Telerik End User License Agreement for TeamPulse Community Edition
(Last Updated November 17, 2010)
IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (Telerik.com). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND TELERIK TEAM SUCCESS Inc. (“Telerik” or “Licensor”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY TELERIK THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
1. Software License
1.1 License Grant. Subject to the terms of this Agreement, Telerik hereby grants to you, and you accept, a non–exclusive, non–transferable license to install, and use the Software (as defined herein) only as authorized below. Subject to the terms and conditions set forth in this Agreement, Telerik hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, non-exclusive license (the “License”) to use the Telerik computer software identified as TeamPulse and any updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) solely as specified in this Agreement. You are granted a Community Edition License pursuant to Section 1.3.
1.2 Scope of Use. The Software is licensed on a per-end user seat basis. You may install the Software on an unlimited number of machines.
1.3 Community Edition License. If you download the free Community Edition License, then, subject to the terms and conditions set forth in this agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a limited, non-transferable, perpetual, non-exclusive license to install and use the Software for 1 project and up to five (5) concurrent users.
1.3.1 Support. As part of your Community Edition License You do not receive dedicated technical support. As part of your Community Edition License you are allowed to access the support resources offered by Telerik: online documentation, Knowledge Base articles, and forums.
1.3.2 Updates. You are eligible to receive all Updates for the Community Edition Software.
2. License Limitations
2.1 At no time may the Software be used by other individuals than the Licensed End User(s).
2.2 You are not allowed to resell, transfer, rent, lease, or sublicense the Software and your associated rights.
2.3 You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Software that is provided to you.
2.4 You are not allowed to use, copy, modify, or distribute copies of the Software and any accompanying documents.
3. Delivery
Telerik shall deliver to Licensee a master copy of the Software licensed hereunder in electronic files only. Documentation shall also be provided in electronic format.
4. Term and Termination
4.1 Term and Termination. This Agreement and the License granted hereunder shall last as long as you use the Software in compliance with this Agreement. Telerik may terminate this Agreement and the License granted hereunder if you fail to comply with any of the terms and conditions of this Agreement. Upon termination of this Agreement for any reason the License granted to you hereunder shall terminate automatically and You shall immediately cease use and distribution of the Software; provided, however, that any sublicenses granted to Your Authorized End-Users in accordance with Section 1.4 shall survive such termination. You must also destroy (i) all copies of the Software not integrated into a live, functioning instance(s) of your Integrated Product(s) already installed, implemented and deployed for your Authorized End-User(s), and (ii) any product and company logos provided by Telerik in connection with this Agreement.
4.2 Additional Termination Rights of Telerik. Unless otherwise prohibited by law and without prejudice to Telerik’s other rights or remedies, Telerik shall have the right to terminate this Agreement and the License granted hereunder immediately in the event that any of the below occurs:
4.2.1 If You materially breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Telerik of such material breach;
4.2.2 If You breach any of the License restrictions set forth herein, or engage in, or participate with any third party in the unauthorized manufacture, duplication, reverse-engineering, distribution of any software of Telerik (including the Software), or engage in any activities prohibited by law; or
4.2.3 If You engage in the unauthorized use of any software of Telerik (including the Software) or infringe upon any intellectual property right of Telerik.
5. Product Discontinuance
Telerik reserves the right to discontinue at any time any component of the Software, whether or not it is offered as a standalone product or solely as a component of the Software. However, Telerik is obligated to provide support in accordance with the terms set forth in this Agreement for all such discontinued components for a period of 1 (one) year after the date of discontinuance.
6. Intellectual Property
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Telerik that are used in connection with the Software are and shall at all time remain exclusively owned by Telerik and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content.
7. Limited Warranty
Telerik warrants solely that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which You purchase the License for the Software. Telerik does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee’s failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Telerik. In the event of a breach of warranty, Licensee’s sole and exclusive remedy and Telerik’s sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Telerik’s maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if Telerik receives written notice of breach of warranty no later than thirty (30) days after the warranty period expires. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, TELERIK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Telerik be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Telerik’s entire liability under any provision of this agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to Telerik for the Software giving rise to such damages, notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. Telerik is not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software and/or any material linked through such content. Any data included in the Software upon shipment from Telerik is for testing use only and Telerik hereby disclaims any and all liability arising therefrom. The extent of Telerik’s liability for the limited warranty section shall be as set forth therein.
9. Indemnity
You agree to indemnify, hold harmless, and defend Telerik and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from the use or distribution of Your Integrated Product (to the extent such Claims are not attributable to the Software component of such Integrated Product).
10. Confidentiality
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Software as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Telerik’s prior written permission. Each party’s obligations under this Section 10 shall apply at all times during the term of this Agreement and for two (2) years following termination of this Agreement.
11. Governing Law
This License will be governed by the law of the Commonwealth of Massachusetts, U.S.A., without regard to the conflict of laws principles thereof. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
12. Entire Agreement
This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof.
13. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Telerik’s prior written consent.
14. Survival
Sections 2.3, 2.4, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 shall survive the expiration or termination of this Agreement.
15. Severability
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN TELERIK AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.