EX-10.49 15 scansourceex1049063020.htm EXHIBIT 10.49
Exhibit 10.49
IN ACCORDANCE WITH ITEM 601(b) OF REGULATION S-K, CERTAIN IDENTIFIED INFORMATION (THE “CONFIDENTIAL INFORMATION”) HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED. THE CONFIDENTIAL INFORMATION IS DENOTED HEREIN BY [*****].
CISCO DISTRIBUTOR VALUE CREATED SERVICES PROGRAM ADDENDUM
This Addendum (the “Addendum”) to the Support Exhibit of the Two Tier Nonexclusive Distributor Agreement (“Agreement”) is entered into between Cisco Systems, Inc., a California corporation having its principal place of business at 170 West Tasman Drive, San Jose, CA 95134 ("Cisco"), and ScanSource, Inc. ("Distributor"), a South Carolina corporation with a place of business at 6 Logue Court, Greenville, South Carolina, 29615. Cisco and Distributor may be referred to herein individually as a “Party” or collectively as the “Parties” and is effective as of the date of last signature below (the “Effective Date”).
WHEREAS, Cisco and Distributor previously entered into a Nonexclusive Value Added Distributor Agreement dated January 22, 2007, as amended (the "Agreement"), and are now supplementing the Agreement In the manner stated herein;
NOW THEREFORE, in consideration of the covenants and promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged by all of the parties to this Amendment, Cisco and Distributor hereby represent, covenant and agree as follows:

1. | Cisco Distributor Value Created Services Program – Terms and Conditions

This Addendum sets forth additional terms and conditions for Distributor’s participation and purchase of services related to the Cisco Distributor Value Created Services Program during the term of the Agreement. Any terms not defined in this Addendum shall have the meaning stated in the Agreement. Except as modified by this Addendum, all terms and conditions of the Agreement shall remain in full force and effect. In the event of a conflict between the terms and conditions of this Addendum and any terms and conditions of the Agreement, this Addendum will prevail with regard to the subject matter herein.
This Addendum and the Agreement are the complete agreements between the parties and supersede all prior oral and written agreements, representations, warranties and commitments of the parties regarding subject matter herein.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum 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 Addendum.
Cisco System, Inc. ScanSource, Inc.
By: /s/ Brian Dulac By: /s/ Rich Long
Name: Brian Dulac Name: Rich Long
Title: Controller, Finance Title: President
Date: March 2, 2015 Date: 2-24-15

Exhibit 10.49
ADDENDUM TO THE TWO TIER NONEXCLUSIVE DISTRIBUTOR AGREEMENT CISCO DISTRIBUTOR VALUE CREATED SERVICES PROGRAM TERMS AND CONDITIONS
1.0 DEFINITIONS.

1.1 | Additional Program Documentation means the Performance Management Appendix, Eligibility Guide, Eligible Bookings Guide, and incorporated by reference within the Program Guide.

1.2 | Deliverable(s) means, with respect to each Service Descript io n, the items to be delivered by Cisco to Distr i butor as specified in the Service Description, including, without limitation, any Reports.

1.3 | End User Network Information [*****].

1.4 | Previous Service Program means the Cisco Partner Core-Bridge Program as defined in the Cisco Partner Core-Bridge Distri butor Consumption Model Program Guide. Under which Distributor may have been previously part i c i pating and receiving services from Cisco prior to the Program defined under this Addendum becoming available.

1.5 | Program means the Cisco Distributor Value Created Services Program.

1.6 | Program Guide means the governing document for Cisco Distributor Value Created Services Program, d efining program elements, inc l uding, but not lim i ted to, e l igibility, performance management, and any applicable rebates.

1.7 | Report(s) means a report or reports generated by Cisco based on End User Network Information. The informat i on contained in Reports may i nclude part or all of the collected End User Network Information, product alert information, and such other information as C i sco deems appropr i ate.

1.8 | Service(s) means those services made available under the Program.

1.9 | Services Description means the descr i ption of the Services, as of the purchase date of such Services, to be made available by Cisco and the applicable terms and conditions under which those Services are prov i ded.

1.10 | Territory means the country or countr i es in which Distributor has been granted author i zation by Cisco to participate i n the Program.

1.11 | Tool(s) means the software or hardware appliance, commonly referred to as "Data Collector Tools" or ''Collectors", [*****].

Exhibit 10.49

2.1 | SCOPE OF THE PROGRAM.

2.2 | The Cisco Distributor Value Created Services Program is a Cisco services program that grants participants accelerated access to purchase and provide support services for certain products as defined by the Program Guide. Th i s Addendum sets forth the terms and condit i ons for Distributor's part i cipation, purchase and/or license of Services solely from Cisco i n the context of a Distributor-Led service offering as described further below and in the terms of the Services purchased under the Program. Subject to meeting eligibility criteria, Distributor is authorized to part i cipate in the Program within the authorized Territory.

2.3 | Upon execution of this Addendum, the Prev i ous Service Program sha ll be automatically terminated and Distr i butor will no longer have rights under the Pervious Service Program.

3.0 | QUALIFICATIONS OF DISTRIBUTOR. [*****] Additionally, Distr i butor understands and acknowledges that Cisco may from time to time require Cisco's Advanced Technology Provider certification or other spec i al i zations as a pre-requisite to the Distributor being certificated as meeting the requirements to support certai n technologies or Products. These qualificat ions ("Eligi bility Criter i a") vary depending on Territory, and are more fu lly described in the Program Guide and/or Add i tional Program Documentation. D i stributor will only be eligible to purchase Services if they have met the eligibility requirements of the specific Service offering. Eligibility Criter i a includes, but is not limited to the following:

i) | Meeting the D i stributor eligibility r equirements, includi ng train i ng, testing, cert i fication, demonstrating capabilities, and services delivery as described more fully i n the Program Guide and/or Addit i onal Program Docume ntatio n; and

ii) | Meet i ng or exceeding minimum program service metrics during the term of the Agreement in order to remain in the Program as outlined i n the Program Guide and/or Add iti onal Program Documentation. In the event Distributor does not meet qualifica tio ns, enrollment in the Program shall be revoked until such time as the D i stributor has been re i nstated in the Program, subject to meeting metrics or taking other actions as defined in the Program Guide and/or Additional Program Documentation.

4.0 CHANGE OF SCOPE. C i sco reserves the right to make changes to the Program, or parts thereof, at any t i me, inc l uding, but not limited to, the eligibility c ri teria, performance metrics, service offerings, and rebates. Any Program changes shall become effective [*****] from the date of notice provided by Cisco. If Distr i butor does not agree with a change made to Services under the Program under this clause, Distributor may elect to either (i) terminate this Addendum within [*****] days of the notice of change of scope by providing written notice to Cisco of such termination; or (ii) cease purchasing the affected Service at i ts sole discret i on, but such cessat io n w i ll not limit Distributor's ability to participate in the affected Service or any other Serv i ces under the Program for wh i ch Distributor is eligible.

5.0 | CISCO RIGHTS AND OBLIGATIONS.

5.0 | Cisco w i ll make available the Services listed at http://www.c iscodistributioncentral.com/cisco-dist r i butor-value-created-services-program for purchase by Distr i butor and resale to Reseller with service delivery to End U ser i n a Distributor-Led support model under the Program. Serv i ces are subject to Distributor eligibility and any availab i lity lim i tations specified in the applicable Service Description.

5.2 | Inspection Fee. In order to be eligible to receive support services as set out here i n for Product that has not been previously supported, for Product where support has lapsed and/or for Other Product. the following shall apply:

5.2.1 | C i sco may charge an inspection fee for Product and/or Other Product in accordance w i th C i sco's standard fee schedule on the Price List i n effect at the t i me of inspection (any related upgrades, replacements, repairs, o r troubleshooting are excluded) ; and

Exhibit 10.49

5.2.2 | C i sco will validate a Software license exists for Software to be supported. Where a valid Softwa r e license does not ex i st, a Software l ice nse fee shall be payable by Distributor to Cisco.

6.0 | DISTRIBUTOR RIGHTS AND OBLIGATIONS.

6.1 | Distributor has read, understood, and agrees to comply with Program Guide, and Additional Program Documentation contained therein, located at http://www.ciscodistributioncentral.com/cisco-distributor-value-created-services-program which is incorpo r ated herein by reference and may be updated from time to t i me by Cisco in its sole discretion under Section 4.0 (Chang e of Scope). Distributor must comply at all times with requirements of particular Serv i ces, Program Guide, and Additional Program Documentation in o rder to achieve and retain the benefits of the Program, including any associated rebate.

6.2 | Distributor-Led. Distributor has been granted the right by Cisco to provide support to End Users for Services that have been made available for pu rchase by any Reseller from Distributor. Such support would be considered as Distributor-Led support provided to End User on behalf of Reseller. Under this type of support model, Distributor will be prov idin g support, depending on Service indicated in the Program Guide and Additional Program Documentat i on, to the End User and Cisco will be prov id ing back line escalation support to Distributor as defined in the Service Description for the applicable Service purchased by Distributor. Under a Distributor-Led support model, Distributor acknowledges that Cisco will not be provid i ng support to D i stributor, Reseller or End User. The responsibility to provide support directly to End User will fall on the Distr i butor as described in the applicable Service Description.

7.0 | REPRESENTATION OF CISCO BRAND. D i str i butor agrees to comply with the guidelines located at http://www.cisco.com/web/partners/market/partner-marks.html, is in co rporated herein by reference.

8.0 | PRICE AND PAYMENT.

8.1 | The price for support of Produc ts is (a) calculated by applying Cisco's then-current service list price less Dis tri butor's discount under the Program.

8.2 | All stated prices are exc l usive of taxe s, fees, duties or other applicable amounts. Any taxes related to Services purchased pursuant to this Agreement shall be paid by Distributor or Distributor shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes, if any, shall be billed as a separate item on the invo ice, to the extent possible. Cisco reserves the right to increase any Service fee in the event a withholding prevents Cisco from receiving the pr ic e specified above.

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

Exhibit 10.49

9.0 | LICENSE.

9.1 | Subject to the terms and conditions he r ein, Cisco grants to D is tributor a limited. revocable, non-exclusive, non-transferable license to (a) use, display, reproduce, modify, and distr i bute Deliverables; (b) create, use, reproduce, and distribute derivative works of the De liv erables; and c) distribute Software that Distributor may rece iv e as a result of Services provided under the Program, only on Product covered under the Program. The license herein is granted sole l y for D ist ributor's support of End Users dur i ng its participation in the Program and solely for use with Cisco products. Distributor may not sublicense to any pe rs ons or entity any rights to reproduce or distribute the Deliverables. Cisco also may terminate this license upon written or oral notice to Distributor, with or without prior notice.

9.2 | Access to and use of Tool(s) by Distributor is subject to acceptance of the Cisco End User Li cense Agreement l ocated at www.cisco.com/go/warrant y incorporated by reference and made a part hereof. Distributor agrees to return Tool(s) upon termination of the license or upon Cisco's request that the Tool(s) be returned to Cisco.

10.0 | OWNERSHIP. As between Distributor and Cisco, Cisco shall at all times retain all right, title, and interest in and to all pre-existing I ntellectual Property owned by Cisco as of the Effective Date and all I ntellectual Property in and to the Services and Deliverables or othe r Intellectua l Property provided or developed by Cisco or a third party on Cisco's behalf thereafter. As between D is tr ibu tor and Cisco, D is tributor shall at all t imes retain all right, title, and interest in and to all pre-existing Int ellectual Property owned by Distributor as of the Effective Date and all Intellectual Property that is developed by Distr ibuto r or by a third party on Distributor's behalf thereafter without the benefit of any of Cisco's I ntellectual Property. T hird party hardware and software shall at all times be owned by the applicable third party.

11.0 | WARRANTY. ALL SERV I CES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, CISCO HEREBY DISCLAIMS AND DISTRIBUTOR WAIVES ALL REPRESENTATIONS, CONDITIONS, ANO WARRANTIES (W H ETHER EXPRESS, IMP LIE D, OR STATUTORY), I NCLUD IN G, WIT H OUT LIMITAT I ON, ANY WARRANTY OR CONDITION (A) OF MERCHANTABLIITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMEN,T TITLE, SAT I SFACTORYQUALITY, QUIET ENJOYMENT, ACCURACY, (B) ARISING FROM ANY COURSE OF DEALING , COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTR Y. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRAN T Y IS LIMITED IN DURATION T O THE APPLICABLE EXPRESS WARRANTY PERIOD. DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRAN T Y SHA LL BE, AT CISCO'S OPTION, RE PERFORMANCE OF THE S ER V I CES; OR CANCELLA TIO N OF THE APPLICABLE SERVICE ORDERED AND RETURN OF THE PORTION OF THE SERVICE FEES PAID TO CISCO BY DISTRIBUTOR FOR SUCH NON-CONFORMING SERVICES.

12.0 | LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES WAIVER.

12.1 | DISTRIBUTOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE DETERMINATION ANO IMPLEMENTATION OF THEIR END USER'S NETWORK, DES I GN, BUSINESS, OR OT HER REQU I REMENTS AND TH AT CISCO SHALL NOT BE RESPONSIBLE FOR T H E FAILURE OF DELIVERABLES AND/OR RELATED SOFTWARE TO MEET END USER'S NETWORK, DESIGN, BUSINESS, OR OTHER REQUIREMENTS.

12.2 | ALL LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS (COLLECTIVELY) FOR CLAIMS ARISING UNDER THIS ADDENDUM OR OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE AMOUNT PAID BY DISTRIBUTOR TO CISCO PURSUANT TO THE RELEVANT SERVICE DURING THE [*****] PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES FIRST GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER-INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).

Exhibit 10.49

12.3 | EXCEPT FOR DISTRIBUTOR'S BREACH OF SECTION 9 (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.

13.0 | DATA USAGE AND PROTECTION.

13.1 | For the purposes of this Section, "person al data", "processing of personal data'', (''processing"), "co ntroller", "processor”, “data subjects", and "third party", shall have the same meanings as in Directive 95/46/EC of the Eu ro pean Parliament and of the Council of 24 October 1995 on the protection of individuals w i th regard to the processing of personal data and of the free movement of such data. If the applicable laws implementing the Directive in a particular country apply a broader definition of "persona l data" (e.g. so as also to include information about legal entities), then the definition of "personal data" under that country's im plementing laws shall apply.

13.2 | Cisco shall, during the term of this Agreement, comply with all applicable law s, regulations, regulatory requirements, and codes of practice in connection with any processing of personal data which they undertake in the performance of or in connection with this Agreement or which may otherw i se apply, including, without limitation, privacy or data protection laws applicable in the country or countries where personal data is collected or held or otherwise processed i ncluding, but not limited to laws and regulations imp lemen ting Directive 95/46/EC (such as the UK Data Protection Act 1998), D irec t i ve 2002/58/EC on Privacy and Electronic Communications, and any data privacy l aws enacted thereunder (together, the "Data Protection Laws").

13.3 | Cisco shall not transfer End User personal data across any country border unless it is strictly unavoidable for the proper performance of the Services.

13.4 | Cisco shall treat all personal data in a manner consistent with its Privacy Policy statement (availab le at Cisco.com).

Exhibit 10.49

14.0 | ASSIGNMENT AND SUBCONTRACTING.

14.1 | Without prejud ice to the Assignment prov i s i on of the Agreement, Distributor may not delegate, assign, or subcontract any obligation which it has to an End User to provide support serv i ces for Prod uc ts under the Program incorporating any of the Services, except where;

(a) | otherwise permitted in writing by C i sco with its prior wr i tten consent; or

(b) | Distr i butor subcontracts to a co mpany that meets the qualification criteria for part i cipation under the P rogram but is acting as a subcontractor to Distributor ("Services Only Partner"); or

(c) | Distr ibutor subcontracts to a service provider in respect of which D i stributor demonstrates to C i sco's reasonable satisfaction , such approval not to be unreasonably withheld or delayed, that the serv i ce provider prov i des support services of an equivalent level of qual i ty to an D i stributor qualified under the Program.

14.2 | In the event that the Territory i ncl udes a country w i th i n the European Economic Area ("EEA" ), Distr i butor is authorized to provide support services incorporating the Services under the Program in an EEA country (''Destination Country" ) where it is not qualified to participate in the Program, provided it has either: (f) subcontracted the Services to a Services Only Partner qualified in the Destinat i on Country as set forth above; or (li) made other arrangements to Cisco's reasonable satisfaction, such approval not to be unreasonably withheld or delayed, to provide support services i n the De stination Country of a quality equivalent to a Services Only Partner qualified in th at country.

14.3 | In all permitted exceptions identified above, the Distributor subcontracting the Services shall remain entirely responsible and any act io ns taken by the Distributor or the Services On ly Partner will coun t in the measurement of Distributor’s performance metrics under the Program.

15.0 | TERM AND TERMINATlON.

15.1 | In addition to all righ ts and remedie s which it may have under the Agreement, Cisco may terminate or suspend its performance with respe ct to some or all Products covered under this Pr ogram, whether or not Products were purchased pri or to or subsequent to the Effective Date, immediately u pon not i ce if (i) Distributor fails to ma i ntain the eligib i lity under the Program; (ii) Distr i butor fails to pay for the Services when due and fails to make such payment w i th i n [*****] days after notice from C isc o of such past due paymen t; (i ii) if Distributor breaches the provisions of Sections 9, 17.2, 17.3, and/or any of the material provisions of this Addendum and fails to remedy such breach w i thin [*****] days after wr itte n notification by Cisc o t o Distributor of such breach; (iv) in the event that Cisco discontinues Service for one or more Product for whatever reason or (v) the Agreement terminates.

15.2 | Either party may at any time terminate the Addendum for convenience, for any reason or no reason, by prov i ding the other party with [*****] prior written notice of termination.

15.3 | This Addendum shall terminate when the Agreement terminates.

15.4 | In the event that Cisco's obligations to Distributor under th i s Program with respe ct to support of Product for wh i ch payment was made pr i or to the expiration of the term as set forth in th is Section extend beyond th e term as app l icable, and provided that D i stributo r comp lies with the terms of the Agreement and its obligations i n this Addendum, Cisco will provide support to Distr i butor for the term of support specified in the purchase o r der issue to Cisco by Distr i butor provided that the max i mum period of support shall not exceed [*****] years from the date of such purchase order.

16.0 | INDEMNIFICATION. D ist ributor hereby indemnifies and holds Cisco harmless from any claim, loss, damage, or expense, i ncluding, but not limited to, rea sonable court costs and attorneys' fees, result i ng from any claim made by End Use r aga i nst C i sco that: (a) Dis t ributor has failed to prov i de End User w i th support services in accordance w 1 th an agreement between Distributor and End User; or (b) Distr i butor has failed to

Exhibit 10.49
comply with or perform its obligations set forth i n th is Agreement, whether under a claim of a third party beneficiary or otherwise. This shall not limit Cisco's obligations, subject to the terms of this Agreement, to provide the support services described here i n.

17.0 | GENERAL.

17.1 | Third Party Services. Cisco reserves the right to subcontract the prov isi on of all or part of the Services to a third party.

17.2 | Disclosure of Contract Informat i on. Distributor acknowledges and agrees that in no event shall any of the information contained in th i s Agreement or Distributor's service contract number(s) or C i sco.com access information be disclosed to any third party. Such i nformation shall be cons idered Confidential Information under the Agreement.

17.3 | Service Marks. Distr i butor w i ll not use Cisco's service marks i n any manner except as set out i n this Agreement or as mutually agreed upon in writing.

17.4 | Ent it lemen t. Distr i butor acknowledges that Cisco has the right to verify an End User's entitlement to rece i pt of Serv i ces, and that End User is entitled to receive support services only on Product for which Distributor has paid the applicable li cense and support fees to C is co. Distr i butor agrees to assist Cisco with enforcement of End User entitlement as necessary, includ i ng, without limitation, provid i ng serial numbe r(s) to Cisco and enabl i ng Cisco to undertake inventory review(s).

17.5 | Not i ces. All notices required or permitted under this Addendum wilt be i n writ i ng and will be deemed given one (1) day after deposit with a commerc i al express cou rie r spec i fying ne xt day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written ver ifi cation of re ceipt. All commu ni cations will be sent to the addresses set forth on the cover sheet of this Agreement or such other address as may be designated by a party by giving written notice to the other party pursuant to th is paragraph. Notwithstanding the above, not i ces regarding changes to the Program may a l so be by posting on Cisco.com or by e-mail or fax.

17.6 | Assignment. Neither this Addendum nor any rights under th i s Addendum may be ass i gned by Distrib utor without the express pr i or written consent of Cisco. Any attemp t ed assignment in violation of the preceding sentence shall immediately terminate the Addendum. C i sco may ass i gn this Addendum and any right or obligat i on under it without Distr i butor's approval, to any affiliate, meaning any corporation, firm, partnership or other entity that directly or directly controls, or is controlled by, or is under common control with Cisco.

17.7 | Survival. Sections 9 (License), 10 (Ownership), 11 (Warranty), 12 (Limitation of Liability and Consequential Damages Waiver), 13 (Da t a Usage and Protection), 15 (Term and Termination), 16 (Indemnification), and 18 (General) sha ll survive the termination or expiration of this Addendum.