End-User License Agreement for Progress Telerik Fiddler Everywhere Release Candidate Public BETA
(Last updated May 11, 2020)
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 OR REPOSITORY (“WEBSITE”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee”, “You” or “Your”) AND PROGRESS SOFTWARE CORPORATION (“Progress” or “Licensor”). PLEASE CLICK “I AGREE” IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING THE “AGREE”, “ACCEPT” (OR SIMILARLY WORDED) BUTTON OR INTERFACE AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY PROGRESS 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 THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY. IF YOU CANNOT TRUTHFULLY MAKE THESE REPRESENTATIONS, DO NOT CLICK “AGREE” OR DOWNLOAD, INSTALL, OR OTHERWISE USE THE SOFTWARE.
BY AGREEING TO THIS AGREEMENT YOU ARE BECOMING A PARTICIPANT IN THE PROGRESS TELERIK FIDDLER EVERYWHERE RELEASE CANDIDATE PUBLIC BETA PROGRAM (“BETA PROGRAM”). THE SOFTWARE PROVIDED TO YOU AS PART OF THE BETA PROGRAM IS BELIEVED TO CONTAIN DEFECTS. A PRIMARY PURPOSE IN PROVIDING THE SOFTWARE, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM YOU, IS TO OBTAIN YOUR FEEDBACK ON THE SOFTWARE’S PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
SOFTWARE PRODUCT LICENSE
This is a license agreement and not an agreement for sale.
You acknowledge, understand and agree that the Software is in “Beta”, which means that (i) it is a test version of unreleased software that may contain bugs, defects and errors, (ii) it is not expected to contain the functionality or functions of the version of such software that Progress may make available for commercial distribution, and (iii) any feedback with respect to Your use
of the Software is subject to the ownership provisions of Section 4, and may be used and incorporated into the software product commercially released by Progress.
The “Software”, as used herein, includes the Beta version of the Progress computer software currently referred to as Progress Telerik Fiddler Everywhere Release Candidate or any new products, updates, components, features or functionality that Progress provides to you as part of the Beta Program as well as any accompanying documentation. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and contains confidential information and trade secrets. Progress retains all rights not expressly granted to you in this Agreement.
1. BETA LICENSE
Progress hereby grants to you, and you accept, a non–exclusive, non–transferable license to install and use the Software in object code form, solely as authorized below (“Beta License”). You acknowledge that you receive no right under this Agreement to receive a license to any future commercial product which may be similar to, based upon or identical to the Software.
1.2 Scope of Use.
Under the Beta License granted to you pursuant to this Section 1, you may use the Software during the Term solely in a non-production and non-commercial test environment for the sole purpose of evaluating the Software’s functionality. You expressly acknowledge and understand that such use is at your own risk and is subject to the assumption of risk, disclaimers and warranties set forth in this Agreement.
1.3 Assumption of Risk.
Use of the Software is at Your sole discretion and risk. You should take adequate precautionary measures to back up and protect Your data. As set forth in this Agreement, the Software is in a Beta phase and subject to changes following Your initial download of the Software.
1.4 No Redistribution.
You may NOT redistribute the Software.
Progress shall have no obligation to support the Software. However, during the Term and subject to the limitations and restrictions described in the Fair Usage Policy set forth in Section 2.2, Progress may, in its sole discretion, make certain support services available to you.
Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under this Agreement if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
3. LICENSE LIMITATIONS
Except as required by law or expressly required by third party licenses applicable herein, 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 the Software.
You are not allowed to resell, transfer, rent, lease, or sublicense the Software and Your associated rights.
You are not allowed to copy, modify, merge, or distribute copies of the Software or any accompanying documents.
As a participant in the Beta Program, Your feedback is valuable to Progress. You license to Progress without charge all intellectual property or other rights necessary for Progress to use, share, and commercialize in any way or for any purpose any feedback about the Software you provide. You also license to all third parties without charge all intellectual property or other rights necessary for their products, technologies and services to use or interface with any specific parts of Progress software or services that includes the feedback. You will not give feedback that is subject to any license that requires Progress to license its software or documentation or provide its services to third parties. The rights granted in this paragraph are perpetual and world-wide and survive the termination or expiration of this Agreement.
Progress shall make the Software available to Licensee for downloading in electronic format only.
6. INTELLECTUAL PROPERTY
The Software is licensed, not sold. All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Progress that are used in connection with the Software are and shall at all times remain exclusively owned by Progress and its licensors. Any and all rights in the Software not expressly granted to you hereunder are reserved in all respects by Progress.
The Software may contain or be accompanied by certain third party components which are subject to additional restrictions. These components, if any, are identified in, and subject to, special license terms and conditions set forth in the “readme.txt” file, the “notices.txt” file, or the
“Third Party Software” file accompanying the Software (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of a conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates). Unless otherwise addressed in the Special Notices, 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.
7. PRE-RELEASE CODE; NO WARRANTY
THE SOFTWARE CONTAINS PRE-RELEASE CODE THAT IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING AND MAY NOT OPERATE CORRECTLY. YOUR EXERCISE OF ANY RIGHTS UNDER THIS BETA LICENSE IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM OR IN CONNECTION WITH THE EXERCISE OF SUCH RIGHTS, INCLUDING WITHOUT LIMITATION THE LOSS OF ANY DATA OR OTHER CONTENT.
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.
8. 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 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, PROGRESS’S 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.
9. TERM AND TERMINATION
Unless terminated earlier, your license (as set forth in Section 1) to use the Software shall expire upon the earlier of: (i) 30 days from the date Progress first made the Software available on the Website; and (ii) any generally available release by Progress of a commercial version of the Software, (the “Term”). Upon expiration of the Term pursuant to subsections (i) or (ii) above, unless and until this Agreement is terminated by Progress, You may retain one archival copy of the Software solely as the basis for any potential beta updates (which progress may, or may not, make available to You in its sole discretion). Any beta update which Progress makes available to You shall update and replace the Software which formed the basis for such update. You may use the updated Software solely in accordance with the terms and conditions of this Agreement applicable to Your use of the original Software except that, the Term of your license (as set forth in Section 1) to use the updated Software shall expire upon the earlier of: (i) 30 days from the date Progress first made the beta update available on the Website; and (ii) any generally available release by Progress of a commercial version of the update or updated Software. Progress may terminate this Agreement at any time upon written notice to You. This Agreement shall terminate immediately and automatically if You breach the terms and conditions of this Agreement. Upon termination of this Agreement for any reason, all licenses (including but not limited to the right to maintain an archival copy of the Software) granted to You under this Agreement shall terminate.
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 Your use of the Software in violation of this Agreement.
“Confidential Information” includes, but is not limited to, nonpublic information and know-how transmitted or disclosed by Progress or Progress’s agents or contractors (including as a result of your participation in the Beta Program) that is either designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. The Beta Program and the Software are Confidential Information. You will not disclose the existence of or your participation in the Beta Program, the Software or any comments regarding the Software to any third party without the prior written approval of
Progress. You will maintain the confidentiality of the Beta Program and the Software with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. You will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this Agreement on your part; or (b) rightfully received from a third party without any obligation of confidentiality; or (c) rightfully known to you without any limitation on use or disclosure prior to its receipt from Progress; or (e) generally made available to third parties by Progress without restriction on disclosure. Your duty to protect Confidential Information survives the termination or expiration of this agreement. Without limiting the foregoing, You 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 Progress’s prior written permission. Your duty to protect Confidential Information survives the termination or expiration of this agreement. For the avoidance of doubt, obligations with respect to source code shall survive in perpetuity and trade secrets shall be maintained as such until they fall into the public domain.
12. COLLECTION AND USE OF DATA
13. 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.
14. 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.
15. NO ASSIGNMENT
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Progress’s prior written consent.
16. NO WAIVER
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.
For avoidance of doubt, 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.
19. 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.
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.
21. EXPORT RESTRICTIONS
You expressly agree not to use, deploy, export or re-export Progress Software or your add-on modules 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.
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.