End User License Agreement for Progress Data Access
(Last Updated December 1, 2018)
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 PROGRESS SOFTWARE CORPORATION (“Progress” 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 PROGRESS THROUGH THIS WEBSITE, 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.
Content Management System and/or .NET component vendors are not allowed to use the Software (as defined below) without the express permission of Progress. If You or the company You represent is a Content Management System or .NET component vendor, You may not obtain a license for or use the Software unless You contact Progress directly and obtain permission.
This is a license agreement and not an agreement for sale.
1. Software License
1.1 License Grant. Subject to the terms and conditions set forth in this Agreement, Progress hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, sublicenseable (solely as set forth in Section 1.3), non-exclusive license (the “License”) to use the Progress computer software identified as Progress Data Access 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.
For purposes of this Agreement:
“Integrated Products” means Your proprietary software applications which: (i) are developed by Your Licensed Developers; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Programs; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Programs or any components of the Programs.
“Licensed Developers” means Your employees or third-party contractors authorized to develop software specifically for You using the Software in accordance with this Agreement.
1.2 Scope of Use. The Software is licensed, not sold, on a per-seat basis. The number of Licensed Developers using the Software must correspond to the maximum number of License seats You have been granted by Progress hereunder. The Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk or other storage device). Your Licensed Developers may install the Software on multiple machines, so long as the Software is not being used simultaneously for development purposes at any given time by more Licensed Developers than You have License seats. You are not limited by the number of License seats with respect to how many individuals within Your organization may access and use the Software for testing and building purposes. You may also embed copies of the Programs in Your Integrated Products that You license and distribute to Your own end-user licensees, including but not limited to, Your employees (“Authorized End-Users”), solely in accordance with the requirements set forth in Section 1.3 below.
1.3 License for Redistribution.
1.3.2 The foregoing license to redistribute the Programs is conditioned upon the following:
126.96.36.199 You hereby acknowledge and agree that You are solely responsible for Your Authorized End-User’s use of the Programs in accordance with the limitations set forth in subsection 1.3.1 (iii) and liable for such Authorized End-User’s breach of such limitations
188.8.131.52 You must ensure that the Software is not distributed in any form that allows it to be reused by any application other than Your Integrated Product. Technical guidelines are provided here: http://www.telerik.com/purchase/license-agreement/assembly-protection-guidelines.aspx. Please contact email@example.com for any additional questions. For use of the Software in design-time (i.e. within a development environment such as Microsoft Visual Studio) Your Authorized End-Users need to obtain Developer Licenses from Progress.
184.108.40.206 You must prohibit Your Authorized End-Users from using the Software independently from Your Integrated Products, or from decompiling, reverse engineering or otherwise seeking to discover the source code of the Programs.
220.127.116.11 You must include a valid copyright message in Your Integrated Products in a location viewable by Authorized End-Users (e.g. “About” box) that will serve to protect Progress’ copyright and other intellectual property rights in the Software.
18.104.22.168 You are not allowed to, and are expressly prohibited from granting Your Authorized End-Users any right to further sublicense the Software.
1.4 Developer License.
1.4.1 License Grant. 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, royalty-free, sublicenseable (solely as set forth in Section 1.3), non-exclusive license to install, use, include with Integrated Products and redistribute the Software in executable, object code form only.
1.4.2 Support. No dedicated technical support is provided with the Software, however, as part of your license you are allowed to access those support resources offered by Progress at its sole discretion (which may include documentation, Knowledge Base articles, forums).
1.4.3 Updates. During the Term of this License, Progress may, but is under no obligation to, provide updates to the Software.
2. License Limitations
2.1 At no time may the Software be used for development purposes by other individuals than the Licensed Developer(s).
2.2 The Software may not be distributed for use with Integrated Products other than those developed by You.
2.3 The Software may not be distributed as part of Integrated Products that are derivative works of the Software or that have the same or substantially the same primary functionality as the Software.
2.4 You are not allowed to resell, transfer, rent, lease, or sublicense the Software and Your associated rights except as provided in Section 1.3. Under no circumstances shall You grant further redistribution rights to Authorized End-Users.
2.5 You may not use the Progress product names, logos or trademarks to market Your Integrated Product.
2.6 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 in object code form only.
2.7 You are not allowed to use, copy, modify, or distribute copies of the Software and any accompanying documents except as expressly permitted in this Agreement.
Progress shall make available for download to Licensee a master copy of the Software.
4. Term and Termination
This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to Progress’ other rights or remedies, Progress shall have the right to terminate this Agreement and the License granted hereunder immediately if You 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 Progress. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use and distribution of the Programs; provided, however, that any sublicenses granted to Your Authorized End-Users in accordance with Section 1.3 shall survive such termination. You must also destroy (i) all copies of the Programs 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 Progress in connection with this Agreement.
5. Product Discontinuance
Progress reserves the right to discontinue the Software; any component of the Software, whether offered as a standalone product or solely as a component; and/or any support resources, at any time.
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, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Progress that are used in connection with the Software are and shall at all times remain exclusively owned by Progress 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. Any open source software that may be delivered by Progress embedded in or in association with Progress products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license. As required by the Common Public License (“CPL”), if a user wishes to obtain the source code for the components licensed under the CPL a user may access them at http://wixtoolset.org.
7. Collection and Use of Data.
8. No Warranty
THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. PROGRESS GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, PROGRESS EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Progress 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, Progress’ entire liability under any provision of this agreement shall not exceed $5, 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. Progress 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 Progress is for testing use only and Progress hereby disclaims any and all liability arising therefrom.
You agree to indemnify, hold harmless, and defend Progress 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 (i) Your use of the Software in violation of this Agreement or (ii) the use or distribution of Your Integrated Product.
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 Programs as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Progress’ prior written permission. Each party’s obligations under this Section 11 shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that (i) obligations with respect to source code shall survive in perpetuity and (ii) trade secrets shall be maintained as such until they fall into the public domain.
12. 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. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. 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.
13. 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. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties. In cases where this license is being obtained through an approved third party, these terms shall supersede any third party license or purchase agreement.
14. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Progress’ prior written consent.
Any provisions of the Agreement containing license restrictions, including but not limited to those related to warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
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.
17. Force Majeure
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
18. Export Classifications
You expressly agree not to export or re-export Progress Software or Your Integrated Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Your export privileges.
19. Commercial Software
The Programs and the Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
20. Reports and Audit Rights.
Licensee shall grant Progress audit rights against Licensee twice within a calendar three hundred and sixty-five (365) day period upon two weeks written notice, to verify Licensee’s compliance with this Agreement. Licensee shall keep adequate records to verify Licensee’s compliance with this Agreement.
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 PROGRESS AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.