END USER CISCO BRAND SERVICES (CBS) RESALE SERVICE AGREEMENT
This Agreement sets forth the terms and conditions that apply to Cisco Brand Services provided by Cisco
Systems, Inc., or one of its affiliated companies (listed below) to an end user customer (“Customer”) when
both (i) and (ii) below exist:
(i)
Customer has purchased Cisco Brand Services directly from an authorized Cisco reseller; and
(ii)
Customer’s agreement with the authorized Cisco channel partner (from whom Customer
purchased the Cisco Brand Services) includes a statement that is substantially similar to the
following statement:
“Cisco will provide the
Cisco Brand Services
directly to End User Customer subject to
the terms of the Cisco End User Support Agreement at the following URL:
https://www.cisco.com/c/en/us/about/legal/cbr.html.
By placing an order for services
with [name of the Cisco channel
partner],
End
User
Customer
accepts
all
terms
at the
http://www.cisco.com/c/en/us/about/legal/cbr.html
,
except that [name of
the Cisco channel partner] will invoice End User Customer for the charges for the
services upon ordering of the related equipment or upon ordering a renewal of the
services.”
Cisco, as used herein, means Cisco Systems, Inc. (for U.S. and Latin America); Cisco Systems Canada
Co. (for Canada); Cisco Systems International B.V. (for Croatia, Libya, the Netherlands, Republic of
Korea, the Russian Federation, Saudi Arabia (KSA), Singapore, or United Arab Emirates (UAE); Cisco
International Limited (for Israel, the Asia Pacific region (excluding Australia, China, India, Republic of
Korea, and Japan), or the Middle East (excluding Saudi Arabia (KSA) and United Arab Emirates (UAE)),
Africa (excluding Libya), Central and Eastern Europe (excluding Croatia, the Netherlands, the Russian
Federation, and the member states of the European Economic Area)); Cisco Systems (Italy) S.r.l (for
Italy), Cisco Systems Services B.V. (for India); Cisco Systems K.K. (for Japan); Cisco Systems Australia
Pty Ltd ABN 52 050 332 940 (for Australia); or Cisco Systems (China) Information Technology Services
Limited (for China).
2.
Incorporated Terms
.
This
Agreement
expressly
incorporates
the
following
documents
posted
at
http://www.cisco.com/go/servicesdescriptions:
The Service Description(s) (only those listed as available
for resale), “Glossary of Terms”, “End User Obligations”, “Severity and Escalation Guidelines”, and the
“List of Services Not Covered”.
For
purposes
of
this
Agreement
only
,
the
following
language,
posted
at
http://www.cisco.com/go/servicesdescriptions,
which reads:
“
Purchase through Cisco-Authorized Channel
If you purchase services through a Cisco-authorized reseller or distributor, the corresponding Service Descriptions are posted here for informational purposes
only and do not create any contract between Cisco and you. The contract, if any, governing the provision of the services will be the one
between you and your reseller, who should provide the applicable Service Description to you at the time of sale.”
is hereby deleted per this Agreement. As noted above, the Service Descriptions and other related
documents at the above-cited URL are incorporated into this Agreement. Also, each Service Description
should be read on the basis that you have a direct services agreement with Cisco.
Page 1
3.
Cisco will provide Services for Products and Customer will be entitled to receive Services for
which (i) the applicable Services fees have been paid to Cisco by the Cisco authorized reseller, (ii) a valid
Software license has been granted and (iii) Customer provides information requested by Cisco, such as
valid serial numbers, site location, contract number, and Product type.
If Customer is unable to provide valid and applicable serial number(s) for Product and Cisco agrees to
provide Services, then Service fees payable by Customer shall be at Cisco’s then-current time and
materials or non-contract service rates.
Authorized Channels are free to determine their resale prices unilaterally. Customer understands that no
employee or representative of Cisco or anyone else has any authority to determine such resale prices, or
to limit the Authorized Channels’ pricing discretion with respect to Services.
4.
Term and Termination.
This Agreement become effective (Effective Date) when Customer places a purchase order with a Cisco-
authorized reseller for the CBR services. Subject to the “Survival” section below, this Agreement shall
thereafter remain effective for the term of the CBR services contract (including any SOW-based
Advanced Services) that Customer has purchased from the authorized Cisco reseller. This Agreement
and any Equipment List or SOW may be terminated immediately by either party upon written notice:
(i)
if
the
other
party
breaches
any
of
the
material
provisions of this Agreement and the breach is not capable of being cured or after providing thirty
(30)
days written notice to the breaching party if the breaching party fails to cure such breach
within such period.
(i)
if:
(a)
the
other
party
ceases
to
carry
on
business as a going concern; or (b) the other party becomes or may become the object of the
institution of voluntary or involuntary proceedings in bankruptcy or liquidation; or (c) a receiver or
similar officer is appointed with respect to the whole or a substantial part of the other party’s
assets; or (d) an event similar to any of the foregoing occurs under applicable law with respect
to the other party.
(ii)
if
the
other
party
assigns
or
transfers
any
of
the rights or responsibilities granted under this Agreement or any Equipment List or SOW in
breach of the “Assignment” Section 13.
If Cisco has not been timely paid by the authorized reseller for the Services, Cisco reserves the right to
withhold the provision of Services to Customer until all amounts past due are paid in full, and/or terminate
immediately this Agreement, any Equipment List (or portion thereof), SOW or combination thereof.
Each Equipment List and SOW hereunder shall terminate immediately upon termination of the
Agreement, unless otherwise agreed by Cisco.
5.
Confidentiality
. Customer and Cisco agree that in connection with this Agreement and their
relationship, they may obtain Confidential Information. The receiving party shall at all times keep in trust
and confidence all such Confidential Information, and shall not use such Confidential Information other
than as expressly authorized by the disclosing party under this Agreement, nor shall the receiving party
disclose any such Confidential Information to third parties without the disclosing party’s written consent.
Notwithstanding the above, Cisco shall be authorized to disclose Customer’s Confidential Information to
contractors or employees of a Cisco entity who have a legitimate business need to have access to such
information. The receiving party shall immediately return to the disclosing party all Confidential
Information (including copies thereof) in the receiving party’s possession, custody, or control upon
termination or expiration at any time and for any reason of this Agreement. The obligations of
confidentiality shall not apply to information which (a) has entered the public domain, except where such
entry is the result of the receiving party’s breach of this Agreement; (b) prior to disclosure hereunder was
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already rightfully in the receiving party’s possession; (c) subsequent to disclosure hereunder is obtained
by the receiving party on a non-confidential basis from a third party who has the right to disclose such
information to the receiving party. The receiving party will be authorized to disclose Confidential
Information pursuant to a valid order issued by a court or government agency, provided that the
receiving party provides (i) prior written notice to the disclosing party of such obligation and (ii) the
opportunity to oppose such disclosure.
6.
Warranty
.
a.
ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE
MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, CISCO HEREBY DISCLAIMS AND
CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER
EXPRESS, IMPLIED, OR STATUTORY), INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR
CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, (B)
ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE
INDUSTRY.
b.
TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY IS
LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. CUSTOMER’S SOLE
AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE, AT CISCO’S OPTION, RE-
PERFORMANCE OF THE SERVICES; OR TERMINATION OF THIS AGREEMENT OR THE
APPLICABLE EQUIPMENT LIST OR SOW AND RETURN OF THE PORTION OF THE SERVICE FEES
PAID TO CISCO BY CUSTOMER FOR SUCH NON-CONFORMING SERVICES.
7.
Limitation of Liability and Consequential Damages Waiver.
a.
TO THE EXTENT REQUIRED UNDERLOCAL LAW, NOTHING IN THIS AGREEMENT SHALL
LIMIT: (I) CISCO’S, ITS AFFILIATES’,OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND
SUPPLIERS’ COLLECTIVE LIABILITY TO CUSTOMER FOR BODILY INJURY OR DEATH CAUSED BY
THEIR NEGLIGENCE, OR (II) CISCO’S LIABILITY FOR FRAUDULENT MISREPRESENTATION OR IN
THE TORT OF DECEIT.
b.
ALL LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
AND SUPPLIERS COLLECTIVELY FOR CLAIMS ARISING UNDER THIS AGREEMENT OR
OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE GREATER OF (I) THE MONEY
PAID TO CISCO FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT DURING THE TWELVE
MONTH (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES FIRST GIVING RISE
TO SUCH LIABILITY OR (II) ONE HUNDRED THOUSAND ($100,000) U.S. DOLLARS. THIS LIMITATION
OF LIABILITY IS CUMULATIVE AND NOT PER-INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE
CLAIMS WILL NOT ENLARGE THIS LIMIT).
c.
IN THE CASE OF TRANSACTIONAL ADVANCED SERVICES PERFORMED UNDER A SOW,
THE LIABILITY OF CISCO SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO CISCO
PURSUANT TO THE RELEVANT SOW DURING THE TWELVE (12) MONTHS PRECEDING THE
EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
d.
SUBJECT TO CUSTOMER’S BREACH OF SECTION 8 (LICENSE), IN NO EVENT SHALL
EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, OR LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH
PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
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8.
License
.
a.Cisco grants to Customer a nonexclusive and non-transferable license to use only for Customer’s
internal business use (i) Software provided as a result of Services (ii) the Deliverables specified in each
SOW (in object code form if Software) and (iii) Data Collection Tools, if any. This license grant does not
include the right to sublicense.This license shall be governed by (i) the terms and conditions attached to
the Software or, in the absence of such terms, by the End User License Agreement posted at
www.cisco.com/go/warranty
and (ii) this Agreement.
b.
Customer agrees that it is licensed to use Software: (1) only on Hardware covered under this
Agreement; or (2) in the case of Application Software, on third party hardware (except as otherwise
authorized in the Software documentation); or (3) in the case of Data Collection Tools, in object code form
only, on the Data Collection Tool on which such Software is provided.
c.
This license is perpetual, provided Customer is not otherwise in breach of this license.
Notwithstanding the above, for Data Collection Tools the license is valid until the earlier of: (i) the
expiration or termination of the Service under which the Data Collection Tool was provided; or (ii) Cisco’s
request to Customer that the Data Collection Tool(s) be returned to Cisco.
d.
Except as expressly authorized, Customer shall not (and shall not permit a third party to):
download more than one copy of the Software, copy, in whole or in part, any Software, Deliverable or
Data Collection Tool, make error corrections or otherwise modify, decompile, decrypt, reverse engineer,
disassemble or otherwise reduce all or any portion of any Software, Deliverable or Data Collection Tool
which is software to human-readable form; or transfer, sublicense, rent, lease, distribute, sell, or create
derivative works of any Deliverables. There are no implied licenses and all rights not expressly granted
herein are reserved to Cisco.
When Customer updates or upgrades a copy of Software to a new release, Customer shall not use
(except for a limited period of parallel testing) the new Software release and the corresponding copy of
the previous Software release concurrently. Under no circumstances shall the previous release be reused
or transferred to any other device(s).
9.
Ownership.
a.
Cisco shall at all times retain all right, title and interest in and to all pre-existing Intellectual Property
owned by Cisco as of the Effective Date and all Intellectual Property in and to the Services, Cisco
Products, Deliverables and Data Collection Tools or other Intellectual Property provided or developed by
Cisco or a third party on Cisco’s behalf thereafter.
b.
Customer shall at all times retain all right, title and interest in and to all pre-existing Intellectual
Property owned by Customer as of the Effective Date and all Intellectual Property that is developed by
Customer or by a third party on Customer’s behalf thereafter without the benefit of any of Cisco’s
Intellectual Property. Third Party Products shall at all times be owned by the applicable third party.
10.
Force Majeure
. Except for the obligation to pay monies due and owing, neither party shall be
liable for any delay or failure in performance due to events outside the defaulting party’s reasonable
control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of
supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common
carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting
party shall be extended for a period equal to the period during which such event prevented such party’s
performance.
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11.
Applicable law and Jurisdiction
.
a.
The validity, interpretation, and performance of this Agreement shall be controlled by and
construed as follows:
(1)
For reseller orders accepted by Cisco Systems Inc.
the laws of: (a) the State of California,
United States of America, as if performed wholly within the state and without giving effect to the
principles of conflicts of law, and the state and federal courts of California shall have exclusive
jurisdiction over any claim arising under this Agreement.
(2)
For reseller orders accepted by Cisco Systems Canada Co.:
the laws of the Province of Ontario
and the federal laws of Canada applicable therein, as if performed wholly within the province and
without giving effect to the principles of conflicts of law, and the courts of the Province of Ontario
shall have exclusive jurisdiction over any claim arising under this Agreement.
(3)
For reseller orders accepted by Cisco Systems International B.V., Cisco Systems
Services B.V., Cisco International Limited, or Cisco Systems (Italy) S.r.l:
England and the
English Courts shall have exclusive jurisdiction over any claim arising under this Agreement.
(4)
For reseller orders accepted by Cisco Systems K.K.:
Japan and the Tokyo District
Court shall
have exclusive jurisdiction over any claim arising under this Agreement.
(5)
For reseller orders accepted by Cisco System Australia Pty Ltd
.: the State of New South
Wales, Australia, as if performed wholly within the state and without giving effect to the principles of
conflicts of law, and the State and Federal Courts of New South Wales shall have exclusive
jurisdiction over any claim arising under this Agreement.
(6)
For reseller orders accepted by Cisco Systems (China) Information Technology Services
Limited:
the People’s Republic of China; provided, however, that to the extent that the laws of the
People’s Republic of China do not stipulate, relevant international practice and customs shall
apply, and any claim arising under this Agreement shall be submitted to the Hong Kong
International Arbitration Centre (“HKIAC”) for final and binding arbitration in Hong Kong upon the
request of either party with a notice to the other party.
For any arbitration under the above paragraph (6), the following terms shall apply. There shall be
a sole arbitrator appointed in accordance with the then-prevailing rules of the HKIAC. If the
parties fail to agree on the choice of sole arbitrator within twenty (20) days from the date on
which the respondent receives the notice of arbitration, the HKIAC shall make the appointment.
The arbitrator will be bound by this Agreement and shall be made aware of it prior to his
appointment. The arbitrator shall have no power or authority to make or issue any award that
provides for punitive or exemplary damages. The arbitration proceedings shall be conducted in
English and in accordance with the rules of the HKIAC. However, if any rules are in conflict with
the provisions of this section, including the provisions concerning the appointment of arbitrators,
the provisions of this section shall prevail. Upon rendering a decision, the arbitrator shall state in
writing the basis for the decision. The arbitrator’s decision shall be final and binding upon the
parties. Application may be made by a party to a court of competent jurisdiction for the
recognition and enforcement of an arbitral award rendered by an arbitration tribunal pursuant to
this section. The costs of arbitration and attorneys’ fees and disbursements shall be borne by the
losing party, unless otherwise determined by the arbitration award. Except for the matters under
dispute, the parties shall each continue to fulfill their respective obligations (and shall be entitled
to exercise their rights) under this Agreement.
b.
Notwithstanding
the
foregoing
section
11(a),
either party shall at all times have the right to commence proceedings in any other court of its choice for
interim injunctive relief in the event of threatened or actual breach of Intellectual Property rights or
provisions regarding protection and nondisclosure of Confidential Information.
5
c.
The parties specifically disclaim the application of the UN Convention on Contracts for the
International Sale of Goods to the interpretation or enforcement of this Agreement.
12.
Export Control
. Customer shall comply with such laws and regulations governing use, export, re-
export, and transfer of Cisco Products and technology and will obtain all required U.S. and local
authorizations, permits, or licenses. Information regarding compliance with U.S. use, export, re-export,
and transfer laws may be found at:
http://www.cisco.com/web/about/doing_business/legal/global_export_trade/general_export/contract_com
pliance.html
13.
Assignment
.
Neither party may assign or delegate its rights or obligations under this Agreement without the prior
written consent of the other, and such consent will not to be unreasonably withheld or delayed, provided
that any such assignment shall not relieve the assigning entity of any obligation to pay monies that were
owed prior to the date of the assignment.
Notwithstanding the foregoing, (i) either party may, without the other party’s consent, assign or delegate
its rights or obligations under this Agreement to its parent or majority-owned subsidiary company of
sufficient net worth to meet any potential liability under this Agreement, and Cisco may, without
Customer’s consent, assign this Agreement or all or any portion of its rights and obligations hereunder,
to any Cisco Affiliate.
14.
Subcontracting.
Cisco reserves the right to subcontract Services to a third party organization to
provide Services to Customer. Any such subcontract shall not relieve Cisco of any of its obligations under
this Agreement.
15.
Inventory Review
. From time-to-time Cisco may perform an inventory review of Customer’s
installed base and review serial numbers and other records (upon reasonable advance notice) to validate
entitlement. Cisco will charge a Service fee if it finds that unauthorized Services are being provided. This
Service fee includes amounts which should have been paid, interest, attorneys’ and audit fees. Cisco
requires that Customer take all necessary action (for example, disabling passwords) to ensure that any
former employees and contractors do not access or use the Service
16.
Notices
. Cisco’s Notice obligations under this Agreement are predicated on Customer advising
Cisco who, on behalf of Customer, should be the point of contact for such notice. Customer should notify
Cisco of its designated point of contact for notice at the commencement of the Services.
For Cisco, all
Notices shall be sent to General Counsel, Cisco Systems, Inc., 300 East Tasman Drive, San Jose,
California, 95134.
All notices required or permitted under this Agreement will be in writing and will be
deemed given one day after deposit with a commercial express courier specifying next day delivery (or
two (2) days for international courier packages specifying 2-day delivery), with written verification of
receipt. Notwithstanding the above, notices regarding general changes in pricing, policies or programs
may also be by posting on
Cisco.com
or by e-mail or fax.
17.
Entire Agreement
. This Agreement, including all documents referenced as incorporated herein,
is the complete agreement concerning the subject matter of this Agreement and replaces any prior oral or
written communications between the parties. There are no conditions, understandings, agreements,
representations, or warranties expressed or implied, that are not specified herein.
18.
No Waiver
. The waiver by either party of any right provided under this Agreement shall not
constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
19.
Severability
. In the event that one or more terms of this Agreement becomes or is declared to
be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null
and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall
remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a
result, the value of this Agreement is materially impaired for either party, as determined by such party in
its sole discretion, then the affected party may terminate this Agreement by written notice with immediate
effect to the other.
20.
Attorneys’ Fees
. In any suit or proceeding relating to this Agreement the prevailing party will
have the right to recover from the other its costs and reasonable fees and expenses of attorneys,
accountants, and other professionals incurred in connection with the suit or proceeding, including costs,
fees and expenses upon appeal, separately from and in addition to any other amount included in such
judgment. This provision is intended to be severable from the other provisions of this Agreement, and
shall survive expiration or termination and shall not be merged into any such judgment.
21.
No Agency
. This Agreement does not create any agency, partnership, joint venture, or
franchise relationship. No employee of either party shall be or become, or shall be deemed to be or
become, an employee of the other party by virtue of the existence or implementation of this Agreement.
Each party hereto is an independent contractor. Neither party shall assume or create any obligation of
any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
22.
Survival
. The following terms shall survive the termination or expiration of this Agreement: 4
(Term and Termination), 5 (Confidentiality), 6 (Warranty), 7 (Limitation of Liability and Consequential
Damages Waiver), 8 (License), 9 (Ownership), 10 (Force Majeure), 11 (Applicable Law and Jurisdiction),
12 (Export Control), 15 (Inventory Review), 16 (Notices), 17 (Entire Agreement), 18 (No Waiver), 19
(Severability), 20 (Attorneys’ Fees), 21 (No Agency), 22 (Survival), the Glossary of Terms and the
Services-Not-Covered Documents posted at
www.cisco.com/go/servicedescriptions
.
-End-
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