AGREEMENT LAST MODIFIED: September 29, 2016
The Progress DigitalFactory Services (as defined below) are being made available by Telerik AD (“Telerik,” “Licensor”, “we,” “us,” or “our”) to YOU, YOUR EMPLOYEES, AGENTS, CONTRACTORS, AND ANY OTHER PERSON OR ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (COLLECTIVELY “LICENSEE”, “YOU” OR “YOUR”). BY ACCESSING OR USING ANY OF THE PROGRESS DigitalFactory SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS PROGRESS DIGITALFACTORY SERVICE AGREEMENT (THE “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THE PROGRESS DIGITALFACTORY SERVICES, OR ANY PORTION THEREOF. IF YOU HAVE ENTERED INTO A MUTUALLY EXECUTED WRITTEN AGREEMENT WITH Telerik IN CONNECTION WITH YOUR ACCESS TO AND USE OF ANY OF THE PROGRESS DIGITALFACTORY SERVICES, THEN, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE MUTUALLY EXECUTED AGREEMENT BETWEEN YOU AND TELERIK WILL SUPERSEDE THIS AGREEMENT AND WILL GOVERN YOUR ACCESS TO AND USE OF SUCH PROGRESS DIGITALFACTORY SERVICES, BUT ONLY WITH RESPECT TO THOSE PROGRESS DIGITALFACTORY SERVICES COVERED UNDER THE ABOVE-MENTIONED MUTUALLY EXECUTED WRITTEN AGREEMENT.
IF YOU HAVE BEEN LICENSED TO ACCESS AND USE ANY OF THE PROGRESS DIGITALFACTORY SERVICES BY A THIRD PARTY IN CONJUNCTION WITH A SOFTWARE APPLICATION PROVIDED BY SUCH THIRD PARTY, THE TERMS OF SUCH LICENSE SHALL APPLY TO YOUR ACCESS AND USE OF THE APPLICABLE PROGRESS DIGITALFACTORY SERVICES. IN SUCH EVENT, THE TERMS OF THIS AGREEMENT SHALL NOT APPLY NOTWITHSTANDING ANY REQUIREMENT FOR YOU TO ACCEPT THIS AGREEMENT IN ORDER TO ACCESS THE PROGRESS DIGITALFACTORY SERVICES.
1. Definitions
1.1 “Account” means an isolated virtual space in a given Tenant, which can hold one or more Web-Sites and Mobile Applications. Each Account has an isolated codebase, database, Account Administrator and Disaster Recovery.
1.2 “Applicable Laws” means national, federal, state, and local laws, rules, and regulations including, without limitation, those laws and regulations relating to data privacy and security in each applicable jurisdiction.
1.3 “AUP” or “Acceptable Use Policy” means the policy identified as the “Acceptable Use Policy,” the current version of which is set forth in the Progress DigitalFactory Services Site and as it may be updated by Telerik from time to time.
1.4 “Authorized User” means an individual you have authorized to access and use the Service for You in accordance with this Agreement. Each Authorized User must register their own User ID and may not use the Service except under the terms of this Agreement. There are four (4) types of Authorized Users:
1.4.1 “IT Administrator” – a governing role that manages the access and security levels to the Tenant and of its comprising Accounts.
1.4.2 “Account Administrator” – a governing role that manages the access and security levels on Account level only. This role is responsible for creating and governing Web-Sites within the Account. This role can also perform all operations that a Developer and a Content Editor role can perform (see below).
1.4.3 “Developer” – a user role that has access to the development Services for the Web-Sites and Mobile Apps within the respective Account.
1.4.4 “Content Editor” – a user role that can manage the content of an existing Web-Site within the respective Account.
1.5 “Content-Editing Functionality” – the ability to perform create, read, update operations on webpages and content items under existing content modules in a production Web-Site. Content-Editing Functionality excludes non-business critical operations like create, read, update of new content modules, and E-mail campaigns. Content-Editing Functionality is considered unavailable if it cannot be performed using both the specific URLs leading to user interface screens for editing content, or the browse-and-edit functionality of the Web Content Management System.
1.6 “Disaster Recovery” – methods and procedures for returning an Account to full operation after a catastrophic interruption. Disaster Recovery might result in loss of data.
1.7 “Documentation” means written technical materials and instructions pertaining to the operation of the Service and/or On-Premise Product(s) delivered by Telerik in combination with said Service and/or the On-Premise Product(s), and any updates to such written technical materials and instructions made available by Telerik.
1.8 “End-Users” means: with respect to Web-Sites, individuals, devices, and/or a software applications, whether internal or external, that can access only the published portion(s) of a Web-Site; and, with respect to Mobile Applications, Your own End-User licensees, each of whom is authorized to use certain UI components solely as integrated within Your Mobile Application(s) pursuant to an end-user license that meets the requirements of this Agreement.
1.9 “Mobile Application” means those software applications which are designed to run on mobile devices, and which: (i) are developed, stored, accessed, and/or supported by You using the Services ; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Services; and (iii) are not commercial alternatives for, or competitive in the marketplace with the Services, any components of the Services, or any other Telerik, or Telerik affiliate, products or services.
1.10 “Multi-Site Mode” – a mode in which an Account hosts more than one Web-Site. All of those Web-Sites share the same codebase, database, Account Administrator and Disaster Recovery of the host Account.
1.11 “On-Premise Product” means any computer software programs available for download from the Progress DigitalFactory Services Site which you may be required to download and install locally on your computer in order to connect to and/or use the applicable Service, and any related Documentation and any update, upgrade or new versions of the foregoing.
1.12 “Page-Views” – the sum of all Webpage-Views and Screen-Views of all Web-Sites and Mobile Applications hosted by a particular Account, measured for a given period.
1.13 “Policies” means the AUP, Privacy Policy (identified herein), and Terms of Use, together with all restrictions described in the Services Content and on the Progress DigitalFactory Services Site, and any other policy or terms referenced in or incorporated into this Agreement. The term “Policies” does not include whitepapers or other marketing materials referenced on the Progress DigitalFactory Services Site or the Telerik Site. Telerik may modify any of the Policies at any time by posting a revised version on the Progress DigitalFactory Services Site and/or Telerik Site as applicable. The modified Policies will become effective upon posting.
1.14 “Production Environment” means that portion of the Web Content Management System used or deployed for publishing and/or administering a Web-Site which is accessible by and/or visible to your End-Users. The Production Environment with regard to such Web-Sites has three sectors:
1.14.1 “Front-End” – the front end of the Web-Site accessible by and/or visible to Your End-Users;
1.14.2 “Content-Editing” – the Content-Editing Functionality which is accessible by Your Content Editors.
1.14.3 “Administration Interface” – the Web-Site administration user interface accessible by your Account Administrator(s).
1.15 “Progress DigitalFactory Services” or “Service(s)” means the Telerik hosted cloud-based software and service(s) available on the Progress DigitalFactory Services Site that you are authorized to access and use pursuant to the terms and conditions of this Agreement and any On-Premise Product and/or Services Content associated with such Services.
1.16 “Progress DigitalFactory Services Site” means collectively the websites where each of the Services are offered, including, without limitation, https://platform.telerik.com or such other websites as Licensor may designate from time to time.
1.17 “Screen-View” – each instance that a screen in a Mobile Application is loaded whether by an End-User or one of your Authorized Users. This is equivalent to Webpage-View of a Web-Site. Refreshing the content or paging/scrolling actions that result in content download is counted as additional Screen-Views.
1.18 “Server Request” – an HTTP request that is processed by the server(s) of the Production Environment. Content-Editing requests not processed by the Production Environment servers are not counted as Server Requests.
1.19 “Service Level Agreement” means any service level agreement that Licensor has provided to You with respect to any version of a Service or Service level, as it may be updated by Licensor from time to time.
1.20 “Services Content” means any and all software, Documentation, documentation, sample code, tools, libraries, application programming interfaces (APIs), data, files and other materials that Telerik makes available in connection with the applicable Services or on the Progress DigitalFactory Services Site to allow access to and use of the applicable Service, and any update, upgrade or new versions of the foregoing.
1.21 “Telerik Site” means a web-site maintained by Telerik and/or any of its affiliates including but not limited to: the Progress DigitalFactory Services Site, http://www.telerik.com, http://www.progress.com and any successor or related sites designated by Telerik.
1.22 “Tenant” – a logically isolated space in the Services designated for a single customer (an organization along with its branches, regional offices and affiliates), and managed by the customer’s IT department.
1.23 “Terms of Use” means the terms of use located on each Telerik Site, as they may be updated by Telerik from time to time.
1.24 “Web Content Management System” means that portion of the Services used and/or deployed for the purposes of developing, publishing, and/or administering a Web-Site.
1.25 “Web-Site” – a collection of related web-pages managed by the Web Content Management System of the Services. Each Web-Site has its own web-page structure (sitemap), user permissions, content workflows and taxonomies. One Account can host one or more Web-Sites (see Multi-Site Mode).
1.26 “Webpage-View” – each instance that a particular webpage on a Web-Site is visited, loaded, accessed, or viewed whether by an End-User or one of your Authorized Users. Revisiting or reloading an already visited webpage is counted as an additional Webpage-View.
1.27 “Your Content” means any and all data, information, software, files and other materials (including but not limited to Web-Sites, Mobile Applications, websites and website content, data files, written text, keys, computer software, music, audio files or other sounds, photographs, videos or other images) that you cause to interface with the Service, or upload to the Service under your account or otherwise develop, publish, transfer, process, use or store in connection with your Tenant and/or associated Account(s).
2. Changes to Policies, Services, and Other Changes
2.1 Licensor may modify any of the Policies at any time by posting a revised version at the original location of the Policy and/or on the Progress DigitalFactory Services Site or Telerik Site as applicable. The modified Policies will become effective upon posting.
2.2 Licensor may modify the functionality or features of the Services at any time, provided that the modification does not materially denigrate the functionality of the Services (as described in the applicable Documentation) for the remainder of Your then active Initial Service Term or Renewal Service Term (as applicable). Licensor will not be liable to you or any third party for any such modification.
2.3 Service Level Agreements, if any, may only apply to certain Services or to certain Service plan levels for a Service. Licensor may change, discontinue or add Service Level Agreements from time to time.
2.4 The website links contained in this Agreement are subject to update from time to time.
3. Evaluation Use; Access to Non-GA Services
3.1 If you register on the Progress DigitalFactory Services Site or Telerik Site for a free evaluation of any Service, Licensor may make certain other Services available to you on an evaluation basis free of charge until the end of the free evaluation period applicable for the particular Service; provided, however, that if you purchase any Service during the free evaluation period, then the free evaluation period for that particular Service will end as of the start date of the purchased Service ordered by you. The Services provided for evaluation will be subject to all of the terms and conditions of this Agreement, except that, notwithstanding any provision to the contrary herein, your right to use the Services will be subject to the following additional requirements and limits:
3.1.1 You may use the Services solely for evaluation and testing.
3.1.2 Your use of the Services may be subject to certain usage limits, including, without limitation, limits on Authorized Users, Web-Sites, Page-Views, Mobile Applications, Screen Views, Server Requests, records, storage, bandwidth, and any other limits imposed by Licensor and described on the Progress DigitalFactory Services Site or Telerik Site web pages associated with the particular Service. You will not be permitted to use the Services in excess of such limits.
3.1.3 THE SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.
3.1.4 If you subsequently purchase a Service plan for any of the Services, such purchase and your use of the Service will be governed by the terms and conditions of the version of this Agreement then in effect at the time of your purchase and posted on the Telerik Site at https://www.telerik.com/purchase/license-agreement/digitalfactory
3.2 From time to time, Licensor may invite you to try, at no charge, Licensor’ products or services not generally available to our customers (“Non-GA Services”). You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, pre-release, non-production or by a similar description. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Licensor may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
4. Purchased Service
4.1 You may purchase or upgrade one or more Service plans via the Services portal or by completing and submitting a written or electronic service order in a form supplied by Licensor or Licensor’s Authorized Distributor identifying the Service and your desired Service plan (based on the description of available Service plans for the particular Service)(“Service Order”). Service Orders are considered a request for a given Service plan and are subject to acceptance by Licensor; such acceptance is deemed to occur when Licensor grants you access to and use of the Service. You understand and agree that by submitting the Service Order and consenting to the terms of this Agreement, you have made a binding selection of the type of Service to be provided to you and all associated prices and policies related to the delivery of the Service. The Service you have identified in the Service Order may be subject to certain usage limitations (including but not limited to Authorized Users, Web-Sites, Page-Views, Mobile Applications, Screen Views, Server Requests, records, storage, bandwidth, push notifications and outgoing e-mail message limitations) and other terms and conditions specific to the particular Service identified in the Service Order, as described in the Documentation, Policies, and/or Service plan description. You understand and agree that your access to and use of the Service is subject to your compliance with the terms and conditions of this Agreement including any usage limitations and other terms and conditions specific to the Service you have selected as set forth in the Service Order.
4.2 If Service plan upgrades are available for the Service you have purchased, then you may upgrade your Service plan during your Initial Service Term or Renewal Service Term (as those terms are defined in Section 20.1). Your new upgraded Service plan will become effective on the date Licensor processes your upgrade request. You will be required to pay the increase in the Service fees for the upgraded Service plan for the remainder of your then-current Initial Service Term or Renewal Service Term, as applicable. You may not downgrade your Service plan during your Initial Service Term or Renewal Service Term.
5. Scope of Use
5.1 You may access and use the Service and the applicable Services Content in accordance with this Agreement. You will adhere to all Applicable Laws applicable to your use of the Services, as well as, the AUP and the other Policies as defined in Section 1.
5.2 A valid User ID (user name and password) is required to access a Service. Each User ID allows one Authorized User to access and use a Service. User ID’s are not transferable to other individuals. You are responsible for all activities that occur under your Tenant and associated Accounts and ensuring that all such activities are completed in compliance with the terms and conditions of this Agreement, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and you will be liable for any non-compliance by any such parties. Licensor and its affiliates are not responsible for unauthorized access to your Tenant and/or associated Accounts. You will contact Licensor immediately if you believe an unauthorized third party may be using your Tenant and/or associated Accounts or if Your Tenant and/or associated Accounts information is lost or stolen.
6. Proprietary Rights
6.1 You acknowledge and agree that Licensor and/or its licensors own all legal right, title and interest in and to the Services including any and all intellectual property rights therein, whether registered or not, and wherever in the world they may exist. You further agree that the Services contains proprietary and confidential information of Licensor and/or its licensors and incorporates trade secrets of Licensor and/or its licensors protected by applicable intellectual property and other laws. You agree not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Services.
6.2 Licensor acknowledges and agrees that you and/or your licensors own all legal right, title and interest in and to Your Content, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Except as provided in this Agreement, Licensor obtains no rights from you or your licensors to Your Content. You consent to Licensor’s access to your account and Licensor’s use of Your Content, including information necessary to login to certain third party service accounts and other information that Licensor requests from you, to the extent Licensor deems such access and use necessary to provide the Service or for the purpose of administration or support related to the Service. Except as permitted under this Agreement, Licensor will not edit, delete or disclose the contents of Your Content unless authorized by you or unless Licensor is required to do so by law or in good faith belief that such action is necessary to: (a) conform with Applicable Laws or comply with legal process served on Licensor; (b) protect and defend the rights or property of Licensor or its affiliates; or (c) enforce the terms and conditions of this Agreement.
6.3 You represent and warrant to Licensor that you have all rights in Your Content necessary to grant the rights contemplated by this Agreement.
7. License from Licensor
7.1 Licensor grants you a non-exclusive, non-transferable, non-sub-licensable, revocable, limited internal only (except as expressly set forth herein) use license during the Term to access and use the Service and any Services Content in accordance with this Agreement.
7.2 If the Services Content includes one or more On-Premise Products then the license grant set forth in Section 7.1 includes the right to download, install and use such On-Premise Product(s) only for the purpose of connecting to and using the Service and the applicable Services Content. Your download, installation and/or use of the On-Premise Product will also be subject to the following additional terms and conditions:
7.2.1 As a pre-requisite to your use of the On-Premise Product(s), you must have a valid, paid, and active Service plan permitting access to the applicable Service to which the On-Premise Product relates.
7.2.2 By virtue of this Agreement, you acquire only a non-exclusive, non-transferable, non-sublicenseable, limited, personal, internal use only (except as expressly set forth herein) license to permit the Authorized User(s) to use the On-Premise Product pursuant to the terms and conditions hereof, and you do not acquire any rights of ownership to (i) the On-Premise Product, (ii) any Services Content provided therewith or (iii) the media, if any, upon which the On-Premise Product and Services Content are embodied. Licensor and/or its licensors shall at all times retain all right, title, and interest in the Services, On-Premise Product(s), Services Content, and any media provided therewith. Except for the license rights expressly granted herein, you are granted no additional express or implied license, right or interest in any of the Services (including but not limited to any On-Premise Product) or in any copyright, patent, trade secret, trademark, invention or other intellectual property rights of Licensor, its affiliates or their licensors. Licensor reserves all rights not expressly granted to you in this Agreement.
7.2.3 All rights granted hereunder to use the On-Premise Product will automatically terminate immediately following the termination of your Service plan or this Agreement. You will return or, if instructed by Licensor, destroy the On-Premise Product and any Services Content and all copies thereof in your possession (or in the possession of Authorized User(s)) immediately following such termination.
7.2.4 Additional terms and conditions related to your use of the On-Premise Product in conjunction with a particular Service may be set forth in Exhibit A.
7.3 License for Redistribution. During your Initial Service Term or Renewal Service Term, You may distribute certain UI components of the Services Content (as specified in the Documentation) in object code or minified form (as applicable to such UI component(s) based upon the specifications within the Documentation) only as embedded in the object code form of Your Mobile Application for use by Your End-Users and only pursuant to an End-User license that meets the requirements of this Section. You are not permitted to distribute the UI components pursuant to this Section as a standalone product or as a part of any product other than Your Mobile Application. Your End-User license agreement or terms of use must: impose the limitations set forth in this paragraph on Your End-Users; prohibit distribution of the UI components by Your End-Users; limit the liability of Your licensors or suppliers to the maximum extent permitted by applicable law; and prohibit any attempt to disassemble the code, or attempt in any manner to reconstruct, discover, reuse or modify any source code or underlying algorithms of the UI components, except to the limited extent as is permitted by law notwithstanding contractual prohibition. For avoidance of doubt, Your End-Users are not permitted to use the Services, or any portions thereof (including but not limited to any of the UI components) for: software development or application development purposes; enhancement or modification of Your Mobile Application; or within any design time environment, unless they also purchase a separate commercial license from Telerik for each of the End-Users.
7.4 Except as provided in this Section 7 or Exhibit A, you obtain no rights under this Agreement from Licensor or its licensors to the Services, including any related intellectual property rights.
8. Limitations on Use; Your Responsibilities
8.1 You agree to use the Services solely for your own internal use as permitted by this Agreement and for no other purpose. Without limiting the foregoing, except as otherwise expressly provided for herein, you agree not to (and not to permit anyone else to):
8.2 You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
(a) the technical operation of Your Content;
(b) any claims relating to Your Content;
(c) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act; and
(d) properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving of Your Content.
9. Export Control
The Services, including technical data, is subject to the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will comply with all applicable import, re-import, export and re-export control laws and regulations, including, without limitation, the U.S. Export Administration Act and its associated regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance with such laws and regulations in relation to the manner in which you use the Services, including, without limitation, Your transfer and processing of Your Content and your downloading and/or use of any On-Premise Product. Without limiting the foregoing, you agree that (i) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (ii) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which access or use of the Services would be prohibited by United States law. You will not use the Services for, and will not permit the Services to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
10. Government Use
If the Services is/are being used or acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the Services will be only as set forth herein. Any Services Content that is software, and related documentation are each a "commercial item" 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, all U.S. Government end users acquire the Services Content that is software, and such documentation with only those rights set forth herein. Contract/Manufacturer is Telerik AD, Bulgaria.
11. Support; Limitations on Availability of Service
11.1 Licensor agrees to provide you with technical support for the applicable Service in accordance with the technical support terms and conditions set forth in Exhibit A.
11.2 It may be necessary for Licensor to perform scheduled or unscheduled repairs or maintenance to the Services, which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Services. Although Licensor cannot guarantee that you will receive advance notice of repairs or maintenance, Licensor will post information concerning scheduled maintenance and/or downtime on the Progress DigitalFactory Services Site and/or Telerik Site location associated with the applicable Service. Without limiting the scope of the disclaimers of warranties and liability limitation set forth in Sections 17 and 18 respectively or the force majeure provisions in Section 23, Licensor will exercise commercially reasonable efforts to resolve any unanticipated and unscheduled downtime for the Services as soon as possible.
11.3 Licensor may, from time to time during the Term of this Agreement provide Updates to the Services. For purposes of this Agreement, an “Update” shall mean any update, patch, version and/or new release of or to any On-Premise Product and/or Services Content or any modification to the Services that Licensor furnishes generally to its customers. Updates shall be subject to the terms and conditions of this Agreement.
11.4 Licensor reserves the right to provide some or all of the Services and/or technical support of the Services from locations, and/or through use of third party suppliers, worldwide.
12. Pricing/Payment
12.1 Service Plans are sold and invoiced by Licensor’s Authorized Distributors. You agree to pay, pursuant to the terms agreed to between You and Licensor’s Authorized Distributor, the Service fee(s) applicable to the Services and the Service plan identified in the Service Order, plus all applicable additional usage charges. Licensor may increase and/or add new fees and charges for the Services or any new Service you have purchased by providing information about the new fees and charges to You prior to the commencement of a Renewal Term. Such increase or additional fees and charges will take effect at the commencement of the Renewal Service Term immediately following Licensor’s provision to You of information related to the new fees and charges.
13. Temporary Suspension
13.1 Licensor may suspend your right to access or use any portion or all of the Service immediately upon notice to you if Licensor determines:
(a) your use of the Services (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Services or the systems or content of any other customer, or (iii) may subject Licensor, its affiliates, or any third party to liability;
(b) you are in breach of this Agreement; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
13.2 If Licensor suspends your right to access or use any portion or all of the Service:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension; and
(b) you remain responsible for any applicable fees and charges for any portion of the Service to which you continue to have access, as well as applicable data fees and charges, and fees and charges for in-process tasks completed after the date of suspension.
If the circumstances surrounding the suspension are resolved and Licensor reactivates your access to the Services, or the suspended portion thereof, Licensor reserves the right to charge you a reactivation fee. Licensor’s right to suspend your right to access or use the Services or any portion thereof is in addition to Licensor’s right to terminate this Agreement pursuant to Section 20.3.
14. Confidentiality; Privacy; Equitable Relief
14.1 You acknowledge that the Services is/are the valuable proprietary and trade secret information of Licensor or its licensors (if any). In the course of using the Services, you may also receive information relating to Licensor and/or the Services which is of a confidential and proprietary nature to Licensor. The Services and any such information shall be collectively referred to in this Section 14 as “Licensor Proprietary Information”. You shall (i) limit use and disclosure of the Licensor Proprietary Information solely for the purpose permitted hereunder and only to your employees and consultants (collectively “Your Personnel”) who have a need to know in order to complete such purpose; (ii) obtain and/or maintain written nondisclosure agreements with Your Personnel sufficient for you to comply with all of the terms and conditions of this Agreement prior to granting Your Personnel access to the Licensor Proprietary Information; (iii) not (except to the limited extent permitted herein) provide access to the Licensor Proprietary Information to another party; and (iv) exercise the same degree of care that you use to protect your own confidential information, but in any event no less than reasonable care to protect the confidentiality of the Licensor Proprietary Information. Without limiting the foregoing, you agree not to disclose the results of any benchmark or other testing relating to the Services to any third party without the prior written consent of Licensor. You will ensure that Your Personnel comply with the terms and conditions of this Agreement and their respective nondisclosure agreements. You will notify Licensor immediately upon discovery of unauthorized use or disclosure of Licensor Proprietary Information or any other breach of the terms and conditions of this Agreement by you. You will cooperate with Licensor in every reasonable way to help Licensor regain possession of such Licensor Proprietary Information and prevent its further unauthorized use.
14.2 Licensor Proprietary Information may include information about Licensor’s current and future plans and/or strategies relating to products, services, and business development. Licensor reserves the right, in its sole discretion, to modify, change, alter or eliminate any such plans or strategies from time to time without notice, obligation or liability to you. Any future features or functionality that may be part of a product or service roadmap are for discussion purposes only and are not a commitment on the part of Licensor to provide any such enhancement as part of any future release or service offering. You acknowledge that any buying decision is based solely on the features and functionality currently available as part of the current generally available product or service. All future features and functionality shared with you may be made available in a product or service at the sole discretion of Licensor.
14.3 Licensor’s current Privacy Policy is available at http://www.telerik.com/about/privacy-policy and is incorporated by this reference. Your use of the Service is subject to the terms of the Privacy Policy. Without limiting the foregoing, you consent to Licensor’s collection, use and disclosure of information associated with the Service in accordance with the Privacy Policy, and to the processing of Your Content in, and the transfer of Your Content into, the cloud infrastructure provider data center located in the region(s) that you selected for your Service plan as identified in the Service Order.
14.4 You acknowledge that, in the event of any breach of the terms and conditions of this Agreement, Licensor will not have an adequate remedy in money or damages. In such event, Licensor will be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and without the requirement of posting any bond. Licensor's right to obtain such relief shall not limit its right to obtain other remedies.
15. Feedback
As part of using the Services, Licensor may provide you with the opportunity to submit comments, suggestions, ideas, feedback, information or other disclosures regarding your use of the Services (collectively “Feedback”). You are not required to provide any Feedback, but if you do, then you agree that Licensor is free to use without restriction (but is not obligated to use) any Feedback you provide, including without limitation, any ideas, concepts, know-how, or techniques relating to the Services (or any part thereof), for any purpose and without restriction and without any accounting, royalty or other obligation to you. Licensor will own all right, title, and interest in and to the Feedback, even if you have designated the Feedback as confidential. You hereby irrevocably assign to Licensor all right, title and interest in and to the Feedback and agree to provide Licensor any assistance it may require to document, perfect and maintain Licensor’s rights in the Feedback.
16. Third Party Materials and Links to Third Party Sites
16.1 The Progress DigitalFactory Services Site or the Service may permit you to integrate Your Content with other services and link to other websites or resources on the Internet, and other websites or resources may contain links to the Progress DigitalFactory Services Site. These other services, websites and resources are not under Licensor’s control, and you acknowledge that Licensor is not responsible or liable for any content, functions, accuracy, appropriateness or any other aspect of such services, websites or resources. The inclusion of any such integration, functionality or link does not imply endorsement by Licensor or any association with its operators. In no event will Licensor be liable to anyone for any damage arising from or caused, directly or indirectly, by the creation or use of a third party’s services, website, or resource, or the information or material accessed through such services, website or resource. You further acknowledge and agree that Licensor will not be responsible or liable, directly or indirectly, for any damages or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such services, website or resource.
16.2 (a) Use of any third party or Open Source software that may be hosted or delivered by Telerik embedded in or in association with the Services is provided pursuant to the open source license or other license applicable to such software and subject to the disclaimers and limitations on liability set forth in such licenses. (b) On-Premise Products may contain or be accompanied by certain third-party components which are subject to additional restrictions as set forth herein and in the terms and conditions of the open source license or other license applicable to such third party component. Unless otherwise expressly stated, for any particular third party component, all third party components included in or accompanying the On-Premise Product may be used solely in connection with the operation of the On-Premise Product subject to and in accordance with the terms and conditions of this Agreement, including but not limited to the Additional Terms and Conditions (if any) set forth in Exhibit A related to the use of such On-Premise Product.
17. Warranties; Disclaimer of Warranties
17.1 Licensor warrants that (a) Licensor has validly entered into this Agreement and has the legal power to do so and (b) the Service will perform materially in accordance with the Documentation. For any breach of the foregoing warranty, your sole and exclusive remedy shall be to terminate this Agreement pursuant to Section 20.3(b) and obtain a pro-rata refund of the Service fee in accordance with Section 20.5.
17.2 You warrant that you have validly entered into this Agreement and have the legal power to do so. You also represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any of Your Content within and outside of the country in which you are located in connection with our performance of the Service or your use of the Service (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, and contractors).
17.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. EXCEPT AS SET FORTH IN PARAGRAPH 17.1 ABOVE, LICENSOR AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. IN PARTICULAR (BUT WITHOUT LIMITING THE FOREGOING DISCLAIMER), LICENSOR AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.
17.4 Without limiting the disclaimers set forth in Section 17.3 above, you understand and agree that Licensor has no control over Your Content, or the manner in which you use the Service to process Your Content, and that Licensor is not responsible for and shall have no liability in connection with any loss or corruption of Your Content.
18. Limitation of Liability
18.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH IN SECTION 18.2 BELOW MAY NOT APPLY TO YOU.
18.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, OR OTHER INTANGIBLE LOSSES (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES OR ANY PORTION THEREOF; (II) ANY CHANGES MADE TO THE SERVICES , OR ANY TEMPORARY OR PERMANENT CESSATION OF ACCESS TO THE SERVICES OR ANY PART THEREOF; OR (III) OTHERWISE ARISING UNDER THIS AGREEMENT. LICENSOR’ AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING THE SERVICES. IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL LICENSOR’S LIABILITY TO YOU EXCEED THE SERVICE FEE YOU PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM FOR THE PERIOD OF THE INITIAL SERVICE TERM OR RENEWAL SERVICE TERM IN EFFECT AT THE TIME SUCH LIABILITY ACCRUED.
19. Indemnification.
19.1 You will defend, indemnify, and hold harmless Licensor, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) your use of the Services , or any portion thereof (including any activities under your Tenant and/or associates Accounts and use by your Authorized Users, employees and personnel); (b) breach of this Agreement or violation of Applicable Laws or violation of obligations of privacy to any third party by you; or (c) Your Content or the combination of Your Content with other applications, content or processes, including (but not limited to) any third party claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; (d) any representations and warranties made by You concerning any aspect of the Services to any third party. If Licensor or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse Licensor for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Licensor’ then-current hourly rates.
19.2 Licensor will promptly notify you of any claim subject to Section 19.1, but Licensor’s failure to promptly notify you will only affect your obligations under Section 19.1 to the extent that Licensor’s failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to Licensor’s written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain Licensor’s prior written consent before entering into any settlement. Licensor may also assume exclusive control of the defense and settlement of the claim at any time, and solely at Your expense, if you have failed to appropriately protect Licensor’s interests.
20. Term and Termination
20.1 The initial term for the Service plan you purchased will commence upon Licensor’s acceptance of the Service Order and will continue for the period of time set forth in the Service Order (“Initial Service Term”). If You obtained Your Service Plan through Licensor’s Authorized Distributor Telerik Inc., Your Service plan will automatically renew for successive renewal terms each equal in duration to the Initial Service Term (each a “Renewal Service Term”), under the version of this Agreement in effect at the time of such renewal, unless either you or Licensor terminates your Service plan and this Agreement in accordance with Section 20.3 below. If You obtained Your Service Plan through any Licensor Authorized Distributor other than Telerik Inc. renewal terms may differ from those set forth in the preceding sentence. You should contact the Licensor Authorized Distributor for details regarding the renewal process and the terms of renewing for successive Renewal Service Terms (if any).
20.2 Licensor may modify this Agreement at any time by posting a revised version on https://www.telerik.com/purchase/license-agreement/digitalfactory or an alternate site Licensor identifies or by notifying you in accordance with Section 22.1. Modified terms that relate to additions to the Service(s) will be effective upon your purchase of the applicable Service(s) and by continuing to use such Service(s) you will be bound by such modified terms. Modified terms that are required by law will be effective immediately, and by continuing to use the Service(s) you will be bound by such modified terms. All other modified terms will be effective at the commencement of the Renewal Service Term (as defined in Section 20.1) immediately following the above-mentioned posting. If Licensor posts any revisions to this Agreement after the date on which you are required to notify Licensor that you do not want to renew the Service (pursuant to Section 20.3(a) below) and you do not agree with the terms and conditions of the revised Agreement, you may notify Licensor that you do not want to renew the Service at any time prior to the commencement of the Renewal Service Term. It is your responsibility to check https://www.telerik.com/purchase/license-agreement/digitalfactory regularly for revisions to this Agreement. Licensor last revised this Agreement on the date listed at the beginning of this Agreement.
20.3 This Agreement may be terminated as follows:
(a) Either party may terminate your Service plan and this Agreement for any reason or no reason at all by providing the other party with written notice of its intention to do so within ten (10) days (if you purchased a monthly Service plan) or thirty (30) days (if you purchased any other Service plan) prior to the expiration of the Initial Service Term or Renewal Service Term, as applicable. Any termination of your Service plan and this Agreement pursuant to this Section 20.3(a) will be effective upon the expiration of your Initial Service Term or then-current Renewal Service Term, as applicable.
(b) Either party may terminate your Service plan and this Agreement immediately for cause if there is any material default or breach of this Agreement by the other party and the breaching party fails to cure such default or breach within thirty (30) days of receipt of notice of the default or breach from the non-breaching party.
(c) Licensor may also terminate your Service plan and this Agreement immediately upon notice to you (i) for cause, if any act or omission by you results in a suspension described in Section 13.1, (ii) if our relationship with a third party partner who provides software or other technology Licensor uses to provide the applicable Service(s) expires, terminates or requires Licensor to change the way it provides the software or other technology as part of the Service(s), or (iii) if Licensor believes providing the Service(s) could create a substantial economic or technical burden or material security risk for Licensor.
20.4 Upon any termination or earlier expiration of this Agreement:
(a) all your rights under this Agreement immediately terminate;
(b) you will remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(c) you will immediately return or, if instructed by Licensor, destroy all Services Content in your possession; and
(d) all rights of action accruing prior to termination, payment obligations, and any other terms and conditions of this Agreement which by their nature would naturally survive the termination of this Agreement will continue to apply.
20.5 All fees paid by you are non-refundable except that if your Service plan and this Agreement is terminated by Licensor pursuant to and in accordance with subsections 20.3(c)(ii) or (iii) or by you pursuant to and in accordance with Section 20.3(b), Licensor will refund to you a pro-rata portion of the Service fee paid by you where such pro-rata portion is calculated based on the remainder of your then-current Initial Service Term or Renewal Service Term, as applicable.
20.6 Upon termination of this Agreement, you will cease all use of the Services. You may extract and/or delete Your Content at any time during the term of this Agreement. If the Service(s) involves other than transient storage of Your Content, when this Agreement expires or terminates, Licensor will retain Your Content you have not deleted for thirty (30) days commencing on the expiration or termination date so that you may extract it, except for Services you used on an evaluation basis, where we may delete Your Content immediately without any retention period. Following the expiration of this retention period, we will immediately delete Your Content, including any cached or back-up copies. You agree that Licensor has no additional obligation to continue to hold, export or return Your Content and that Licensor has no liability whatsoever for deletion of Your Content pursuant to these terms. The parties’ rights and obligations under Sections 1, 6, 8, 9, 10, 12, 14-24 (inclusive), and any other obligations hereunder which by their nature would continue beyond the expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
21. Governing Law
21.1 Any litigation or other dispute resolution between you and Licensor arising out of or relating to this Agreement or your use of the Service(s) will take place in the Commonwealth of Massachusetts, and you and Licensor hereby consent to the personal jurisdiction of, and exclusive venue in, the state and federal courts within Massachusetts with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts, except that body of Massachusetts law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
21.2 Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
22. Notices
22.1 Licensor may provide any notice to you under this Agreement by: (i) posting a notice on the Progress DigitalFactory Services Site, and/or Telerik Site, location(s) applicable to the Service(s) you are permitted to access and use in accordance herewith; or (ii) sending a message to the email address then associated with your Tenant and/or associated Accounts. Notices Licensor provides by posting on the applicable Progress DigitalFactory Services Site location(s) will be effective upon posting and notices Licensor provides by email will be effective when Licensor sends the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your Tenant and/or associated Accounts when Licensor sends the email, whether or not you actually receive the email.
22.2 To give Licensor notice under this Agreement, you must contact Licensor as follows: (i) by e-mail to legal@progress.com; or (ii) by personal delivery, overnight courier or registered or certified mail to: Telerik AD, attention General Counsel, c/o Progress Software Corporation, 14 Oak Park Drive, Bedford, MA 01730. Licensor may update the e-mail address or address for notices to Licensor by posting a notice on the applicable Progress DigitalFactory Services Site, and/or Telerik Site, location(s) associated with the Service(s) you are permitted to access and use in accordance herewith.
23. Force Majeure
Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of a Service) (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure. The delayed party’s performance will be excused for the duration of the Force Majeure, but if the Force Majeure lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement, or the applicable Service plan by giving written notice to the delayed party.
24. General
This Agreement and the Policies constitute the entire agreement between you and Licensor and govern your use of the applicable Service(s) and supersede any other prior or contemporaneous agreement, proposal, communication or advertising, oral or written, signed or unsigned, with respect to such portions of the Services; except that if you have entered into a mutually executed written agreement with Licensor in connection with your access to and use of one or more Services; then, notwithstanding anything to the contrary herein, the mutually executed agreement between you and Licensor will supersede this Agreement and will govern your access to and use of such Services. In the event of conflict between the terms and conditions of this Agreement and any Policy incorporated herein by reference, the terms and conditions of this Agreement shall govern. To the extent there are any terms and conditions contained in your purchase order or other documentation supplied by you such terms and conditions shall be deemed stricken and the terms and conditions of this Agreement shall govern. Except as otherwise expressly provided for herein, this Agreement shall not be changed, modified or altered in any manner except by an instrument in writing and signed by both parties. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Licensor to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. You may not assign this Agreement or any rights hereunder and may not delegate any duties under this Agreement without Licensor’ prior written consent. Any attempt to assign or delegate this Agreement without such consent will be null and void.
EXHIBIT A
Additional Terms and Conditions Related to Your Use of Sitefinity CMS On-Premise Product
1. Progress Sitefinity CMS is a component of the Web Content Management System, it is Telerik’s proprietary website development and administration software product (“Sitefinity”). Kendo UI Professional (“Kendo”), UI for ASP.NET AJAX, UI for Silverlight, and Data Access (collectively “UI Controls”) are Telerik proprietary software development tools that can be used to assist in the Web-Site development process. Sitefinity, Kendo and UI Controls are collectively referred to as the “Programs”.
2. General - Subject to the terms and conditions set forth in the Agreement, Telerik hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, non-sublicensable, royalty-free, non-exclusive license during the Term of your Service plan, to, and to allow your Developer(s) to, install and use the Programs and any accompanying Documentation, and any updates, upgrades, modifications and error corrections thereto provided to Licensee by Telerik.
3. Limitations - Notwithstanding anything to the contrary which may be contained in any End User License Agreement which accompanies your receipt, download and/or installation of the Programs:
3.1 You may use the Programs only in connection with and support of your licensed use of the Services (as set forth in the Agreement and your Service plan). You may not use the Programs to develop, publish, or maintain any Web-sites or Mobile Applications other than those which you publish and maintain through the Services. You may not use the Programs to develop, publish or maintain any other websites, intranet sites, or other software applications at any time. You may not use the Programs as a whole, or any of their components, as a basis for creation of another software product that has the same or similar functionality as any of the Programs or the Services;
3.2 The Programs may be used only by your Developers and your number of Developers must correspond to the maximum number of seats you have purchased under your Service plan. This means that, at any given time, the number of Developers using the Programs cannot exceed the number of seats that You have purchased from Telerik’s Authorized Distributor and for which You have paid all applicable license fees pursuant to this Agreement; and
3.3 All rights granted hereunder to use the Programs will automatically terminate immediately upon the termination of your Service plan or the Agreement.
Additional Terms and Conditions Related to Your Use of DigitalFactory Customer Analytics Downloadable Programs and Services
1. DigitalFactory Customer Analytics (or “DFCA”) provides comprehensive capabilities for tracking and optimizing your End-Users’ journey across Web-Sites and Mobile Applications. It is a marketing and big data analytics solution that gathers and analyzes customer touch points to provide actionable insights, predictions and recommendations for optimizing customer experiences across channels and better engaging with customers to ultimately drive business growth.
2. “DFCA Downloadable Programs” means SDK’s, connectors, and any other software that Telerik makes available to You for download through, or for use with, the DigitalFactory Customer Analytics.
3. "Tracking Code" means: with respect to analytics functionality for Web-Sites, one or more API keys provided to you by Telerik that allow you to configure data collection preferences; and with respect to analytics functionality for Mobile Applications, the monitor binaries provided to you by Telerik that allow you to configure data collection preference profiles.
4. "Customer Data" means the data concerning the characteristics and activities of your End-Users that is collected through use of the Tracking Code and then forwarded to the servers on which the Services are hosted and is analyzed by means of the DigitalFactory Customer Analytics server-side software.
5. “Customer Profile” means a data unit that holds behavioral information for a single unique identified or anonymous user visiting a tracked Web-Site or Mobile Application. Anonymous users are tracked using cookies; once your End-User registers and becomes identified, the anonymous behavioral history becomes part of the Customer Profile of the identified user.
6. “Customer Analytics Data Center” means the data structure holding Customer Profiles. One Customer Analytics Data Center can hold profiles for one or more Web-Sites and/or Mobile Applications.
7. If your Services plan includes access to DigitalFactory Customer Analytics, then, subject to the terms and conditions set forth in the Agreement, Telerik hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, non-sublicensable, royalty-free, non-exclusive license during the Term of your Service plan, to: (i) download, install or generate (as applicable), copy, use, and distribute the Tracking Code for the sole purpose of collecting Customer Data on your Web-Sites and Mobile Applications; and (ii) download and use DFCA Downloadable Programs for the sole purpose of collecting Customer Data.
8. The Tracking Code may not be used or distributed except as solely necessary for You to use the DigitalFactory Customer Analytics in connection with Your Web-Sites and/or Mobile Applications. All rights granted hereunder to use the Tracking Code and DFCA Downloadable Programs will automatically terminate immediately upon the termination of your Service plan or the Agreement.
9. The Services are automatically configured to delete dormant Customer Profiles of both identified and anonymous End-Users who have not had an interaction with the tracked Web-Site or Mobile Application for a period of 12 (twelve) months. It is your responsibility to ensure that all Customer Profiles are backed up at all times.
Updates and Support Description and Limitations
1. You are eligible to receive all Minor Updates (i.e., service pack updates, bug fixes, and other minor revisions which do not introduce any new functionality; Minor Updates are signified by the 3rd digit in a version number e.g. 9.1.x.) and Major Updates (i.e., major revisions or new versions which introduce new functionality and may contain schema changes and/or new API; Major Updates are signified by the 1st and 2nd digit in a version number e.g. 9.x, 10.x) for the On-Premise Product during the Term of this Agreement. All Updates are provided on an as-available basis, this Agreement does not include and Licensor does not commit hereunder to any planned Update release schedule. All new Tenants, all new Accounts under an existing Tenant, and all existing Accounts under which development work is ongoing with respect to a given Web-Site, must use the latest Major Update or the immediately preceding Major Update. The Services will not accept deployment packages (i.e. will not allow You to deploy/publish Web-Sites to staging or Production Environments) that are based upon older versions of the On-Premise Product.
2. The level of support (if any) that you receive for the Services depends on which Service plan you select at the time of purchase. To be eligible for support: (i) your use of the Services must be in full compliance with the terms of this Agreement; and (ii) you must provide all information and evidence necessary for Telerik support personnel to adequately understand your support issue and diagnose the cause of such issue. Telerik may limit or terminate your access to any or all of the support services available hereunder if your use of the support services is determined by Telerik, in its sole and reasonable discretion, to be excessive.
3. You will be entitled to the Telerik Support Package, identified for your Service plan, and described in greater detail on the Telerik Site. You are entitled to receive support during the Term of the Service plan only (i.e. during the Initial Service Term and any Renewal Service Terms). During that time, you shall be entitled to receive support for an unlimited number of support inquiries. Telerik will provide an initial response (but not necessarily a resolution) to each support inquiry within: (i) twenty four (24) hours of receipt of such support inquiry, and will use reasonable efforts to resolve the issue generating the inquiry as soon as is reasonably possible. A single support incident may involve several e-mails and offline work in order to be resolved. You agree to provide Telerik with detailed information about the issue encountered and cooperate with Telerik’s requests for additional information as they attempt to resolve the issue. You understand that Telerik support engineers may need to: access Your Account as Authorized User(s); obtain full access to Your Content; and/or perform advanced troubleshooting which may require such support engineers to initiate a database backup of and/or download Your Content. You hereby consent to such actions on the part of Telerik’s support engineers without additional notice, when it is determined in Telerik’s sole discretion that such actions are necessary to support Telerik’s attempts to resolve Your support issue(s). You understand that such actions may be performed in/from the United States or any other country in which Telerik or its affiliates or service providers maintain facilities. Telerik support engineers will make reasonable efforts to resolve your support issues; however, Telerik does not guarantee that all support issues will be resolved. Bug reports and product feature suggestions are not considered support incidents, and Telerik is not obligated to acknowledge or address such bug reports and/or product feature suggestions.
4. Exclusions and Limitations on Support Applicable to all Service plans. Support is not available or provided hereunder for or related to:
4.1 Machine error;
4.2 Licensee’s failure to follow operating instructions;
4.3 Licensee’s use of the Services that is not in accordance with: this Agreement, the Policies, or Documentation;
4.4 Licensee’s negligence or improper use of the Services;
4.5 Modifications to the Services (including modifications to the original database schema) by any person or entity other than Telerik;
4.6 Third party software or services included with or accessed through the Services;
4.7 Any data or software other than the Services, including, but not limited to, application programs, databases, files, source codes, object codes or proprietary data, or any configuration, installation or reinstallation of any software or data. You are responsible for backing up copies of all Your Content, your data, and software prior to seeking support from Telerik;
4.8 Any custom development, integration or implementation, project upgrades or project migrations; or
4.9 Any installation, deployment, or use of the Services: (i) in any country or by any individual or entity subject to U.S. Export restrictions; (ii) for any purpose(s) which Telerik determines in its sole discretion is/are unlawful, immoral, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or in violation of any party’s privacy or intellectual property rights; (iii) in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage.
4.10 If it is determined by Telerik in its sole discretion that you have received support from Telerik for which you were not eligible or to which the above exclusions and limitations apply, Telerik may assess and you agree to pay reasonable and appropriate fees for such support.