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CISCO SYSTEMS, INC. DATA VIRTUALIZATION SOFTWARE CLICKWRAP EVALUATION LICENSE AGREEMENT

IMPORTANT: READ THESE TERMS AND THE TERMS OF THE ACCOMPANYING THIRD PARTY SOFTWARE FILE PROVIDED TO YOU UPON REQUEST (TOGETHER, THE “AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THIS COMPUTER SOFTWARE AND ANY ACCOMPANYING USER DOCUMENTATION. BY CLICKING ON THE ‘ACCEPT’ BUTTON AT THE END OF THE FOLLOWING TEXT, YOU ARE ACCEPTING AND AGREEING TO ALL THE TERMS OF THIS AGREEMENT, PROVIDED, HOWEVER, THAT THESE TERMS WILL NOT SUPERCEDE ANY PRE-EXISTING LICENSE AGREEMENT BETWEEN YOU AND CSI (defined below) TO THE EXTENT IT COVERS THIS SUBJECT MATTER.

This Cisco Systems, Inc. (“CSI”) Clickwrap License Agreement (“Agreement”) accompanies a software product(s) (“Software”) and accompanying published documentation (“Documentation”) (Software and Documentation together, “Licensed Materials”) that are owned or licensed by CSI, all to the extent not covered under your pre-existing license for the Licensed Materials, if any.

1. License Grant. Subject to the terms of this Agreement, CSI grants to you, during the term of this Agreement, a limited, non- exclusive, non-transferable license, without the right to sublicense, to install, use and display, in object code form only, the number of copies of the Software ordered on the appropriate operating system for which it is ordered, with the scope of use limitations set forth in this Agreement and any other restrictions set forth in any other relevant licensing document, for your use as set forth under this Agreement’s terms only if not covered by any prior valid license, and to make one copy of the Licensed Materials (including all intellectual property rights notices appearing on the original) solely for back-up purposes. You acknowledge and agree that the Software is to be used in a development environment for your evaluation and internal business purposes only and cannot under any circumstances be used in production. CSI is under no obligation to provide any technical support for the Software or to provide any updates, bug fixes or error corrections. If CSI provides any such items, they will be considered to be part of the Software and subject to the terms of this Agreement.  Any copy of the Licensed Materials is the exclusive property of CSI. Except as expressly set forth in this Section 1, CSI reserves all rights and grants you no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.

2. Restrictions. You shall not (a) reproduce (except as expressly set forth herein), modify, translate or create any derivative work of the Licensed Materials, (b) sell, rent, lease, loan, provide, distribute or otherwise transfer the Licensed Materials, (c) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of the Licensed Materials, (d) display or disclose the Licensed Materials to any person other than your employees or consultants; (e) use the Licensed Materials for third-party training, commercial time-sharing or service bureau use or use any part of the Licensed Materials, including Third Party Software, independently from the Licensed Materials as a whole; (f) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in the Licensed Materials; (g) conduct any competitive product research or analysis on the Licensed Materials or any aspect or portion thereof; or (h) cause or permit any third party to do any of the foregoing. You agree and acknowledge that all right, title and interest to competitive product research or analysis conducted in violation of (g) above shall vest in CSI and may not be disclosed in any form.

3. Ownership. CSI or its licensors own and shall retain all right, title and interest (including without limitation all intellectual property rights), in and to the Licensed Materials and any modifications thereto, whether or not made by CSI. You acknowledge that the license granted under this Agreement does not provide you with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this Agreement, and that the Licensed Materials contain proprietary trade secrets of CSI of which you will maintain the confidentiality using at least the same degree of care as you use to maintain the confidentiality of your own most confidential information, but no less than a reasonable degree of care.

4. Third Party Software. CSI does not supply all third party software that may be required to use the Software. Please consult the Documentation for further details. You acknowledge that the Software contains or is provided with copyrighted software of CSI’s suppliers as identified in the Licensed Materials (“Third Party Software”) which are obtained under a license from such suppliers. Your use of any Third Party Software shall be subject to and you agree to and shall comply with the applicable restrictions and other terms and conditions set forth therein. CSI’s suppliers are intended third party beneficiaries of this Agreement.

5. Disclaimer. THE LICENSED MATERIALS ARE PROVIDED “AS IS”, AND CSI AND ITS SUPPLIERS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO LICENSED MATERIALS, THIRD PARTY SOFTWARE OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. NEITHER CSI NOR ANY OF ITS SUPPLIERS WARRANT THAT THE LICENSED MATERIALS OR ANY PART THEREOF WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR- FREE, OR THAT ANY ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED.

6. Term and Termination. This Agreement and the license granted hereunder shall be effective upon your clicking the “ACCEPT” button, unless terminated under this Section. If you don’t ACCEPT these terms, clicking the CANCEL button will signify your rejection of this Agreement. This Agreement terminates immediately upon your breach of any term of this Agreement. Sections 2 through 8 shall survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, you shall destroy all copies of the Licensed Materials. Please contact CSI should you wish to convert to a production license for the Licensed Materials.

7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CSI OR ITS SUPPLIERS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY OR SERVICES, LOSS OF USE, PROFITS OR DATA, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (OR ALSO, IN THE CASE OF CSI’S SUPPLIERS, DIRECT DAMAGES) ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. CSI’S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500). THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY EVEN IF CSI AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. U.S. Government Restricted Rights. The Licensed Materials and services are commercial items as defined by the Federal Acquisition Regulation (“FAR”) at FAR 2.101 and are licensed to the government under the applicable terms of FAR Part 12, “Acquisition of Commercial Items” and/or DFAR 227.7202, “Commercial computer software and commercial computer software documentation”. Any use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government shall be governed solely by, and prohibited, except as expressly permitted under, the terms of this Agreement.

9. Laws and Export Regulations: You understand that the Licensed Materials are subject to export control laws and regulations. You may not download or otherwise export or re-export the Licensed Materials or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations, in particular, but without limitation, none of the Licensed Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) restricted or prohibited countries or for use in connection with restricted or prohibited purposes; or (ii) to anyone on the U.S. Treasury Department's list of specially designated nationals or the U.S. Commerce Department's list of prohibited countries or table of denial orders. You hereby agree to the foregoing and represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list. You understand that the requirements of the export laws may vary depending on the product delivered and may change over time, and that to determine the controls applicable to a particular transaction, it is necessary to refer to the U.S. Export Administration Regulations and the Office of Foreign Assets Control Regulations.

10. General. This Agreement constitutes the entire agreement between CSI and you with respect to the Licensed Materials, and supersedes any and all other written or oral agreements existing between the parties regarding the Licensed Materials. No modification, waiver or amendment to this Agreement shall be effective unless in writing signed by the parties. CSI and its suppliers’ technical support organizations will not provide technical support or updates for the Licensed Materials. This Agreement is governed and interpreted in accordance with the laws of the State of California, U.S.A. without reference to conflicts of laws principles. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect. Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including without limitation acts of God or nature, labor disputes, sovereign acts of any federal, state or foreign government, or shortage of materials. Neither party may assign this agreement without the other party’s prior written consent. Notwithstanding the foregoing, CSI shall have the right to assign this agreement and any right or obligation under it without your approval to any CSI affiliate.

11.  Scope of Use.  If you at any time during the term of this Agreement exceed the scope of use set forth in this Agreement, the applicable license fee shall be increased in accordance with CSI’s then-current price list to reflect your expanded actual use of the Licensed Materials.

12.  Injunctive Relief.  You acknowledge that any breach of your obligations under this Agreement with respect to the proprietary rights or Confidential Information of CSI will cause CSI irreparable injury for which there are inadequate remedies at law, and, therefore, CSI will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.


13.  Attorneys' Fees.  In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement shall be entitled to its attorneys' fees and costs.

14. Nondisclosure. The parties agree, on behalf of themselves, and their employees, independent contractors and consultants, that each shall not use, except as required to perform its obligations or exercise its rights under this Agreement, or disclose to any third person or to any employee of the receiving party without a need to know, either during or after the term of this Terms, any Confidential Information. “Confidential Information” means any and all information disclosed by one party or such party’s contractor or agent to the other party and (i) identified as confidential, whether in oral or written form, or (ii) which by its nature (including, but not limited to, know how, Licensed Materials, software source code and documents, benchmark testing and results, and information related to the current, future, and proposed products and services of such party, financial information and any third party proprietary information disclosed by the disclosing party) or circumstances surrounding its disclosure should be reasonably regarded as confidential. Confidential Information does not include information which can be shown by the receiving party as (a) already in the possession of the receiving party without an obligation of confidentiality, (b) hereafter rightfully furnished to the receiving party by a third party without a breach of any legal or contractual obligation, (c) that is or becomes publicly available without breach of this Terms, (d) furnished by the disclosing party to a third party without restriction on subsequent disclosure, or (e) independently developed by the receiving party without reliance on the Confidential Information. The parties and their respective employees, independent contractors and consultants shall use the same degree of care as used to protect their own confidential information of a similar nature, but in no event less than reasonable care, to avoid disclosure of Confidential Information. In the event of a breach of this Section, money damages will not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, the disclosing party shall be entitled to seek an injunction or other equitable relief against such breach without necessity of posting bond or security, which is expressly waived. Notwithstanding the foregoing, the party to whom Confidential Information was disclosed (the “Recipient”) shall not be in violation of this Section when such Confidential Information was disclosed in response to a valid order by a court or other governmental body, provided that the Recipient provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.

15. Additional Product-Specific Terms

(a) Active Cluster: Each Active Cluster license requires an appropriate version of an underlying Cisco Information Server Software (“CIS”) license, and the restrictions of such CIS license, including without limitation the scope of use limitations regarding the CIS license type (development, staging, production or failover) set forth in any licensing document shall apply to this Active Cluster license as well. Each Active Cluster license includes up to 4 Nodes at least one of which is on a different server (i.e., a physical piece of hardware) from the rest. "Node" means an instance of CIS v6.1 or above deployed on a server regardless of the number of cores in such server.

(b) Adapter:  Each Adapter license requires an appropriate version of an equivalent underlying freestanding Cisco Information Server Product license separately licensed from Cisco, and an appropriate version, supplied by Licensee, of the underlying application (SAP, Oracle, salesforce.com, or Siebel). Each Adapter Usage License allows each of the Adapter licenses being evaluated to be used on up to four (4) Cisco Information Server Production Core licenses which were either previously purchased or are being evaluated at the same time.

13.  Operating Platforms.  Unless otherwise provided herein, all Software shall be limited to the English language version generally available on the download date and is licensed for use with English and Latin-2 language data on those operating systems specified in the Documentation.

 
 
 
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