATION OF LIABILITY
9.1.
DISCLAIMER
.
NEITHER
PARTY
SHALL
BE
LIABLE
FOR
ANY
INDIRECT,
SPECIAL,
CONSEQUENTIAL,
INCIDENTAL,
OR
PUNITIVE
DAMAGES
OF
ANY
NATURE,
INCLUDING,
BUT NOT NECESSARILY
LIMITED
TO,
LOSS
OF
PROFIT
OR
BUSINESS
OPPORTUNITIES,
LOSS
OF
USE,
LOSS
OF
DATA,
LOSS
OF
GOODWILL,
OR
BUSINESS
INTERRUPTION
UNDER
ANY
THEORY
OF
LIABILITY.
9.2.
CAP
ON
MONETARY
LIABILITY.
IN
NO
EVENT
WILL
A
PARTY’S
LIABILITY
FOR
DIRECT
DAMAGES
EXCEED
TWO
TIMES
THE
AMOUNTS
PAID
OR
PAYABLE
BY
CUSTOMER
FOR
THE
BROADCOM
OFFERING
THAT
GAVE
RISE
TO
THE CLAIM IN
THE
TWELVE
MONTHS
PRIOR
TO
THE
DATE SUCH
BREACH
OCCURRED. BROADCOM’S
AGGREGATE
LIABILITY
FOR
AN
EVALUATION LICENSE WILL
NOT
EXCEED
$5,000
USD.
9.3.
APPLICATION
.
THE
LIMITATIONS
OF
LIABILITY
IN
SECTIONS
9.1
(DISCLAIMER)
AND
9.2
(CAP
ON
MONETARY
LIABILITY) WILL
APPLY
TO
THE
MAXIMUM
EXTENT
PERMITTED
BY
APPLICABLE
LAW,
REGARDLESS
OF
WHETHER
A
PARTY
HAS
BEEN
ADVISED
OF
THE
POSSIBILITY
OF
DAMAGES
AND
NOTWITHSTANDING
ANY
FAILURE
OF
ESSENTIAL
PURPOSE
OF
ANY
REMEDY
UNDER
THIS
AGREEMENT, EXTEND
TO
BROADCOM’S
SUPPLIERS,
AND
WILL
NOT
APPLY
TO:
(A)
EITHER
PARTY’S
BREACH
OF
CONFIDENTIALITY
IN
SECTION
4;
(B)
THIRD
PARTY
CLAIMS
ARISING
UNDER
THE
INDEMNIFICATION
SECTION;
OR
(C)
CUSTOMER’S
BREACH
OF
TITLE
IN
SECTION
6.
10.
TERM & TERMINATION
10.1.
This Foundation Agreement shall continue in effect unless otherwise terminated in accordance
with this section.
10.2.
This Foundation Agreement, applicable Module(s), and the applicable Transaction Document may
be terminated by either Party only (a) upon a material breach by the other Party, provided that, in
each instance of a claimed breach: (i) the non-breaching Party notifies the breaching Party in
writing of such breach; and (ii) the breaching Party fails to cure such breach within thirty (30) days
(or such other period as mutually agreed by the Parties) from receipt of such notice; or (b) upon
insolvency of the other Party, if permitted by law. The foregoing notwithstanding, any breach by
Customer of licenses or rights granted pursuant to this Agreement will constitute an incurable
material breach by Customer; and, Broadcom may immediately terminate all of Customer’s use
rights and licenses, (subscription-based, perpetual, access, and use), upon written notice to
Customer, and Customer must either: a) delete all full or partial copies of the Broadcom Software
and SaaS instances from all computing or storage equipment and verify such deletion in a
statement signed by a Vice-President or a duly authorized representative sent to
usage.reporting@broadcom.com
, or b) return to Broadcom all full or partial copies of the
Broadcom Software. Such termination shall not relieve Customer from its obligations as set forth
within the related Transaction Document.
10.3.
Termination does not release either Party from any liability which, at the time of such termination,
had already accrued to the other Party or which is attributable to a period prior to such
termination, nor preclude either Party from pursuing any rights or remedies it may have under law
or in equity with respect to any breach of this Foundation Agreement or the Agreement. In the
event of termination by Broadcom for an uncured material breach by Customer, all fees shall
immediately become due and payable.
10.4.
Customer agrees it cannot terminate this Agreement or any Order hereunder without cause and
receive a pro-rata refund of fees not yet incurred, notwithstanding any express or implied right
under any legal or equitable theory. For purposes of clarity, in the event Customer exercises any
pre-existing right to terminate for convenience under any other contract with Broadcom Inc.,
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along with all its world-wide subsidiaries (collectively for purposes of this Section 10.4,
“Broadcom”), any language in such contract requiring termination of all Broadcom agreements
shall not apply to this Agreement or any Orders hereunder all of which shall remain in full force
and effect. Customer understands and agrees that any notice of termination of this Agreement or
any Order hereunder, other than for an uncured breach by Broadcom, shall not relieve Customer
of its obligation to remit any and all remaining payment(s) contained herein and shall not give rise
to any right to a refund of any amount paid hereunder.
11.
GOVERNING LAW AND DISPUTE RESOLUTION
11.1.
Choice of Law; Venue
. Depending on the Regional Broadcom Entity that is a Party to this
Agreement, the exclusive governing law, jurisdiction, designated arbitral body, arbitration rules
and seat shall be as set forth below; except for any Dispute related to non-payment and any action
to enforce intellectual property rights or protect Confidential Information, which may be brought
in any court of competent jurisdiction:
Regional Broadcom
Entity
Governing
Law
Jurisdiction
Arbitration Organization,
Rules, and Seat
CA, Inc.
State of
California
State and/or Federal
Courts located in Santa
Clara County, California
The American Arbitration
Association (“AAA”); AAA
Commercial Arbitration
Rules; Seat of arbitration
in California.
VMware International
Unlimited Company
Ireland
Courts located in Ireland International Chamber of
Commerce (“ICC”); ICC
Rules of Arbitration; Seat
of arbitration in Dublin,
Ireland.
CA Programas de
Computador, Part e Serv
Ltda.
Brazil
State Courts located in
São Paulo, SP, Brazil
The American Arbitration
Association Commercial
Arbitration Rules; Seat of
arbitration in São Paulo.
Broadcom Government
Solutions LLC
State of
California
State and/or Federal
Courts located in Santa
Clara County, California
The American Arbitration
Association (“AAA”); AAA
Commercial Arbitration
Rules; Seat of arbitration
in California
The Agreement will not be governed by the following, the application of which is hereby expressly
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excluded: (a) the conflict of law rules of any jurisdiction, (b) the United Nations Convention on
Contracts for the International Sale of Goods, and (c) the Uniform Computer Information
Transactions Act, as enacted in any jurisdiction. The Parties further agree to accept service of
process in accordance with the rules/procedures of the arbitral body or relevant court (as
applicable), except that the Parties hereto irrevocably waive any objection that service of process
must conform to the Hague Service Convention or other applicable law or treaty regarding service
of process.
11.2.
Dispute Resolution.
Any dispute arising out of the Agreement (“
Dispute
”) shall be resolved as
provided in this Section.
11.2.1.
Informal Dispute Resolution.
Save for Disputes relating to unpaid amounts, before
initiating any formal proceeding relating to a Dispute, the Parties shall meet as frequently
and as often as they reasonably deem necessary to negotiate in good faith to resolve the
Dispute. If the Parties are unable to resolve the Dispute within thirty (30) days of initiating
the discussions, then each Party shall appoint one (1) senior executive who is not directly
involved on a day-to-day basis with the subject matter of the Agreement, and those senior
executives shall negotiate the matter in good faith. A formal proceeding relating to a
Dispute shall not be commenced until the earlier of: (i) the good faith determination by
one of the appointed senior executives that resolution through continued negotiation of
the matter does not appear likely; or (ii) thirty (30) days following the date that the
Dispute was first referred to the appointed senior executives. Nothing in this paragraph
shall be construed to prevent a Party from instituting formal proceedings to the extent
necessary to avoid the expiration of any applicable limitations period or to pursue
injunctive remedies deemed reasonably necessary to protect its interests.
11.2.2.
Arbitration.
Except as set forth in Section 11.1 and in Section 11.2.2, any Dispute shall be
resolved by confidential arbitration. The place of the arbitration, governing law and
applicable rules shall be as set forth in Section 11.1 (Choice of Law; Venue). The arbitral
tribunal shall consist of three (3) arbitrators: one selected by each Party, and the third to
be agreed upon by the Parties (and if agreement cannot be reached, designated by the
arbitral body), which third arbitrator shall be the Chairperson. The language of the
arbitration shall be English. The dispute shall be finally settled within twelve (12) months
after constitution of the arbitral tribunal. The Parties agree to request a written
explanation/opinion in connection with any award. Judgment on the award rendered by
the arbitrators may be enforced in any court having jurisdiction thereof. Notwithstanding
anything to the contrary in this paragraph, either Party may: (i) apply to any court of
competent jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory injunctive relief; or (ii) seek redress in any court of competent
jurisdiction in order to enforce its intellectual property rights or protect Confidential
Information. The Parties shall have a right to appeal an arbitral award to a court of
competent jurisdiction in order to set aside the award.
11.3.
In any formal action or proceeding arising from a Dispute, the prevailing Party shall be entitled to
recover its costs and reasonable attorneys’ fees from the other Party.
12.
GENERAL TERMS
12.1.
Amendments.
The terms of the Agreement may only be amended by mutual written agreement
of the Parties.
12.2.
Force Majeure.
Except for payment obligations and obligations pertaining to non-disclosure,
notwithstanding any contrary provision in the Agreement, neither Party will be liable for any
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action taken, or any failure to take any action required to be taken, in the event and to the extent
that the taking of such action or such failure arises out of causes beyond a Party’s control,
including, without limitation, war, civil commotion, act of God, pandemic, epidemic, strike or
other stoppage (whether partial or total) of labor, any law, decree, regulation or order of any
government or governmental body (including any court or tribunal).
12.3.
Order of Precedence.
Any conflict or inconsistency among or between the terms and conditions of
the documents comprising the Agreement shall be resolved according to the following order of
precedence, from the document with the greatest control to the least: (1) the Transaction
Document; (2) Broadcom's global Data Processing Addendum (DPA) to the extent one is in place
between the Parties; (3) the applicable Specific Program Documentation or SaaS Listing; (4) the
relevant Module; (5) this Foundation Agreement. Notwithstanding this Order of Precedence, any
terms that may appear on a Customer’s purchase order that vary from the Agreement (including
without limitation pre-printed terms) shall be deemed null and void.
12.4.
Independent Contractors.
The Parties expressly agree that the relationship between them is that
of customer-independent contractor.
12.5.
Personal Data
12.5.1.
Broadcom as Controller.
Related to the provision of the Broadcom Offerings, Broadcom
may process limited Personal Data as a controller in accordance with, and for the
purposes defined in, Broadcom’s Privacy Policy and Notice available
at
https://www.broadcom.com/company/legal/privacy/policy
(or successor URL)
in
compliance with applicable data protection laws. Those purposes include: (i) management
of Customer relationship; (ii) sales administration; (iii) communications related to
technical support, new versions or updates; (iv) marketing of Broadcom Offerings; (v)
development of threat intelligence for the purposes of ensuring fraud prevention and
network and information security; (vi) development and enhancement of the Broadcom
Offerings; and (vii) compliance with applicable laws and regulations.
12.5.2.
Broadcom as Processor
. Where Broadcom processes Personal Data within Customer Data
on behalf of Customer, the Data Processing Addendum applies. If Customer procures the
Broadcom Offering through a Broadcom Partner, the Broadcom Partner shall be
responsible for entering into a relevant data processing agreement with Customer.
12.6.
Assignment.
Neither Party shall assign the Agreement or any of its rights or delegate any of its
duties under the Agreement, either by operation of law, agreement, or any other process, without
the prior written consent of the other Party, except that Broadcom shall have the right to assign
the Agreement or any of its rights or delegate any of its duties under the Agreement at any time to
any Broadcom Affiliate(s), or to a successor in interest of all or substantially all of the business to
which the Agreement relates. Subject to the foregoing, the Agreement will be binding upon,
enforceable by, and inure to the benefit of the parties and their respective successors and assigns.
Any attempted assignment in violation of this section shall be null and void.
12.7.
Import/Export.
Customer acknowledges that the Broadcom Offering(s) is subject to import and
export laws and regulation, including without limitation in the specific case of the U.S. the Export
Administration Regulations, rules regulated by Office of Foreign Assets Control. Customer agrees
that the Broadcom Offering(s) will not be exported, reexported or transferred in violation of
export control laws or used for any purpose connected with chemical, biological or nuclear
weapons or missile applications, nor be transferred or resold, if Customer has knowledge or
reason to know that the Broadcom Offering(s) are intended or likely to be used for such purpose.
Customer represents and warrants that: (a) Customer and any Authorized User, are not, and are
not acting on behalf of: (1) any person who is a citizen, national, or resident of, or who is
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controlled by, the government of any country to which the United States has prohibited export
transactions; or (2) any person or entity listed on the U.S. Treasury Department list of Specially
Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List
or Entity List, or any similar applicable designated persons list.
12.8.
Legal Compliance.
Both Parties shall comply with applicable federal, state, local laws, regulations
and ordinances, and all other applicable laws and regulations in the performance of this
agreement and use of any Broadcom Offering. Broadcom may suspend performance if Customer is
in violation of applicable laws, regulations, or ordinances or in the event of a security risk to a
Broadcom Offering or its users.
12.9.
Critical Applications.
With the exception of on-premise Software from the VMware Cloud
Foundation business unit, the Broadcom Offerings are not fault tolerant and use of the offerings is
prohibited for on-line control equipment in hazardous environments requiring fail-safe
performance, such as the operation of aircraft navigation or aircraft communications systems, air
traffic control, life support systems, human implantation, nuclear facilities or systems, weapons
systems, or any other application where failure of the offering could lead to death, personal injury,
or severe physical or environmental damage.
12.10.
Announcements.
Neither Party may issue press releases relating to the Agreement without
approving the content with the other Party.
12.11.
Notice.
Any notice required or permitted by the Agreement shall be given in writing and will refer
to the Agreement. Legal notices to Broadcom will be sent to
legal-notice.pdl@broadcom.com
and
all other notices will be personally delivered or sent by a reputable overnight courier service (e.g.,
FedEx, UPS, DHL, etc.), electronic transmission (email or posting to a Broadcom customer portal)
or registered or certified mail (return receipt requested) to the other Party’s legal department at
the address set forth in the Agreement, or other address if updated by notice or for Broadcom, as
posted to
https://www.broadcom.com/company/legal/licensing/notice
(or successor URL).
Notices shall be deemed effective upon electronic confirmation; and if delivered via certified mail
or overnight courier, notice shall be deemed effective upon confirmation of delivery.
12.12.
Headings.
The section headings used herein are for information purposes only and shall not affect
the interpretation of any provision of this Agreement.
12.13.
Validity.
In the event any term or provision of the Agreement shall be held to be invalid, the same
shall not affect in any respect whatsoever the validity of the remainder of the Agreement.
12.14.
Third Parties.
This Agreement shall not create any rights in favor of, or any obligations owed by,
any third party unless otherwise expressly defined in any Module. The Parties agree that any
action arising from this Agreement shall solely be brought by Customer or Broadcom.
12.15.
Waiver.
Waiver of a breach of the Agreement will not constitute a waiver of any later breach.
12.16.
Survival.
Sections pertaining to Dispute Resolution, Choice of Law, Confidentiality, Title, Warranty,
Limitation of Liability, Termination, Reporting and Audit, and Import Export shall survive
termination of this Foundation Agreement.
12.17.
Entire Agreement.
The Agreement and all documents incorporated by reference therein shall
comprise the entire agreement as pertaining to the subject matter thereof and all other prior
representations, proposals, and other such information exchanged by the Parties concerning the
subject matter is superseded in their entirety by the Agreement.
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Software Module
1.
INTRODUCTION
1.1.
This Module for Broadcom Software (“
Software Module
”) between the applicable Regional
Broadcom Entity set forth in the referencing Transaction Document, a Broadcom Inc. company,
(“
Broadcom
”), and Customer, (“
Customer
”), is effective on the date set forth in the referencing
Transaction Document, and specifies the terms and conditions which apply to Broadcom Software
that Broadcom will license to Customer and the Support that applies.
1.2.
This Software Module incorporates by reference the terms of the Foundation Agreement effective
on the date set forth in the referencing Transaction Document between Broadcom and Customer
(or Broadcom Partner). Any capitalized terms used in this Software Module shall have the
meanings given in the Foundation Agreement unless otherwise provided herein.
2.
DEFINITIONS
2.1.
“
Authorized End Users
” means Customer, Customer Affiliate(s) and their employees and
independent contractors (but excluding any outsourcer, facilities management provider, managed
service provider, or application service provider unless Customer explicitly takes full responsibility
and liability for such party’s act and omissions) that are bound by terms and conditions no less
restrictive than those contained herein and are acting on behalf of Customer and not a third party.
2.2.
“
Authorized Use Limitation
” or “
Meter
” means the quantity of the Broadcom Software licensed
in accordance with the License Metric specified in the Transaction Document.
2.3.
“
Broadcom Maintenance Policy Handbook”
means the maintenance policy handbook available at
https://docs.broadcom.com/docs/broadcom-maintenance-policy-handbook
(or successor URL).
2.4
“
Distributed Software
” means the Broadcom Software that is generally used for independent
usage across individual systems or hardware based on the License Metric in a decentralized form
of computing.
2.5.
“
Hardware
” means the Broadcom provided physical hardware device or server.
2.6.
“
License Metric
” means the specific criteria for measuring the usage of the Broadcom Software
(such as MIPS, CPUs, Cores, tiers, servers, or users).
2.7.
“
Mainframe Hardware Refresh”
consists of the deployment and installation testing of new
physical mainframe machine(s) to replace existing physical mainframe machine(s). Dual
processing limited to hardware refresh testing is permitted for up to sixty (60) consecutive days.
Customer will notify Broadcom in advance of the refresh start and end dates and machine(s)
involved, including the old and new serial numbers via upload of the Broadcom Notification
Template to
https://scrt.broadcom.com
(or successor URL). During the testing period, Broadcom
will exclude the new serial number from capacity calculations. Customer will provide the IBM
SCRT product report for ISV programs for both the new and old serial numbers throughout the
refresh period in accordance with the Mainframe Reporting section herein. For purposes of
clarity, these hours cover the actual mainframe machine refresh to the new model, not to the
refresh of any peripheral devices
2.8.
“
Mainframe Software
” means Broadcom Software that is generally used for a large capacity
processor that provides links to users through less powerful devices such as workstations or
terminals based on the License Metric in a centralized form of computing.
2.9.
“
Perpetual License
” means a license to use Broadcom Software for an indefinite period subject to
compliance with the Agreement.
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2.10. “
Specific Program Documentation
” or “
SPD
” means the product specific terms/documentation
available at
https://legaldocs.broadcom.com
(or successor URL).
2.11. “
Subscription
” or “
UMF
” (Usage and Maintenance Fee) license means a license to use Broadcom
Software for a specific period of time which shall include Support unless otherwise stated in a
Transaction Document.
2.12. “
Support
” or “
Maintenance
”) means technical support for the Broadcom Software. Support may
also contain “
Content Updates
” provided by Broadcom for use with the Software intended to be
updated, including, but not limited to, data, signatures, definitions, rules, policies, and URLs used
by the Broadcom Software, and may include content produced as a result of Customer’s use of the
Broadcom Software.
2.13. “
Territory
” means the geographic region of United States, North America (i.e., Canada, and
Central America), Brazil, South America (excluding Brazil), EMEA—EEA, EMEA-Non-EEA, and APAC
where Customer is authorized to install the Broadcom Software as indicated by the “Ship To”
location in the Transaction Document, unless more broadly or narrowly granted in the Transaction
Document. EMEA—EEA is defined as those countries in the
European Economic Area
(“
EEA
”) and
EMEA-Non-EEA countries is defined as the countries not in the EEA but on the continents of
Europe (including the surrounding islands such as the UK) and Africa, and the Middle Eastern
countries in the continent of Asia, south of, and including Turkey and west of Iran. APAC is
defined as all countries not in Americas or EMEA geographic regions.
2.14.
“
Third Party Terms
” means any additional terms, notices and/or information applicable to third-
party software components contained in Broadcom Software in the Documentation accompanying
the Broadcom Software (e.g., a user manual, user guide, or readme.txt or notice.txt file), and/or
available at
https://legaldocs.broadcom.com
(or successor URL).
3.
SOFTWARE OFFERING & OBLIGATIONS
3.1.
Subject to the Customer’s compliance with the Agreement, Broadcom grants the Customer a
limited, nonexclusive, non-transferable license in object code form, for the Term to:
3.1.1.
Install and deploy the Broadcom Software in the Territory up to the Authorized Use
Limitation.
3.1.2.
Permit Authorized End Users to remotely use the Broadcom Software for Customer’s and
Customer Affiliates’ internal business wherever located. Customer hereby expressly
agrees that a breach by an Authorized End User of the Agreement shall be considered to
be a breach by and the responsibility of the Customer.
3.1.3.
Excluding Software in the VMware product family, make a reasonable number of copies of
the Broadcom Distributed Software for disaster recovery “cold standby”, backup and
archival purposes. Use of such copies is limited to testing Customer’s disaster recovery
procedures and effectiveness and as is necessary during any reasonable period
subsequent to the occurrence of an actual disaster during which Customer cannot operate
the Broadcom Software.
3.1.4.
Make a reasonably necessary number of copies of the Broadcom Mainframe Software for
disaster recovery purposes and use of such copies at another machine(s), provided the use
of such copies shall be limited to:
(a)
Conducting limited testing of the DR Plan’s procedures and effectiveness so long as
z/OS is not actively running except during such testing and such testing shall not exceed
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ten consecutive days in duration and shall not occur more than three times per annum;
and
(b)
The period subsequent to the occurrence of an actual disaster during which Customer
cannot operate the Broadcom Mainframe Software in normal operations at a Customer
Site and must invoke its DR Plan (as defined below).
Customer represents it has a disaster recovery plan with respect to its sites and the
Broadcom Mainframe Software (“
DR Plan
”). The rights provided in subsection (a) above
are conditioned upon Customer providing, in writing, the machine-type, model and serial
number, for each machine used for disaster recovery purposes. Customer agrees to
inform Broadcom of all disaster recovery tests seven (7) days prior to the test occurrence.
After a disaster recovery test period, Customer shall run the IBM SCRT for ISV Programs to
report the usage of Broadcom Mainframe Software during the test and shall submit to
Broadcom at
https://scrt.broadcom.com
(or successor URL) no later than ten (10) days
after the end of the calendar month in which the test occurred.
Customer agrees to keep Broadcom informed, at Broadcom’s request, of the identity and
address of any third party providing services in the testing or execution of Customer’s DR
Plan and Customer shall require any such third party to agree, in writing, to the
confidentiality and restricted usage provisions contained in this Agreement and to furnish
such further factual confirmations with respect to its disaster recovery procedures as
Broadcom may reasonably request from time to time. In no event may any disaster
recovery facility under the ownership, operation or control of any third party be deemed
to be a Customer site hereunder nor shall any such third party be considered a third party
beneficiary for the purposes of this Agreement.
3.1.5.
Relocate Broadcom Software to a new Customer location within the Territory upon prior
written notice.
3.2.
The Broadcom Software may be provided under terms and conditions, use Meter(s) and model(s)
set forth within SPD identified in applicable Transaction Document(s). The Broadcom Software's
specifications, product use rights and specified operating environment information may be found
in the Documentation accompanying the Broadcom Software, if available (e.g., a user manual,
user guide, or readme.txt or notice.txt file). The SPD and/or Product Use Rights form an integral
part of the Agreement and are incorporated by reference. If the applicable version of the Software
is not specifically listed within the applicable Transaction Document, the SPD and/or Product Use
Rights for the most recent prior version shall apply.
3.3.
The grant of license is contingent upon Customer’s compliance with the following obligations set
out under this provision and Customer agrees that, except as expressly set forth in the Agreement
or to the extent permitted by applicable law, it shall not: (i) make available or provide the
Broadcom Software or its results/outputs in any form other than to Authorized End Users, (ii)
make any use of the Broadcom Software for which it has not paid, (iii) cause or permit de-
compilation, reverse engineering, or otherwise translate or derive source code from all or any
portion of the Broadcom Software; (iv) modify, unbundle, enhance or create derivative works of
the Broadcom Software and/or Documentation; (v) sublicense, rent, sell, lease, assign, or transfer
the Broadcom Software or use the Broadcom Software to provide hosting, service bureau, on
demand or outsourcing services for the benefit of a third party; (vi) remove any proprietary
notices, labels, or marks on or in any copy or version of the Broadcom Software or
Documentation; (vii) claim any rights in the Broadcom Software other than its right to use, (viii)
export or use the Broadcom Software in violation of US or other applicable laws and regulations,
or (ix) use the Broadcom Offerings for any prohibited end use, such as for nuclear technology
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applications, missile, or other military guidance systems and biological weaponry, or major
radiation exposure field applications. Any right that is not granted to Customer under this
Software Module, the Foundation Agreement or a Transaction Document is reserved to
Broadcom. Customer may not use the Software in an electronic communications network that is
used wholly or mainly for the provision of publicly available electronic communications services
(“
Public Network
”) in a manner that violates the rights to privacy or freedom of expression as
outlined in the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights (collectively, “
International Human Rights Standards
”), of any individual user who
directly accesses the Internet or otherwise transmits data through a Public Network, provided the
foregoing shall not limit use of the Software in a Public Network to restrict, monitor, collect or
process data accessed or transmitted by individual users based upon exceptions to the rights of
privacy or freedom of expression that are recognized by International Human Rights Standards. In
order to better understand and meet its customers’ needs, Broadcom may collect, use, analyze
and retain Customer’s metadata, system topography information, and/or operations data and, in
a confidential and anonymous manner, aggregate such data with similar usage data of other
Broadcom customers.
3.4.
Reporting and Audit.
3.4.1.
Customer agrees to provide verified reports and records reasonably requested by
Broadcom to verify Customer’s compliance with the Authorized Use Limitation and
License Metric defined in the Transaction Document. These reporting and verification
obligations remain in effect during the Term of the Broadcom Offering and for twelve (12)
months thereafter.
3.4.2.
For all Broadcom Mainframe Software, Customer shall additionally provide to Broadcom
via upload to
https://scrt.broadcom.com
(or successor URL) within ten (10) days after the
end of each month the IBM SCRT product report for ISV programs for Customer’s z/OS
mainframe machines, wherever located and whether owned or leased by Customer and
any Affiliate or any outsourcing partner, including all disaster recovery machines. For
Customers running Broadcom mainframe VSE products, Customer shall provide the ISV
SCRT for z/VSE report monthly within ten (10) days after the end of each month via upload
to
https://scrt.broadcom.com
(or successor URL). For Customers running Broadcom
Mainframe VM or non z/OS mainframe products, Customer shall provide reporting via the
Broadcom Notification Template uploaded quarterly to
https://scrt.broadcom.com
(or
successor URL). Customer shall retain all SMF type 70 and 89 records for twelve (12)
months. These reporting and verification obligations remain in effect during the Term and
three months thereafter, and upon request up to twelve (12) months thereafter.
3.4.3.
Except as may be prohibited by law, for Software: (i)
from the VMware Cloud
Foundation business unit which is version 9 or higher; and (ii) from the Application
Networking and Security business unit which is VMware vDefend version 9 or higher, and
VMware Avi Load Balancer version 32 or higher (collectively, “
VCF and ANS Software
”),
Customer is required, when explicitly noted in the applicable SPD
,
to provide Broadcom
with a regularly-scheduled verified report detailing Customer’s installed base and license
compliance for such VCF and ANS Software using the format and process specified by
Broadcom from time to time (“
Compliance Report
”). In order to fulfill such reporting
requirements, Customer must ensure that the Compliance Report files generated by the
applicable VCF and ANS Software are either transmitted by the VCF and ANS Software or
uploaded by Customer on the schedule required in the SPD and in accordance with the
product Documentation. The VCF and ANS Software Documentation and SPDs set forth
any impacts to the product functionality or other consequences of Customer’s failure to
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transmit or upload a timely, unaltered Compliance Report. Customer assumes any and all
risks associated with the loss of any and all functionality and access to updates, upgrades
and patches when caused by Customer’s failure to provide timely, unaltered Compliance
Reports.
3.4.4.
Customer agrees that, upon thirty (30) days’ prior written notice, Broadcom or an
independent third party may audit Customer’s compliance with the Foundation
Agreement, Software Module and the Transaction Document, remotely or at Customer’s
facilities. Customer shall cooperate in good faith with such audit, which Broadcom agrees
will be confidential, and commercially reasonable in nature and time. If Customer’s self-
verification or Broadcom’s audit reveals any unpaid or unlicensed use, Broadcom shall
provide written notification to Customer and within thirty (30) days of such written
notification, Customer shall order at Broadcom’s then-current list price, a sufficient
number of such Broadcom Offering(s) and any applicable Support to cover its past or
current use in excess of the Authorized Use Limitation and License Metric. If an audit
reveals an underpayment of ten percent (10%) or more of total fees owed for the review
period, Customer will also reimburse Broadcom for its reasonable audit expenses.
3.5.
Customer may request licenses for the use of Software in the VMware product family solely to
upgrade or replace hardware, change data centers, or upgrade to a newer version of the VMware
Software (“
VMware
Migration Licenses
”). Customer may only use VMware Migration Licenses for
the period granted by Broadcom and such licenses are provided “AS IS” without indemnification,
support, or warranty of any kind, express or implied. Broadcom’s aggregate liability (excluding
indirect damages, for which Broadcom expressly disclaims all liability) for any claim arising from
Customer’s use of the VMware Migration Licenses will not exceed $5,000 USD.
3.6.
If the Broadcom Software is provided to Customer for evaluation purposes Section 3.1 (License
Grant) is replaced with the following:
3.6.1.
Broadcom grants to Customer a non-exclusive, temporary, royalty-free, non-assignable
license to use the Broadcom Software solely for internal non-production evaluation
subject to the applicable SPD and/or Product Use Rights supplement. Such evaluation
license shall terminate (i) on the end date of the pre-determined evaluation period or (ii)
sixty (60) days from the date of initial installation of the Broadcom Software, if no such
evaluation period is pre-determined (“
Evaluation Term
”). Customer is solely responsible
to take appropriate measures to back up its system and take other measures to prevent
any loss of files or data. The Software may contain an automatic disabling mechanism that
prevents its use after a certain period of time. Upon expiration of the Evaluation Term,
Customer must cease use of the Broadcom Software and uninstall or destroy all copies of
the software. Broadcom shall accept no liability for Customer’s use of the Broadcom
Software for evaluation purposes. All other terms and conditions of this Agreement shall
otherwise apply to Customer’s evaluation of the software.
3.6.2.
THE SOFTWARE PROVIDED FOR EVALUATION MAY NOT BE TRANSFERRED AND IS
PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ACCOMPANYING SOFTWARE
DOCUMENTATION IS PROVIDED FOR THE PURPOSE OF DESCRIBING THE SOFTWARE;
BROADCOM DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR OTHER BROADCOM
COMMITMENTS, OBLIGATIONS, OR LIABILITIES, IN SUCH SOFTWARE.
4.
SUPPORT OFFERING
4.1.
If Support is purchased as set forth within a Transaction Document, Broadcom will provide
Customer with purchased Support in accordance with the Broadcom Maintenance Policy
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Handbook. If a renewal fee for Maintenance is identified on a Transaction Document, then
Broadcom may automatically invoice Customer for such renewal unless Broadcom receives not
less than thirty (30) days written notice from Customer prior to the anniversary of the applicable
Term that such Maintenance is not desired.
4.2.
If Content Updates are included as part of Maintenance, Customer is granted the right to receive
and use Content Updates as and when they are made generally available, for the Maintenance
term, and only for the quantity, indicated on the applicable Transaction Document(s). This
Agreement does not otherwise give Customer the right to obtain or use Content Updates, and any
unauthorized access to or use of Content Updates is deemed a breach of this Agreement. Upon
expiration or termination of the Maintenance Term, Customer must uninstall any Software
component that facilitates the receipt of Content Updates and use of Content Updates after
expiration or termination of the Maintenance term is a material breach of this License Agreement.
4.3.
Software Updates/Upgrades
, as provided pursuant to guidelines, may only be obtained for the
Authorized Use Limitation or quantity indicated in the applicable Transaction Document. Any
Software Updates/Upgrades to an existing license do not modify or alter Customer’s Authorized
Use Limitation or quantity. If Customer is permitted to transfer its licenses to a different Broadcom
Software title, then Customer may receive a new Transaction Document on the condition that
Customer cease using the replaced Broadcom Software prior to use of such replacement
Broadcom Software. Software Updates/Upgrades are subject to the then-current version of this
agreement.
5.
THIRD PARTY TERMS
5.1.
In the event that the Broadcom Software contains third-party software components, Third Party
Terms may be applicable to such third-party software components
.
6.
SOFTWARE PERFORMANCE WARRANTY
6.1.
Broadcom warrants that the Broadcom Software as defined in the Transaction Document will
operate materially in accordance with the applicable specifications set forth within the
Documentation for a period of ninety (90) days after delivery of the Broadcom Software subject to
Customer’s compliance with the Agreement.
7.
SOFTWARE PERFORMANCE WARRANTY REMEDY
7.1.
If Broadcom has breached either warranty set forth in the section entitled: Performance
Warranty, Customer’s remedy is for Broadcom to, in consultation with Customer, to either (i) use
reasonable efforts consistent with industry standards to cure the defect, or (ii) replace the
Broadcom Software(s) with one that materially complies with the Documentation, or (iii)
terminate the license and provide a prorata refund of the license fees paid and or Support fees. To
Customer or Broadcom Partner (wherefrom the non-compliant Broadcom Offering was procured).
If option (iii) applies, the pro-rata refund shall be calculated on the number of months left
remaining on the Term of the applicable Transaction Document or if the Broadcom Software is
licensed under Perpetual License, using (only for purposes of a refund calculation) an amortization
schedule of three (3) years. The above warranty remedies are Broadcom’s sole obligation and
Customer’s sole and exclusive remedy for the breach of the above warranty.
7.2.
Warranty remedies are conditioned upon (i) any error or defect reported is reasonably
reproducible by Broadcom, (ii) the Broadcom Software is not modified and is being used in
accordance with Broadcom Documentation, and (iii) the breach is not attributable in whole or in
part to any non-Broadcom product(s) or service(s).
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8.
HARDWARE OFFERING AND OBLIGATIONS
8.1.
The Hardware provided to Customer pursuant to a Transaction Document is to be used only with
the Broadcom Software that is pre-installed or delivered for installation. Subject to Customer’s
compliance with this Agreement, Broadcom permits Customer to use the Hardware solely with the
Broadcom Software preinstalled or delivered for installation in support of Customer’s internal
business operations.
8.2.
Certain Hardware requires Customer to register a service tag prior to use in the location Customer
intends to use the Hardware (“
Geographic Use Location
”). In the event Customer wishes to
change Customer’s Geographic Use Location, Customer may do so at no additional cost but must
contact Broadcom support to re-register the Hardware tag. Any change to the Geographic Use
Location and/or any service request that requires Broadcom to obtain additional information
and/or validate information to acknowledge and approve warranty service entitlements may
result in a delay in providing warranty service entitlements.
8.3.
Broadcom will provide a replacement unit for any Hardware that fails to operate in accordance to
published configuration and technical specifications within the first three (3) business days after
installation, provided that such installation must be completed within thirty (30) days from the
date of shipment. Failure to operate does not include cosmetic or other defects that do not
directly affect the Hardware’s performance. Units which fail to operate must be identified as such
by either a Broadcom technical support engineer or an authorized Broadcom representative. A
new, like-model replacement unit will be shipped using commercially reasonable means to ship
the replacement Hardware. Broadcom will aim to ship within five (5) business days from receipt of
notification of product failure, subject to product availability. Delivery is dependent on destination
and may be impacted by delays in customs that are beyond the control of Broadcom or its carriers.
Customer is responsible for reading and complying with the return instructions included with the
replacement Hardware. Broadcom shall not be responsible for any software, firmware,
information or data provided by Customer or a third party that is contained in, stored on, or
integrated with, any hardware component returned to Broadcom for repair or replacement,
whether or not under warranty.
8.4.
If Hardware is provided to Customer for evaluation, Customer will: (i) safeguard and protect the
Hardware, (ii) not loan the Hardware to a third-party, (iii) not allow any lien to be imposed upon
the Hardware, and (iv) be responsible for any damage to the Hardware beyond normal wear,
including replacement cost if the Hardware is stolen or lost.
9.
HARDWARE PERFORMANCE WARRANTY
9.1.
Broadcom warrants that the Hardware shall be substantially free from material defects in material
and workmanship under normal authorized use and service and will substantially conform to the
written documentation accompanying the Hardware for twelve (12) months from date of
shipment (the “
Hardware Warranty Period
”). Any third party hardware that is (a) not
manufactured by Broadcom; (b) not embedded within the Broadcom Offerings manufactured by
Broadcom; or (c) identified as separate items on Broadcom’s price list or quotes shall be subject
exclusively to the manufacturer’s warranty for such third party hardware.
10.
HARDWARE PERFORMANCE WARRANTY REMEDY
10.1.
Upon confirmation of a defect or failure of a Hardware, or component and depending on the
then-current Geographic Use Location of the Hardware, Customer’s sole and exclusive remedy for
defective Hardware, or component thereof, if notified within the Hardware Warranty Period, shall
be for Broadcom to arrange for, at its sole option and discretion, to: (i) repair or replace the
defective Hardware, or component thereof, with either a new or refurbished replacement
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Hardware, or component, as applicable; (ii) provide onsite repair services for any defective
Hardware, or component; or (iii) repair or replace any defective Hardware returned to Broadcom
through Broadcom’s Returned Merchandise Authorization Services process for Hardware. The
instructions on how to submit a request are detailed in the Broadcom Maintenance Policy
Handbook. Any repaired parts or components or replacement parts or components provided by
Broadcom pursuant to any Hardware warranty service shall be warranted only for ninety (90)
days, provided, however, that Customer’s warranty for such part or component may become void
due to improper installation or other damage to such parts or components. Customer must
remove all data from Hardware before returning it to Broadcom. All defective Hardware, or any
component thereof, which has been replaced, shall become the property of Broadcom. All
defective Hardware, or any component thereof, which has been repaired, shall remain Customer’s
property. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND BROADCOM’S
SOLE AND EXCLUSIVE LIABILITY FOR BROADCOM’S BREACH OF THIS LIMITED WARRANTY.
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SaaS Module
1.
INTRODUCTION
1.1.
This Module for Software as a Service (“
SaaS Module
”) between the applicable Regional
Broadcom Entity set forth in the referencing Transaction Document, a Broadcom Inc. company,
(“
Broadcom
”), and Customer, (“
Customer
”), is effective on the date set forth in the referencing
Transaction Document, and specifies the terms and conditions which apply to SaaS that Broadcom
will provide to Customer.
1.2.
This SaaS Module incorporates by reference the terms of the Foundation Agreement effective on
the date set forth in the referencing Transaction Document between Broadcom and Customer (or
Broadcom Partner). Any capitalized terms used in this SaaS Module shall have the meanings given
in the Foundation Agreement unless otherwise provided herein.
2.
DEFINITIONS
2.1.
“
Authorized Use Limitation
” or “
Meter
” means the limitation on usage of SaaS as measured by
the Billing Metric specified in the Transaction Document.
2.2.
“
Authorized Users
” means Customer, its employees and independent contractors and/or
Customer Affiliates or as otherwise defined in the SaaS Listing, that access and use SaaS provided
that they are bound by terms and conditions no less restrictive than those contained in the
Agreement and solely to the extent that they are acting on behalf of Customer or Customer
Affiliates.
2.3.
“
Billing Metric
” means the metric for billing SaaS to Customer as defined in the SaaS Listing (e.g.,
users, transactions, etc.).
2.4.
“
Customer Data
” means any information uploaded by Authorized Users or Customer authorizes
access for processing by Broadcom on behalf of Customer in the course of accessing and using
SaaS.
2.5.
“
Data Center Region
” means a geographic region that is served by one or more hosting facilities
for Broadcom SaaS. Broadcom Data Center Regions are set out in the SaaS Listing.
2.6.
“
EU Data Act Addendum
” means the terms pertaining to Regulation (EU) 2023/2854 of the
European Parliament and of the Council of 13 December 2023, known as the EU Data Act,
available at
https://docs.broadcom.com/docs/eu-data-act-addendum
(or successor URL).
Broadcom may make updates to the EU Data Act Addendum from time to time as required by
posting such update to the applicable URL.
2.7.
“
Force Majeure Event
” means an event that arises out of causes beyond a Party’s reasonable
control, including, without limitation, war, civil commotion, act of God, strike or other stoppage
(whether partial or total) of labor, any law, decree, regulation or order of any government or
governmental body (including any court or tribunal) and/or delays or outages caused by an
internet service provider or independent (not a Party’s subcontractor) hosting facility.
2.8.
“
Non-Production
” means any Customer deployed environment that is not Production such as
development, test, staging, demonstration, or training environments.
2.9.
“
Production
” means the “live” environment of SaaS that Customer uses as their primary business
environment.
2.10.
“
SaaS
”, “
SaaS Offering
”, “
Online Service
”, or “
Cloud Service
” means the version of the Broadcom
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software and/or type of service defined in the Transaction Document and made available to
Authorized Users via the Internet.
2.11.
“
SaaS Listing
” means the operating parameters, data and data center location(s), applicable audit
standards, availability standards, terms and conditions, use Meter(s) and model(s) and any other
details for the specific SaaS Offering available at
https://legaldocs.broadcom.com
(or successor
URL). SaaS Listings may define provisioning and management processes applicable to the SaaS
Offering, types and quantities of system resources (such as storage allotments), functional and
technical aspects of the SaaS, as well as a catalogue of available service requests.
2.12.
“
SaaS Support
” means support of the SaaS Offering so it operates materially in accordance with
the Documentation.
2.13.
“
Scheduled Downtime
” means planned downtime of SaaS availability for periodic and required
maintenance events, including but not limited to, upgrades and updates to the SaaS and data
center infrastructure where Broadcom provides notice to Customer at least 72 hours in advance.
2.14.
“
Service Level Availability
” or “
SLA
” means the targeted availability levels measured in the
Production environment, as specified in the SaaS Listing which may vary according to each SaaS
Offering and its component capabilities.
2.15.
“
Security Breach
” means access to Customer Data by an unauthorized person or entity.
2.16.
“
Subscription Term
” means the initial or renewal period of the subscription to a SaaS Offering as
set out in the Transaction Document.
2.17.
“
Trial Period
” means the period of time that Customer accesses and uses SaaS for evaluation,
proof of concept, or trial set out in the Transaction Document. If no time is indicated, then the
period shall be set for thirty (30) days from the effective date of the Transaction Document. For
avoidance of doubt, only a Transaction Document which explicitly states that it is for trial or
evaluation by the Customer shall be considered a trial use.
3.
SAAS OFFERING
3.1.
Subject to the Customer’s compliance with the Agreement, Broadcom provides Customer a
nontransferable and non-exclusive right for Customer and its Authorized Users to access and use
SaaS for the Customer’s internal business use during the Subscription Term in accordance with the
Agreement.
3.2.
If SaaS is provided on a trial basis, Customer agrees to access and use SaaS solely for trial and
evaluation purposes during the Trial Period, in accordance with the usage restrictions set forth in
the Transaction Document. At the end of the Trial Period, Customer’s right to access and use SaaS
automatically expires and Customer agrees to cease accessing and using SaaS and to de-install any
agents or copies of software provided as part of the SaaS and certify to Broadcom in writing that
all copies or partial copies of any such software have been deleted from Customer’s computer
libraries and/or storage devices and destroyed. If Customer desires to continue his use of SaaS
beyond the Trial Period, Customer may enter into a Transaction Document and pay the applicable
fees. DURING TRIAL PERIODS, CUSTOMER AGREES TO ACCESS AND USE SUCH SAAS ON AN AS IS
BASIS AND AGREES THAT Broadcom PROVIDES NO WARRANTIES, SLAS OR INDEMNITIES ARISING
OUT OF SUCH ACCESS AND USE. ANY DATA ENTERED OR CONFIGURATION OF THE SAAS DURING
THE TRIAL PERIOD WILL NOT BE STORED OR AVAILABLE AFTER THE TRIAL PERIOD.
4.
FEES
4.1.
The Authorized Use Limitation and associated fees shall be as set out on the Transaction
Document. Customer agrees that the purchase of any SaaS is not contingent on Broadcom
providing any future features or functionalities.
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4.2.
For Subscription Terms that are invoiced in advance, Customer may increase the Authorized Use
Limitation or Meter amount at any time, by executing a Transaction Document for additional SaaS.
If Customer’s current use of a SaaS offering exceeds the Authorized User Limitation or Meter
amount shown on Customer’s applicable Transaction Document, then Customer, or its delegated
Broadcom Partner, must promptly submit a new order for the additional use, which will be
invoiced at the then-current rates, or as mutually agreed upon by the Parties, through the current
Subscription Term, and the aggregate Authorized Use Limitation or Meter amount will be the basis
for any renewal of the Subscription. Broadcom reserves the right to invoice Customer for any
additional use, at the then-current rates, if a corresponding order is not promptly received.
5.
CUSTOMER DATA
5.1.
Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data
will be stored and processed in the applicable Data Center Region. Broadcom shall not access
Customer’s user accounts, or Customer Data, except in response to SaaS or technical issues where
Customer requests or consents to such access in consultation with Broadcom. Customer
acknowledges and agrees that Broadcom may use Customer Data to the extent necessary for the
purposes of detecting, blocking, analyzing and reporting cyber-threats in the delivery of any
Symantec product family offerings, including, but not limited to, the following purposes: (i) the
development of threat intelligence resources aiming at improving the ability of networks and
systems to resist unlawful or malicious actions compromising the security of information and
services accessible via such networks and systems; and (ii) the development and enhancement of
any Broadcom Offerings.
5.2.
Broadcom will collect, modify and analyze metadata and/or operations data which does not
contain any Customer Data, such as system log files, configuration, performance, usage data and
transaction counts which relate to system utilization and performance statistics, all as deemed
necessary by Broadcom.
5.3.
Customer may access Customer Data, reports and/or information through SaaS until the end of
the Subscription Term. Deletion of Customer Data will occur either (a) after the end of the
Subscription Term or (b) as specified in the SaaS Listing. Customer is responsible for ensuring that
it has necessary copies of Customer Data prior to expiration or termination.
5.4.
Customer is responsible for obtaining all approvals and consents required by any third parties to
use the SaaS. Broadcom is not in default of its obligations if it cannot provide the SaaS when
approvals or consents have not been obtained or any third party otherwise validly prevents
Broadcom from providing the SaaS. Customer is responsible for its account information,
passwords and other login credentials and must notify Broadcom immediately of any known
unauthorized possession or use of your credentials.
5.5.
In case of a Force Majeure Event, Customer acknowledges and agrees that Customer Data may not
be fully recoverable beyond the last restoration archive point, the frequency of which is described
in the SaaS Listing.
5.6.
Customer agrees not to provide any health, payment card, biometric, or similarly sensitive
personal information that imposes specific data security obligations for the processing of such
data unless it is a supported feature in the Documentation of the applicable SaaS Offering and
Customer completes the appropriate agreements with Broadcom, if applicable.
6.
SECURITY
6.1.
Broadcom will maintain and administer a security policy with physical and technical safeguards
designed to protect the security, integrity and confidentiality of the Customer Data. Broadcom
runs security background checks on all operations staff. Broadcom shall adhere to and subject
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such policies and practices to an audit under the compliance criteria defined in the applicable SaaS
Listing. A copy of Broadcom’s audit reports and certifications can be found at in Broadcom’s
Trust Center available at
https://www.broadcom.com/support/trust-center
(or successor URL)
.
6.2.
Broadcom is not responsible for unauthorized access, alteration, theft or destruction of Customer
Data arising from Customer’s own or its Authorized Users’ actions or omissions in contravention of
the Documentation. Customer’s ability to recover any lost data resulting from Broadcom’s
misconduct is limited to restoration by Broadcom from the most recent back-up.
6.3.
In the event that Broadcom has determined that a Security Breach will or is likely to cause harm to
the Customer or an Authorized User, Broadcom will, as promptly as practicable but in no event
later than as required by law, provide Customer with notice of the Security Breach. After initial
notification, Broadcom will keep Customer updated at periodic intervals on the steps taken by
Broadcom to investigate the Security Breach including providing a reasonably detailed incident
report, including measures to be taken by the Customer to minimize potential damages. Such
report will be provided promptly following completion of the report. The Parties understand and
agree that if Broadcom is prevented by law or regulation from providing such notice(s) and/or
reports within the time frames, such delay shall be excused. In the event of a security risk to a
SaaS Offering or its users, Broadcom may suspend Customer’s use of that SaaS Offering.
7.
SAAS SUPPORT
7.1.
Customer shall be provided with SaaS Support during the Subscription Term in accordance with
the applicable Broadcom Maintenance Policy Handbook or as specified in the applicable SaaS
Listing. To access SaaS Support, Customer may utilize the Broadcom support website, or other site
or notification mechanism as Broadcom may designate from time to time.
7.2.
Broadcom, in its sole discretion, will provide Customer as much notification as reasonably possible
and will generally aim to provide twelve (12) months’ notice of the last date of an Online Service’s
availability. Broadcom will provide such notification to Customer’s then-current business or
technical contact, and/or by publication on the applicable administrator portal for the Online
Service(s). Once an Online Service is no longer available, Customer will no longer have access to or
use of the Online Service.
8.
MAINTENANCE AND UPGRADES
8.1.
Broadcom may make changes or updates to the SaaS, SaaS infrastructure (such as compute
infrastructure, storage technology, security, technical configurations, hosting facilities within Data
Center Region, etc.), or SLA that do not materially degrade the deployment and consumption of
the SaaS Offering during the Subscription Term including to reflect changes in technology, industry
practices, and/or patterns of system use.
9.
CUSTOMER RESPONSIBILITIES
9.1.
Customer is responsible for all activities that occur in, or are related to, user accounts including
the data, information stored or transmitted when accessing SaaS. All applications residing within
Customer’s environment or installed on third party service provider’s environments on behalf of
Customer that integrate to SaaS shall be managed and supported by Customer. Customer is also
responsible for managing components that are downloaded onto their environment such as web
browser based software plug-ins that extend SaaS.
9.2.
The SaaS Offerings do not include Customer configurations, nor policies and procedures
implemented and set by Customer that are available through the SaaS Offering. Customer
acknowledges and agree that it is solely responsible for selecting its configurations and assuring
that the selection conforms to its policies and procedures and complies with all applicable laws
and regulations in jurisdictions in which Customer is accessing the SaaS Offering(s).
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9.3.
As Customer may integrate or utilize third party links to other software, hardware or other
services which are associated with, or otherwise available through the SaaS, Customer agrees that
it and/or Customer Affiliates, its Authorized Users and anyone acting on their behalf shall use such
third party links at their sole discretion. Broadcom shall have no responsibility or liability with
respect to such third party links used by Customer and/or Customer Affiliates, its Authorized Users
or for any act or omission of any such third party provider. Customer must: (a) take appropriate
steps to protect Customer Data; (b) notify Broadcom as soon as possible if Customer believes its
account has been compromised; and (c) reasonably cooperate with Broadcom to resolve issues
related to Customer’s use of the Cloud Service.
9.4.
Customer shall not: (i) make SaaS available to any third party not authorized or as otherwise
contemplated by the Agreement; (ii) send or store code that can harm or result in damage to SaaS
(including but not limited to malicious code and malware); (iii) willfully interfere with or disrupt
the integrity of SaaS or the data contained therein; (iv) attempt to gain unauthorized access to the
SaaS or its related system or networks; (v) use SaaS to provide services to third parties except as
expressly permitted by the Agreement; (vi) use SaaS in order to cause harm such as overload or
create multiple agents for the purpose of disrupting operations of a third party; (vii) remove or
modify any program markings or any notice of Broadcom’s or its licensors’ proprietary rights; (viii)
perform or disclose any benchmark or performance tests on the SaaS; or (ix) perform or disclose
any of the following security testing of the SaaS environments or associated infrastructure:
network discovery, port and service identification, vulnerability scanning, password cracking,
remote access testing, penetration testing or any other test or procedure not authorized in the
Documentation. A breach by the Customer of its obligations under this section shall be considered
a material breach of the Agreement.
10.
WARRANTY
10.1.
Broadcom warrants that during the Subscription Term, the SaaS shall perform materially in
accordance with the applicable Documentation subject to Customer’s compliance with the
Agreement. During any Trial Period, this warranty shall not apply.
10.2.
Customer warrants that (i) it has the right to transmit Customer Data and any data or information
as may be required for the purposes of accessing SaaS, (ii) it is responsible for all activities that
occur in user accounts, and (iii) it shall not misuse SaaS by sending spam or otherwise duplicative
or unsolicited messages or store infringing, obscene, threatening, or otherwise unlawful material
or material that is harmful to children or violates third party privacy rights.
11.
WARRANTY REMEDY
11.1.
If it is established that Broadcom has breached the above warranty, Broadcom may, at its option,
(i) use reasonable efforts to cure the defect in the SaaS; (ii) replace the SaaS with SaaS that
materially conforms to the specifications in the Documentation; (iii) in the event Broadcom
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cannot, after commercially practicable attempts to do so, achieve the remedies in (i) or (ii),
Broadcom may terminate the subscription to the SaaS and provide a refund to Customer or
Broadcom Partner of pre-paid, unused fees calculated against the remainder of the Subscription
Term as of the effective date of such termination. Customer must report the alleged breach of
warranty with reasonable specificity in writing within thirty (30) days of its occurrence to benefit
from this warranty and the remedies stated herein. The above warranty remedies are Broadcom’s
sole obligation and Customer’s sole and exclusive remedy for breach of the above warranty.
12.
SERVICE LEVEL COMMITMENT
12.1.
The Service Level Availability is measured against reports that Broadcom runs on a regular basis
based on objective criteria. Reports are available to Customer upon request. If Customer cannot
access SaaS during the Subscription Term, Customer should contact Broadcom to receive SaaS
Support.
12.2.
If it is determined by Customer and confirmed by Broadcom that SaaS is unavailable beyond the
default threshold identified in the applicable SaaS Listing measured on a monthly basis during
three contiguous months, then Customer has the right to elect any of the remedies specified
therein.
12.3.
The following events shall be excluded from the calculation of Service Level Availability: (i) Force
Majeure Event; (ii) outages due to Scheduled Downtime; (iii) outages based on Customer
networks or domain name server issues; (iv) Customer’s configuration, scripting, coding drafted by
Customer without Broadcom’s authorization or knowledge; (v) internet outages; (vi) outages
requested by Customer; (vii) Customer changes to its environment which hinder SaaS production;
(viii) outages to remedy a security vulnerability or as required by law and (ix) inability for
Customer to log in to SaaS service because of dependence on non- Broadcom provided services or
components (e.g., Lightweight Directory Access Protocol (LDAP) in Customer’s environment).
13.
EU DATA ACT ADDENDUM
Where use of SaaS offering by customer is governed by and subject to the EU Data Act, the EU
Data Act Addendum is incorporated by reference into the SaaS Module.
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Services and Education Module
1.
INTRODUCTION
1.1.
This Module for Services and Education (“
Services Module
”) between the applicable Regional
Broadcom Entity set forth in the referencing Transaction Document, a Broadcom Inc. company,
(“
Broadcom
”), and Customer, (“
Customer
”), is effective on the date set forth in the referencing
Transaction Document, and specifies the terms and conditions which apply to Services and
Education that Broadcom will provide to Customer.
1.2.
This Services Module incorporates by reference the terms of the Foundation Agreement between
Broadcom and Customer. Any capitalized terms used in this Services Module shall have the
meaning given in the Foundation Agreement unless otherwise provided herein.
2.
DEFINITIONS
2.1.
“
Broadcom Intellectual Property
” includes Deliverables, business processes, software, tools,
databases, data, materials, information, and any derivatives or modifications thereof, which
includes, without limitation any and all patents, copyrights, trademarks, trade secrets, and other
intellectual property rights therein, that are either (i) owned at any time (ii) developed
independently of the Services (iii) licensed from a third party, or (iv) Modifications.
2.2.
“
Broadcom Personnel
” means employees, sub-contractors or agents on behalf of Broadcom that
have entered into confidentiality provisions no less restrictive than defined in the Agreement.
2.3.
“
Course Materials
” means any Education content provided to Customer in any media pursuant to
a Transaction Document, including without limitation, all publications, courseware, training
manuals and materials, user guides, web portals, or virtual labs provided by Broadcom or a
Broadcom subcontractor.
2.4.
“
Customer Intellectual Property
” means Confidential Information and any business requirements,
materials, information and/or intellectual property owned or licensed that is provided by
Customer, which includes, without limitation all patents, copyrights, trademarks, trade secrets,
and other intellectual property rights that may be accessed or used during the provision of
Services but in all cases excludes any Broadcom Intellectual Property.
2.5.
“
Deliverables
” means Packaged Work Product and/or other items provided to the Customer
pursuant to an SOW.
2.6.
“
Education
” means any standard or customized education offerings, training or instruction, or
related services, provided by Broadcom or a Broadcom subcontractor in any format or location,
including without limitation, (i) instructor led training, including at Broadcom or Customer site(s),
(ii) virtual training, including online classes, courses, or course catalogues and/or (iii) class room
training or testing.
2.7.
“
Packaged Work Product
” means any Broadcom Intellectual Property developed prior to or during
the Services which relates to the functionality of Broadcom Software provided to the Customer as
a Deliverable pursuant to a Statement of Work.
2.8.
“
Project Coordinator
” means the individual appointed by a Party to act as a project coordinator
for each Services engagement to (i) coordinate the performance of its obligations under the
Agreement, (ii) act as its representative regarding the Services, and (iii) maintain primary
responsibility for communication with the other Party in relation to the Services.
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2.9.
“
Services Documentation
” means the documentation provided to the Customer pursuant to a
Services engagement, including without limitation, such documentation describing the project
specifications, design, configuration, architecture and testing procedures, Course Materials or
installation and user guides, as applicable.
2.10.
“
Services
" means the professional services or Education services provided by Broadcom or its
designated subcontractors to the Customer as set out in the relevant SOW.
2.11.
“
SOW
” or “
Statement of Work
” means a description of Services to be provided or as referenced
in the Transaction Document.
3.
SERVICES OFFERING
3.1.
Broadcom will provide the Services as agreed in an SOW or Transaction Document, on the basis of
time and materials, or retainer each of which will be further described in the SOW or Transaction
Document.
3.2.
Broadcom will determine the resources required for the provision of the Services.
3.3.
Customer may request Broadcom to change any particular Broadcom Personnel assigned to the
provision of the Broadcom Services upon prior written notice provided that it can show
reasonable cause for such request. Broadcom will use reasonable efforts to replace such
Broadcom Personnel subject to parties agreeing any impact within a change order.
4.
EDUCATION OFFERING
4.1.
Broadcom will provide Education as agreed in a Transaction Document. The Transaction
Document will indicate the courses or classes ordered, fees, the number of attendees and the
location of the Education services, if applicable. Customer is responsible for any travel costs
and/or expenses incurred to attend Education.
5.
COOPERATION
5.1.
Each Party acknowledges that the success of the Services requires the cooperation of both Parties.
Customer and Broadcom shall each assign, where appropriate, a Project Coordinator that has
requisite authority to decide day-to-day questions that may arise in relation to the Services as
defined in the SOW.
5.2.
Customer acknowledges and agrees that in order for Broadcom to effectively perform the Services
in a timely manner, Customer will cooperate with Broadcom by making available on a timely basis
(i) management decisions, information, approvals and acceptances required by Broadcom for the
completion of the Services; (ii) appropriate access to Customer facilities, personnel, equipment,
resources and systems; and (iii) any relevant information and documentation as necessary to
facilitate performance of the Services. In addition to the above, Customer shall supply Broadcom
Personnel with suitable office and work space, and normal office equipment and support,
adequate computer resources (including necessary rights to third party software), internet,
telephone and facsimile support as necessary to perform the Services.
5.3.
Each Party agrees to assign competent and qualified staff to participate in the performance of the
Services.
5.4.
During the provision of Services and for six (6) months thereafter, Customer shall not actively
solicit for hire, nor knowingly allow its employees to solicit for hire, any employee of Broadcom
associated with the performance of Services without the prior written consent of Broadcom. This
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provision shall not restrict in any way the right of Customer to solicit generally in the media for
required personnel, and shall not restrict employees, contractors, or representatives of Broadcom
from pursuing on their own initiative employment opportunities from or with Customer. The
parties agree that violation of this provision will subject the violating party to liquidated damages
consisting of an amount equal to three (3) months’ salary for each hired employee solicited in
contravention of this section.
6.
FEES AND EXPENSES
6.1.
Customer will pay to Broadcom the fees, expenses and other charges as provided for and
approved pursuant to the Transaction Document and such expenses shall be in accordance with
Broadcom’s expenses policy.
6.2.
The Services are to implement the pre-existing features and functions of Broadcom Software and
do not include any customization or development activity that impacts any of the full features and
benefits and underlying source code of the Broadcom Software. Payment of license fees and/or
Support fees for Broadcom Software is not contingent upon Customer receiving the Services.
6.3.
Partners. If the Broadcom Offering was ordered through a Broadcom Partner or a Broadcom
Partner’s reseller, Section 6.1 shall not apply.
7.
INTELLECTUAL PROPERTY RIGHTS
7.1.
Customer shall retain all rights in and to Customer Intellectual Property, including all Customer
Intellectual Property that may be contained in the Deliverables, and such rights shall remain
vested in Customer.
7.2.
Broadcom shall retain all rights in and to all Broadcom Intellectual Property and such rights shall
remain vested in Broadcom.
7.3.
If information or materials are used by a Party in the performance of its obligations in the
Agreement, such use of information or materials shall not transfer ownership of that information
or materials to the other Party.
7.4.
Customer shall have the right to modify or adapt the Deliverables excluding any Packaged Work
Product as required or deemed appropriate by Customer (“
Modifications
”), however any such
Modification shall render void any warranties or indemnities provided by Broadcom and its
licensors or subcontractors.
7.5.
Broadcom grants to Customer, a non-exclusive, limited, non-transferable license to use the
Deliverables and Modifications for internal business purposes subject to terms of the Agreement.
Where the Deliverables or Modifications are to be used in conjunction with Broadcom Offering
then the license to use the Deliverables or Modifications shall be consistent with the usage
limitations as set out in the license agreement for such Broadcom Offering.
8.
WARRANTY
8.1.
Broadcom warrants that (i) it will perform the Services and Education as detailed in the applicable
SOW; and (ii) any Deliverable provided pursuant to a Transaction Document will conform to the
Services Documentation for thirty (30) days from the day of delivery.
8.2.
Customer shall provide written notice of a warranty claim within thirty (30) days of date of
delivery (“
Notice
”) of the Services or Education claimed defective or in the case of a Deliverable,
the date of delivery, that gave rise to the warranty claim. If Notice is not provided to Broadcom
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then the Deliverable, Services and/or Education will be deemed delivered in accordance with the
warranty obligations.
9.
WARRANTY REMEDY
9.1.
In the event of a breach by Broadcom of the above Warranty section, Customer’s remedy, at
Broadcom’s discretion and in consultation with Customer, shall be to re-perform the Services
and/or Education at no additional charge to Customer or to refund the applicable fees paid to
Customer (or Broadcom Partner), which correspond to the Services, applicable Deliverable or
Education. These remedies are contingent upon the following: (i) that the Deliverable has not
been modified by Customer; and (ii) that the alleged breach did not result from Customer’s failure
to abide by its obligations defined in the applicable Transaction Document or for its failure to
follow the Services Documentation. To the maximum extent permitted by applicable law, the
above warranty remedies are Broadcom’s sole obligation and Customer’s sole and exclusive
remedy for breach of the above warranty.
10.
CHANGE REQUEST, CANCELLING, AND RESCHEDULING
10.1.
Upon request by Customer or Broadcom, the scope of Services may be adjusted through a
mutually agreed change order defining the impact of any changes, including the fees or any other
aspect of the provision of the Services.
10.2.
Customer must provide written notice at least 10 business days prior to the start of the Services to
reschedule or cancel a SOW. If Customer reschedules or cancels a SOW, Customer must pay all
non-refundable expenses incurred by Broadcom.
