`
`TERMS OF SALE
`AND SOFTWARE LICENSE AGREEMENT
`
`These Terms of Sale and Software License Agreement (“Terms of Sale”) are entered into by and
`between Cisco Systems, Inc., a California corporation having its principal place of business at 170
`West Tasman Drive, San Jose, California, 95134 (“Cisco”) and you (“Customer”), for Products and
`Services, unless Cisco and Customer enter into or have entered into another agreement (including
`but not limited to a written, click-wrap, click-and-accept or electronic agreement) regarding the
`purchase and license of the specific Cisco Products or Services being purchased and such
`agreement is in effect at the time the applicable Purchase Order is received by Cisco (“Existing
`Agreement”), in which case the terms and conditions of such Existing Agreement shall govern the
`purchase and license of those Cisco Products or Services.
`
`The following exhibits are incorporated into these Terms of Sale:
`
`Exhibit A: Shipping Terms
`Exhibit B: End User License Agreement
`
`1.0
`
`DEFINITIONS
`
`1.1
`
`1.2
`
`1.3
`
`1.4
`
`1.5
`
`1.6
`
`1.7
`
`1.8
`
`1.9
`
`Affiliate means any corporation, firm, partnership or other entity that directly or
`indirectly controls, or is controlled by, or is under common control with Cisco or
`Customer.
`
`Cisco.com
`is Cisco’s suite of on-line services and
`http://www.cisco.com.
`
`information at
`
`Cisco Branded means a Product or a Service bearing a trademark or service mark
`of Cisco Systems, Inc. or any Cisco Affiliate.
`
`Documentation is user manuals, training materials, Product descriptions and
`specifications, technical manuals, license agreements, supporting materials and
`other information relating to Products or Services offered by Cisco, whether
`distributed in print, electronic, CD-ROM or video format.
`
`Effective Date is the date these Terms of Sale are electronically accepted, click-
`accepted or, if signed in hard copy by Customer, the date of last signature, or in the
`absence of any of the forgoing, these Terms of Sale shall be effective from the date
`an order is placed by Customer.
`
`Hardware is the tangible Cisco product acquired by Customer from Cisco and
`listed on the Price List. Hardware does not include any tangible product listed on
`the Price List in the name of a third party.
`
`Network Services are any services offered by Customer, as Customer’s primary
`business model, which services may include the following: access to the Internet,
`data and voice transmission and any other communications service furnished by
`Customer by means of Customer’s communications network.
`
`Price List is the price list(s) published at Cisco.com applicable to the relevant
`Cisco entity to which each Purchase Order is issued by Customer.
`
`Products are, individually or collectively as appropriate, Hardware, Software and
`Documentation listed on the then-current Price List.
`
`1.10
`
`March 2012
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`Purchase Order is an order issued by Customer to Cisco for Products or Services
`
`
`
`
` C-Cation Tech 2003
`to be purchased, licensed or provided under these Terms of Sale.
`
` Cisco Systems, Inc. v. C-Cation Technologies, LLC
`
`
`
`
`
` IPR2014-00454
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`1.11
`
`1.12
`
`Services are any maintenance, technical support, or any other services performed
`or to be performed by Cisco, provided that “Services” does not include those
`services for which Cisco requires a separate statement of work to be executed
`between the parties.
`
`Software is the machine readable (object code) version of the computer programs
`listed from time to time on the Price List or provided with the Hardware and made
`available by Cisco for license to Customer including firmware, and any copies
`made, bug fixes for, updates to, or upgrades thereof. Software does not include
`any computer programs listed on the Price List in the name of a third party.
`
`1.13
`
`Territory is any country(ies) in which Customer has been granted Cisco resale
`certifications, or in the absence of any such certifications, the country in which
`Customer’s principal place of business is located.
`
`2.0
`
`SCOPE
`
`2.1
`
`These Terms of Sale set forth the terms and conditions for Customer’s purchase of
`Products and Services solely for use in the Territory and solely for (i) Customer’s
`internal business use, (ii) providing Network Services if Customer’s primary
`business is Network Services, or (iii) resale only if and where Customer has been
`granted appropriate reseller certifications or distribution rights by Cisco for the
`specific Products or Services to be resold/distributed. Customer shall not resell to,
`make available for use by, or otherwise transfer title to any Product to, any end user
`or other third party, including any reseller, without such reseller certifications or
`distribution rights.
`
`2.2
`
`Customer is not authorized by these Terms of Sale to resell Products to any United
`States Federal, state, or local entity, including under such arrangements as a direct
`General Services Administration (“GSA”) Schedule contract, California Multiple
`Award Schedule (“CMAS”) or similar state or federal schedule contract.
`
`3.0
`
`PRICES
`
`3.1
`
`3.2
`
`Prices for Products and Services shall be those specified in Cisco’s then current
`Price List, less any applicable discount at the time of acceptance of the Purchase
`Order by Cisco , or in accordance with an applicable, valid written price quotation, if
`any, submitted by Cisco to Customer for such Products or Services.
`
`All prices are exclusive of any freight, handling and shipping insurance charges,
`taxes, fees and duties or other similar amounts, however designated, including
`without limitation value added, sales and withholding taxes which are levied or
`based upon the prices, charges or upon these Terms of Sale. Customer shall pay
`any taxes related to Products and Services provided pursuant to these Terms of
`Sale (except for taxes based on Cisco’s revenue income) or shall present an
`exemption certificate acceptable to all relevant taxing authorities. Applicable taxes
`shall, to the extent practical, be billed as a separate item on the invoice.
`
`4.0
`
`ORDERS
`
`4.1
`
`Customer shall purchase or license Products or Services by issuing a Purchase
`Order, signed, if requested by Cisco, or (in the case of electronic transmission) sent
`by its authorized representative, indicating specific Products and Services, Cisco
`Product numbers, quantity, unit price, total purchase price, shipping instructions,
`requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if
`applicable, contract reference, and identity of the end user for each Product and
`Service. No contingency contained on any Purchase Order shall be binding upon
`
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`4.2
`
`4.3
`
`Cisco. The terms of these Terms of Sale shall apply, regardless of any additional
`or conflicting
`terms on any Purchase Order or other correspondence or
`documentation submitted by Customer to Cisco, and any such additional or
`conflicting terms are deemed rejected by Cisco.
`
`Cisco shall use commercially reasonable efforts to provide order acknowledgement
`information within three (3) business days for all Purchase Orders placed on
`Cisco.com or within ten (10) business days of receipt for Purchase Orders placed
`by any other method. Upon and subject to credit approval by Cisco following
`Cisco’s receipt of any Purchase Order, Cisco Customer Service will review and
`accept or decline any or all Purchase Orders for the Cisco entity that will supply the
`Products or Services, and no other person is authorized to accept Purchase Orders
`on behalf of Cisco. Cisco Customer Service may accept a Purchase Order even if
`some of the information required by Section 4.1 above is missing or incomplete.
`
`Customer may defer Product shipment for up to thirty (30) days from the original
`shipping date scheduled by Cisco, provided written or electronic notice (issued, in
`either case, by an authorized representative of Customer) is received by Cisco at
`least ten (10) days before the originally scheduled shipping date. Cancelled
`Purchase Orders, rescheduled shipments or Product configuration changes
`requested by Customer less than ten (10) days before the original scheduled
`shipping date shall be subject to (a) acceptance by Cisco, and (b) a charge of
`fifteen percent (15%) of the total invoice amount relating to the affected Products.
`Cisco reserves the right to reschedule shipment in cases of configuration changes
`requested by Customer within ten (10) days of scheduled shipment. No
`cancellation shall be accepted by Cisco where Products are purchased with
`implementation services, including design, customization or installation services,
`except as may be set forth in the agreement or statement of work under which the
`services are to be rendered.
`
`5.0
`
`SHIPPING AND DELIVERY
`
`5.1
`
`5.2
`
`5.3
`
`5.4
`
`Scheduled shipping dates will be assigned by Cisco as close as practicable to
`Customer’s requested date based on Cisco’s then-current lead times for the
`Products. Cisco will communicate scheduled shipping dates in the order
`acknowledgement or on Cisco.com. Unless given written instruction by Customer,
`Cisco shall select the carrier.
`
`Shipping options available as well as applicable shipment terms (per Incoterms
`2010) are set forth in Exhibit A hereto. The selected shipping option shall be
`indicated on the Purchase Order. Where applicable, Customer shall pay the
`shipping and handling charges in addition to the purchase price for the Products,
`which will be included in remittance and/or commercial invoices issued by Cisco.
`Title and risk of loss shall transfer from Cisco to Customer and delivery shall be
`deemed to occur in accordance with Exhibit A hereto. Customer shall be
`responsible for all freight, handling and insurance charges subsequent to delivery.
`
`Where Customer places orders on any Cisco Affiliate other than Cisco, Customer
`shall pay invoices issued by such entity with respect to such orders and the delivery
`terms agreed with such entity shall apply. Different shipping terms may apply to
`such Purchase Orders as set forth on Exhibit A or otherwise as set out on
`Cisco.com.
`
`Customer shall assume responsibility for compliance with applicable export laws
`and regulations, including the preparation and filing of shipping documentation
`necessary for export clearance. This also applies in cases where Customer
`requests in its Purchase Order delivery of Products to Customer’s forwarding agent
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`or another representative in the country of shipment. Customer agrees not to use
`any export licenses owned by Cisco or any of its Affiliates.
`
`
`For shipments under FCA as per the attached Exhibit A, Customer specifically
`agrees to provide Cisco with the complete name and address of each End User
`either (a) in the Purchase Order issued, or (b) in writing within five (5) days of
`receiving a request by Cisco, and other information required under this Agreement
`or requested by Cisco. Export clearance will ensure utilizing Cisco’s general global
`export licenses or in the case a general global license does not include the listed
`End User destination, then individual export licenses must be obtained prior to
`export. Customer accepts any additional delays caused by the export licensing
`process as well as delays to comply with conditions of the individual export license.
`
`5.5
`
`5.6
`
`CISCO SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR
`DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY.
`EXCEPT IN ACCORDANCE WITH THE APPLICABLE SHIPPING TERMS SET
`FORTH IN THESE TERMS OF SALE, CISCO SHALL NOT HAVE ANY LIABILITY
`IN CONNECTION WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED
`TO BE AN AGENT OF CISCO.
`
`All sales are final. Except as provided in Cisco’s warranty statements, Cisco does
`not accept returns unless (i) Cisco shipped a product other than as specified in the
`Purchase Order, (ii) such Product is unopened, and (iii) the Product is returned in
`accordance with Cisco’s then current RMA policy and procedures.
`
`6.0
`
`PAYMENT
`
`Upon and subject to credit approval by Cisco, payment terms shall be thirty (30) days from
`shipping date. All payments shall be made in the currency of the Price List applicable to the
`Purchase Order. If at any time Customer is delinquent in the payment of any invoice, or is
`otherwise in breach of these Terms of Sale, Cisco may, in its discretion, and without
`prejudice to its other rights, withhold shipment (including partial shipments) of any order,
`require Customer to prepay for further shipments, and/or withhold the provision of Services,
`until complete payment has been received. Any sum not paid by Customer when due shall
`bear interest from the due date until paid at a rate of (i) ten per cent per annum or (ii) the
`maximum rate permitted by law, whichever is less. Customer grants Cisco a security
`interest in Products purchased under these Terms of Sale to secure payment for such
`Products. If requested by Cisco, Customer agrees to execute financing statements to
`perfect this security interest.
`
`7.0
`
`PROPRIETARY RIGHTS AND SOFTWARE LICENSING
`
`7.1
`
`Subject to Section 7.2 below and the terms contained in Exhibit B (Cisco’s End
`User License Agreement (“EULA”)), Cisco grants to Customer a non-exclusive,
`non-transferable license (a) to use the Software and Documentation for Customer’s
`internal use, and (b) where Customer is a certified Cisco reseller or authorized
`distributor, to market and Resell the Software and related Documentation in the
`Territory during the term of these Terms of Sale, solely as permitted by Section 2.0
`(Scope) and this Section 7.0 (Proprietary Rights And Software Licensing) of these
`Terms of Sale. Any resale of Software or Documentation to any person or entity
`other than as expressly permitted by Section 2.0 (Scope) is expressly prohibited.
`Customer may not sublicense, to any person or entity, any rights to distribute the
`Software or Documentation.
`
`7.2
`
`For non-Cisco Branded Software and Documentation delivered in connection with
`this Agreement which is separately licensed by a third party, Customer’s rights and
`responsibilities with respect to such Software or Documentation shall be governed
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`in accordance with the third party’s applicable software license. Customer shall, on
`request, enter into one or more separate “click-accept” license agreements or third
`party license agreements as part of the installation and/or download process which
`shall supersede this Agreement with respect to the non-Cisco Branded Software or
`Documentation covered by such license.
`
`7.3
`
`Where Customer is a certified Cisco Reseller, Customer shall provide a copy of the
`Cisco EULA and applicable third party license agreement to each end user with
`delivery of the Product or prior to installation of the Software. Customer shall notify
`Cisco promptly of any breach or suspected breach of the Cisco EULA or third party
`license and further agrees that it will, at Cisco’s request, assist Cisco in efforts to
`preserve Cisco’s or its supplier’s intellectual property rights including pursuing an
`action against any breaching third parties.
`
`8.0
`
`LIMITED WARRANTY
`
`8.1
`
`8.2
`
`8.3
`
`8.4
`
`8.5
`
`Products. The warranties for Cisco Branded Products may be found at the
`following URL: http://www.cisco.com/go/warranty.
`
`Notwithstanding any other term of these Terms of Sale, Cisco’s sole and exclusive
`warranty and obligations are set forth in Cisco’s Limited Warranty Statement
`delivered with the Cisco Branded Product and this Section 8.0. Customer shall not
`make any warranty commitment, whether written or oral, on Cisco's behalf.
`Customer shall indemnify Cisco against any warranties made in addition to Cisco’s
`standard warranty and for any misrepresentation of Cisco’s reputation or of Cisco’s
`Products and Services.
`
`Services. Services provided hereunder shall be performed in a workmanlike
`manner consistent with industry standards. Customer must notify Cisco promptly,
`but in no event more than thirty (30) days after completion of the Services, of any
`claimed breach of this warranty. Customer’s sole and exclusive remedy for breach
`of this warranty shall be, at Cisco’s option, re-performance of the Services, or
`termination of these Terms of Sale or the applicable Service and return of the
`portion of the Service fees paid to Cisco by Customer for such non-conforming
`Services. The provision of Services under these Terms of Sale shall not extend the
`warranties provided with any Hardware purchased or Software licensed by
`Customer.
`
`Restrictions. The limited warranties referenced in this Section 8.0 do not apply if
`the Cisco Branded Product (a) has been altered, except by Cisco, (b) has not been
`installed, operated, repaired, used or maintained in accordance with instructions
`made available by Cisco, (c) has been subjected to abnormal or unusual physical
`or electrical stress or environmental conditions, misused, or negligently handled or
`operated; (d) is acquired by Customer for beta, evaluation, testing, demonstration
`purposes or other circumstances for which Cisco does not receive a payment of a
`purchase price or license fee.
`
`Unless otherwise specified in writing by Cisco, the limited warranties referenced in
`this Section 8.0 do not apply to any non-Cisco Branded Software or Hardware that
`may be offered for sale on the Price List in the name of a third party. Non-Cisco
`Branded Hardware and Software are warranted solely by
`the applicable
`manufacturer or licensor. Cisco will pass through, to the extent permitted, the
`manufacturer’s and/or licensor’s warranties and Customer shall look solely to such
`manufacturer and/or licensor for warranty claims.
`
`8.6
`
`DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS
`SECTION 8.0, CISCO HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL
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`REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS,
`IMPLIED, OR STATUTORY),
`INCLUDING, WITHOUT LIMITATION, ANY
`WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A
`PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, SATISFACTORY
`QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR
`(B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE,
`OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY OR
`CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS
`LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD.
`
`9.0
`
`CONFIDENTIAL INFORMATION
`
`9.1
`
`9.2
`
`9.3
`
`“Confidential Information” to be disclosed by Customer under these Terms of Sale
`is information regarding Customer's network operations and technical plans and
`marketing and financial data, and “Confidential Information” to be disclosed by
`Cisco under these Terms of Sale is information regarding Cisco’s Products and
`Services, technical, financial, and marketing data, information relating to future
`product and service development, and information posted on Cisco.com.
`
`The receiving party ("Receiving Party") may use the Confidential Information solely
`for the purpose of furtherance of the business relationship between the parties, as
`provided in these Terms of Sale and shall not disclose the Confidential Information
`to any third party, other than to employees of the Receiving Party who have a need
`to have access to and knowledge of the Confidential Information, solely for the
`purpose authorized above. Each party shall take appropriate measures by
`instruction and agreement prior to disclosure to such employees to assure against
`unauthorized use or disclosure. Information (other than that on Cisco.com)
`disclosed by the disclosing party (“Disclosing Party”) in written or other tangible
`form will be considered Confidential Information only if such information is
`conspicuously designated as “Confidential,” “Proprietary” or bears a similar legend.
`Information disclosed orally shall be considered Confidential Information only if: (i)
`identified as confidential, proprietary or the like at the time of disclosure, and (ii)
`confirmed as confidential, proprietary or the like in writing within thirty (30) days of
`disclosure. Confidential Information disclosed to the Receiving Party by any
`Affiliate or agent of the Disclosing Party is subject to these Terms of Sale.
`
`The Receiving Party shall have no obligation with respect to information that (i) was
`rightfully
`in possession of
`the Receiving Party without any obligation of
`confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently
`becomes, legally and publicly available without breach of these Terms of Sale; (iii)
`is rightfully obtained by the Receiving Party from a source other than the Disclosing
`Party without any obligation of confidentiality; (iv) is developed by or for the
`Receiving Party without use of the Confidential Information and such independent
`development can be shown by documentary evidence; or (v) is disclosed by the
`Receiving Party pursuant to and in accordance with a valid order issued by a court
`or government agency, provided that the Receiving Party provides (a) prior written
`notice to the Disclosing Party of such order and (b) the Disclosing Party prior
`opportunity to oppose or restrict such disclosure. Upon written demand by the
`Disclosing Party, the Receiving Party shall: (i) cease using the Confidential
`Information, (ii) return the Confidential Information and all copies, notes or extracts
`thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii)
`upon request of the Disclosing Party, certify in writing that the Receiving Party has
`complied with the obligations set forth in this paragraph.
`
`9.4
`
`Each party shall retain all right, title and interest to such party’s Confidential
`Information. No license to any intellectual property (or application for intellectual
`property protection) is either granted or implied by the conveying of Confidential
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`Information. The Receiving Party shall not reverse-engineer, decompile, or
`disassemble any software disclosed to it and shall not remove, overprint or deface
`any notice of copyright or confidentiality, trademark, logo, legend, or other notices
`of ownership from any originals or copies of Confidential Information it obtains from
`the Disclosing Party or from any copies the Disclosing Party is authorized to make.
`
`9.5
`
`Neither party shall disclose, advertise, or publish either the existence, the subject
`matter, any discussions relating to, or any of the terms and conditions, of these
`Terms of Sale (or any summary of any of the forgoing) to any third party without the
`prior written consent of the other party. Any press release, publication,
`advertisement or public disclosure regarding these Terms of Sale is subject to both
`the prior review and the written approval of both parties.
`
`PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION
`
`
`
`10.1 Claims. Cisco will defend any claim against Customer that a Product infringes third
`party patents or copyrights (“Claim”) and will indemnify Customer against the final
`judgment entered by a court of competent jurisdiction or any settlements arising out
`of a Claim, provided that Customer:
`
`
`
`10.0
`
`
`
`(a) Promptly notifies Cisco in writing of the Claim; and
`(b) Cooperates with Cisco in the defense of the Claim, and grants Cisco
`full and exclusive control of the defense and settlement of the Claim
`and any subsequent appeal.
`
`
`Additional Remedies. If a Claim is made or appears likely, Customer agrees to
`permit Cisco to procure for Customer the right to continue using the Product, or to
`replace or modify the Product with one that is at least functionally equivalent. If
`Cisco determines that none of those alternatives is reasonably available, then
`Customer will return the Product and Cisco will refund Customer’s remaining net
`book value of the Product calculated according to generally accepted accounting
`principles.
`
`Exclusions. Cisco has no obligation for any Claim based on:
`
`
`(a) Compliance with any designs, specifications, or instructions provided
`by Customer or a third party on Customer’s behalf;
`
`(b) Modification of a Product by Customer or a third party;
`(c) The amount or duration of use which Customer makes of the Product,
`revenue earned by Customer from services it provides that use the
`Product, or services offered by Customer to external or internal
`customers; or
`
`(d) Combination, operation or use of a Product with non-Cisco products,
`software or business processes.
`
`Sole and Exclusive Remedy. This Section 10.0 (Patent and Copyright Infringement
`Indemnification) states Cisco’s entire obligation and Customer’s exclusive remedy
`regarding any claims for intellectual property infringement.
`
`
`10.2
`
`10.3
`
`10.4
`
`11.0
`
`TERM AND TERMINATION
`
`11.1
`
`These Terms of Sale shall commence on the Effective Date and continue thereafter
`for a period of one year, unless sooner terminated, as set forth below. These
`Terms of Sale shall be automatically renewed thereafter, for successive one (1)
`year periods, unless at least forty-five (45) days prior to the date of any such
`renewal, either party shall have given written notice to the other of its intention that
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`these Terms of Sale not be renewed. These Terms of Sale shall automatically
`terminate at the end of the annual period during which such notice is given.
`
`11.2
`
`11.3
`
`11.4
`
`Either party may terminate these Terms of Sale at any time by providing the other
`party with at least forty-five (45) days’ prior written notice of termination.
`
`A party may terminate these Terms of Sale immediately by written notice if (i) the
`other party ceases or threatens to cease to carry on business as a going concern;
`or (ii) the other party becomes or is reasonably likely to become subject to voluntary
`or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar
`officer is appointed with respect to the whole or a substantial part of the other
`party’s assets; or (iv) an event similar to any of the foregoing occurs under any
`applicable law.
`
`If a party breaches any of the provisions of these Terms of Sale, the non-breaching
`party may terminate these Terms of Sale as follows: (a) immediately upon providing
`written notice to the breaching party if the breach is not capable of being cured, and
`(b) thirty (30) days after providing written notice to the breaching party if the
`breaching party fails to cure such breach within such thirty (30) day period.
`
`11.5 Cisco may terminate these Terms of Sale upon twenty (20) days’ written notice in
`the event it becomes known that (i) Customer or an Affiliate or Customer's direct or
`indirect parent has acquired or intends to acquire a controlling interest in a third
`party, or (ii) Customer or its direct or indirect parent is to be acquired by a third
`party, or (iii) a controlling interest in Customer or its direct or indirect parent is to be
`transferred to a third party.
`
`11.6 Cisco may terminate these Terms of Sale immediately upon written notice in the
`event that Customer is in breach of Sections 7.0 (Proprietary Rights and Software
`Licensing), Section 9.0 (Confidential Information), or Section 14.0 (Export, Re-
`Export, Transfer & Use Controls), or Section 15.0 (Compliance with Laws,
`Including Anti-Corruption Laws).
`
`11.7 Upon termination or expiration of these Terms of Sale, (a) Cisco reserves the right
`to cease all further delivery of Product or Services, (b) all outstanding invoices
`immediately become due and payable by certified or cashier’s check, and (c) all
`rights and licenses of Customer under these Terms of Sale shall terminate, subject
`to the terms of the last sentence of this paragraph. If Cisco agrees to complete
`delivery of any further Products or Services due against any existing Purchase
`Orders then Customer shall pay for such Products or Services in advance by
`certified or cashier’s check. Except for a termination of these Terms of Sale
`resulting from Customer's breach of Section 7.0 (Proprietary Rights and Software
`Licensing), Section 9.0 (Confidential Information), or Section 14.0 (Export, Re-
`Export, Transfer & Use Controls), upon termination or expiration of these Terms of
`Sale, Customer may continue to use, in accordance with these Terms of Sale,
`Products provided to it by Cisco prior to the date of termination or expiration.
`
`11.8 Upon termination or expiration of these Terms of Sale, Customer shall immediately
`return to Cisco all Confidential Information (including all copies thereof) then in
`Customer's possession, custody or control; provided, that except for a termination
`resulting from Customer's breach of Section 7.0 (Proprietary Rights and Software
`Licensing), or Section 14.0 (Export, Re-Export, Transfer & Use Controls), Customer
`may retain a sufficient amount of such Confidential Information and material to
`operate its installed base of Products.
`
`11.9
`
`In the event that, following the expiration or termination of these Terms of Sale,
`Customer places Purchase Orders and Cisco accepts such Purchase Orders, then
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`March 2012
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`CISCO CONFIDENTIAL
`SALES_TERMS_OF_SALE.doc
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`8
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`these Terms of Sale
`any such Purchase Orders shall be governed by
`notwithstanding the earlier expiration or termination of these Terms of Sale;
`provided, however, that acceptance by Cisco of any such Purchase Order will not
`be considered to be an extension of the term of these Terms of Sale nor a renewal
`thereof.
`
`12.0
`
`SERVICES
`
`Customer may place Purchase Orders for the various Services offered by Cisco. Such
`Services, if accepted by Cisco, shall be subject to these Terms of Sale, as well as the
`additional terms and conditions set forth in Cisco’s then-current applicable Service
`descriptions that describe the deliverables and other terms applicable to such Services
`unless an Existing Agreement is in effect in which case the terms of the Existing Agreement
`shall govern any such Services. Copies of Cisco’s Services descriptions may be found at
`www.cisco.com/go/servicedescriptions/. Cisco reserves the right to subcontract Services to
`a third party maintenance organization to provide Services to Customer.
`
`13.0 RECORDS
`
`13.1 Customer shall keep full, true, and accurate records and accounts, in accordance
`with generally-accepted accounting principles, of each Product, Service and
`Software
`license purchased, resold, and/or deployed,
`including
`information
`regarding Software usage and export or transfer. Customer shall make such
`records available for review by or on behalf of Cisco upon fifteen (15) days’ prior
`written notice, during regular business hours, at Customer’s principal place of
`business and shall provide Cisco with reasonable assistance in order to review and
`secure copies of such records. In the event such review discloses non-compliance
`with these Terms of Sale, Customer shall promptly pay to Cisco the appropriate
`license fees, plus the reasonable cost of conducting the review.
`
`13.2
`
`Inventory Review. From time-to-time Cisco may perform an inventory review of
`Customer’s installed base of Products and review serial numbers and other records
`(upon reasonable advance notice) to validate Service entitlement. Cisco will
`charge a Service fee if it finds that Services are being provided beyond that for
`which Customer has paid Cisco. This Service fee includes amounts which should
`have been paid, interest, attorneys’ fees, if any, and audit fees. Cisco requires that
`Customer take all necessary action (for example, disabling passwords) to ensure
`that any former employees or contractors do not access or use the Services.
`
`14.0
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`EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS
`
`Cisco products, technology and Services are subject to U.S. and local export control laws
`and regulations. Customer shall comply with such laws and regulations governing use,
`export, re-export, and transfer of products, technology and services and will obtain all
`required U.S. and local authorizations, permits or license