Enterprise Priority Support Agreement for: Progress Telerik Fiddler Web Debugger and Progress Telerik Fiddler
(Last Updated September 20, 2018)
IMPORTANT – PLEASE READ THIS ENTERPRISE PRIORITY SUPPORT AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING OR ATTEMPTING TO USE ANY SERVICES, SOFTWARE 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 “Recipient”, “You” or “you”), AND TELERIK INC. (“Telerik”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE 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 AGREEMENT” BOX AND/OR BY PURCHASING, ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SERVICES, SOFTWARE OR OTHER MATERIALS 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.
This is a support agreement only, this Agreement does not grant You a license or any rights to use or distribute the Program or Documentation (as defined below). To obtain a license to the Program and Documentation (a “License”), please visit http://www.telerik.com/download/fiddler
“Documentation” means the documentation accompanying the Program.
“Licensed Users” means one of Your employees or third-party consultants authorized to use the Software specifically for Your benefit in accordance with the License and for whom to the extent permitted by applicable law You accept full responsibility for hereunder as if such Licensed Developer’s acts or omissions were Your own.
“Program” means Telerik’s computer software identified as Progress Telerik Fiddler Web Debugger and Telerik’s computer software identified as Progress Telerik Fiddler, and any updates, upgrades, modifications and error corrections provided to or used by Recipient during the term of the Agreement.
“Services” means the Software related support services and/or materials delivered to You by Telerik hereunder.
“Software” means the Program, the Documentation, and the Developed IP (as defined below) collectively.
2.0 Priority Support Services
2.0.1 For the applicable period of one (1), two (2) or three (3) years from the date on which You have purchased support (the “Subscription Period”), provided you have a valid and active License, You will have access to the “Priority” support package, as described in further detail below.
2.0.2 Support. During the Subscription Period, You are entitled to access and receive the Services under the “Priority” support package as described in greater detail here: http://www.telerik.com/purchase/support-plans/, subject to the limitations and restrictions described in the following Fair Usage Policy.
126.96.36.199 Support Package Fair Usage Policy. Telerik may limit or terminate Your access to any or all of the Services available under the “Priority” support package if Your use of the Services is determined by Telerik, in its sole and reasonable discretion, to be excessive.
188.8.131.52 In no event will Telerik provide the Services or any support of any kind to anyone other than You or your Licensed Users.
184.108.40.206 Telerik shall retain all right, title and interest, including, all intellectual property rights, in and to all intellectual property created and/or delivered in the course of performing the Services (collectively “Developed IP”), including all rights in all works of authorship, information, data, ideas, designs, inventions, know-how, analytical methodologies, software, and any other materials authored, invented, discovered, conceived, reduced to practice, designed, developed, possessed, owned and/or used under third party license by Telerik as well as any derivative works.
220.127.116.11 Telerik hereby grants to Recipient a limited, non-transferable, perpetual, worldwide, royalty-free, non-exclusive license to use, distribute and sublicense any Developed IP, which Telerik delivers to Recipient, solely in conjunction with the Software and subject to the license terms (including all license restrictions) set forth in the License.
3 OTHER RECIPIENT OBLIGATIONS
In addition to other terms and conditions set forth in this Agreement, Recipient agrees as follows:
3.1 Recipient shall not export the Services or the Software in violation of the export control laws of the United States or of any other country, and agrees to indemnify Telerik for any breach of this warranty.
3.2 Except where prohibited by law, Recipient shall not, directly or indirectly, engage in the marketing, sale or licensing of any third party products which, in Telerik’s opinion, are competitive with the Services or the Software.
4 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 Telerik that are used in connection with the Software are and shall at all times remain exclusively owned by Telerik and its licensors. Any and all rights in the Software not expressly granted to Recipient hereunder or in the License are reserved in all respects by Telerik. Any open source software that may be delivered by Telerik embedded in or in association with Telerik 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.
5 TERM AND TERMINATION
Term: This Agreement shall continue throughout the Subscription Period unless and until terminated in accordance with this Section.
Termination: Provided the Services continue to be made commercially available by Telerik and this Agreement has not been previously terminated in accordance with this Section, at the end of the Subscription Period You may elect to renew for an additional Subscription Period (please contact Telerik at email@example.com if You wish to renew). Unless renewed, this Agreement shall automatically terminate at the end of the Subscription Period. 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 immediately if You breach any of the material terms of this Agreement or the License, and You fail to cure such material breach within thirty (30) days of receipt of notice from Telerik. Upon such termination for cause of this Agreement and the License all Licenses granted to You hereunder and/or thereunder shall terminate automatically and You shall immediately cease use and distribution of the Software and destroy all copies of the Software in Your possession. IN NO EVENT SHALL TELERIK BE REQUIRED TO PAY RECIPIENT OR ANY THIRD PARTY ANY TERMINATION DAMAGES OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING ON ACCOUNT OF THE TERMINATION.
Telerik warrants that it will use commercially reasonable efforts to deliver the Services throughout the Subscription Period. Telerik does not warrant the Services or Software or your use of the Services or Software will be uninterrupted or error free at all times and in all circumstances, nor that errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Recipient’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, Recipient’s sole and exclusive remedy and Telerik’s sole and exclusive obligation, is repair or re-performance of all or any portion of the Services. If such remedy fails of its essential purpose, Recipient’s sole remedy and Telerik’s maximum liability shall be a refund of the paid purchase price for the defective Services 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, 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.
7 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 THIS AGREEMENT, 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 FEES RECIPIENT PAID TO TELERIK FOR THE CURRENT SUBSCRIPTION PERIOD FOR THE SERVICES 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 RECIPIENT OR A THIRD PARTY THAT IS ACCESSED THROUGH OR IN RELATION TO THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN THE SERVICES UPON SHIPMENT FROM TELERIK IS FOR TESTING USE ONLY AND TELERIK HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
Recipient will defend and indemnify Telerik, its affiliates and their directors, officers and employees from or against any and all claims, lawsuits and proceedings (collectively “Claims”), brought by a third party arising out of Recipient’s acts, omissions, or exercise of Recipient’s rights under this Agreement or the License, including, but not limited to, a breach of Section 9 (Proprietary and Confidential Information).
9 PROPRIETARY AND CONFIDENTIAL INFORMATION
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to it 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, Recipient 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 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.
10 Compliance with Laws
10.1 In performing this Agreement, Recipient agrees to comply with all applicable laws, rules, regulations and policies and to obtain any governmental approvals, permits or licenses required to perform its obligations under this Agreement, and shall render Telerik harmless and indemnify Telerik from the failure of Recipient to do so. In addition, Recipient warrants that neither this Agreement, nor any performance or exercise of rights under this Agreement, shall require any termination payment or compulsory licensing under any law or regulation of any organization, country, group of countries or political or governmental body.
10.2 Recipient agrees to comply with the United States Foreign Corrupt Practices Act, including without limitation, that Recipient and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of the United States Government or any other government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Recipient in obtaining, retaining or directing any such business.
10.3 Recipient acknowledges that it is subject to United States laws and regulations controlling the export of technical data, computer software and other commodities and agrees not to export or allow the export or re-export of such data, software or other commodities in violation of such laws and regulations.
11 Governing Law
This Agreement 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. 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. Use of any purchase order or other Recipient document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. The terms and conditions contained in this Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Recipient. In cases where the Services are being purchased or obtained through an approved third party, these terms shall supersede any third party service or purchase agreement.
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.
Any provisions of the Agreement containing license restrictions, 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. This Agreement represents the entire understanding between the parties with respect to the subject matter.
16 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.
17 Export Classifications
You expressly agree not to use, deploy, export or re-export the Software in or 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, including without limitation any country listed in U.S.A. Export Administration Regulation Country Group E-1, 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 Industry and Security, U.S. Department of Commerce, nor any other federal agency has suspended, revoked or denied your export privileges.
18 Commercial Software
The Software is "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.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY PURCHASING, ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SERVICES, SOFTWARE OR OTHER MATERIALS MADE AVAILABLE BY TELERIK HEREUNDER, 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.