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Cisco Systems, Inc., U.S. Terms and Conditions of Gift

EXHIBIT B: U. S. TERMS AND CONDITIONS OF GIFT

TechSoup - January 01, 2012

Cisco's donation of Products and Services and Cisco's license of Software are governed by these U.S. Terms of Conditions of Gift.

Cisco Systems, Inc. U.S. Terms and Conditions of Gift

Cisco's donation of Products and Services and Cisco's license of Software are governed by these U.S. Terms of Conditions of Gift ("Agreement") contained herein, and constitute the entire agreement between Cisco Systems, Inc. ("Cisco") and you ("Recipient"). Cisco will not be bound by any terms contained within any of Recipient's order.

  1. Products
    1. "Products" shall mean, individually or collectively as appropriate, any hardware or licensed software products, documentation, developed products, supplies, accessories, and other commodities related to any of the foregoing, donated to Recipient by Cisco.
    2. Alterations to any Product which Cisco deems necessary to comply with specifications, changed safety standards or governmental regulations, to make the Product noninfringing with respect to any patent, copyright or other proprietary interest, or to otherwise improve the Product may be made at any time by Cisco without prior notice to or consent of Recipient and such altered Product shall be deemed fully conforming.
  2. Services
    1. "Services" shall mean any maintenance or technical support and any other standard services performed or to be performed by Cisco.
    2. If Services are donated to Recipient, or if Recipient chooses to purchase such Services, such Services shall be provided in accordance with Cisco's applicable standard terms and conditions of service at the time of performance.
  3. Shipping, Delivery and Risk of Loss
    1. Shipping dates will be established by Cisco subject to availability at the time Recipient's donation request is placed.
    2. Cisco shall ship according Cisco's standard commercial practice.
    3. Title and risk of loss shall pass upon delivery by Cisco to the carrier or Recipient's representative at the shipping point. In no event shall Cisco have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of Cisco. Cisco shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay.
  4. Proprietary Rights and Software License
    1. Subject to the terms and conditions of this Agreement, Cisco grants Recipient the following license for Cisco software donated to Recipient (the "Software"):
      1. Cisco grants to Recipient a nonexclusive, nontransferable license to use the Software for Recipient's internal business use. The license granted herein shall be for use of the Software in object code format only and solely as provided in Section 4.1(b) below.
      2. Recipient License Terms:
        1. The following terms govern your use of the Software except to the extent a particular program (A) is the subject of a separate written agreement with Cisco or (B) includes a separate "click-on" license agreement as part of the installation process.
        2. License. Subject to the terms and conditions of and except as otherwise provided in this Agreement, Cisco and its suppliers grant to Recipient a nonexclusive and nontransferable license to use the specific Cisco program modules, feature set(s) or feature(s) for which Cisco has donated to Recipient, in object code form only. In addition, the foregoing license shall also be subject to each of the following limitations:
          1. Unless otherwise expressly provided in the documentation, Recipient shall use the Software solely as embedded in, for execution on, or (where the applicable documentation permits installation on non-Cisco equipment) for communication with Cisco equipment owned or leased by Recipient;
          2. Recipient's use of the Software shall be limited to use on a single hardware chassis, on a single central processing unit, as applicable, or use on such greater number of chassises or central processing units as Recipient may have paid Cisco the required license fee or received as donation from Cisco; and
          3. Recipient's use of the Software shall also be limited as applicable to the number of issued and outstanding IP addresses, central processing unit performance, number of ports, and any other restrictions set forth in Cisco's product catalog for the Software.
        3. General Limitations. Except as otherwise expressly provided under this Agreement, Recipient shall have no right, and Recipient specifically agrees not to:
          1. transfer, assign or sublicense its license rights to any other person, or use the Software on unauthorized or secondhand Cisco equipment, and any such attempted transfer, assignment or sublicense shall be void;
          2. make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or to permit third parties to do the same; or
          3. decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form to gain access to trade secrets or confidential information in the Software.
        4. Upgrades and Additional Copies. For purposes of this Agreement, "Software" shall include (and the terms and conditions of this Agreement shall apply to) any upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or backup copies of the Software licensed or provided to Recipient by Cisco or an authorized distributor for which Recipient has paid the applicable license fees or received as a donation from Cisco. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:(1) RECIPIENT HAS NO LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS RECIPIENT, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE; (2) USE OF UPGRADES IS LIMITED TO CISCO EQUIPMENT FOR WHICH RECIPIENT IS THE ORIGINAL END USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS LIMITED TO BACKUP PURPOSES ONLY.
        5. Proprietary Notices. Recipient agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Recipient shall not make any copies or duplicates or any Software without the prior written permission of Cisco. Recipient may make such backup copies of the Software as may be necessary for Recipient's lawful use, provided Recipient affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
        6. Protection of Information. Recipient agrees that aspects of the Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Cisco. Recipient shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Cisco. Recipient shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with Cisco.
        7. U.S. Government End Users. The Software and associated software documentation qualify as "commercial items," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to Government end user, or, if this Agreement is direct Government end user will acquire, the Software and software documentation with only those rights set forth herein that apply to non-governmental customers. Use of this Software and software documentation constitutes agreement by the government entity that the computer software and computer software documentation is commercial, and constitutes acceptance of the rights and restrictions herein.
        8. Term and Termination. This Agreement is effective until terminated. Recipient may terminate this Agreement at any time by destroying all copies of Software including any documentation. Recipient's license rights under this Agreement will terminate immediately without notice from Cisco if Recipient fails to comply with any provision of this Agreement. Upon termination, Recipient must destroy all copies of Software in its possession or control. Recipient may not re-sell or donate any Product to any entity during the term of this agreement or after termination.
  5. Limited Warranty
    1. Notwithstanding any other provision hereof, Cisco's sole and exclusive warranty obligations for the Product donated hereunder are set forth in Cisco's Limited Warranty Statement delivered with the Product.
    2. CISCO DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
    3. In all cases of Cisco direct U.S. donation of Product, where a Product is returned to Cisco, Recipient shall call and obtain a Return Material Authorization ("RMA") number from Cisco's customer service department.
    4. For Product returned to Cisco, Recipient is responsible for: (a) proper packing of parts being shipped to Cisco, including description of the failure and written specification of any other changes or alteration of the Product, such as hardware or firmware updates; (b) insurance of all packages for replacement cost; (c) shipment FOB Cisco's Repair Center; (d) return of defective hardware to Cisco within ten (10) days after issuance of the RMA number, or the list price of advanced replacement hardware will be charged to Recipient; and (e) compliance with Cisco's RMA procedure for all shipments to Cisco, as follows: (i) each request to Cisco for an RMA number must specify the number, type, and serial number for each part to be replaced; Cisco will provide the local RMA shipment address upon request; and (ii) Product sent back to Cisco must agree exactly in the number, type, and serial numbers associated with the RMA transaction.
  6. Patent and Copyright Infringement. Cisco will have the obligation and right to defend any claim, suit or proceeding brought against Recipient so far as it is based on a claim that any Product supplied hereunder infringes a United States copyright or an existing United States patent (issued as of the effective date of this Agreement). Cisco's obligation specified in this paragraph will be conditioned on Recipient notifying Cisco promptly in writing of the claim and giving Cisco full authority, information, and assistance of the defense and settlement thereof. If such claim has occurred, or in Cisco's opinion is likely to occur, Recipient agrees to permit Cisco, at its option and expense, either to: (a) procure for Recipient the right to continue using the Product; or (b) replace or modify the same so that it becomes noninfringing.
    1. Notwithstanding the foregoing, Cisco has no liability for, and Recipient will indemnify Cisco against, any claim based upon: (a) the combination, operation, or use of any Product supplied hereunder with equipment, devices, or software not supplied by Cisco; (b) alteration or modification of any Product supplied hereunder; (c) or Cisco's compliance with Recipient's designs, specifications or instructions.
    2. Notwithstanding any other provisions hereof, Cisco shall not be liable for any claim based on Recipient use of the Products as shipped after Cisco has informed the Recipient of modifications or changes in the Products required to avoid such claims and offered to implement those modifications or changes, if such claim would have been avoided by implementation of Cisco's suggestions.
    3. THE FOREGOING STATES THE ENTIRE OBLIGATION OF CISCO, AND THE EXCLUSIVE REMEDY OF RECIPIENT, WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO RECIPIENT SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO DISCLAIMS, ALL WARRANTIES OF NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS.
  7. Export, Re-Export and Transfer Controls. Recipient hereby acknowledges that the products and technology or direct products thereof (hereafter referred to as Products and Technology) supplied by Cisco under this Agreement are subject to export controls under the laws and regulations of the United States (U.S.). Recipient shall comply with such laws and regulations, and, agrees not to knowingly export, re-export or transfer Cisco Products and Technology without first obtaining all required U.S. Government authorizations or licenses. Cisco and Recipient each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorization or licenses, and to take timely action to obtain all required support documents. Recipient agrees to maintain a record of exports, re-exports, and transfers of the Products and Technology. Recipient's obligations under this clause shall survive the expiration or termination of this Agreement.
  8. Compliance with Laws. Recipient shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures including requirements applicable to the use of Products under telecommunications and other laws and regulations, of any government where the Products are to be used or deployed. Recipient will indemnify and hold harmless Cisco for any violation or alleged violation of such laws, rules, policies or procedures.
  9. Confidential Information. Recipient shall hold confidential and shall not use or permit others to use any confidential information identified as such in writing or orally by Cisco or information which Recipient knows or has reason to know is confidential, proprietary or trade secret information of Cisco.
  10. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF CISCO AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE VALUE OF THE CISCO PRODUCT DONATED TO RECIPIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCES GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
  11. WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES IN NO EVENT SHALL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABLITY, OR OTHERWISE, EVEN IF CISCO OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.
  12. General Provisions
    1. CHOICE OF LAW. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
    2. FORCE MAJEURE. Cisco shall not be liable for any delay or failure in performance whatsoever due to events outside Cisco's reasonable control.
    3. NO WAIVER. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.
    4. ASSIGNMENT. Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Recipient (by operation of law or otherwise) without the prior written consent of Cisco. Cisco shall have the right to assign all or part of this Agreement without Recipient's approval. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.
    5. SEVERABILITY. In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
    6. ATTORNEYS FEES. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
    7. NO AGENCY. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
    8. ENTIRE AGREEMENT. This Agreement, including the Product warranty referenced herein, constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, which are not specified herein. This Agreement may only be modified by a written document executed by the parties hereto.
    9. URL. Recipient hereby confirms that it has the ability to access, has accessed and has read, the information made available by Cisco at all of the world wide web sites/URLs/addresses/pages referred to any where throughout this Agreement (including any of the Exhibits hereto). Recipient acknowledges that Cisco may modify any URL address or terminate the availability of any information at any address without notice to Recipient.
    10. HEADINGS. Headings of sections have been added only for convenience and shall not be deemed part of this agreement.
    11. SURVIVAL. The following sections shall survive the termination of this Agreement: Section 4 (Software License); Section 5 (Limited Warranties); Section 6 (Patent and Copyright Infringement); Section 7 (Export, Re-Export and Transfer Controls); Section 8 (Compliance With Laws); Section 9 (Confidential Information); Section 10 (Limitation of Liability); Section 11 (Waiver of Consequential and Other Damages)