Foundation Agreement
1. INTRODUCTION
1.1. This Foundation Agreement ("Foundation Agreement") between the
applicable Regional Broadcom Entity set forth in the referencing
Transaction Document, a Broadcom Inc. company, ("Broadcom"), and
your organization, ("Customer"), is effective on the date set forth in the
referencing Transaction Document which identifies the "Start Date" and
specifies the terms and conditions agreed between the Parties as a
foundation for their relationship as further defined in the applicable
Modules.
1.2. With respect to the Broadcom Offering, additional terms shall be
included in a Module, while terms specific to each individual order from
Customer or Broadcom Partner shall be set forth in the Transaction
Document(s) for such order.
1.3. This Foundation Agreement may incorporate any applicable Module
referenced in the "Governing Contract" section of the applicable
Transaction Document.
2. DEFINITIONS
2.1. "Agreement" means this Foundation Agreement, the applicable
Module, the applicable Transaction Document, and any document
incorporated expressly therein by reference.
2.2. "Affiliate" means any person or entity which directly or indirectly
owns, controls, is controlled by, or is under common control with a
party, where control is defined as owning or directing more than fifty
percent (50%) of the voting equity securities or a similar ownership
interest in the controlled entity.
2.3. "Broadcom Offering" means the individual offering (such as
software, services, education, software as a service, or support) in the
CA, Symantec, or VMware product families.
2.4. "Broadcom Partner" means a Broadcom authorized channel partner
selected by the Customer.
2.5. "Broadcom Software" means the computer software programs in
the CA, Symantec, or VMware product families made generally available
and licensed to Customer under the applicable Module pursuant to the
applicable Transaction Document. Broadcom Software may be provided
individually or packaged as a software appliance and includes all
versions and releases provided as part of Broadcom Maintenance, if
applicable.
2.6. "Confidential Information" means any information, maintained in
confidence by the disclosing Party, communicated in written or oral
form, marked as proprietary, confidential, or otherwise so identified, or
any information that by its form, nature, content, or mode of
transmission would be deemed confidential or proprietary to a
reasonable recipient, including, without limitation, Broadcom Offerings,
Documentation, the Agreement, Transaction Documents, Broadcom
provided pricing, and any benchmarking data or results.
2.7. "Documentation" means the technical product specifications or user
manuals published by Broadcom or a Broadcom Affiliate.
2.8. "Module" means the additional terms and conditions applicable to
a Broadcom Offering. If a Broadcom Offering includes both on-premises
software and SaaS, then each applicable Module applies.
2.9. "Order Confirmation" means an electronic receipt, issued by
Broadcom or a Broadcom Affiliate, confirming the Broadcom Offering
title, version, quantity (based on metric, meter and/or model), and
Support acquired.
2.10. "Party" or "Parties" means individually and/or collectively
Broadcom and/or the Customer.
2.11. "Personal Data" means any information relating to (i) an identified
or identifiable person and, (ii) an identified or identifiable legal entity
(where such information is protected similarly as personal data or
personally identifiable information under applicable data protection
laws), provided in connection with the Agreement.
2.12. "Taxes" means any applicable sales tax, value-added tax (VAT),
goods and services tax (GST), consumption tax, ISS, PIS and COFINS or
any other applicable taxes.
2.13. "Term" means the period during which the Broadcom Offering is
provided as specified in the Transaction Document.
2.14. "Transaction Document", "Order Form", or "Order" means a
mutually agreed ordering document such as a Broadcom quote, order
form, or statement of work for the specific Broadcom Offering licensed
or purchased. Either Transaction Documents are executed or, in the case
of a quote and purchase order ("PO"), a PO referencing such quote is
issued and that issuance constitutes acceptance of the quote and
formation of contract.
3. ORDERING AND DELIVERY
3.1. Under the terms of this Agreement and subject to the terms of the
applicable Module(s), Customer and any Customer Affiliate
incorporated in the same jurisdiction as Customer, may purchase
Broadcom Offerings directly from Broadcom or through a Broadcom
Partner, and Broadcom shall provide the specific Broadcom Offering. All
Customer Affiliates incorporated in a different jurisdiction than
Customer, must sign a participation agreement with Broadcom to adopt
and adhere to the terms of this Agreement.
3.2. The Broadcom Offerings, (and any hardware components if
included within your Transaction Document), will be delivered either in
tangible media FCA SD (FCA Shipping Dock), as defined in INCOTERMS
2020, from Broadcom's shipping point as indicated in the Transaction
Document or by electronic delivery (ESD). Customer agrees to be
responsible for all customs, duties, import clearances, title, and risk of
loss to any Broadcom hardware, if included, will pass upon point of
delivery to Customer's carrier at Broadcom's shipping location. For
non-US customers, title to the hardware product transfers when the
product leaves the national territory of the US.
3.3. In the event of a payment or set off issue relating to one Broadcom
Offering, such payment issue will not impact any other obligation to pay
for any Broadcom Offering provided to Customer.
4. CONFIDENTIALITY
4.1. The Parties agree that, when receiving Confidential Information
from the disclosing Party, the receiving Party shall hold it in confidence
and shall not disclose nor use such information except as necessary to
carry out the purpose of this Agreement. The receiving Party shall treat
the disclosing Party's Confidential Information confidentially and in the
same manner as it treats its own proprietary and/or confidential
information, which shall not be less than a reasonable standard of care.
Confidential Information may be disclosed to receiving Party's
employees, affiliates, agents, financial advisors, contractors, and
attorneys on a need-to know basis and the receiving Party shall ensure
that such persons preserve and use such Confidential Information
pursuant to the terms of the Agreement.
4.2. The receiving Party may disclose Confidential Information in
connection with a judicial or administrative proceeding to the extent
that such disclosure is required under applicable law or court order,
provided that the receiving Party shall, where reasonably possible, give
the disclosing Party prompt and timely written notice of any such
proceeding and shall offer reasonable cooperation in any effort of the
disclosing Party to obtain a protective order.
4.3. For the purposes of the Agreement, the term "Confidential
Information" excludes: (i) information which the receiving Party has
been authorized in writing by the disclosing Party to disclose without
restriction; (ii) information which was rightfully in the receiving Party's
possession or rightfully known to it prior to receipt of such information
from the disclosing Party; (iii) information which was rightfully disclosed
to the receiving Party by a third Party having proper possession of such
information, without restriction; (iv) information which is part of or
enters the public domain without any breach of the obligations of
confidentiality by the receiving Party; and (v) information which is
independently developed by the receiving Party without use or
reference to the disclosing Party's Confidential Information.
4.4. Nothing in the Agreement will (i) preclude Broadcom from using
the ideas, concepts and know- how which are developed in the course
of providing any Broadcom Offerings to Customer or (ii) be deemed to
limit Broadcom's rights to provide similar Broadcom Offerings to other
customers. Customer agrees that Broadcom may use any feedback
provided by Customer related to any Broadcom Offering for any
Broadcom business purpose, without requiring consent including
reproduction and preparation of derivative works based upon such
feedback, as well as distribution of such derivative works.
4.5. The receiving Party agrees, upon request of the disclosing Party, to
return to the disclosing Party all Confidential Information in its
possession or certify the destruction thereof.
4.6. In the event of a breach of this section 4, the disclosing Party may
not have an adequate remedy at law. The Parties therefore agree that
the disclosing Party may be entitled to seek the remedies of temporary
and permanent injunction, specific performance, or any other form of
equitable relief deemed appropriate by a court of competent
jurisdiction. For any Confidential Information that constitutes a trade
secret under applicable law, the obligations of this section will continue
for so long as such trade secret status is maintained by the disclosing
Party. For all other Confidential Information, the foregoing obligations
shall extend for five (5) years from the date of initial disclosure.
5. FEES
5.1. To the extent permitted by law, Customer shall issue and provide
Broadcom a purchase order ("PO"), or a series of POs, for the full term
and total fees that are due contemporaneously with the execution of
each Transaction Document. Broadcom, directly or through a Broadcom
Partner, reserves the right to invoice Customer for any use of the
Broadcom Offerings in excess of the Authorized Use Limitation at
Broadcom's then-current list price.
5.2. Unless an alternative date of payment is set out on the Transaction
Document, payment is due upon the due date specified on the invoice.
Customer agrees to pay Taxes in addition to the fees when such
payments are due. Customer (a) may only withhold tax as required by
law, subject to the application of any reduced rate allowed in an income
tax treaty or otherwise, (b) shall request all documentation required for
the reduction of withholding tax, and (c) shall provide proof of payment
of the withholding tax for credit relative to the applicable invoice(s).
5.3. If indicated on the Transaction Document, Customer may pay any
initial payment due to Broadcom on or before the due date (as stated in
the applicable Transaction Document) through a same day fed wire. For
other payments required of Customer due to Broadcom, Broadcom will
send Customer an invoice containing updated wire transfer information
at least thirty (30) days prior to each respective due date. Broadcom
reserves the right to change credit or payment terms at Broadcom's
discretion if Customer's or Broadcom Partner's financial condition or
previous payment history so warrant.
5.4. A Customer issued PO may be used to accept terms of a
Transaction Document in place of a signature on the Transaction
Document, provided that Customer references the Transaction
Document in the PO and includes the appropriate reference number, if
applicable.
5.5. If a payment due date falls on a weekend or a holiday the payment
shall be payable by Customer to Broadcom on the business day
immediately prior to such date.
5.6. Failure to timely remit payment of all amounts set forth in a
Transaction Document or under any other agreement with any
Broadcom entity after written notice from Broadcom and a reasonable
opportunity to remit such payment by Customer and to the full extent
permitted by applicable law, shall (1) relieve Broadcom of any support
obligations hereunder, and (2) suspend all Customer subscription use
rights until payment is tendered at which time use rights and support
shall recommence. Broadcom reserves the right to impose late fees as
may be permitted by law on any past due amounts.
5.7. During the Term of any Transaction Document, Broadcom may
increase the fees under the Transaction Document for the Broadcom
Offerings up to 7% annually by providing Customer with advance notice
including through pricing notices posted at the Broadcom support
website no less than ninety (90) days prior to such changes taking place
but in no event will Broadcom purport to effect a price change while in
any particular calendar year (i.e., price changes will only be effective on
January 1 of the year following that in which notice was provided).
5.8. Broadcom may assign its payment rights in, or grant a security
interest in, this Agreement and any associated Transaction Document to
a third party without requiring such third party to be liable for the
obligations of Broadcom under this Agreement or Transaction
Document, provided that (1) Broadcom remains directly responsible for
performance of its duties hereunder, and (2) Customer's obligations are
not otherwise affected.
5.9. In the event Customer orders a Broadcom Offering through a
Broadcom Partner (or that partner's resale channel), this Foundation
Agreement, excluding all of Section 5 (except Section 5.6), shall apply to
Customer.
6. TITLE
6.1. Broadcom retains all right, title, copyright, patent, trademark, trade
secret and all other proprietary interests to all Broadcom Offerings and
any derivatives thereof. No title, copyright, patent, trademark, trade
secret or other right of intellectual property not expressly granted under
the Agreement is exchanged between the Parties.
7. WARRANTY
7.1. Each Party represents and warrants that it has the legal power to
enter into the Agreement.
7.2. Broadcom represents and warrants that it owns or otherwise has
sufficient rights to grant Customer the rights defined in any Transaction
Document and/or Module.
7.3. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY
RESPONSIBLE FOR (1) SELECTING CONFIGURATIONS, POLICIES, AND
PROCEDURES IN THE BROADCOM OFFERING(S) THAT ARE
CONFIGURABLE INCLUDING, WITHOUT LIMITATION, THE SELECTION
OF FILTERED CATEGORIES AND WEB APPLICATION CONTROLS, AND
FOR ASSURING THAT THE SELECTION (A) CONFORMS TO CUSTOMER'S
POLICIES AND PROCEDURES AND (B) COMPLIES WITH ALL APPLICABLE
LAWS.
7.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
ABOVE WARRANTIES AND THOSE SET FORTH WITHIN THE APPLICABLE
TRANSACTION DOCUMENTS AND/OR MODULES ARE THE SOLE
WARRANTIES PROVIDED BY BROADCOM. NO OTHER WARRANTIES,
WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE, INCLUDING THAT THE
BROADCOM OFFERING WILL OPERATE UNINTERRUPTED OR IS ERROR
FREE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE, RELATING TO THE BROADCOM
OFFERINGS, ARE MADE BY BROADCOM OR ITS SUPPLIERS.
8. INDEMNIFICATION
8.1. Broadcom will indemnify, defend and/or, at its option, settle any
third party claims that Customer's use of the specific Broadcom Offering
licensed or purchased by Customer under this Agreement infringes any
valid US patent or copyright within the jurisdictions where Customer is
authorized to use the Broadcom Offering at the time of delivery
provided that: (i) Customer gives Broadcom prompt written notice
thereof and reasonable cooperation, information and assistance in
connection therewith; (ii) Broadcom shall have sole control and
authority with respect to defense or settlement thereof; and (iii)
Customer takes no action that is contrary to Broadcom's interest.
Broadcom may, at its option and expense: (a) procure for Customer the
right to continue to use the Broadcom Offering; (b) repair, modify or
replace the Broadcom Offering so that it is no longer infringing; or (c)
provide a pro-rated refund of the fees paid for the Broadcom Offering
(directly or through the Broadcom Partner) which gave rise to the
indemnity calculated against the remainder of the Term from the date it
is established that Broadcom is notified of the third party claim. If the
Broadcom Offering is Broadcom Software, and is licensed on a
perpetual basis, an amortization schedule of three (3) years shall be
used for the basis of the refund calculation.
8.2. Broadcom shall have no liability: (i) in the event the allegation of
infringement is a result of a modification of the Broadcom Offering
except a modification by Broadcom, (ii) if the Broadcom Offering is not
being used in accordance with Broadcom's specifications, related
documentation and guidelines, (iii) if the alleged infringement would be
avoided or otherwise eliminated by the use of a Broadcom published
update or patch, (iv) if the alleged infringement is a result of use of the
Broadcom Offerings in combination with any third party product, (v) any
Deliverable provided by Broadcom in accordance with Customer's
specifications, (vi) any claim relating to open source software or
freeware technology that is not embedded by Broadcom into the
Broadcom Offerings, (vii) any Broadcom Offering provided on a
no-charge, beta, or evaluation basis, or (viii) if the applicable fees due
for the specific Transaction Document have not been paid or Customer
is otherwise in breach of this Agreement. The indemnifications
contained herein shall not apply and Broadcom shall have no liability in
relation to any Broadcom Offering produced by Broadcom at the
specific direction of Customer. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, THE FOREGOING PROVISIONS STATE THE ENTIRE
LIABILITY AND OBLIGATIONS OF BROADCOM REGARDING CLAIMS OF
INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE TO
CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL
PROPERTY OR OTHER PROPRIETARY RIGHTS.
8.3. Each Party shall indemnify the other against all damages, fees,
(including reasonable attorney's fees) fines, judgments, costs and
expenses finally awarded as a result of a third party action alleging a
bodily injury or death which arises under the Agreement, provided that
such liabilities are the proximate result of gross negligence or
intentional tortious conduct on the part of the indemnifying Party.
8.4. Customer shall indemnify Broadcom against any claim that any
data, materials, items, or information supplied to Broadcom under the
Agreement infringes any US patent, copyright, or trademark within the
jurisdictions where Broadcom is provided with such information.
9. LIMITATION OF LIABILITY
9.1. EXCEPT IN THE CASE OF A BREACH OF CONFIDENTIALITY, TITLE,
AND OF THIRD PARTY CLAIMS ARISING UNDER THE INDEMNIFICATION
SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
A) NEITHER PARTY (INCLUDING ANY OF BROADCOM'S SUPPLIERS)
SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING,
BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, DAMAGES
RELATING TO MONIES SAVED OR FEES GENERATED AND OR ANY LOSS
OF CUSTOMER DATA BY USE OF ANY BROADCOM OFFERING,
REGARDLESS OF WHETHER A PARTY WAS APPRISED OF THE
POTENTIAL FOR SUCH DAMAGES; AND B) IN NO EVENT WILL A
PARTY'S LIABILITY FOR DIRECT DAMAGES, EXCEED TWO TIMES THE
AMOUNTS PAID BY CUSTOMER FOR THE BROADCOM OFFERING THAT
GAVE RISE TO THE BREACH IN THE TWELVE MONTHS PRIOR TO THE
DATE SUCH BREACH OCCURRED. BROADCOM'S SUPPLIERS HAVE NO
LIABILITY UNDER THE AGREEMENT, AND CUSTOMER MAY NOT BRING
CLAIMS DIRECTLY AGAINST THEM. BROADCOM'S AGGREGATE
LIABILITY FOR AN EVALUATION WILL NOT EXCEED $5,000 USD.
10. TERM & TERMINATION
10.1. This Foundation Agreement shall continue in effect unless
otherwise terminated in accordance with this section.
10.2. This Foundation Agreement, applicable Module(s), and the
applicable Transaction Document may be terminated by either Party (a)
upon a material breach by the other Party, provided that, in each
instance of a claimed breach: (i) the non-breaching Party notifies the
breaching Party in writing of such breach; and (ii) the breaching Party
fails to cure such breach within thirty (30) days (or such other period as
mutually agreed by the Parties) from receipt of such notice; (b) upon
insolvency of the other Party, if permitted by law. The foregoing
notwithstanding, any breach by Customer of licenses or rights granted
pursuant to this Agreement will constitute an incurable material breach
by Customer; and, Broadcom may immediately terminate all of
Customer's use rights and licenses, (subscription-based, perpetual,
access, and use), upon written notice to Customer, and Customer must
either: a) delete all full or partial copies of the Broadcom Software and
SaaS instances from all computing or storage equipment and verify
such deletion in a statement signed by a Vice-President or a duly
authorized representative sent to usage.reporting@broadcom.com, or
b) return to Broadcom all full or partial copies of the Broadcom
Software. Such termination shall not relieve Customer from its
obligations as set forth within the related Transaction Document.
10.3. Termination does not release either Party from any liability which,
at the time of such termination, had already accrued to the other Party
or which is attributable to a period prior to such termination, nor
preclude either Party from pursuing any rights or remedies it may have
under law or in equity with respect to any breach of this Foundation
Agreement or the Agreement. In the event of termination by Broadcom
for an uncured material breach by Customer, all fees shall immediately
become due and payable.
10.4. Customer may terminate any Order (direct or indirect) for
Broadcom Offerings (but in all cases excluding any hardware offerings
and associated support contracts therefor) between the parties so long
as such Order is governed by these terms as of the date of termination,
without cause and without further charge or expense at any time.
Customer's termination shall be effective immediately upon written
notice to Broadcom sent to usage.reporting@broadcom.com
On or after the termination date, with the exception of any Fully
Paid-Up perpetual licenses (where the amount of "Fully Paid-Up"
licenses will equal the total whole number of licenses earned prior to
the termination and are assumed to be paid for equally over the initial
term of the associated Support Services), Customer must either: a)
delete all full or partial copies of the Broadcom Software from all
computing or storage equipment, and verify such deletion in a
statement signed by a Vice-President or a duly authorized
representative and sent to usage.reporting@broadcom.com, or b)
return to Broadcom all full or partial copies of the Broadcom Software.
Once Customer's verification or the Broadcom Software copies are
received, Broadcom will pay Customer, or Broadcom Partner, a pro-rata
refund of any License, SaaS/Cloud Service, Support Services, or other
fees Customer or Broadcom Partner pre-paid ("Refund Fees") in
accordance with the paragraph below. Refund Fees will be calculated on
the number of days remaining in the term (which for the purposes of
this calculation will be deemed to commence from the date Customer's
verification or the Broadcom Software copies are received) of the
offering eligible for the refund. If the Broadcom Software is licensed as a
perpetual license and the associated Support Services is in its initial
term, Customer, or Broadcom Partner as appropriate, will receive a
pro-rated refund of the cash consideration paid to Broadcom based on
the initial payment schedule and shall be entitled to keep the whole
number of perpetual licenses Fully Paid-Up through such date, absent
language to the contrary in the applicable order.
10.5. Notwithstanding the foregoing paragraph, if an Order is
terminated without cause, neither Party shall have further obligations
under the Agreement with respect to such Order, except that the Parties
shall remain bound by the obligations within the survival sections of the
Agreements. Refund Fees will be paid within sixty (60) days to Customer
(or Broadcom Partner who will process the invoicing or reimbursement
of fees to Customer as appropriate and under the commercial terms
between the Broadcom Partner and Customer), from the date
Customer's verification or the Broadcom Software copies are received,
and any unpaid fees reflecting the Broadcom Offerings delivered prior
to the termination date shall become immediately due.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1. Choice of Law; Venue. Depending on the Regional Broadcom
Entity that is a Party to this Agreement, the exclusive governing law,
jurisdiction, designated arbitral body, arbitration rules and seat shall be
as set forth below; except for any action related to non-payment, which
may be brought in any court of competent jurisdiction:
Regional Broadcom Entity
Governing Law
Jurisdiction
Arbitration Organization, Rules, and Seat

CA, Inc.
State of California
State and/or Federal Courts located in Santa Clara County, California
The American Arbitration Association ("AAA"); AAA Commercial 
Arbitration Rules; Seat of arbitration in California.

VMware International Unlimited Company
Ireland
Courts located in Ireland
International Chamber of Commerce ("ICC"); ICC Rules of Arbitration; 
Seat of arbitration in Dublin, Ireland.

CA Programas de Computador, Part e Serv Ltda.
Brazil
State Courts located in Sao Paulo, SP, Brazil
The American Arbitration Association Commercial Arbitration Rules; 
Seat of arbitration in Sao Paolo.

Broadcom Government Solutions LLC
State of California
State and/or Federal Courts located in Santa Clara County, California
The American Arbitration Association ("AAA"); AAA Commercial 
Arbitration Rules; Seat of arbitration in California


The Agreement will not be governed by the following, the application of
which is hereby expressly excluded: (a) the conflict of law rules of any
jurisdiction, (b) the United Nations Convention on Contracts for the
International Sale of Goods, and (c) the Uniform Computer Information
Transactions Act, as enacted in any jurisdiction. The Parties further
agree to accept service of process in accordance with the
rules/procedures of the arbitral body or relevant court (as applicable),
except that the Parties hereto irrevocably waive any objection that
service of process must conform to the Hague Service Convention or
other applicable law or treaty regarding service of process.
11.2. Dispute Resolution. Any dispute, claim or controversy arising out
of relating to the Agreement ("Dispute") shall be resolved as provided in
this Section.
11.2.1. Informal Dispute Resolution. Save for Disputes relating to unpaid
amounts, before initiating any formal proceeding relating to a Dispute,
the Parties shall meet as frequently and as often as they reasonably
deem necessary to negotiate in good faith to resolve the Dispute. If the
Parties are unable to resolve the Dispute within thirty (30) days of
initiating the discussions, then each Party shall appoint one (1) senior
executive who is not directly involved on a day-to-day basis with the
subject matter of the Agreement, and those senior executives shall
negotiate the matter in good faith. A formal proceeding relating to a
Dispute shall not be commenced until the earlier of: (i) the good faith
determination by one of the appointed senior executives that resolution
through continued negotiation of the matter does not appear likely; or
(ii) thirty (30) days following the date that the Dispute was first referred
to the appointed senior executives. Nothing in this paragraph shall be
construed to prevent a Party from instituting formal proceedings to the
extent necessary to avoid the expiration of any applicable limitations
period or to pursue injunctive remedies deemed reasonably necessary
to protect its interests.
11.2.2. Arbitration. Except as set forth in this paragraph, any Dispute
shall be resolved by confidential arbitration. The place of the arbitration,
governing law and applicable rules shall be as set forth in Section 11.1
(Choice of Law; Venue). The arbitral tribunal shall consist of three (3)
arbitrators: one selected by each Party, and the third to be agreed upon
by the Parties (and if agreement cannot be reached, designated by the
arbitral body), which third arbitrator shall be the Chairperson. The
language of the arbitration shall be English. The dispute shall be finally
settled within twelve (12) months after constitution of the arbitral
tribunal. The Parties agree to request a written explanation/opinion in
connection with any award. Judgment on the award rendered by the
arbitrators may be enforced in any court having jurisdiction thereof.
Notwithstanding anything to the contrary in this paragraph, either Party
may: (i) apply to any court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other interim or
conservatory injunctive relief; or (ii) seek redress in any court of
competent jurisdiction in order to enforce its intellectual property rights
or protect Confidential Information. The Parties shall have a right to
appeal an arbitral award to a court of competent jurisdiction in order to
set aside the award.
11.3. In any formal action or proceeding arising from a Dispute or
relating to non-payment, the prevailing Party shall be entitled to
recover its costs and reasonable attorneys' fees from the other Party.
12. GENERAL TERMS
12.1. Amendments. The terms of the Agreement may only be amended
by mutual written agreement of the Parties.
12.2. Force Majeure. Except for payment obligations and obligations
pertaining to non-disclosure, notwithstanding any contrary provision in
the Agreement, neither Party will be liable for any action taken, or any
failure to take any action required to be taken, in the event and to the
extent that the taking of such action or such failure arises out of causes
beyond a Party's control, including, without limitation, war, civil
commotion, act of God, pandemic, epidemic, strike or other stoppage
(whether partial or total) of labor, any law, decree, regulation or order of
any government or governmental body (including any court or tribunal).
12.3. Order of Precedence. Any conflict or inconsistency among or
between the terms and conditions of the documents comprising the
Agreement shall be resolved according to the following order of
precedence, from the document with the greatest control to the least:
(1) the Transaction Document; (2) Broadcom's global Data Processing
Addendum (DPA) to the extent one is in place between the Parties, (3)
the applicable Specific Program Documentation or SaaS Listing, (4) the
relevant Module; (5) this Foundation Agreement. Notwithstanding this
Order of Precedence, any terms that may appear on a Customer's
purchase order that vary from the Agreement (including without
limitation pre-printed terms) shall be deemed null and void.
12.4. Independent Contractors. The Parties expressly agree that the
relationship between them is that of customer-independent contractor.
12.5. Personal Data
12.5.1. Broadcom as Controller. Related to the provision of the
Broadcom Offerings, Broadcom may process limited Personal Data as a
controller in accordance with, and for the purposes defined in,
Broadcom's Privacy Policy available at
https://www.broadcom.com/privacy in compliance with applicable data
protection laws. Those purposes include: (i) management of Customer
relationship; (ii) sales administration; (iii) communications related to
technical support, new versions or updates; (iv) marketing of Broadcom
Offerings; (v) development of threat intelligence for the purposes of
ensuring fraud prevention and network and information security; (vi)
development and enhancement of the Broadcom Offerings; and (vii)
compliance with applicable laws and regulations.
12.5.2. Broadcom as Processor. Where Broadcom processes Personal
Data within Customer Data on behalf of Customer, Broadcom's global
Data Processing Addendum (DPA), located at
https://www.broadcom.com/privacy, applies. If Customer procures the
Broadcom Offering through a Broadcom Partner, the Broadcom Partner
shall be responsible for entering into a relevant data processing
agreement with Customer.
12.6. Assignment. Neither Party shall assign the Agreement or any of its
rights or delegate any of its duties under the Agreement, either by
operation of law, agreement, or any other process, without the prior
written consent of the other Party, except that Broadcom shall have the
right to assign the Agreement or any of its rights or delegate any of its
duties under the Agreement at any time to any Broadcom Affiliate(s), or
to a successor in interest of all or substantially all of the business to
which the Agreement relates. Subject to the foregoing, the Agreement
will be binding upon, enforceable by, and inure to the benefit of the
parties and their respective successors and assigns. Any attempted
assignment in violation of this section shall be null and void.
12.7. Import/Export. Customer acknowledges that the Broadcom
Offering(s) is subject to import and export laws and regulation,
including in the specific case of the U.S. the Export Administration
Regulations, and agrees to comply with all applicable import and export
laws and regulations. Customer agrees that the Broadcom Offering(s)
will not be exported, reexported or transferred in violation of export
control laws or used for any purpose connected with chemical,
biological or nuclear weapons or missile applications, nor be transferred
or resold, if Customer has knowledge or reason to know that the
Broadcom Offering(s) are intended or likely to be used for such
purpose. Customer represents and warrants that: (a) Customer and any
Authorized User, are not, and are not acting on behalf of: (1) any person
who is a citizen, national, or resident of, or who is controlled by, the
government of any country to which the United States has prohibited
export transactions; or (2) any person or entity listed on the U.S.
Treasury Department list of Specially Designated Nationals and Blocked
Persons, or the U.S. Commerce Department Denied Persons List or
Entity List, or any similar applicable designated persons list.
12.8. Legal Compliance. Both Parties shall comply with applicable
federal, state, local laws, regulations and ordinances, and all other
applicable laws and regulations in the performance of this agreement
and use of any Broadcom Offering. Broadcom may suspend
performance if Customer is in violation of applicable laws, regulations,
or ordinances or in the event of a security risk to a Broadcom Offering
or its users.
12.9. Critical Applications. The Broadcom Offerings are not fault tolerant
and use of the offerings is prohibited for on-line control equipment in
hazardous environments requiring fail-safe performance, such as the
operation of aircraft navigation or aircraft communications systems, air
traffic control, life support systems, human implantation, nuclear
facilities or systems, weapons systems, or any other application where
failure of the offering could lead to death, personal injury, or severe
physical or environmental damage.
12.10. Announcements. Neither Party may issue press releases relating
to the Agreement without approving the content with the other Party.
Either Party may include the name and logo of the other Party in lists of
customers or vendors in accordance with the other Party's standard
guidelines.
12.11. Notice. Any notice required or permitted by the Agreement shall
be given in writing, will refer to the Agreement and will be personally
delivered or sent by a reputable overnight courier service (e.g., FedEx,
UPS, DHL, etc.), electronic transmission (email or posting to a Broadcom
customer portal) or registered or certified mail (return receipt
requested) to the other Party's legal department at the address set forth
in the Agreement, or such other address as is provided by notice as set
forth herein. Notices shall be deemed effective upon electronic
confirmation; and if delivered via certified mail or overnight courier,
notice shall be deemed effective upon confirmation of delivery.
12.12. Headings. The section headings used herein are for information
purposes only and shall not affect the interpretation of any provision of
this Agreement.
12.13. Validity. In the event any term or provision of the Agreement
shall be held to be invalid, the same shall not affect in any respect
whatsoever the validity of the remainder of the Agreement.
12.14. Third Parties. This Agreement shall not create any rights in favor
of, or any obligations owed by, any third party unless otherwise
expressly defined in any Module. The Parties agree that any action
arising from this Agreement shall solely be brought by Customer or
Broadcom.
12.15. Waiver. Waiver of a breach of the Agreement will not constitute a
waiver of any later breach.
12.16. Survival. Sections pertaining to Dispute Resolution, Choice of
Law, Confidentiality, Title, Warranty, Limitation of Liability, Termination,
and Import Export shall survive termination of this Foundation
Agreement.
12.17. Entire Agreement. The Agreement and all documents
incorporated by reference therein shall comprise the entire agreement
as pertaining to the subject matter thereof and all other prior
representations, proposals, and other such information exchanged by
the Parties concerning the subject matter is superseded in their entirety
by the Agreement.

Software Module
1. INTRODUCTION
1.1. This Module for Broadcom Software ("Software Module") between
the applicable Regional Broadcom Entity set forth in the referencing
Transaction Document, a Broadcom Inc. company, ("Broadcom"), and
Customer, ("Customer"), is effective on the date set forth in the
referencing Transaction Document, and specifies the terms and
conditions which apply to Broadcom Software that Broadcom will
license to Customer and the Support that applies.
1.2. This Software Module incorporates by reference the terms of the
Foundation Agreement effective on the date set forth in the referencing
Transaction Document between Broadcom and Customer (or Broadcom
Partner). Any capitalized terms used in this Software Module shall have
the meanings given in the Foundation Agreement unless otherwise
provided herein.
2. DEFINITIONS
2.1. "Authorized End Users" means Customer, Customer Affiliate(s) and
their employees and independent contractors (but excluding any
outsourcer, facilities management provider, managed service provider,
or application service provider unless Customer explicitly takes full
responsibility and liability for such party's act and omissions) that are
bound by terms and conditions no less restrictive than those contained
herein and are acting on behalf of Customer and not a third party.
2.2. "Authorized Use Limitation" or "Meter" means the quantity of the
Broadcom Software licensed in accordance with the License Metric
specified in the Transaction Document.
2.3. "Distributed Software" means the Broadcom Software that is
generally used for independent usage across individuals systems or
hardware based on the License Metric in a decentralized form of
computing, which is not listed as 'Mainframe' on Broadcom's price lists.
2.4. "Hardware" means the Broadcom provided physical hardware
device or server.
2.5. "License Metric" means the specific criteria for measuring the usage
of the Broadcom Software (such as MIPS, CPUs, Cores, tiers, servers, or
users).
2.6. "Mainframe Software" means Broadcom Software that is generally
used for a large capacity processor that provides links to users through
less powerful devices such as workstations or terminals based on the
License Metric in a centralized form of computing, which is designated
as 'Mainframe' on Broadcom's price lists.
2.7. "Perpetual License" means a license to use Broadcom Software for
an indefinite period subject to compliance with the Agreement.
2.8. "Subscription" or "UMF" (Usage and Maintenance Fee) license
means a license to use Broadcom Software for a specific period of time
which shall include Support unless otherwise stated in a Transaction
Document.
2.9. "Support" (which may also be referred to as "Maintenance") means
technical support for the Broadcom Software. Support may also contain
"Content Updates" provided by Broadcom for use with the Software
intended to be updated, including, but not limited to, data, signatures,
definitions, rules, policies, and URLs used by the Broadcom Software,
and may include content produced as a result of Customer's use of the
Broadcom Software.
2.10. "Territory" means the geographic region (Americas, EMEA, APAC)
where Customer is authorized to install the Broadcom Software as
indicated by the "Ship To" location in the Transaction Document, unless
more broadly or narrowly granted in the Transaction Document.
Americas is defined as the continents of North and South America.
EMEA is defined as the continents of Europe (including the surrounding
islands such as UK and Ireland) and Africa, and the Middle Eastern
countries in the continent of Asia, south of, and including Turkey and
west of Iran. APAC is defined as all countries not in Americas or EMEA
geographic regions.
3. SOFTWARE OFFERING & OBLIGATIONS
3.1. Subject to the Customer's compliance with the Agreement,
Broadcom grants the Customer a limited, nonexclusive,
non-transferable license in object code form, for the Term to:
3.1.1. Install and deploy the Broadcom Software in the Territory up to
the Authorized Use Limitation.
3.1.2. Permit Authorized End Users to remotely use the Broadcom
Software for Customer's and Customer Affiliates' internal business
wherever located. Customer hereby expressly agrees that a breach by
an Authorized End User of the Agreement shall be considered to be a
breach by and the responsibility of the Customer.
3.1.3. Excluding Software in the VMware product family, make a
reasonable number of copies of the Broadcom Distributed Software for
disaster recovery "cold standby", backup and archival purposes. Use of
such copies is limited to testing Customer's disaster recovery
procedures and effectiveness and as is necessary during any reasonable
period subsequent to the occurrence of an actual disaster during which
Customer cannot operate the Broadcom Software.
3.1.4. Make a reasonably necessary number of copies of the Broadcom
Mainframe Software for disaster recovery purposes and use of such
copies at another machine(s), provided the use of such copies shall be
limited to:
(a) Conducting limited testing of the DR Plan's procedures and
effectiveness so long as z/OS is not actively running except during such
testing and such testing shall not exceed ten consecutive days in
duration and shall not occur more than three times per annum; and
(b) The period subsequent to the occurrence of an actual disaster
during which Customer cannot operate the Broadcom Mainframe
Software in normal operations at a Customer Site and must invoke its
DR Plan (as defined below).
Customer represents it has a disaster recovery plan with respect to its
sites and the Broadcom Mainframe Software ("DR Plan"). The rights
provided in subsection (a) above are conditioned upon Customer
providing, in writing, the machine-type, model and serial number, for
each machine used for disaster recovery purposes. Customer agrees to
inform Broadcom of all disaster recovery tests seven (7) days prior to
the test occurrence. After a disaster recovery test period, Customer shall
run the IBM SCRT for ISV Programs to report the usage of Broadcom
Mainframe Software during the test and shall submit to Broadcom at
https://scrt.broadcom.com/ no later than ten (10) days after the end of
the calendar month in which the test occurred.
Customer agrees to keep Broadcom informed, at Broadcom's request,
of the identity and address of any third party providing services in the
testing or execution of Customer's DR Plan and Customer shall require
any such third party to agree, in writing, to the confidentiality and
restricted usage provisions contained in this Agreement and to furnish
such further factual confirmations with respect to its disaster recovery
procedures as Broadcom may reasonably request from time to time. In
no event may any disaster recovery facility under the ownership,
operation or control of any third party be deemed to be a Customer site
hereunder nor shall any such third party be considered a third party
beneficiary for the purposes of this Agreement.
3.1.5. Relocate Broadcom Software to a new Customer location within
the Territory upon prior written notice.
3.2. The Broadcom Software may be provided under terms and
conditions, use Meter(s) and model(s) set forth within Specific Program
Documentation ("SPD") identified in applicable Transaction
Document(s). The Broadcom Software's specifications, product use
rights and specified operating environment information may be found
in the Documentation accompanying the Broadcom Software, if
available (e.g., a user manual, user guide, or readme.txt or notice.txt
file). The SPD and/or Product Use Rights form an integral part of
applicable Transaction Document and are incorporated by reference. If
the applicable version of the Software is not specifically listed within the
applicable Transaction Document, the SPD and/or Product Use Rights
for the most recent prior version shall apply.
3.3. The grant of license is contingent upon Customer's compliance with
the following obligations set out under this provision and Customer
agrees that, except as expressly set forth in the Agreement or to the
extent permitted by applicable law, it shall not: (i) make available,
provide or sub-license the Broadcom Software or its results/outputs in
any form other than to Authorized End Users, (ii) make any use of the
Broadcom Software for which it has not paid, (iii) cause or permit de-
compilation, reverse engineering, or otherwise translate or derive
source code from all or any portion of the Broadcom Software; (iv)
modify, unbundle, enhance or create derivative works of the Broadcom
Software and/or Documentation; (v) rent, sell, lease, assign, or transfer
the Broadcom Software or use the Broadcom Software to provide
hosting, service bureau, on demand or outsourcing services for the
benefit of a third party; (vi) remove any proprietary notices, labels, or
marks on or in any copy or version of the Broadcom Software or
Documentation; (vii) claim any rights in the Broadcom Software other
than its right to use, (viii) export or use the Broadcom Software in
violation of US or other applicable laws and regulations, or (ix) use the
Broadcom Offerings for any prohibited end use, such as for nuclear
technology applications, missile, or other military guidance systems and
biological weaponry, or major radiation exposure field applications. Any
right that is not granted to Customer under this Software Module, the
Foundation Agreement or a Transaction Document is reserved to
Broadcom. Customer may not use the Software in an electronic
communications network that is used wholly or mainly for the provision
of publicly available electronic communications services ("Public
Network") in a manner that violates the rights to privacy or freedom of
expression as outlined in the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights (collectively,
"International Human Rights Standards"), of any individual user who
directly accesses the Internet or otherwise transmits data through a
Public Network, provided the foregoing shall not limit use of the
Software in a Public Network to restrict, monitor, collect or process data
accessed or transmitted by individual users based upon exceptions to
the rights of privacy or freedom of expression that are recognized by
International Human Rights Standards. In order to better understand
and meet its customers' needs, Broadcom may collect, use, analyze and
retain Customer's metadata, system topography information, and/or
operations data and, in a confidential and anonymous manner,
aggregate such data with similar usage data of other Broadcom
customers.
3.4. Audit.
3.4.1. Customer agrees to provide verified reports and records
reasonably requested by Broadcom to verify Customer's compliance
with the Authorized Use Limitation and License Metric defined in the
Transaction Document. These reporting and verification obligations
remain in effect during the Term of the Broadcom Offering and for
twelve (12) months thereafter. Customer agrees that, upon thirty (30)
days' prior written notice, Broadcom or an independent third party may
audit Customer's compliance with the Foundation Agreement, Software
Module and the Transaction Document, remotely or at Customer's
facilities. Customer shall cooperate in good faith with such audit, which
Broadcom agrees will be confidential, and commercially reasonable in
nature and time. If Customer's self-verification or Broadcom's audit
reveals any unpaid or unlicensed use, Broadcom shall provide written
notification to Customer and within thirty (30) days of such written
notification, Customer shall order at Broadcom's then-current list price,
a sufficient number of such Broadcom Offering(s) and any applicable
Support to cover its past or current use in excess of the Authorized Use
Limitation and License Metric. If an audit reveals an underpayment of
ten percent (10%) or more of total fees owed for the review period,
Customer will also reimburse Broadcom for its reasonable audit
expenses.
3.4.2. For all Broadcom Mainframe Software, Customer shall additionally
provide to Broadcom via upload to https://scrt.broadcom.com within
ten (10) days after the end of each month the IBM SCRT product report
for ISV programs for Customer's z/OS mainframe machines, wherever
located and whether owned or leased by Customer and any Affiliate or
any outsourcing partner, including all disaster recovery machines. For
Customers running Broadcom mainframe VSE products, Customer shall
provide the ISV SCRT for z/VSE report annually on or before each
anniversary date via upload to https://scrt.broadcom.com. For
Customers running Broadcom Mainframe VM products, Customer shall
provide a listing of the model, serial number and LPAR names of each
CPU located at, or remotely accessing each Customer site to CA
annually on or before each anniversary date via upload to
https://scrt.broadcom.com. Customer shall retain all SMF type 70 and 89
records for twelve (12) months. These reporting and verification
obligations remain in effect during the Term and three months
thereafter, and upon request up to twelve (12) months thereafter.
3.5. Customer may request licenses to the Software that may be used
only to upgrade or replace hardware, change data centers, or upgrade
to a newer version of the Software ("Migration Licenses"). Customer
may only use Migration Licenses for the period granted by Broadcom.
Migration Licenses to the Software are provided "AS IS" without
indemnification, support, or warranty of any kind, express or implied.
Broadcom's aggregate liability (excluding indirect damages, for which
Broadcom expressly disclaims all liability) for any claim arising from
Customer's use of the Migration Licenses will not exceed $5,000 USD.
3.6. If the Broadcom Software is provided to Customer for evaluation
purposes Section 3.1 (License Grant) is replaced with the following:
3.6.1. Broadcom grants to Customer a non-exclusive, temporary,
royalty-free, non- assignable license to use the Broadcom Software
solely for internal non-production evaluation subject to the applicable
SPD and/or Product Use Rights supplement. Such evaluation license
shall terminate (i) on the end date of the pre-determined evaluation
period or (ii) sixty (60) days from the date of initial installation of the
Broadcom Software, if no such evaluation period is pre-determined
("Evaluation Term"). Customer is solely responsible to take appropriate
measures to back up its system and take other measures to prevent any
loss of files or data. The Software may contain an automatic disabling
mechanism that prevents its use after a certain period of time. Upon
expiration of the Evaluation Term, Customer must cease use of the
Broadcom Software and uninstall or destroy all copies of the software.
Broadcom shall accept no liability for Customer's use of the Broadcom
Software for evaluation purposes. All other terms and conditions of this
Agreement shall otherwise apply to Customer's evaluation of the
software.
3.6.2. THE SOFTWARE PROVIDED FOR EVALUATION MAY NOT BE
TRANSFERRED AND IS PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND. THE ACCOMPANYING SOFTWARE DOCUMENTATION IS
PROVIDED FOR THE PURPOSE OF DESCRIBING THE SOFTWARE;
BROADCOM DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR
OTHER BROADCOM COMMITMENTS, OBLIGATIONS, OR LIABILITIES, IN
SUCH SOFTWARE.
4. HARDWARE OFFERING AND OBLIGATIONS
4.1. The Hardware provided to Customer pursuant to a Transaction
Document is to be used only with the Broadcom Software that is
pre-installed or delivered for installation. Subject to Customer's
compliance with this Agreement, Broadcom permits Customer to use
the Hardware solely with the Broadcom Software preinstalled or
delivered for installation in support of Customer's internal business
operations.
4.2. Certain Hardware requires Customer to register a service tag prior
to use in the location Customer intends to use the Hardware
("Geographic Use Location"). In the event Customer wishes to change
Customer's Geographic Use Location, Customer may do so at no
additional cost but must contact Broadcom support to re-register the
Hardware tag. Any change to the Geographic Use Location and/or any
service request that requires Broadcom to obtain additional information
and/or validate information to acknowledge and approve warranty
service entitlements may result in a delay in providing warranty service
entitlements.
4.3. Broadcom will provide a replacement unit for any Hardware that
fails to operate in accordance to published configuration and technical
specifications within the first three (3) business days after installation,
provided that such installation must be completed within thirty (30)
days from the date of shipment. Failure to operate does not include
cosmetic or other defects that do not directly affect the Hardware's
performance. Units which fail to operate must be identified as such by
either a Broadcom technical support engineer or an authorized
Broadcom representative. A new, like-model replacement unit will be
shipped using commercially reasonable means to ship the replacement
Hardware. Broadcom will aim to ship within five (5) business days from
receipt of notification of product failure, subject to product availability.
Delivery is dependent on destination and may be impacted by delays in
customs that are beyond the control of Broadcom or its carriers.
Customer is responsible for reading and complying with the return
instructions included with the replacement Hardware. Broadcom shall
not be responsible for any software, firmware, information or data
provided by Customer or a third party that is contained in, stored on, or
integrated with, any hardware component returned to Broadcom for
repair or replacement, whether or not under warranty.
4.4. If Hardware is provided to Customer for evaluation, Customer will:
(i) safeguard and protect the Hardware, (ii) not loan the Hardware to a
third-party, (iii) not allow any lien to be imposed upon the Hardware,
and (iv) be responsible for any damage to the Hardware beyond normal
wear, including replacement cost if the Hardware is stolen or lost.
5. SUPPORT OFFERING
5.1. If Support is purchased as set forth within a Transaction Document,
Broadcom will provide Customer with purchased Support in accordance
with the guidelines at:
https://support.broadcom.com/web/ecx/support-content-notification/-/
external/content/release-announcements/CA-Support-Policies/6933 (or
successor URL). If a renewal fee for Maintenance is identified on a
Transaction Document, then Broadcom may automatically invoice
Customer for such renewal unless Broadcom receives not less than
thirty (30) days written notice from Customer prior to the anniversary of
the applicable Term that such Maintenance is not desired.
5.2. If Content Updates are included as part of Maintenance, Customer
is granted the right to receive and use Content Updates as and when
they are made generally available, for the Maintenance term, and only
for the quantity, indicated on the applicable Transaction Document(s).
This Agreement does not otherwise give Customer the right to obtain
or use Content Updates, and any unauthorized access to or use of
Content Updates is deemed a breach of this Agreement. Upon
expiration or termination of the Maintenance Term, Customer must
uninstall any Software component that facilitates the receipt of Content
Updates and use of Content Updates after expiration or termination of
the Maintenance term is a material breach of this License Agreement.
5.3. Software Updates/Upgrades, as provided pursuant to guidelines,
may only be obtained for the Authorized Use Limitation or quantity
indicated in the applicable Transaction Document. Any Software
Updates/Upgrades to an existing license do not modify or alter
Customer's Authorized Use Limitation or quantity. If Customer is
permitted to transfer its licenses to a different Broadcom Software title,
then Customer may receive a new Transaction Document on the
condition that Customer cease using the replaced Broadcom Software
prior to use of such replacement Broadcom Software. Software
Updates/Upgrades are subject to the then-current version of this
agreement.
6. THIRD PARTY TERMS
6.1. In the event that the Broadcom Software contains third-party
software components, additional terms, notices and/or information that
may be applicable to such third-party software components may be
found in the Documentation accompanying the Broadcom Software
(e.g., a user manual, user guide, or readme.txt or notice.txt file), and/or
at legaldocs.broadcom.com (or successor URL).
7. SOFTWARE PERFORMANCE WARRANTY
7.1. For Distributed Software. Broadcom warrants that the Distributed
Software as defined in the Transaction Document will operate materially
in accordance with the applicable specifications set forth within the
Documentation for a period of ninety (90) days after delivery of the
Broadcom Software subject to Customer's compliance with the
Agreement.
7.2. For Mainframe Software. Broadcom warrants that the Mainframe
Software will operate materially in accordance with the applicable
specifications set forth within the Documentation for the Term, subject
to Customer's compliance with the Agreement.
8. SOFTWARE PERFORMANCE WARRANTY REMEDY
8.1. If Broadcom has breached either warranty set forth in the section
entitled: Performance Warranty, Customer's remedy is for Broadcom to,
in consultation with Customer, to either (i) use reasonable efforts
consistent with industry standards to cure the defect, or (ii) replace the
Broadcom Software(s) with one that materially complies with the
Documentation, or (iii) terminate the license and provide a prorata
refund of the license fees paid and or Support fees. To Customer or
Broadcom Partner (wherefrom the non-compliant Broadcom Offering
was procured). If option (iii) applies, the pro-rata refund shall be
calculated on the number of months left remaining on the Term of the
applicable Transaction Document or if the Broadcom Software is
licensed under Perpetual License, using (only for purposes of a refund
calculation) an amortization schedule of three (3) years. The above
warranty remedies are Broadcom's sole obligation and Customer's sole
and exclusive remedy for the breach of the above warranty.
8.2. Warranty remedies are conditioned upon (i) any error or defect
reported is reasonably reproducible by Broadcom, (ii) the Broadcom
Software is not modified and is being used in accordance with
Broadcom Documentation, and (iii) the breach is not attributable in
whole or in part to any non-Broadcom product(s) or service(s).
9. HARDWARE PERFORMANCE WARRANTY
9.1. Broadcom warrants that the Hardware shall be substantially free
from material defects in material and workmanship under normal
authorized use and service and will substantially conform to the written
documentation accompanying the Hardware for twelve (12) months
from date of shipment (the "Hardware Warranty Period"). Any third
party hardware that is (a) not manufactured by Broadcom; (b) not
embedded within the Broadcom Offerings manufactured by Broadcom;
or (c) identified as separate items on Broadcom's price list or quotes
shall be subject exclusively to the manufacturer's warranty for such third
party hardware.
10. HARDWARE PERFORMANCE WARRANTY REMEDY
10.1. Upon confirmation of a defect or failure of a Hardware, or
component and depending on the then-current Geographic Use
Location of the Hardware, Customer's sole and exclusive remedy for
defective Hardware, or component thereof, if notified within the
Hardware Warranty Period, shall be for Broadcom to arrange for, at its
sole option and discretion, to: (i) repair or replace the defective
Hardware, or component thereof, with either a new or refurbished
replacement Hardware, or component, as applicable; (ii) provide onsite
repair services for any defective Hardware, or component; or (iii) repair
or replace any defective Hardware returned to Broadcom through
Broadcom's Returned Merchandise Authorization Services process for
Hardware. The instructions on how to submit a request are detailed at
https://support.broadcom.com/web/ecx/support-content-notification/-/
external/content/release-announcements/CA-Support-Policies/6933, (or
successor URL). Any repaired parts or components or replacement parts
or components provided by Broadcom pursuant to any Hardware
warranty service shall be warranted only for ninety (90) days, provided,
however, that Customer's warranty for such part or component may
become void due to improper installation or other damage to such
parts or components. Customer must remove all data from Hardware
before returning it to Broadcom. All defective Hardware, or any
component thereof, which has been replaced, shall become the
property of Broadcom. All defective Hardware, or any component
thereof, which has been repaired, shall remain Customer's property. THE
FOREGOING IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND
BROADCOM'S SOLE AND EXCLUSIVE LIABILITY FOR BROADCOM'S
BREACH OF THIS LIMITED WARRANTY.

SaaS Module
1. INTRODUCTION
1.1. This Module for Software as a Service ("SaaS Module") between the
applicable Regional Broadcom Entity set forth in the referencing
Transaction Document, a Broadcom Inc. company, ("Broadcom"), and
Customer, ("Customer"), is effective on the date set forth in the
referencing Transaction Document, and specifies the terms and
conditions which apply to SaaS that Broadcom will provide to Customer.
1.2. This SaaS Module incorporates by reference the terms of the
Foundation Agreement effective on the date set forth in the referencing
Transaction Document between Broadcom and Customer (or Broadcom
Partner). Any capitalized terms used in this SaaS Module shall have the
meanings given in the Foundation Agreement unless otherwise
provided herein.
2. DEFINITIONS
2.1. "Authorized Use Limitation" or "Meter" means the limitation on
usage of SaaS as measured by the Billing Metric specified in the
Transaction Document.
2.2. "Authorized Users" means Customer, its employees and
independent contractors and/or Customer Affiliates or as otherwise
defined in the SaaS Listing, that access and use SaaS provided that they
are bound by terms and conditions no less restrictive than those
contained in the Agreement and solely to the extent that they are acting
on behalf of Customer or Customer Affiliates.
2.3. "Billing Metric" means the metric for billing SaaS to Customer as
defined in the SaaS Listing (e.g., users, transactions, etc.).
2.4. "Customer Data" means any information uploaded by Authorized
Users or Customer authorizes access for processing by Broadcom on
behalf of Customer in the course of accessing and using SaaS.
2.5. "Data Center Region" means a geographic region that is served by
one or more hosting facilities for Broadcom SaaS. Broadcom Data
Center Regions are set out in the SaaS Listing.
2.6. "Force Majeure Event" means an event that arises out of causes
beyond a Party's reasonable control, including, without limitation, war,
civil commotion, act of God, strike or other stoppage (whether partial or
total) of labor, any law, decree, regulation or order of any government
or governmental body (including any court or tribunal) and/or delays or
outages caused by an internet service provider or independent (not a
Party's subcontractor) hosting facility.
2.7. "Non-Production" means any Customer deployed environment that
is not Production such as development, test, staging, demonstration, or
training environments.
2.8. "Production" means the "live" environment of SaaS that Customer
uses as their primary business environment.
2.9. "SaaS", "SaaS Offering", "Online Service", or "Cloud Service" means
the version of the Broadcom software and/or type of service defined in
the Transaction Document and made available to Authorized Users via
the Internet.
2.10. "SaaS Listing" means the operating parameters, data and data
center location(s), applicable audit standards, availability standards and
any other details for the specific SaaS Offering as published or made
available by Broadcom. SaaS Listings may define provisioning and
management processes applicable to the SaaS Offering, types and
quantities of system resources (such as storage allotments), functional
and technical aspects of the SaaS, as well as a catalogue of available
service requests. SaaS listings are available at
https://www.broadcom.com/support/whyca/saas/saas-resources.
2.11. "SaaS Support" means support of the SaaS Offering so it operates
materially in accordance with the Documentation.
2.12. "Scheduled Downtime" means planned downtime of SaaS
availability for periodic and required maintenance events, including but
not limited to, upgrades and updates to the SaaS and data center
infrastructure where Broadcom provides notice to Customer at least 72
hours in advance.
2.13. "Service Level Availability" or "SLA" means the targeted availability
levels measured in the Production environment, as specified in the SaaS
Listing which may vary according to each SaaS Offering and its
component capabilities.
2.14. "Security Breach" means access to Customer Data by an
unauthorized person or entity.
2.15. "Subscription Term" means the initial or renewal period of the
subscription to a SaaS Offering as set out in the Transaction Document.
2.16. "Trial Period" means the period of time that Customer accesses
and uses SaaS for evaluation, proof of concept, or trial set out in the
Transaction Document. If no time is indicated, then the period shall be
set for thirty (30) days from the effective date of the Transaction
Document. For avoidance of doubt, only a Transaction Document which
explicitly states that it is for trial or evaluation by the Customer shall be
considered a trial use.
3. SAAS OFFERING
3.1. Subject to the Customer's compliance with the Agreement,
Broadcom provides Customer a nontransferable and non-exclusive right
for Customer and its Authorized Users to access and use SaaS for the
Customer's internal business use during the Subscription Term in
accordance with the Agreement.
3.2. If SaaS is provided on a trial basis, Customer agrees to access and
use SaaS solely for trial and evaluation purposes during the Trial Period,
in accordance with the usage restrictions set forth in the Transaction
Document. At the end of the Trial Period, Customer's right to access
and use SaaS automatically expires and Customer agrees to cease
accessing and using SaaS and to de-install any agents or copies of
software provided as part of the SaaS and certify to Broadcom in writing
that all copies or partial copies of any such software have been deleted
from Customer's computer libraries and/or storage devices and
destroyed. If Customer desires to continue its use of SaaS beyond the
Trial Period, Customer may enter into a Transaction Document and pay
the applicable fees. DURING TRIAL PERIODS, CUSTOMER AGREES TO
ACCESS AND USE SUCH SAAS ON AN AS IS BASIS AND AGREES THAT
Broadcom PROVIDES NO WARRANTIES, SLAS OR INDEMNITIES
ARISING OUT OF SUCH ACCESS AND USE. ANY DATA ENTERED OR
CONFIGURATION OF THE SAAS DURING THE TRIAL PERIOD WILL NOT
BE STORED OR AVAILABLE AFTER THE TRIAL PERIOD.
4. FEES
4.1. The Authorized Use Limitation and associated fees shall be as set
out on the Transaction Document. Customer agrees that the
purchase of any SaaS is not contingent on Broadcom providing any
future features or functionalities.
4.2. For Subscription Terms that are invoiced in advance, Customer may
increase the Authorized Use Limitation or Meter amount at any time, by
executing a Transaction Document for additional SaaS. If Customer's
current use of a SaaS offering exceeds the Authorized User Limitation or
Meter amount shown on Customer's applicable Transaction Document,
then Customer, or its delegated Broadcom Partner, must promptly
submit a new order for the additional use, which will be invoiced at the
then-current rates, or as mutually agreed upon by the Parties, through
the current Subscription Term, and the aggregate Authorized Use
Limitation or Meter amount will be the basis for any renewal of the
Subscription. Broadcom reserves the right to invoice Customer for any
additional use, at the then-current rates, if a corresponding order is not
promptly received.
5. CUSTOMER DATA
5.1. Customer exclusively owns all rights, title and interest in and to all
Customer Data. Customer Data will be stored and processed in the
applicable Data Center Region. Broadcom shall not access Customer's
user accounts, or Customer Data, except in response to SaaS or
technical issues where Customer requests or consents to such access in
consultation with Broadcom. Customer acknowledges and agrees that
Broadcom may use Customer Data to the extent necessary for the
purposes of detecting, blocking, analyzing and reporting cyber-threats
in the delivery of any Symantec product family offerings, including, but
not limited to, the following purposes: (i) the development of threat
intelligence resources aiming at improving the ability of networks and
systems to resist unlawful or malicious actions compromising the
security of information and services accessible via such networks and
systems; and (ii) the development and enhancement of any Broadcom
Offerings.
5.2. Broadcom will collect, modify and analyze metadata and/or
operations data which does not contain any Customer Data, such as
system log files, configuration, performance, usage data and transaction
counts which relate to system utilization and performance statistics, all
as deemed necessary by Broadcom.
5.3. Customer may access Customer Data, reports and/or information
through SaaS until the end of the Subscription Term. Deletion of
Customer Data will occur either (a) after the end of the Subscription
Term or (b) as specified in the SaaS Listing. Customer is responsible for
ensuring that it has necessary copies of Customer Data prior to
expiration or termination.
5.4. Customer is responsible for obtaining all approvals and consents
required by any third parties to use the SaaS. Broadcom is not in default
of its obligations if it cannot provide the SaaS when approvals or
consents have not been obtained or any third party otherwise validly
prevents Broadcom from providing the SaaS. Customer is responsible
for its account information, passwords and other login credentials and
must notify Broadcom immediately of any known unauthorized
possession or use of your credentials.
5.5. In case of a Force Majeure Event, Customer acknowledges and
agrees that Customer Data may not be fully recoverable beyond the last
restoration archive point, the frequency of which is described in the
SaaS Listing.
5.6. Customer agrees not to provide any health, payment card,
biometric, or similarly sensitive personal information that imposes
specific data security obligations for the processing of such data unless
it is a supported feature in the Documentation of the applicable SaaS
Offering and Customer completes the appropriate agreements with
Broadcom, if applicable.
6. SECURITY
6.1. Broadcom will maintain and administer a security policy with
physical and technical safeguards designed to protect the security,
integrity and confidentiality of the Customer Data. Broadcom runs
security background checks on all operations staff. Broadcom shall
adhere to and subject such policies and practices to an audit under the
compliance criteria defined in the applicable SaaS Listing. A copy of
Broadcom's audit reports and certifications can be found at
https://www.broadcom.com/support/why-ca/saas/complianceauditreports.
6.2. Broadcom is not responsible for unauthorized access, alteration,
theft or destruction of Customer Data arising from Customer's own or
its Authorized Users' actions or omissions in contravention of the
Documentation. Customer's ability to recover any lost data resulting
from Broadcom's misconduct is limited to restoration by Broadcom
from the most recent back-up.
6.3. In the event that Broadcom has determined that a Security Breach
will or is likely to cause harm to the Customer or an Authorized User,
Broadcom will, as promptly as practicable but in no event later than as
required by law, provide Customer with notice of the Security Breach.
After initial notification, Broadcom will keep Customer updated at
periodic intervals on the steps taken by Broadcom to investigate the
Security Breach including providing a reasonably detailed incident
report, including measures to be taken by the Customer to minimize
potential damages. Such report will be provided promptly following
completion of the report. The Parties understand and agree that if
Broadcom is prevented by law or regulation from providing such
notice(s) and/or reports within the time frames, such delay shall be
excused. In the event of a security risk to a SaaS Offering or its users,
Broadcom may suspend Customer's use of that SaaS Offering.
7. SAAS SUPPORT
7.1. Customer shall be provided with SaaS Support during the
Subscription Term in accordance with the applicable Broadcom Support
Policy at https://support.broadcom.com or as specified in the applicable
SaaS Listing. To access SaaS Support, Customer may utilize the
Broadcom support website, or other site or notification mechanism as
Broadcom may designate from time to time.
7.2. Broadcom, in its sole discretion, will provide Customer as much
notification as reasonably possible and will generally aim to provide
twelve (12) months' notice of the last date of an Online Service's
availability. Broadcom will provide such notification to Customer's
then-current business or technical contact, and/or by publication on the
applicable administrator portal for the Online Service(s). Once an Online
Service is no longer available, Customer will no longer have access to or
use of the Online Service.
8. MAINTENANCE AND UPGRADES
8.1. Broadcom may make changes or updates to the SaaS, SaaS
infrastructure (such as compute infrastructure, storage technology,
security, technical configurations, hosting facilities within Data Center
Region, etc.), or SLA that do not materially degrade the deployment and
consumption of the SaaS Offering during the Subscription Term
including to reflect changes in technology, industry practices, and/or
patterns of system use.
9. CUSTOMER RESPONSIBILITIES
9.1. Customer is responsible for all activities that occur in, or are related
to, user accounts including the data, information stored or transmitted
when accessing SaaS. All applications residing within Customer's
environment or installed on third party service provider's environments
on behalf of Customer that integrate to SaaS shall be managed and
supported by Customer. Customer is also responsible for managing
components that are downloaded onto their environment such as web
browser based software plug-ins that extend SaaS.
9.2. The SaaS Offerings do not include Customer configurations, nor
policies and procedures implemented and set by Customer that are
available through the SaaS Offering. Customer acknowledges and
agrees that it is solely responsible for selecting its configurations and
assuring that the selection conforms to its policies and procedures and
complies with all applicable laws and regulations in jurisdictions in
which Customer is accessing the SaaS Offering(s).
9.3. As Customer may integrate or utilize third party links to other
software, hardware or other services which are associated with, or
otherwise available through the SaaS, Customer agrees that it and/or
Customer Affiliates, its Authorized Users and anyone acting on their
behalf shall use such third party links at their sole discretion. Broadcom
shall have no responsibility or liability with respect to such third party
links used by Customer and/or Customer Affiliates, its Authorized Users
or for any act or omission of any such third party provider. Customer
must: (a) take appropriate steps to protect Customer Data; (b) notify
Broadcom as soon as possible if Customer believes its account has been
compromised; and (c) reasonably cooperate with Broadcom to resolve
issues related to Customer's use of the Cloud Service.
9.4. Customer shall not: (i) make SaaS available to any third party not
authorized or as otherwise contemplated by the Agreement; (ii) send or
store code that can harm or result in damage to SaaS (including but not
limited to malicious code and malware); (iii) willfully interfere with or
disrupt the integrity of SaaS or the data contained therein; (iv) attempt
to gain unauthorized access to the SaaS or its related system or
networks; (v) use SaaS to provide services to third parties except as
expressly permitted by the Agreement; (vi) use SaaS in order to cause
harm such as overload or create multiple agents for the purpose of
disrupting operations of a third party; (vii) remove or modify any
program markings or any notice of Broadcom's or its licensors'
proprietary rights; (viii) perform or disclose any benchmark or
performance tests on the SaaS; or (ix) perform or disclose any of the
following security testing of the SaaS environments or associated
infrastructure: network discovery, port and service identification,
vulnerability scanning, password cracking, remote access testing,
penetration testing or any other test or procedure not authorized in the
Documentation. A breach by the Customer of its obligations under this
section shall be considered a material breach of the Agreement.
10. WARRANTY
10.1. Broadcom warrants that during the Subscription Term, the SaaS
shall perform materially in accordance with the applicable
Documentation subject to Customer's compliance with the Agreement.
During any Trial Period, this warranty shall not apply.
10.2. Customer warrants that (i) it has the right to transmit Customer
Data and any data or information as may be required for the purposes
of accessing SaaS, (ii) it is responsible for all activities that occur in 
user accounts, and (iii) it shall not misuse SaaS by sending spam or 
otherwise duplicative or unsolicited messages or store infringing, 
obscene, threatening, or otherwise unlawful material or material that is 
harmful to children or violates third party privacy rights.
11. WARRANTY REMEDY
11.1. If it is established that Broadcom has breached the above
warranty, Broadcom may, at its option, (i) use reasonable efforts to cure
the defect in the SaaS; (ii) replace the SaaS with SaaS that materially
conforms to the specifications in the Documentation; (iii) in the event
Broadcom cannot, after commercially practicable attempts to do so,
achieve the remedies in (i) or (ii), Broadcom may terminate the
subscription to the SaaS and provide a refund to Customer or
Broadcom Partner of pre-paid, unused fees calculated against the
remainder of the Subscription Term as of the effective date of such
termination. Customer must report the alleged breach of warranty with
reasonable specificity in writing within thirty (30) days of its occurrence
to benefit from this warranty and the remedies stated herein. The above
warranty remedies are Broadcom's sole obligation and Customer's sole
and exclusive remedy for breach of the above warranty.
12. SERVICE LEVEL COMMITMENT
12.1. The Service Level Availability is measured against reports that
Broadcom runs on a regular basis based on objective criteria. Reports
are available to Customer upon request. If Customer cannot access SaaS
during the Subscription Term, Customer should contact Broadcom to
receive SaaS Support.
12.2. If it is determined by Customer and confirmed by Broadcom that
SaaS is unavailable beyond the default threshold identified in the
applicable SaaS Listing measured on a monthly basis during three
contiguous months, then Customer has the right to elect any of the
remedies specified therein.
12.3. The following events shall be excluded from the calculation of
Service Level Availability: (i) Force Majeure Event; (ii) outages due to
Scheduled Downtime; (iii) outages based on Customer networks or
domain name server issues; (iv) Customer's configuration, scripting,
coding drafted by Customer without Broadcom's authorization or
knowledge; (v) internet outages; (vi) outages requested by Customer;
(vii) Customer changes to its environment which hinder SaaS
production; (viii) outages to remedy a security vulnerability or as
required by law and (ix) inability for Customer to log in to SaaS service
because of dependence on non- Broadcom provided services or
components (e.g., Lightweight Directory Access Protocol (LDAP) in
Customer's environment).

Services and Education Module
1. INTRODUCTION
1.1. This Module for Services and Education ("Services Module")
between the applicable Regional Broadcom Entity set forth in the
referencing Transaction Document, a Broadcom Inc. company,
("Broadcom"), and Customer, ("Customer"), is effective on the date set
forth in the referencing Transaction Document, and specifies the terms
and conditions which apply to Services and Education that Broadcom
will provide to Customer.
1.2. This Services Module incorporates by reference the terms of the
Foundation Agreement between Broadcom and Customer. Any
capitalized terms used in this Services Module shall have the meaning
given in the Foundation Agreement unless otherwise provided herein.
2. DEFINITIONS
2.1. "Broadcom Intellectual Property" includes Deliverables, business
processes, software, tools, databases, data, materials, information, and
any derivatives or modifications thereof, which includes, without
limitation any and all patents, copyrights, trademarks, trade secrets, and
other intellectual property rights therein, that are either (i) owned at any
time (ii) developed independently of the Services (iii) licensed from a
third party, or (iv) Modifications.
2.2. "Broadcom Personnel" means employees, sub-contractors or agents
on behalf of Broadcom that have entered into confidentiality provisions
no less restrictive than defined in the Agreement.
2.3. "Course Materials" means any Education content provided to
Customer in any media pursuant to a Transaction Document, including
without limitation, all publications, courseware, training manuals and
materials, user guides, web portals, or virtual labs provided by
Broadcom or a Broadcom subcontractor.
2.4. "Customer Intellectual Property" means Confidential Information
and any business requirements, materials, information and/or
intellectual property owned or licensed that is provided by Customer,
which includes, without limitation all patents, copyrights, trademarks,
trade secrets, and other intellectual property rights that may be
accessed or used during the provision of Services but in all cases
excludes any Broadcom Intellectual Property.
2.5. "Deliverables" means Packaged Work Product and/or other items
provided to the Customer pursuant to an SOW.
2.6. "Education" means any standard or customized education offerings,
training or instruction, or related services, provided by Broadcom or a
Broadcom subcontractor in any format or location, including without
limitation, (i) instructor led training, including at Broadcom or Customer
site(s), (ii) virtual training, including online classes, courses, or course
catalogues and/or (iii) class room training or testing.
2.7. "Packaged Work Product" means any Broadcom Intellectual
Property developed prior to or during the Services which relates to the
functionality of Broadcom Software provided to the Customer as a
Deliverable pursuant to a Statement of Work.
2.8. "Project Coordinator" means the individual appointed by a Party to
act as a project coordinator for each Services engagement to (i)
coordinate the performance of its obligations under the Agreement, (ii)
act as its representative regarding the Services, and (iii) maintain
primary responsibility for communication with the other Party in
relation to the Services.
2.9. "Services Documentation" means the documentation provided to
the Customer pursuant to a Services engagement, including without
limitation, such documentation describing the project specifications,
design, configuration, architecture and testing procedures, Course
Materials or installation and user guides, as applicable.
2.10. "Services" means the professional services or Education services
provided by Broadcom or its designated subcontractors to the
Customer as set out in the relevant SOW.
2.11. "SOW" or "Statement of Work" means a description of Services to
be provided or as referenced in the Transaction Document.
3. SERVICES OFFERING
3.1. Broadcom will provide the Services as agreed in an SOW or
Transaction Document, on the basis of time and materials, or retainer
each of which will be further described in the SOW or Transaction
Document.
3.2. Broadcom will determine the resources required for the provision of
the Services.
3.3. Customer may request Broadcom to change any particular
Broadcom Personnel assigned to the provision of the Broadcom
Services upon prior written notice provided that it can show reasonable
cause for such request. Broadcom will use reasonable efforts to replace
such Broadcom Personnel subject to parties agreeing any impact within
a change order.
4. EDUCATION OFFERING
4.1. Broadcom will provide Education as agreed in a Transaction
Document. The Transaction Document will indicate the courses or
classes ordered, fees, the number of attendees and the location of the
Education services, if applicable. Customer is responsible for any travel
costs and/or expenses incurred to attend Education.
5. COOPERATION
5.1. Each Party acknowledges that the success of the Services requires
the cooperation of both Parties. Customer and Broadcom shall each
assign, where appropriate, a Project Coordinator that has requisite
authority to decide day-to-day questions that may arise in relation to
the Services as defined in the SOW.
5.2. Customer acknowledges and agrees that in order for Broadcom to
effectively perform the Services in a timely manner, Customer will
cooperate with Broadcom by making available on a timely basis (i)
management decisions, information, approvals and acceptances
required by Broadcom for the completion of the Services; (ii)
appropriate access to Customer facilities, personnel, equipment,
resources and systems; and (iii) any relevant information and
documentation as necessary to facilitate performance of the Services. In
addition to the above, Customer shall supply Broadcom Personnel with
suitable office and work space, and normal office equipment and
support, adequate computer resources (including necessary rights to
third party software), internet, telephone and facsimile support as
necessary to perform the Services.
5.3. Each Party agrees to assign competent and qualified staff to
participate in the performance of the Services.
5.4. During the provision of Services and for six (6) months thereafter,
Customer shall not actively solicit for hire, nor knowingly allow its
employees to solicit for hire, any employee of Broadcom associated
with the performance of Services without the prior written consent of
Broadcom. This provision shall not restrict in any way the right of
Customer to solicit generally in the media for required personnel, and
shall not restrict employees, contractors, or representatives of
Broadcom from pursuing on their own initiative employment
opportunities from or with Customer. The parties agree that violation of
this provision will subject the violating party to liquidated damages
consisting of an amount equal to three (3) months' salary for each hired
employee solicited in contravention of this section.
6. FEES AND EXPENSES
6.1. Customer will pay to Broadcom the fees, expenses and other
charges as provided for and approved pursuant to the Transaction
Document and such expenses shall be in accordance with Broadcom's
expenses policy.
6.2. The Services are to implement the pre-existing features and
functions of Broadcom Software and do not include any customization
or development activity that impacts any of the full features and
benefits and underlying source code of the Broadcom Software.
Payment of license fees and/or Support fees for Broadcom Software is
not contingent upon Customer receiving the Services.
6.3. Partners. If the Broadcom Offering was ordered through a
Broadcom Partner or a Broadcom Partner's reseller, Section 6.1 shall not
apply.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. Customer shall retain all rights in and to Customer Intellectual
Property, including all Customer Intellectual Property that may be
contained in the Deliverables, and such rights shall remain vested in
Customer.
7.2. Broadcom shall retain all rights in and to all Broadcom Intellectual
Property and such rights shall remain vested in Broadcom.
7.3. If information or materials are used by a Party in the performance of
its obligations in the Agreement, such use of information or materials
shall not transfer ownership of that information or materials to the
other Party.
7.4. Customer shall have the right to modify or adapt the Deliverables
excluding any Packaged Work Product as required or deemed
appropriate by Customer ("Modifications"), however any such
Modification shall render void any warranties or indemnities provided
by Broadcom and its licensors or subcontractors.
7.5. Broadcom grants to Customer, a non-exclusive, limited,
non-transferable license to use the Deliverables and Modifications for
internal business purposes subject to terms of the Agreement. Where
the Deliverables or Modifications are to be used in conjunction with
Broadcom Offering then the license to use the Deliverables or
Modifications shall be consistent with the usage limitations as set out in
the license agreement for such Broadcom Offering.
8. WARRANTY
8.1. Broadcom warrants that (i) it will perform the Services and
Education as detailed in the applicable SOW; and (ii) any Deliverable
provided pursuant to a Transaction Document will conform to the
Services Documentation for thirty (30) days from the day of delivery.
8.2. Customer shall provide written notice of a warranty claim within
thirty (30) days of date of delivery ("Notice") of the Services or
Education claimed defective or in the case of a Deliverable, the date of
delivery, that gave rise to the warranty claim. If Notice is not provided to
Broadcom then the Deliverable, Services and/or Education will be
deemed delivered in accordance with the warranty obligations.
9. WARRANTY REMEDY
9.1. In the event of a breach by Broadcom of the above Warranty
section, Customer's remedy, at Broadcom's discretion and in
consultation with Customer, shall be to re-perform the Services and/or
Education at no additional charge to Customer or to refund the
applicable fees paid to Customer (or Broadcom Partner), which
correspond to the Services, applicable Deliverable or Education. These
remedies are contingent upon the following: (i) that the Deliverable has
not been modified by Customer; and (ii) that the alleged breach did not
result from Customer's failure to abide by its obligations defined in the
applicable Transaction Document or for its failure to follow the Services
Documentation. To the maximum extent permitted by applicable law,
the above warranty remedies are Broadcom's sole obligation and
Customer's sole and exclusive remedy for breach of the above warranty.
10. CHANGE REQUEST, CANCELLING, AND RESCHEDULING
10.1. Upon request by Customer or Broadcom, the scope of Services
may be adjusted through a mutually agreed change order defining the
impact of any changes, including the fees or any other aspect of the
provision of the Services.
10.2. Customer must provide written notice at least 10 business days
prior to the start of the Services to reschedule or cancel a SOW. If
Customer reschedules or cancels a SOW, Customer must pay all
non-refundable expenses incurred by Broadcom.
