AMENDMENT 12

This Amendment 12 ("Amendment") by and between Cisco Systems, Inc. ("Cisco"), a California corporation having its principal place of business at 170 West Tasman Drive, San Jose, CA, 95134, and INX Inc. ("Integrator"), a Delaware corporation having its principal place of business at 1955 Lakeway Drive, Suite 220, Lewisville, TX 75057, is entered into as of the date last written below ("Effective Date").

 

WHEREAS, Cisco and Integrator have previously entered into the Systems Integrator Agreement dated November 13, 2001, as amended ("Agreement"), and

 

NOW WHEREFORE, the parties agree to amend the Agreement as follows:

All other terms and conditions of the Agreement remain unchanged and in full force and effect. This Amendment and the Agreement as amended are the complete agreements between the parties hereto regarding this subject matter. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. In the event of a conflict between the Agreement and this Amendment, this Amendment will prevail with regard to the subject matter herein.

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed. Each party warrants and represents that its respective signatories whose signatures appear below have been and are on the date of signature duly authorized to execute this Amendment.

This Partner Essential Operate Services Exhibit (“Exhibit”) supplements the Agreement and all the terms and conditions of the Agreement apply to this Exhibit. To the extent there is a conflict between the Agreement and this Exhibit, the terms of this Exhibit shall take precedence over the terms and conditions of the Agreement with regard to the subject matter described herein. This Exhibit, together with the Agreement, supersedes any prior or contemporaneous agreement that covers the same subject matter.

 

1.2

“Bug Fix” means an error correction, patch or workaround for the Software, which either comprises new Software or is a network-bootable Software image as determined by Cisco and that is provided to Integrator by Cisco and which may comprise a Maintenance Release but which shall not comprise a Minor or Major Release.

 

1.3

“Equipment List” means the Cisco approved Software list for each supported End User that identifies the Software supported under this Exhibit.

 

1.4

“First Level Support” means (a) the ability to provide general Software information (pre-sales and post-sales), Software configuration, installation, and Update and Feature Set Upgrade support, (b) base problem determination and collection of relevant technical information, (c) filtering non-technical problems from technical problems, (d) resolution of obvious Software problems and known problems (through documentation available on Cisco.com or other local resources), (e) provision of basic internetworking troubleshooting expertise, (f) providing basic support on the standard Software protocols and features, (g) collection of captured network traces and diagnostic data, (h) providing regular problem resolution status reports to the End User, and (i) maintenance of knowledge of the End User's network.

 

1.5

“Maintenance Release” means an incremental release of Software that provides maintenance fixes and may provide additional Software functions. Maintenance releases are designated by Cisco as a change in the digit(s) to the right of the tenths digit of the Software version number [x.x.(x)] or to the right of he hundredths digit of the Software version number [x.x.x.(x)].

 

1.6

“Major Release” means a release of Software that provides additional Software features and/or functions. Major Releases are designated by Cisco as a change in the ones digit of the Software version number [(x).x.x].

 

1.7

“Minor Release” means an incremental release of Software that provides maintenance fixes and additional Software features. Minor Releases are designated by Cisco as a change in the tenths digit(s) of the Software version number [x.(x).x].

 

1.8

“Other Software” means Software that an End User acquired from sources other than Integrator.

 

1.9

“Second Level Support” means (a) resolution of the majority of complex configuration problems by troubleshooting and simulation (i.e, recreates), (b) resolution of most Software problems; determination of Software specification defects, (c) provision of lab simulation and problem replication, (d) performance of interoperability and compatibility testing for new Software releases prior to being deployed into production network, (e) definition of an action plan for troubleshooting/resolution, (f) provision of advanced support on all Software protocols and features, (g) use of external analyzing tools when appropriate, (h) analysis of traces and diagnostic data when appropriate, (i) provision of workarounds for Software bugs (where present or alternate functionalities allow it) and troubleshooting bugs that were not diagnosed or resolved during First Level Support, and (j) provision of contact with complete steps to reproduce a problem in event of escalation to Third Level Support.

 

1.11

“Specialization” or “Specialized” means a classification, further described on Cisco.com, assigned by Cisco to an Integrator that has demonstrated expertise in a specific technology focused area.

 

1.12

“Third Level Support” means (a) the ability to resolve unknown problems such as problems reported to TAC for the first time in which no documentation exists for the problem on Cisco.com or any other format, (b) resolution of problems associated with an identified bug that is not yet published on Cisco.com, (c) provision of workarounds for Software bugs and troubleshooting bugs that require a specialized expertise level beyond First or Second Level Support, (d) issue reproduction with complex lab simulations, (e) provision of interface with Software development engineering support for resolution of Software defects, and (f) identification of interoperability issues that may be caused by third party software/hardware.

 

1.13

“Third Party Products” means third party hardware and software, and all upgrades thereto, that are designated by Cisco as required for (a) the operation of Software in conformance with Cisco’s applicable Software documentation, and (b) Cisco’s support of the Software in accordance with this Exhibit.

 

2.0    SCOPE

 

2.1

Support Services. The support hereunder is intended for an Integrator who supports End Users under Integrator’s own brand of service. Cisco will provide services described hereunder to Integrator as backup to its technical capabilities; provided however, that Integrator will retain primary responsibility for providing support to its End Users and Cisco shall have no obligation to provide support directly to End Users.

 

2.2

Certification. Unless otherwise specified, Integrator must be designated by Cisco as an Advanced Technology Provider (“ATP”) or a Specialized Integrator in order to participate in the support program described in this Exhibit, subject to the ATP or Specialization requirements to support the Software as shown on Appendix C (ATP/Specialization Guideline). During any period in which Integrator does not attain or maintain ATP status or its Specialization status shown in Appendix C, Cisco may provide support directly to End Users, or allow Integrator to subcontract such support from Cisco on behalf of End Users, and in both cases, Cisco will provide such support in accordance with Cisco’s prevailing rates and standard support terms and conditions then in effect for End Users.

In consideration of the service fee paid by Integrator, Cisco will provide the following services to Integrator:

 

3.1

Technical Support.

 

 

 

3.2

Software Support.

 

 

 

 

 

 

 

4.1.3

Integrator shall establish problem priorities with End User consistent with thedefinitions in Cisco’s Problem Prioritization and Escalation Guideline (Appendix A). Integrator will use commercially reasonable efforts to ensure that End User understands and follows the Escalation Guidelines.

 

 

Integrator will promptly notify Cisco of any changes of the designated relationship manager and duty manager and will ensure that Cisco is provided with up-to-date contact information for such persons.

 

 

 

 

 

 

 

4.2.8

Integrator shall provide electronic case management to its End User.

 

4.3

Cisco.com Access. Integrator will administer and authorize registered End User access to Cisco.com via the Partner Initiated Customer Access ("PICA") process described in Appendix B of this Exhibit. End User’s access level shall include the ability to receive individual case status and access to Cisco’s on-line software library. Integrator shall not disclose its partner-level Cisco.com access information.

 

4.4

Integrator shall provide information to End User as needed to enable End User toreceive the support services hereunder, including but not limited to an Integrator problem prioritization and escalation guideline substantially similar in format to Cisco’s Problem and Prioritization and Escalation Guidelines (Appendix A) and End User's PICA number to access information related to the support services hereunder. Integrator acknowledges that Cisco information contained in Appendix A, which includes but is not limited to the escalation guideline and the TAC phone numbers, shall not be provided to End Users.

 

 

 

 

 

 

4.9.2

Distribution Rights.Cisco grants Integrator the right to distribute Maintenance and Minor Releases only to End Users currently licensed to use the Software and only for which Integrator has paid Cisco the applicable annual support fees.

 

 

4.10

Integrator Support for Other Software. Integrator may receive support services from Cisco hereunder for Other Software, regardless of when the Other Software were purchased, under the following conditions: (a) Integrator provides Cisco with a request to support Other Software and a list including the Software(s) and serial number(s) to be supported; and (b) pays the fees set out in this Exhibit for the Other Software. Integrator may only support Other Software for which Integrator is qualified under the Advanced Technology Provider Initiative or the Specialization Program.

 

4.11

Entitlement.

 

 

 

4.13

Direct Services Option. This option is only available for Software from CCBU’s IPCC Express Series of Software. For IPCC Express Software for which Integrator opts to resell Cisco brand services to be delivered directly by Cisco to the End User in accordance with Appendix D, Integrator shall not be responsible for providing the services specified in Sections 4.2 for such End User’s covered Software. For Software for which Cisco is providing Cisco brand services, Integrator will not be entitled to any of the services described in Section 3.1 to 3.3.

 

5.0    SERVICES NOT COVERED UNDER THIS EXHIBIT.

 

 

5.2

Cisco shall not be required to perform any on-site support under this Exhibit. If Ciscois requested to perform on-site diagnostic and remedial maintenance, except when mutually agreed, Integrator shall reimburse Cisco for all labor and travel expenses at Cisco’s then-current time and material rates.

 

5.3

Support or replacement of Software that is altered, modified, mishandled, destroyedor damaged by natural causes or damaged during unauthorized use.

 

5.4

Services to resolve Hardware or Software problems resulting from or related to ThirdParty Products or causes beyond Cisco’s control or Integrator’s failure to perform its responsibilities under this Exhibit.

 

5.5

Support or replacement of Third Party Products.

 

5.6

Any Hardware upgrades, or third party hardware or software upgrades, required torun new or updated Software.

 

5.7

Services for Software for which Integrator has not paid the appropriate support feesto Cisco.

 

5.8

Electrical or site work external to the Software.

 

5.9

Support or replacement of Hardware.

 

6.0   CISCO SERVICE FEES, PAYMENT TERMS AND CHANGES.

 

6.1

Integrator shall pay the following fees:

 

 

 

 

6.2

Support for Software in Integrator’s installed base can be transferred to anotherCisco authorized Integrator under the following conditions:

 

6.2.1

Integrator provides Cisco with a notification including (a) identification of theSoftware and any identification number for which support is being transferred, and (b) the date of the transfer and the Cisco authorized Integrator to whom support is being transferred. An authorized Integrator must be an Integrator who is an Advanced Technology Provider or maintains its Specialization status.

 

 

6.3

With respect to Software licensed or supported by Integrator prior to becoming anAdvanced Technology Provider or completing its Specialization Program, upon expiration of support for Software for which Integrator currently has under a support program, Integrator shall pay all applicable fees hereunder within thirty (30) days of invoice by Cisco. Software for which Integrator has under an existing support program shall not be renewed under the existing program but shall become part of this Exhibit.

 

6.4

Cisco will provide information necessary for prompt issuance of a purchase order orsimilar document by Integrator, when required. Integrator will provide a purchase order for the services defined herein no later fifteen (15) days from Cisco's request.

 

6.5

Integrator is responsible for all applicable taxes, fees and duties associated with thedelivery of services under this Exhibit.

 

7.0    TERMINATION/SUSPENSION OF PERFORMANCE.

 

In addition to all rights and remedies which it may have under the Agreement, Cisco may suspend its performance or services hereunder for all Software covered under this Exhibit, whether the Software was purchased prior to or subsequent to the Effective Date of this Exhibit, immediately upon notice if (i) Integrator fails to pay for the services when due and fails to make such payment within fifteen (15) days after notice from Cisco of such past due payment, or (ii) if Integrator breaches the provisions of Section 8, hereof or (iii) for particular Software, if Cisco ends support for such Software or (iv) the Agreement terminates. If, at any time, Integrator fails to attain or maintain Advanced Technology Provider status or Specialization status, as required hereunder, with respect to a Software and/or geographic area applicable to Integrator, then Cisco shall have the right to suspend or terminate Integrator’s distribution, support and other rights under the Agreement with respect to such Software(s) and/or geographic area(s). Upon expiration or termination as specified in this Exhibit or the Agreement, (i) all rights and licenses of Integrator hereunder shall terminate, (ii) Integrator shall immediately discontinue all representations that it provides Cisco-supported maintenance services for the Software, and (iii) End User access to Cisco.com shall terminate.

Integrator acknowledges that it may receive Software as a result of Services provided under this Exhibit. Integrator agrees that it is licensed to distribute through sublicensing such Software and Maintenance, Major and Minor Releases for which it has paid the applicable license fees under this Exhibit and subject to the terms and conditions of the Software license granted with the original license of the Software. Integrator shall not copy, in whole or in part, Software or Documentation; modify the Software, reverse compile or reverse assemble all or any portion of the Software; or rent, lease, distribute, sell, or create derivative works of the Software. Integrator shall not upgrade to a feature set other than that which was licensed at the time of original Software license unless applicable license and support fees are paid. To the extent required by law, at End User's request, Cisco shall provide End User with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Cisco's applicable fee. End User shall observe strict obligations of confidentiality with respect to such information.

 

9.0    GENERAL.

 

 

9.2

Representations and Warranties. Integrator shall not make any representations or warranties on behalf of Cisco, except as expressly authorized herein or as expressly authorized by Cisco in writing. Neither Integrator nor Cisco will make any obligation to provide services to End Users on behalf of the other, nor commit the resources of the other to End Users.

 

9.3

Renewal of Support Agreements. Prior to expiration of a service contract: (a) Cisco, or its authorized agents, may send reminders to both Integrator and its End User; and (b) upon request by Cisco, Integrator will reconfirm the End User’s identity and service contract numbers of the expiring service contract(s); and (c) Integrator will (i) initiate the renewal process with its End User and forward to Cisco the completed renewal with Purchase Order or (ii) notify Cisco of Integrator’s intent to cancel Services. If, upon the expiration date of Cisco services for the Equipment, Cisco has not received a purchase order for the renewal, Cisco, or its authorized agents, may contact the End User to arrange for the renewal of Cisco services for the subject Equipment either directly with Cisco or via another Cisco-authorized reseller.

To ensure that all problems are reported in a standard format, Cisco has established the following problem severity definitions. These definitions will assist Cisco in allocating the appropriate resources to resolve problems. Integrator must assign a severity to all problems submitted to Cisco.

Severity 1:

End User’s production network is down causing critical impact to business operationsif service is not restored quickly. No workaround is available. Cisco, Integrator and service Provider or End User are willing to commit full-time resources around the clock to resolve the situation.

 

Severity 2:

End User’s production network is severely degraded impacting significant aspects ofbusiness operations. No workaround is available. Cisco, Integrator and End User are willing to commit full-time resources during business hours to resolve the situation.

 

Severity 3:

End User’s network performance is degraded. Network functionality is noticeablyimpaired but most business operations continue.

 

Severity 4:

End User requires information or assistance on Cisco product capabilities,installation, or configuration.

 

Cisco encourages Integrator to reference this guide when Integrator-initiated escalation is required. If Integrator does not feel that adequate forward progress or the quality of Cisco service is satisfactory, Cisco encourages Integrator to escalate the problem ownership to the appropriate level of Cisco management by asking for the TAC Duty Manager.

 

The Cisco Manager to which the problem is escalated will take ownership of the problem and provide the Integrator with updates. Cisco recommends that Integrator-initiated escalation begin at the Technical Manager level and proceed upward using the escalation guideline shown above for reference. This will allow those most closely associated with the support resources to correct any service problems quickly.

 

Integrator shall nominate two (2) employees (“CCO Access Administrators”) who may use the Cisco.com administrative tools to grant Service Provider or End User to Cisco.com.

 

Integrator shall forward the following information to Cisco (via electronic mail to “cco­ ***@***”), as soon as practicable, for the nominated persons:

 

1.	Current Service Agreement number with Cisco;

2.	Cisco.com user ID(s); and

3.	Internet email addresses (if established).

 

The CCO Access Administrators will be responsible for:

 

4.

ensuring that the Service Providers and End Users only download Software for use with Software for which applicable support fees have been paid, and shall pay to Cisco applicable support fees for any Software for which support is received through use of the procedures described in this Appendix B, regardless of whether or not such Software was originally sold by Integrator to End User.

 

 

Integrator’s employees must continue to use the existing system of registering (i.e. with their Service Agreement number). To ensure correct access, Integrator’s employees should never use a special PICA account number for registering online.

 

End User Eligibility for Cisco.com Access

 

Service Provider’s and End User’s access to Cisco.com may commence when the Service Provider or End User, as the case may be, has purchased a Cisco Software, or service for Cisco Software(s) from the Integrator, and has a support agreement with that Integrator.

 

 

9.	For each registration performed, an email can be automatically sent to the CCO Access Administrator with the newly registered user's online details, as entered.

This appendix supplements the Agreement and all the terms and conditions of the Agreement apply to this appendix; provided that, to the extent there is a conflict between the Agreement and this appendix, the terms of this appendix take precedence over the terms and conditions of the Agreement with regard to the subject matter described herein. All capitalized words have the meaning ascribed to them in Appendix A (Definitions) or as defined in the Agreement.

 

1.0    SCOPE

 

This appendix describes the terms and conditions for (a) Integrator’s resale of Services to End Users, (b) Cisco’s direct delivery of the Services to End Users, and (c) Cisco's Support to Integrator. At all times, Cisco shall perform the Services on Integrator’s behalf. In no event will Integrator be deemed to be an agent of Cisco.

 

2.0    PROCEDURE TO RESELL TECHNICAL SUPPORT SERVICES

 

Integrator is authorized on a non-exclusive basis to resell Technical Support Services to End Users in accordance with the Agreement and this appendix. Integrator may request such Services as follows:

 

 

2.1.1

all relevant End User information;

 

 

2.1.3

a valid Purchase Order from Integrator to Cisco.

 

2.2

Upon Cisco's receipt of the information in Section 2.1 above, Cisco will:

 

2.2.1

validate Product model(s) and serial numbers;

 

 

 

3.0    PROCEDURE TO RESELL ADVANCED SERVICES

 

3.1

Integrator is authorized on a non-exclusive basis to resell Advanced Services to EndUsers in accordance with the Agreement and this appendix. Integrator may request such Services as follows:

 

3.1.1

Integrator will initiate its request for Advanced Services by providing Ciscowith a request for proposal (RFP) that includes all relevant End User information and requirements for the requested Advanced Services.

 

3.1.3

For Integrator's resale of the Advance Services described in the Quote, Integrator will issue to Cisco a Purchase Order referencing the valid Quote.

 

3.1.4

Upon Cisco's acceptance of the Purchase Order, Cisco will:

 

 

 

 

4.0    CISCO'S RIGHTS AND OBLIGATIONS

 

4.1

Cisco.com Access. Cisco will provide Integrator with an appropriate level of partner access to Cisco.com. This system provides Integrator with technical and general information on Products, as well as access to Cisco's on-line Software Center library.

 

4.2

Resale of Services.Cisco will make available the Services listed atwww.cisco.com/go/servicedescriptions/ for resale by Integrator. Integrator may distribute these Service Descriptions to it’s End Users. Cisco may provide copies of any of the Services Descriptions to Integrator or an End User. Services are subject to the availability limitations specified in each Services Description and/or Quote.

 

4.3

Services to Be Provided. For each Service purchased by Integrator, Cisco will makeavailable to End User, on Integrator’s behalf, the Services described in the applicable Services Description and/or the Quote.

 

4.4

Warranty. For the duration of the Cisco warranty period, Cisco will make availableBug Fixes and Hardware replacement Support to Integrator as follows:

 

4.4.1

Bug Fixes.

 

 

 

 

 

5.7

Integrator will manage and escalate, in accordance with the Cisco Severity andEscalation Guideline, all calls taken by Integrator on behalf of the End User.

 

5.8

Integrator’s Warranty Service. Integrator shall provide to its End Users, at noadditional charge, all warranty services applicable to the Products when they were purchased by End User for a minimum of the warranty period set forth in the published Product warranty provided with the original Product. The warranty will commence upon shipment to the Integrator or as otherwise stated in the Product warranty statement shipped with the original Product. The warranty services provided by Integrator must include, at a minimum, the following Software and Hardware replacement services:

 

5.8.1

Integrator will distribute Bug Fixes to the End User during the warrantyperiod.

 

5.8.2

Integrator will meet the replacement obligations stated in the then-currentpublished Product warranty applicable to the particular Product sold to the End User.

 

 

 

(b)

(i) properly package all Products prior to shipping to Cisco, (ii) include a written description of the failure; (iii) describe any changes or alterations made to the Product, and (iv) tag each returned Product with the RMA transaction number provided by Cisco. Products returned to Cisco must conform in quantity and serial number to the RMA request.

Examples:

 

In the applicable twelve (12) month period Integrator purchased 8 devices (6 of Device A and 2 of Device B) and sold support on 4 of Device A and 2 of Device B. The NBD price for Device A is $50 and for Device B is $10. The Attach Rate is actual Service sold (4x$50 plus 2x$10) divided by total dollar value of Service (6x$50 plus 2x$10). 220/320= 68.8% which represents the Attach Rate with a corresponding discount of 20%.

 

Multi-Year Scenario: In the applicable twelve (12) month period Integrator purchased 1 device (1 of Device A) and sold 3 year support on the 1 device. The NBD three year price for the Device A is $150. The Attach Rate is calculated by dividing the multi-year price by the number of years covered (in this case, three years or $150/3) and crediting the first year Attach Rate actual performance and Attach Rate opportunity ($50). The Attach Rate actual performance is the one year NBD value of service sold ($50) divided by the one year NBD value of the total dollar value of Service ($50) and represents an Attach Rate of 100% with a corresponding discount of 25%.

 

 

 

 

6.2

The discounts listed above do not apply to Integrator’s resale of Advanced Services.Integrator’s discount for Advanced Services shall be stipulated in the Quote provided by Cisco's Performance Metrics Central ("PMC"). Integrator's Attach Rate performance will be calculated and updated monthly and available at Cisco's PMC tool on Cisco.com. From the PMC tool, Integrator will be able to view the status of Attach Rate on an on-going basis.

 

6.4

All prices in the Equipment List(s) are exclusive of any taxes and duties which, if applicable, shall be paid by Integrator. Applicable taxes are billed as a separate item. Integrator will be billed for time and material fees and the Product list price of replaced Products not returned to Cisco.

 

6.5

Integrator is free to determine its resale prices unilaterally. Integrator understands that neither Cisco, nor any employee or representative of Cisco, may give any special treatment (favorable or unfavorable) to Integrator as a result of Integrator's selection of resale prices. No employee or representative of Cisco or anyone else has any authority to specify what Integrator's resale prices for the Services must be, or to inhibit in any way, Integrator's pricing discretion with respect to the Services.

 

6.6

Support for Other Products. Integrator may support Other Products if Integrator provides Cisco with the following:

 

6.6.1

a notification of Integrator’s intent to support Other Products, and

 

7.0    GENERAL

 

7.1

Entitlement. Integrator acknowledges that Cisco has the right to verify an End User'sentitlement to receive Services, and that End User is entitled to receive Services only for Products for which Integrator has paid the applicable license and support fees to Cisco. Integrator agrees to assist Cisco with enforcement of End User entitlement as necessary, including, without limitation, providing serial number(s) to Cisco and enabling Cisco to undertake inventory review(s), as set forth in section 4.6 above.

 

7.2

Disclosure of Contract Information.In addition to all other obligations of confidentiality, Integrator shall not disclose to any third party (a) any of the information contained in this appendix, or (b) Integrator's Agreement number.

 

7.3

Software License. Integrator acknowledges that it may receive Software as a resultof services provided under this appendix. Integrator agrees that it is licensed to distribute such Software only for Products covered under this appendix and subject to the non-transferable, non-reusable terms and conditions of the Software license granted with each original purchase of the Products and for which all applicable fees have been paid. Integrator shall not upgrade any End User to a feature set other than that which was licensed at the time of each End User’s original Product purchase unless applicable license fees are paid to Cisco.

 

7.4

Third Party Services. Cisco reserves the right to subcontract the provision of all or part of the Services to a third party.

 

7.5

Term, Termination and Suspension of Performance.

 

 

 

 

 

 

Upon expiration or termination as specified in the Agreement, (i) all rights and licenses of Integrator hereunder shall terminate, (ii) Integrator shall not make any representation that it provides the Services described hereunder, and (iii) End User access to Cisco.com granted hereunder shall terminate. Cisco will have the right to seek payment for Services directly from the End User in the event Integrator does not remit payment to Cisco pursuant to the payment terms.

 

 

7.5.3

This appendix will be coterminous with the Agreement.

 

7.5.4

In the event Cisco’s support obligations to Integrator with respect to anEquipment List for which payment has been received by Cisco prior to the expiration of the term set out in Section 7.5.1(d), 7.5.2, or 7.5.3 of this appendix extend beyond such term, as applicable; and provided that Integrator complies with the terms of the Agreement and its obligations in this appendix, Cisco will provide support to Integrator for the term of such Equipment List provided that the maximum period of support shall not exceed three (3) years from the date of such Equipment List.

 

7.6

Representations and Warranties. Integrator will not make any representations orwarranties on behalf of Cisco, except as expressly authorized herein or as expressly authorized by Cisco in writing. Neither party will create any obligation to End Users on behalf of the other, nor commit the resources of the other to End Users.

 

7.8

Indemnification. Integrator hereby indemnifies and holds Cisco harmless from anyclaim, loss, damage or expense, including reasonable court costs and attorneys’ fees, resulting from any claim made by an End User against Cisco hereunder as a third party beneficiary or otherwise. This Section 7.8 shall not limit Cisco's obligations, subject to the terms and conditions of this Agreement, to provide the Services described herein.

 

7.9

Survival. Sections 7.2, 7.5.4 and 7.8 of this appendix shall survive termination of this appendix.

 

8.0    CONTRACTING WITH U.S. FEDERAL GOVERNMENT AGENCIES

 

The following additional provisions or modifications will only apply when Integrator contracts with U.S. Federal Government Agencies and has been granted the resale rights in Section 2 (“Scope”) of the Agreement:

 

8.1

The definition for Services shall read as follows:

 

“Services" mean the Cisco brand Services described in the corresponding Services Description, listed on the then current Price List and which are available to Integrator for resale to an End User in accordance with the terms of this appendix. In the event Services are resold to Federal Government agencies, such Services are considered “commercial items” as defined under the Federal Acquisition Regulation (“FAR”) 2.101.

 

8.2

Integrator will not grant End User any greater rights to Cisco Support than Cisco grants to Integrator in the Agreement and appendix.

 

8.3

Any partial year support agreements (period of performance less than twelve (12)months) will include an additional ten percent (10%) adjustment; and/or requests for any payment term other than pre-paid twelve (12) months in advance will include an additional ten percent (10%) adjustment.

 

8.4

The Other Product discount of fifteen (15%) percent shall not apply. Integrator’searned discount shall apply.

 

9.0    WARRANTY

 

NOTHING IN THIS EXHIBIT WILL AFFECT THE WARRANTIES PROVIDED WITH ANY HARDWARE PURCHASED OR SOFTWARE LICENSED BY INTEGRATOR AND/OR END USER. ANY AND ALL SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A

WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THE PURPOSE IS KNOWN TO CISCO), SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW. INTEGRATOR MUST NOTIFY CISCO PROMPTLY OF ANY CLAIMED BREACH OF ANY WARRANTIES. INTEGRATOR’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY WILL BE, AT CISCO’S OPTION, RE-PERFORMANCE OF THE SERVICES; OR TERMINATION OF THE APPLICABLE SERVICE ON THE EQUIPMENT LIST AND RETURN OF THE UNUSED PORTION OF THE FEES PAID TO CISCO BY INTEGRATOR FOR SUCH NON-CONFORMING SERVICES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. THE WARRANTY PROVIDED IS SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN THIS EXHIBIT. INTEGRATOR SHALL NOT MAKE ANY WARRANTY COMMITMENT, WHETHER WRITTEN OR ORAL, ON CISCO’S BEHALF.

 

10.0    CHANGE IN SCOPE

 

Cisco reserves the right to make changes to the scope and content of this appendix, including terminating the availability of a given Service, at any time upon ninety (90) days prior written notice and such changes shall become effective upon the next October 1st. If Integrator does not agree with a change of scope or content, Integrator may terminate this appendix in accordance with Section 7.5.