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5.2 Recipient shall be solely responsible for payment of any and all international, federal, state and local sales, use value-added and excise taxes, any other taxes or duties or any nature whatsoever assessed upon or with respect to the Equipment and Software provided and licensed under this Agreement, or otherwise arising from this Agreement and the transactions contemplated hereby 5.3 Recipient will defend, indemnify, and hold harmless Cisco from any violation or alleged violation by Recipient of any Applicable Laws. 5.4 Recipient hereby represents and warrants that: (a) it shall comply with all Applicable Laws; (b) this Agreement and each of its terms are in full conformance and in compliance with such laws; and (c) it shall not act in any fashion or take any action that will render Cisco liable for a violation of the U.S. Foreign Corrupt Practices Act (“FCPA”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality to assist it or Cisco in obtaining or retaining business or in carrying out the Services. Recipient’s failure to comply with the FCPA shall constitute a material breach of this Agreement. 5.5 Recipient shall use its best efforts to regularly and continuously inform Cisco of any requirements under any Applicable Laws or of any governmental authorities which directly or indirectly affect this Agreement or Cisco's trade name, trademarks or other commercial, industrial or intellectual property interests. 6. No resale. Recipient represents that it will use the Equipment for its own internal use and not for resale, remarketing or distribution. 7. Confidential Information. In connection with receiving the donated the Equipment, Recipient may receive confidential and/or proprietary Cisco Information. Recipient shall hold confidential and shall not use or permit others to use any proprietary information identified as such in writing or orally by Cisco or information which Recipient knows or has reason to know is confidential, proprietary or trade secret information of Cisco. In addition to the foregoing, Recipient agrees that it shall notify Cisco in writing of any discovered defects, bugs, or flaws in any of the donated Equipment or software and shall not disparage Cisco or its products verbally or in writing, or otherwise provide a negative reference regarding Cisco to any third party. Violation of the confidentiality and nondisclosure obligations contained in this agreement by Recipient shall entitle Cisco to obtain injunctive relief. Recipient shall pay all reasonable expenses incurred by Cisco in obtaining such relief. 8. Limitation of Liability. 8.1 Notwithstanding anything else in this Agreement or otherwise, but subject to clause 8.3, Cisco will not be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability, or other legal or equitable theory for any special, indirect, consequential, incidental, or exemplary damages, or for damages for loss of business, profits, business interruptions, or loss of information, even if a party has been advised of the possibility of such damages. 8.2 Notwithstanding anything else in this Agreement or otherwise but subject to clause 8.3, Cisco will not be liable to Recipient with respect to the subject matter of this Agreement under any contract, negligence, strict liability, or other legal or equitable theory for any amounts in excess of the one thousand US dollars ($1,000). This limitation of liability is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit). 8.3 Nothing in this Agreement shall limit either party’s liability (1) for personal injury or death caused by its negligence, (2) in the tort of deceit, (3) for any breach of the obligations implied by section 12 Sale of Controlled Doc# Page 2 of 11 CISCO CONFIDENTIAL Modification Date: 26/04/.2004 EMEA DA final November 2006
Goods Act 1979 or section 2 Supply of Goods and Services Act 1982 or (4) for any liability which cannot be excluded under applicable law 9. General. 9.1. Controlling Law and Jurisdiction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of England and Wales. The English Courts shall have exclusive jurisdiction over any claim arising under this Agreement. Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement. 9.2. Notices. Any notice to be given under this Agreement will be in writing and addressed to the party at the address stated below. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal, or (iv) if sent by certified or registered mail, within five days of deposit in the mail. To Cisco: Cisco Systems International BV Haarlerbergpark Haarlerbergweg 13-19 1101-CH Amsterdam The Netherlands. Attn: General Counsel To Recipient Business Manager 9.3. No Waiver. A party’s decision not to insist on strict performance of any requirement of this Agreement shall not operate or be construed to waive any future omission or breach, or any other provision of this Agreement. 9.4. Assignment. Recipient may not assign any of its rights or delegate any of its obligations under this Agreement without Cisco’s prior written consent. Any attempted assignment or delegation without Cisco's prior written consent, which Cisco will not unreasonably withhold, will be voidable by Cisco. 9.5. Severability. If any court of competent jurisdiction holds that any provision of this Agreement is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired, and all remaining terms of this Agreement remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties. 9.6. No Agency. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. 9.7. Export Laws Compliance. Recipient acknowledges that materials Cisco supplies under the Agreement may be subject to export or import controls under the laws and regulations of the United States. Recipient will comply with such laws and regulations, and, agrees not to knowingly export, re-export, import or re-import, or transfer Cisco materials without first obtaining all required U.S. Government approvals or licenses. Cisco and Recipient agree to provide the other information and assistance as each Controlled Doc# Page 3 of 11 CISCO CONFIDENTIAL Modification Date: 26/04/.2004 EMEA DA final November 2006
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