Print agreement
End User License Agreement
READ THIS end user license AGREEMENT (“EULA”) BEFORE
INSTALLING OR USING THE PRODUCT TO WHICH THIS EULA APPLIES. BY ACCEPTING
THIS EULA, COMPLETING THE REGISTRATION PROCESS, AND/OR INSTALLING OR USING
THE PRODUCT, YOU AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY (IF
APPLICABLE) TO THE TERMS BELOW. IF YOU DO NOT AGREE WITH THESE TERMS, OR DO
NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY, DO NOT INSTALL, REGISTER FOR
OR USE THE PRODUCT, AND DESTROY OR RETURN ALL COPIES OF THE PRODUCT. ONCE
YOU HAVE DONE THIS, YOU MAY REQUEST FROM THE POINT OF PURCHASE A FULL
REFUND OF THE LICENSE FEES, IF ANY, PAID FOR THE PRODUCT (OR, IF THE
PRODUCT IS PROVIDED TO YOU AS A HOSTED SERVICE, A REFUND OF THE PREPAID
SERVICE FEES FOR THE REMAINDER OF THE SUBSCRIPTION PERIOD OF THE PRODUCT).
SUCH REQUEST MUST BE COMPLETED WITHIN THIRTY (30) DAYS OF DELIVERY OF THE
PRODUCT TO YOU. UNLESS OTHERWISE SPECIFIED IN THIS EULA, PROGRESS SOFTWARE
CORPORATION IS THE LICENSOR OF THE PRODUCT. THE LICENSOR MAY BE REFERRED TO
HEREIN AS “Licensor”, “we”, “ us”, or “our”. IF YOU ARE AGREEING TO
THIS EULA ON BEHALF OF YOURSELF IN YOUR INDIVIDUAL CAPACITY, THEN YOU ARE
THE LICENSEE AND YOU MAY BE REFERRED TO HEREIN AS “Licensee”, “you”, or “ your”. IF YOU ARE AGREEING TO THIS EULA ON BEHALF OF YOUR
COMPANY, THEN YOUR COMPANY IS THE LICENSEE AND ANY REFERENCES TO “Licensee”, “you”, or “your” WILL MEAN YOUR COMPANY.
This EULA includes the following sections:
1. GENERAL TERMS AND CONDITIONS
1.1. Definitions.
1.1.1. “Affiliate” means any legal entity that directly or
indirectly controls, is controlled by, or is under common control with you
or us. For the purposes of this definition, “control” means ownership,
directly or indirectly, of more than fifty percent (50%) of the voting
shares or other equity interest in an entity.
1.1.2. “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.
1.1.3. “Authorized Reseller” means a third party who is
not our Affiliate and who is authorized by us or our Affiliate to resell
the Product.
1.1.4. “Authorized User” means you, your employee
or a third-party consultant or agent that you authorize to use the
Product for your benefit in accordance with section 1.2.3 (Third Party
Use)
.
1.1.5. “Documentation” means any technical instructions or
materials describing the operation of the Product made available to you
(electronically or otherwise) by us for use with the Product, expressly
excluding any user blogs, reviews or forums.
1.1.6. “Hosted Services” means computer software
program(s), content and related services provided by us on a
software-as-a-service basis through computers we or our Affiliates or our
respective contractors (including cloud infrastructure suppliers) control.
1.1.7. “Intellectual Property Rights” means any and all
current and future (a) rights associated with works of authorship,
including copyrights, mask work rights, and moral rights; (b) trademark or
service mark rights; (c) trade secret rights; (d) patents, patent rights,
and industrial property rights; (e) layout design rights, design rights,
and other proprietary rights of every kind and nature other than
trademarks, service marks, trade dress, and similar rights; and (f)
registrations, applications, renewals, extensions, or reissues of any of
(a) to (e) , in each case, in any jurisdiction throughout the world.
1.1.8. “On-Premise Product(s)” means computer software
program(s) provided to you to download, install and use on computer(s)
controlled directly or indirectly by you.
1.1.9. “Order” means a written or electronic order
document entered into between you and us (or our Affiliate or an Authorized
Reseller) for the Product. Unless an Order says something different, each
Order will be governed by the terms of this EULA and include the name of
the Product being licensed and any usage limitations, applicable fees, and
any other details related to the transaction.
1.1.10. “Our Technology” means any software, code, tools,
libraries, scripts, application programming interfaces, templates,
algorithms, data science recipes (including any source code for data
science recipes and any modifications to such source code), data science
workflows, user interfaces, links, proprietary methods and systems,
know-how, trade secrets, techniques, designs, inventions, and other
tangible or intangible technical material, information and works of
authorship underlying or otherwise used to make available the Product,
including, without limitation, all Intellectual Property Rights therein and
thereto.
1.1.11. “Permitted Third Party” has the meaning given in
section 1.2.3 (Third Party Use).
1.1.12. “Product” means the On-Premise Product(s) or
Hosted Services, as applicable, identified in an Order, and any Updates.
1.1.13. “Update” means any update, enhancement, error
correction, modification or new release to the Product that we make
available to you.
1.2. General License Terms, Restrictions and Order of Precedence.
1.2.1. General License Terms. The Product is licensed, not
sold, to you by us under the terms of this EULA and the Order. The scope of
license granted by us to you for the Product is set out in section 3
(Product Family Specific Terms) and section 4 (Product Specific Terms).
1.2.2. Authorized Users. Anything your Authorized Users do
or fail to do will be considered your act or omission, and you accept full
responsibility for any such act or omission to the extent you would be
liable if it were your act or omission.
1.2.3. Third Party Use. You may allow your agents,
contractors and outsourcing service providers (each a “ Permitted Third Party”) to use the Product(s) licensed to
you hereunder solely for your benefit in accordance with the terms of this
EULA and you are responsible for any such Permitted Third Party’s
compliance with this EULA in such use. Any breach by any Permitted Third
Party of the terms of this EULA will be considered your breach.
1.2.4. Restrictions. Except as otherwise expressly
permitted in this EULA, you will not (and will not allow any of your
Affiliates or any third party to):
(a) copy, modify, adapt, translate, or otherwise create derivative works of
the Product, Documentation, or any software, services, or other technology
of third party vendor(s) or hosting provider(s) that we or our Affiliate
engage;
(b) disassemble, decompile or “unlock”, decode or otherwise reverse
translate or engineer, or attempt in any manner to reconstruct or discover
the source code or underlying structure, ideas, or algorithms of the
Product except as expressly permitted by law in effect in the jurisdiction
in which you are located;
(c) rent, lease, sell, distribute, pledge, assign, sublicense or otherwise
transfer or encumber rights to the Product;
(d) make the Product available on a timesharing or service bureau basis or
otherwise allow any third party to use or access the Product;
(e) remove or modify any proprietary notices, legends, or labels on the
Product or Documentation;
(f) use or access the Product in a manner that: (i) violates any Applicable
Laws; (ii) violates the rights of any third party; (iii) purports to
subject us or our Affiliates to any other obligations; (iv) could be
fraudulent; or (v) is not permitted under this EULA;
(g) use the Product to develop, test, support or market products that
are competitive with and/or provide similar functionality to the
Product; or
(h) permit your Affiliates to access or use the Product unless specifically
authorized elsewhere in this EULA or the Order.
1.2.5. Limitations on Evaluation or Trial Licenses. If the
Product is licensed to you on an evaluation or trial basis, then you may
use the Product only for such purposes until the earlier of: (a) the end of
the evaluation period, if any, specified in the Order, this EULA or
otherwise communicated by us to you at the time of delivery; or (b) the
start date of a paid for license to the Product; or (c) termination in
accordance with the terms of this EULA. You may not extend the evaluation
period by uninstalling and re-installing the Product(s) or by any other
means other than our written consent. You must not use the Product in a
production environment. You will be required to pay for a license for the
Product at our then applicable license price if you continue to use the
Product, whether in a production or non-production environment, after the
evaluation license expires or terminates, and the terms and conditions of
the EULA in effect at that time will apply to your continued use of the
Product. A Product licensed to you on an evaluation or trial basis may be
subject to one or more usage limits specified in section 3 (Product Family
Specific Terms), section 4 (Product Specific Terms), the Order or otherwise
communicated at the time of delivery (including posting of such limits at
the location where you download the Product for evaluation). We may, at our
sole discretion, decide whether to offer any maintenance and support for
the Product during the evaluation period, and to include any conditions or
limits on such maintenance and support.
You may not circumvent any technical limitations included in the
Product licensed to you on an evaluation or trial basis.
1.2.6. Redistribution. If the Order or section 3 (Product
Family Specific Terms) or section 4 (Product Specific Terms) grants you the
express right to redistribute or offer access to all or a portion of the
Product (“Redistributables”), then, in conjunction with
any such grant, you must comply with any limitations or requirements
specified in the Order, section 3 (Product Family Specific Terms) or
section 4 (Product Specific Terms), as applicable, and you must distribute
or offer access to the Redistributables subject to a license agreement or
terms of use between you and each third party receiving or accessing the
Redistributables (“your customer”) that: (a) protects our
interests consistent with the terms contained in this EULA, (b) prohibits
your customer from any further distribution of the Redistributables (unless
expressly permitted pursuant to section 3 (Product Family Specific Terms)
or section 4 (Product Specific Terms)), (c) includes a limitation of
damages clause that, to the maximum extent permitted by applicable law,
disclaims on behalf of us, our Affiliates or our or their respective
licensors, suppliers or Authorized Resellers, liability for any and all
damages, whether direct, special, incidental or consequential damages, (e)
contains terms substantially similar to those in subparts (a) through (g)
of section 1.2.4 (Restrictions), section 1.5.1 (Export Compliance) and
section 1.5.2 (U.S. Government Customers), and (f) includes a notice
substantially similar to section 1.2.7 (Third Party Notices).
1.2.7. Third Party Notices. The Product may contain or be
accompanied by certain third-party components which are subject to
additional restrictions. These components, are identified in, and subject
to, special license terms and conditions which, in the case of On-Premise
Product(s), are set out in the “readme.txt” file, the “notices.txt” file,
or the “Third Party Software” file accompanying the Product or portions
thereof, and in the case of Hosted Services, are set out in the third-party
license agreement or notices that comes with the third-party component or
is otherwise provided on the web page on which such third-party component
is made available (“Special Notices”). The Special
Notices include important licensing and warranty information and
disclaimers. Unless otherwise expressly stated for a given third-party
component, all such third-party components may be used solely in connection
with the use of the Product subject to and in accordance with the terms and
conditions of this EULA and the Special Notices. In the event of conflict
between the Special Notices and the other portions of this EULA, the
Special Notices will take precedence (but solely with respect to the
third-party component(s) to which the Special Notice relates).
1.2.8. Order of Precedence between EULA and Order. If
there is any conflict between the terms and conditions in the Order and the
terms and conditions of this EULA, or if the Order changes any of the terms
of this EULA, the terms and conditions of the Order will apply, except if
the Order is between you and an Authorized Reseller, or the Order is
issued/generated by you. In the case where the Order is between you and an
Authorized Reseller, the terms of the Order will apply subject to the
following: (a) any terms and conditions in the Order imposing obligations
on the Authorized Reseller that are in addition to or different from the
obligations we have to you pursuant to this EULA will be born solely by the
Authorized Reseller and our obligations to you and limits on our liability
will be governed solely by the terms and conditions of this EULA and (b)
any terms and conditions that conflict with or would otherwise alter any of
the following under this EULA will have no effect unless expressly agreed
to in a written instrument executed by us: our ownership rights, yours and
our confidentiality obligations, your export compliance obligations,
limitations on your rights as a U.S. Government customer (if applicable),
our audit rights, restrictions on your right to assign, our publicity
rights or governing law and jurisdiction. In cases where the Order is
issued/generated by you, the terms and conditions of Section 1.19.2. of
this EULA, governing a purchase order or other document you supply in
connection with this EULA, shall apply to such Order.
1.2.9. Order of Precedence within EULA. If there is any
conflict among the terms and conditions of this EULA, or if a section
changes the terms of another section within this EULA, the order of
precedence will be as follows: first, section 4 (Product Specific Terms)
(if any); second, section 3 (Product Family Specific Terms) (if any);
third, section 2.A (Terms for On-Premise Products) and/or section 2.B
(Terms for Hosted Services), as applicable; and fourth and finally, section
1 (General Terms and Conditions).
1.3. License Types.
1.3.1. Overview of License Types. The license type for the
Product will, unless otherwise specified in this EULA, be one of the
following license types: perpetual, term or subscription. This will be
confirmed in the Order or will be the default license type listed in
section 3 (Product Family Specific Terms) or section 4 (Product Specific
Terms).
1.3.2. Perpetual License Type. Your license to use the
Product will continue in perpetuity unless earlier terminated in accordance
with the terms of this EULA.
1.3.3. Term License Type. Your license to use the Product
will continue until the expiration of the term identified in the Order
unless earlier terminated in accordance with the terms of this EULA. If we
continue to make the Product generally available to our customers, you may
purchase a new term license for the Product from us or our Authorized
Reseller.
1.3.4. Subscription License Type. Your license to use the
Product will continue until the expiration of the subscription period
identified in the Order unless earlier terminated in accordance with the
terms of this EULA. The procedure for renewing your license to the Product
is set out in section 3 (Product Family Specific Terms) or section 4
(Product Specific Terms). If you upgrade your subscription to the Product,
the upgrade will take effect immediately and you will be charged and must
pay the applicable fee, and the term of your then-current subscription
period may be extended, as described at the time you upgrade. You may not
downgrade a subscription to the Product.
1.4. Our Business Principles. We will apply the principles set out in our
Code of Conduct and Business Ethics (published on our website at
http://investors.progress.com/governance.cfm
) in our performance under this EULA.
1.5. Export Compliance and U.S. Government Customers.
1.5.1. Export Compliance. Export laws and regulations of
the United States and any other relevant local export laws and regulations
apply to the Products. You agree that such export control laws, including,
without limitation, the U.S. Export Administration Act and its associated
regulations, govern your use of the Product (including technical data), and
you agree to comply with all such export laws and regulations (including
“deemed export” and “deemed re-export” regulations). You agree that no
data, information and/or Product (or direct product thereof) will be
exported, directly or indirectly, in violation of these laws, or will be
used for any purpose prohibited by these laws including, without
limitation, nuclear, chemical, or biological weapons proliferation, or
development of missile technology.
1.5.2. U.S. Government Customers. If the Product is being
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 Product will be only as set out herein. The Product and
Documentation are “commercial items” as that term is defined at 48 C.F.R.
2.101, consisting of “commercial computer software” and “commercial
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 Product and such
Documentation with only those rights set out herein.
1.6. IP Ownership and Feedback.
1.6.1. IP Ownership. The Product, Our Technology, Documentation, and all
other current or future intellectual property developed by us or our
Affiliates, and all worldwide Intellectual Property Rights in each of the
foregoing and all Updates, upgrades, enhancements, new versions, releases,
corrections, and other modifications thereto and derivative works thereof,
are the exclusive property of us or our Affiliates or our or their
licensors or suppliers. Except for the rights and licenses expressly
granted herein, all such rights are reserved by us and our Affiliates and
our or their licensors and suppliers. All title and Intellectual Property
Rights in and to the content that may be accessed through use of the
Product is the property of the respective content owner and may be
protected by applicable copyright or other intellectual property laws and
treaties. This EULA grants you no rights to use such content.
1.6.2. Feedback. If you provide us any ideas, thoughts, criticisms,
suggested improvements or other feedback related to Our Technology
(collectively “Feedback”) you own the Feedback and you grant to us a
worldwide, royalty-free, fully paid, perpetual, irrevocable license to use,
reproduce, modify, translate, distribute, perform, display, import, sell,
license, offer for sale, make, have made and otherwise exploit the Feedback
in any form, media, or technology, whether now known or hereafter
developed, and to allow others to do the same without restriction or
obligation of any kind, on account of confidential information,
intellectual property rights or otherwise, and may incorporate into our
products or services any service, product, technology, enhancement,
documentation or other development (“Improvement”) incorporating or derived
from any Feedback with no obligation to license or to make available the
Improvement to you or any other person or entity. This is true whether you
provide the Feedback through use of the Product or through any other method
of communication with us, unless we have entered into a separate agreement
with you that provides otherwise.
1.7. Maintenance.
1.7.1. Our Maintenance and Support Policies. If we offer and you purchase
maintenance and support for the Product, then it will be provided in
accordance with our then current maintenance and support policies for the
applicable Product in effect at the time of purchase. You may access our
maintenance and support policies by clicking on the applicable Product
family link located at
https://www.progress.com/support
.
1.7.2. Maintenance and Support for Perpetual or Term License Types. For
Perpetual and Term License Types, unless otherwise expressly stated by us
in the Order, first year annual maintenance and support (if offered by us)
is required for the Product and starts on the date the Product is
delivered. Thereafter, you may choose to purchase annual maintenance and
support (if offered by us). If you do not purchase renewal maintenance and
support services for a Product, then you will not receive any maintenance
and support services for that Product and will have no entitlement to any
benefits of maintenance and support services including, bug fixes, patches,
upgrades, enhancements, new releases or technical support. If you want to
reinstate lapsed maintenance and support services on a Product, and we
offer reinstatement to our customers, then you may re-instate maintenance
and support services by paying the then-current fee, plus a reinstatement
fee for the lapsed maintenance and support period in accordance with our
maintenance and support reinstatement policies then in effect.
1.7.3. Maintenance and Support for Subscription License Type. If
the license type for the Product licensed to you is the subscription
license type, then maintenance and support (if offered by us) is included
in the subscription fees for each subscription period.
1.8. Fees and Taxes.
1.8.1. Payment Terms and Taxes. All fees payable to us are payable in the
currency specified in the Order, or if no currency is specified, in United
States Dollars, are due within 30 days from the invoice date and, except as
otherwise expressly specified herein, are non-cancellable and
non-refundable. We may charge you interest at a rate of 1.5% per month (or
the highest rate permitted by law, if less) on all overdue payments. You
agree to pay any sales, value-added or other similar taxes imposed by
applicable law that we must pay on such fees, except those based on our
income. Invoices may be issued by our Affiliate. If you and we agree that
you will pay by credit card, you will provide us with valid and updated
credit card information and you authorize us to store such information and
bill such credit card for all fees applicable: (a) at the time that you
order the Product and (b) at the time of any renewal or upgrade.
1.8.2. Fees for Renewal Subscription Licenses. If the
license type for the Product licensed to you is the Subscription License
Type then each renewal subscription will be calculated at the then-current
price offered for the Product at the time of renewal.
1.8.3. Fees for Renewal Maintenance Terms. If the license
type for the Product licensed to you is a Perpetual license or Term
license, then, unless otherwise specified in the Order or in section 3
(Product Family Specific Terms) or section 4 (Product-Specific Terms), the
fee for an optional annual renewal maintenance and support term for the
Product will be calculated based on the annual rate applicable for the
initial maintenance and support term or immediately preceding renewal
maintenance and support term, whichever is applicable, plus a rate
increase, if applicable, calculated at the lesser of any standard price
increase or CPI (or equivalent index) after applying any increases as a
consequence of our Lifetime Support policy, if applicable.
1.8.4. Orders between You and Our Authorized Reseller. Notwithstanding the
above terms of this section 1.8 (Fees and Taxes), if you purchased your
license to the Product and/or maintenance and support from an Authorized
Reseller, then the fees will be set out in the Order between you and the
Authorized Reseller. The Authorized Reseller may be responsible for billing
and/or collecting payment from you and if so, the billing and collection
terms agreed to between you and the Authorized Reseller may differ from the
terms set out in this section 1.8 (Fees and Taxes).
1.8.5. No Reliance on Future Availability of any Product or Update. You
agree that you have not relied on the future availability of any Product or
Updates in your purchasing decision or in entering into the payment
obligations in your Order.
1.9. Warranties.
1.9.1. Authority. Each party represents and warrants that
it has the legal power and authority to enter into this EULA.
1.9.2. Product Compliance with Documentation. We warrant
to you that, for six (6) months from delivery (in the case of an On-Premise
Product) or for the duration of the license (in the case of a Hosted
Service), the Product will comply with the applicable Documentation in all
material respects. Your exclusive remedy, and our sole liability, with
respect to any breach of this warranty will be for us to use commercially
reasonable efforts to promptly correct the non-compliance (provided that
you notify us in writing within the warranty period and allow us a
reasonable cure period). If we, at our discretion, reasonably determine
that correction is not economically or technically feasible, we may
terminate your license to the Product and provide you a full refund of the
fees paid to us with respect to the Product (in the case of an On-Premise
Product) or a refund of the prepaid fees for the unused portion of the
license period (in the case of a Hosted Service). Delivery of additional
copies of, or Updates to, the Product will not restart or otherwise affect
the warranty period.
1.9.3. Warranty Exclusions. The warranty specified in
section 1.9.2 (Product Compliance with Documentation) does not cover any
Product provided on an unpaid evaluation or trial basis, or defects to the
Product due to accident, abuse, service, alteration, modification or
improper installation or configuration by you, your Affiliates, your or
their personnel or any third party not engaged by us.
1.9.4. Warranty Disclaimers. EXCEPT FOR THE WARRANTIES
EXPRESSLY STATED IN THIS SECTION 1.9 OR THE ADDITIONAL WARRANTIES (IF ANY)
EXPRESSLY STATED IN SECTION 3 (PRODUCT FAMILY SPECIFIC TERMS) OR SECTION 4
(PRODUCT SPECIFIC TERMS), THE PRODUCT, DOCUMENTATION AND OUR TECHNOLOGY ARE
PROVIDED “AS IS”, WITH ALL FAULTS, AND WE DISCLAIM ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AVAILABILITY,
ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT
THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED
WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM
PERMITTED UNDER APPLICABLE LAW.
1.10. Indemnification.
1.10.1. Our Indemnification Obligation.
1.10.1.1. Intellectual Property Infringement. We will
defend you, and your officers, directors, employees, and agents from and
against any and all third party claims, lawsuits, and proceedings alleging
that your use of the Product, in accordance with the terms and conditions
of this EULA, constitutes a direct infringement or misappropriation of such
third party’s patent, copyright or trade secret rights (the “ IP Claim”), and we will indemnify you for damages finally
awarded against you by a court of competent jurisdiction with respect to
the IP Claim.
1.10.1.2. Exceptions. We will not indemnify you to the
extent that the alleged infringement or misappropriation results from (a)
use of the Product in combination with any other software or item not
supplied by us; (b) failure to promptly implement an Update provided by us
pursuant to 1.10.1.3 (Our Options); (c) modification of the Product not
made or provided by us; or (d) use of the Product in a manner not permitted
by this EULA. We also will not indemnify you if we notify you of our
decision to terminate this EULA, and the license to the Product granted
hereunder, in accordance with section 1.10.1.3 (Our Options) and you have
not ceased all use of the Product within thirty (30) days of such
notification.
1.10.1.3. Our Options. If a final injunction is, or we
reasonably believe that it could be, obtained against your use of the
Product, or if in our opinion the Product is likely to become the subject
of a successful claim of infringement, we may, at our option and expense,
(a) replace or modify the Product so that it becomes non-infringing
(provided that the functionality is substantially equivalent), (b) obtain
for you a license to continue to use the Product, or (c) if neither (a) nor
(b) are reasonably practicable, terminate this EULA on thirty (30) days’
notice and, if the Product was licensed to you on a Perpetual License or
Term License basis, refund to you the license fee paid to us for the
Product less an amount for depreciation determined on a straight-line five
year (or actual term if shorter) depreciation basis with a commencement
date as of the date of delivery of the Product, or if the Product was
licensed to you on a Subscription License basis, refund to you the unused
portion of the fees paid in advance to us for the then-current subscription
period for the Product. THE INDEMNIFICATION PROVISIONS SET OUT IN THIS
SECTION 1.10.1 STATE OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT BY US OF
ANY INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE
PRODUCT OR ITS USE.
1.10.2. Your Indemnification Obligation.
1.10.2.1. Indemnification for Third Party-Claims. To the
extent permitted by applicable law, you will defend us and our Affiliates,
and our and their respective officers, directors, employees, and agents
from and against any and all third party claims, lawsuits, and proceedings
that arise or result from (a) your breach of this EULA, (b) your use,
distribution and/or licensing of the Redistributables, if applicable,
except to the extent it arises from an IP Claim covered under section
1.10.1 above, or (c) your failure or alleged failure to comply with
Applicable Laws or any violation of a third party’s rights in connection
with your use of the Product (each a “Third-Party Claim”
and collectively “Third-Party Claims”) and you will
indemnify for damages finally awarded by a court of competent jurisdiction
with respect to any Third-Party Claim.
1.10.3. Control of the Defense or Settlement. For any
indemnification obligation covered in section 1.10.1,“Indemnifying Party” means us, “ Indemnified Party” means you, and “Claim”
means an IP Claim. For any indemnification obligation covered in section
1.10.2, “Indemnifying Party” means you, “ Indemnified Party” means us, and “Claim”
means a Third-Party Claim. The Indemnified Party must provide the
Indemnifying Party with prompt written notice of a Claim; however, the
Indemnified Party’s failure to provide or delay in providing such notice
will not relieve the Indemnifying Party of its obligations under this
section except to the extent the Indemnifying Party is prejudiced by the
Indemnified Party’s failure or delay. The Indemnified Party will give the
Indemnifying Party full control of the defense and settlement of the Claim
as long as such settlement does not include a financial obligation on or
admission of liability by the Indemnified Party. If the Indemnified Party
does not do so, then the Indemnified Party waives the Indemnifying Party’s
indemnification obligations under section 1.10.1 or 1.10.2, as applicable.
The Indemnified Party will reasonably cooperate in the defense of the Claim
and may appear, at its own expense, through counsel reasonably acceptable
to the Indemnifying Party.
1.11. Confidentiality.
1.11.1. Confidentiality Obligations. Except as otherwise
provided herein, each party agrees 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 should
reasonably be understood to be confidential given the nature of the
information and the circumstances surrounding its disclosure, and agrees to
make no use of such information and know-how except under the terms of this
EULA. However, neither party will have an obligation to maintain the
confidentiality of information that (a) it received rightfully from a third
party without an obligation to maintain such information in confidence; (b)
was known to the receiving party prior to its disclosure by the disclosing
party; (c) is or becomes a matter of public knowledge through no fault of
the receiving party; or (d) 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
(unless such prior notice is not permitted by applicable law) and complies
with any protective order (or equivalent) imposed on such disclosure. You
will treat any source code for the Product as our confidential information
and will not disclose, disseminate or distribute such materials to any
third party without our prior written permission. Each party’s obligations
under this section 1.11 will apply during the term of this EULA and for
five (5) years following termination of this EULA, provided, however, that
(i) obligations with respect to source code will survive forever and (ii)
trade secrets will be maintained as such until they fall into the public
domain.
1.11.2. Product Benchmark Results. You acknowledge that
any benchmark results pertaining to the Product are our confidential
information and may not be disclosed or published without our prior written
consent. This provision applies regardless of whether the benchmark tests
are conducted by you or us.
1.11.3. Remedies for Breach of Confidentiality Obligations
. Each party acknowledges that in the event of a breach or threat of breach
of this section 1.11, money damages will not be adequate. Therefore, in
addition to any other legal or equitable remedies, the non-breaching party
will be entitled to seek injunctive or similar equitable relief against
such breach or threat of breach without proof of actual injury and without
posting of a bond.
1.12.
Data Collection and Personal Data.
1.12.1.
Data Collection through use of the Product
.
THE PRODUCT MAY INCLUDE FEATURE(S) THAT (A) GATHER PRODUCT ACTIVATION,
USAGE AND/OR ENVIRONMENT INFORMATION, (B) IDENTIFY TRENDS AND/OR BUGS,
(C) COLLECT USAGE STATISTICS, AND/OR (D) TRACK OTHER DATA RELATED TO
YOUR USE OF THE PRODUCT, AS FURTHER DESCRIBED IN THE CURRENT VERSION OF
OUR PRIVACY POLICY AVAILABLE AT
https://www.progress.com/legal/privacy-policy
. BY YOUR ACCEPTANCE OF THE TERMS OF THIS EULA AND/OR USE OF THE
PRODUCT, YOU AUTHORIZE THE COLLECTION, USE AND DISCLOSURE OF THIS DATA
FOR THE PURPOSES PROVIDED FOR IN THIS EULA AND/OR THE PRIVACY POLICY.
1.12.2.
Additional Data Collection Terms. Depending on the Product licensed to
you, this EULA may contain additional data collection terms in section
3 (Product Family Specific Terms) or section 4 (Product Specific Terms)
and/or, if we are hosting the Product, in section 2.B (Terms for Hosted
Services).
1.12.3.
Your Personal Data.
If you determine that you will be supplying us with your Personal Data (as
defined in the Data Processing Addendum referenced below) for us to process
on your behalf, in the provision of maintenance and support services or
hosting services (if the Product licensed to you is a Hosted Service) or
during the course of any audits we conduct pursuant to section 1.14
(Audit), you may submit a written request at privacy@progress.com for the
mutual execution of a Data Processing Addendum substantially in the form we
make available at
https://www.progress.com/docs/default-source/progress-software/data-processing-addendum.pdf
and we will enter into such Data Processing Addendum with you. To the
extent there is any conflict between this EULA and such Data Processing
Addendum, the Data Processing Addendum will prevail with respect to our
handling and processing of your Personal Data.
1.13. Limitation of Liability and Disclaimer of Certain Types of Damages.
1.13.1. Limitation of Liability. Except for a party’s
indemnification obligations set OUT in this EULA OR A PARTY’S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 1.11 (CONFIDENTIALITY), or
your material violation of our intellectual property rights or OF the
license restrictions set OUT in this EULA, to the extent permitted by
applicable law, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR all costS,
damageS, and expenses ARISING OUt of or related to this EULA whether based
upon warranty, contract, tort (including negligence), strict liability or
otherwise at law exceed, in the aggregate, the fees paid TO US FOr the
producT AND/OR SErvice that is THE SUBJecT OF THE claim, proVIDED, HOWEVER,
THAT IF THE FEES PAID FOR SUCH PRODUCT AND/OR SERVICE ARE PAID ON A
RECURRING BASIS, THEN the not to exceed limit will be the fees paid to us
for the product aND/OR SERVICE DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. Our Affiliates and
licensors, and the suppliers to us, our Affiliates or licensors, will, to
the extent permitted by applicable law, have no liability to you or to any
other person or entity for damages, direct or otherwise, arising out of
this EULA, including, without limitation, damages in connection with the
performance or operation of Our Products or our performance of services.
1.13.2 Disclaimer of Certain Types of Damages. Except for
a party’s indemnification obligations set OUT in this EULA or your material
violation of our intellectual property rights or the license restrictions
set OUT in this EULA, to the extent permitted by applicable law, in no
event will either party, its Affiliates or its licensors or their
respective suppliers be liable for any special, indirect, consequential,
incidental, punitive or tort damages arising in connection with this EULA
or either party’s performance under this EULA or the performance of Our
Products, or FOR any damages resulting from loss of use, loss of
opportunity, loss of data, LOSS OF REVENUE, loss of profits, or loss of
business, even if the party, its Affiliates, its licensors, or any of their
respective suppliers have been advised of the possibility of those damages.
1.14. Audit. We may install and use automated license tracking, management
and/or enforcement solutions with the Product, which you may not disrupt or
alter. You will maintain records in connection with this EULA and the use
of the Product and any Updates and/or services provided hereunder. Such
records will include at a minimum the number of licenses purchased and
being used by you. At our expense and with reasonable written notice to
you, we or a third party appointed by us may audit the records, and if
necessary and as applicable, the systems on which the Product or any Update
is installed for the sole purpose of ensuring compliance with the terms of
this EULA. We will have the right to conduct audits as necessary. These
audits may be conducted on site at a location where you have installed the
Product, remotely from our offices, or a combination of both, if applicable
to the Product. On-site audits will be conducted during regular business
hours, and neither on-site nor remote audits will interfere unreasonably
with your business operations. You agree to share with us copies of all
records referenced herein, as well as Product log files and other
information reasonably requested by us promptly following such request, but
in no event more than five (5) business days following receipt of our
written request (or such longer period, if applicable, that we specify in
the written request). We will treat all such information obtained or
accessed by us during the audit as confidential information pursuant to
section 1.11 (Confidentiality) for use by us only as necessary to ensure
compliance with and enforcement of the terms of this EULA. If any audit
reveals that you have underpaid license, maintenance and support or
subscription fees, you will be invoiced for all such underpaid fees based
on our list price in effect at the time the audit is completed. If the
underpaid fees exceed five percent (5%) of the fees previously paid by you,
then you will also pay our reasonable costs of conducting the audit and
enforcement of this EULA.
1.15. Termination.
1.15.1. Termination for Breach. We may terminate this EULA
by written notice at any time if you do not comply with any of your
obligations under this EULA and fail to cure such failure to our
satisfaction within thirty (30) days after such notice. This remedy will
not be exclusive and will be in addition to any other remedies which we may
have under this EULA or otherwise.
1.15.2. Effect of Termination. Upon expiration of your
license term to the Product (if applicable) or earlier termination of this
EULA, your license to access and/or use the Product and/or distribute the
Redistributables (if applicable) will terminate. You must immediately cease
use of the Product and destroy all copies of the Product in your possession
(and required any Permitted Third Parties to do the same). Any licenses you
have granted to the Redistributables in accordance with the terms and
conditions of this EULA will, unless otherwise specified in section 3
(Product Family Specific Terms) or section 4 (Product Specific Terms),
survive termination of this EULA.
1.15.3. Survival. Any provisions of this EULA containing
licensing restrictions, warranties and warranty disclaimers,
confidentiality obligations, limitations of liability and/or indemnity
terms, audits rights, and any term of this EULA which, by its nature, is
intended to survive termination or expiration, will remain in effect
following any termination or expiration if this EULA, as will your
obligation to pay any fees accrued and owing to us as of termination or
expiration.
1.16. Assignment. You may not, without our prior written consent, assign or
novate this EULA, any of your rights or obligations under this EULA, or the
Products or any of our Confidential Information, in whole or in part, by
operation of law, sale of assets, merger or otherwise, to any other party,
including any parent, subsidiary or affiliated entity. Your Change of
Control will constitute an assignment for purposes of the preceding
sentence. A “Change of Control” will include, but not be limited to, any
merger, consolidation, amalgamation, reorganization or sale, transfer or
exchange of the capital stock or equity interests of you in a transaction
or series of transactions which results in the holders of your capital
stock or equity interests holding less than 50% of the outstanding capital
stock or equity interests immediately following such transaction(s).
1.17. Choice of Law. This EULA is governed by the laws 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 will be submitted for
resolution to a state or federal court in Boston, Massachusetts, USA, and
the parties hereby irrevocably and unconditionally agree to submit to the
exclusive jurisdiction and venue of such court. The Uniform Computer
Information Transactions Act and the United Nations Convention on the
International Sale of Goods will not apply to this EULA.
1.18. Publicity. You agree that we may, in our sole discretion, publicize
your use of the Product, and you license to us (and our Affiliates and
necessary sublicensees) any intellectual property rights required to allow
us (and our Affiliates and necessary sublicensees) to use your name, trade
name(s), trademark(s), service mark(s), logo(s) and domain name(s) in
connection with such publicity.
1.19. Miscellaneous.
1.19.1. Notices. Notices of termination, material breach,
your insolvency or an indemnifiable claim (“Legal Notices
”) must be clearly identified as Legal Notices and sent via overnight
courier or certified mail with proof of delivery to the following
addresses: For us: 14 Oak Park Drive, Bedford, MA 01730, Attention: General
Counsel. For you: your address set out in the Order. Legal Notices sent in
accordance with the above will be effective upon the second business day
after mailing. Either party may change its address for receipt of notices
upon written notice to the other party.
1.19.2. Entire Agreement. This EULA, and any terms
expressly incorporated herein by reference, will constitute the entire
agreement between you and us with respect to the subject matter of this
EULA and supersedes all prior and contemporaneous communications, oral or
written, signed or unsigned, regarding such subject matter. Use of any
purchase order or other document you supply in connection with this EULA
will be for administrative convenience only and all terms and conditions
stated therein will be void and of no effect. Except as otherwise expressly
contemplated in this EULA, this EULA may not be modified or amended other
than in writing signed by you and us.
1.19.3. Severability. If any provision of this EULA is
terminated or held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, the remainder of this EULA will remain in full
force and effect.
1.19.4. Waiver. Failure or delay in exercising any right,
power, privilege or remedy hereunder will not constitute a waiver thereof.
A waiver of default will not operate as a waiver of any other default or of
the same type of default on future occasions.
1.19.5. English Language. This EULA has been drawn up in
English at the express wish of the parties. Le présent contrat a été rédigé
en anglais à la demande expresse des parties.
1.19.6. Force Majeure. Neither you nor we will be liable
for any delay or failure to take any action required under this EULA
(except for payment) due to any cause beyond the reasonable control of you
or us, as the case may be, including, but not limited to unavailability or
shortages of labour, materials, or equipment, failure or delay in the
delivery of vendors and suppliers and delays in transportation.
1.19.7. Our Use of Our Affiliates. We may, at our
discretion, engage one or more of our Affiliates in the fulfilment of our
obligations, including, our obligations for delivery of the Product to you
and/or the provision of any maintenance and support services.
2.A. TERMS FOR ON-PREMISE PRODUCTS
2.A.1. Delivery. Unless otherwise specified by us,
On-Premise Product(s) will be provided to you via electronic delivery, and
delivery is deemed complete when the On-Premise Product(s) is/are made
available at the electronic software download site specified by us and you
are e-mailed or otherwise provided with any necessary instructions,
password and/or license keys required for you to be able to access,
download and install the On-Premise Product(s). If we provide the
On-Premise Product(s) on physical media, shipping terms will be FOB
shipping point.
2.A.2. Updates. Each Update to an On-Premise Product
replaces part or all of the On-Premise Product (or earlier Update)
previously licensed to you (“Replaced Product”) and will
terminate such previously licensed Replaced Product to the extent replaced
by the Update; provided, however, that you may continue to operate the
Replaced Product for up to ninety (90) days from delivery of the Update to
allow you to complete your implementation of the Update. You must cease all
use of the Replaced Product at the end of the ninety (90) day period. Each
Update will be subject to the terms and conditions of the license agreement
accompanying the Update which must be accepted by you at the time you
download or install the Update. If you do not agree to the license
agreement accompanying the Update, do not download or install the Update.
2.A.3. Cloud Environment. You may upload the On-Premise
Product(s) licensed to you pursuant to this EULA onto a cloud instance
supplied by a third party, provided that the operation of the On-Premise
Product(s) in the cloud instance complies with all license model
restrictions and usage limitations applicable to the On-Premise Product(s).
You may also allow the third party to upload, install, operate and/or use
the On-Premise Products on the cloud instance, provided that the third
party’s access to and use of the On-Premise Products is solely for your
benefit in accordance with the terms of this EULA. The third party will be
considered a Permitted Third Party, and you will be responsible for the
Permitted Third Party’s compliance with this EULA in accordance with
section 1.2.3 (Third Party Use).
2.B. TERMS FOR HOSTED SERVICES THIS SECTION IS NOT APPLICABLE
3. PRODUCT FAMILY SPECIFIC TERMS
This section specifies terms and conditions that are applicableto the following On-Premise Products: FiddlerCore Embedded Engine
. The terms and conditions set forth in this Section 3 and in Section 4
apply to the Product. The specific Product(s) to which you are granted
a license hereunder shall be only those Product(s) identified in the
Order.
Default License Type for each of the above-referenced On-Premise Products: Perpetual, with the exception of any Product obtained
under a Trial License.
3.1.
Product Family Definitions
.
Any defined term used in this section 3 (Product Family Specific Terms)
but not defined herein will have the meaning ascribed to it in section
1 (General Terms and Conditions) or section 2.A (Terms for On-Premise
Products).
3.1.3. “Licensed Developer” means one of your employees or
third-party consultants authorized to develop Your Integrated Product
specifically for you using the Product Package in accordance with this
EULA. Each Licensed Developer is an Authorized User as defined in section
1.1.3 and all terms and conditions in section 1 (General Terms and
Conditions) and section 2.A (Terms for On-Premise Software) pertaining to
Authorized Users will apply to a Licensed Developer.
3.1.2. “Permitted End User” means your own employees or
subcontractors, each of whom is authorized to use the Software as part of
Your Integrated Product solely for Your benefit and in accordance with the
requirements of this EULA.
3.1.4. “Product Package” means
the Product and the Documentation, collectively.
3.1.5. “Your Integrated Product” means
a single internal-facing Licensee software product into which the Product
is integrated. “Your Integrated Product” as defined herein, is further
limited to Licensee's software product which: (i) is developed by Your
Licensed Developers; (ii) adds substantial functionality beyond the
functionality provided by the incorporated components of the Product; (iii)
has functionalities which would be considered improvements within the
natural progression of the software product; and (iv) is not a commercial
alternative for, or competitive in the marketplace with, the Product or any
components of the Product.
3.2.
Restrictions on Eligibility to Purchase a License
. Content Management System, .NET, PHP, Java and/or JavaScript component
vendors are not allowed to use the Product Package without our express permission.
If you or the company you represent is a Content Management System, .NET,
PHP, Java or JavaScript component vendor, you may not purchase a license
for or use the Product Package unless you contact us directly and obtain
permission.
3.3.
Required Quantity of Licensed Developers
. Licensed Developers must correspond to the maximum number of seats you
have purchased for the Product Package from us hereunder. This means that,
at any given time, the number of Licensed Developers cannot exceed the
number of seats that you have purchased from us and for which you have paid
us all the applicable license fees pursuant to this EULA. The Product
Package 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 Product Package
on multiple machines, so long as the Product Package is not being used
simultaneously for development purposes at any given time by more Licensed
Developers than you have seats.
3.4.
Trial License
.
3.4.1. License Grant. If you downloaded the free trial
license for the Product Package (“Trial License”), then
your use of the Product Package is subject to the limitations and
conditions specified in section 1.2.5 (Limitations on Evaluation or Trial
Licenses). Without limiting the foregoing, you are not allowed to integrate
the Product Package into end products or use it for any commercial,
productive or training purpose. You may not redistribute the Product
Package. The term of the Trial License will be 30 days. If you wish to
continue using the Product Package beyond the expiration of the Trial
License, you must purchase the applicable Internal Business Systems
License, as defined in section 4 (Product-Specific Terms) or a FiddlerCore
Embedded Engine Commercial License, as referenced at the end of section
4.A.1.3.
3.4.2. Support – Trial License. As described in greater
detail here: http://www.telerik.com/purchase/support-plans, and subject to
the limitations and restrictions described in the Fair Usage Policy, you
are entitled to enter support requests via our ticketing system with a 72
hour response time (excluding Saturdays, Sundays and holidays) for thirty
(30) days after download of your initial Trial License. For avoidance of
doubt, you are not entitled to additional support requests for any Trial
Licenses of the same or successor Products downloaded after your initial
download (e.g. to evaluate a new release), for a period of one (1) year
from the date of your initial download.
3.4.3. Updates – Trial License. At our sole discretion,
you may receive certain Updates for the Product Package version you are
evaluating. If Licensor makes Updates to the Product Package available to
you, such Updates replace and/or supplement (and may disable) the version
of the Product Package that formed the basis for your eligibility for the
Update. You may use the resulting updated Product Package only in
accordance with the terms of this Trial License. For the avoidance of
doubt, Updates do not restart the term of the Trial License.
3.5.
Support and Updates – Internal Business Systems License
3.5.1. Support. For any applicable period for which you
have purchased maintenance and support (the “ Maintenance Period”), you will receive minor and major
Updates for the Product Package, and will be entitled to receive support,
each as described in further detail below. Except as otherwise set forth in
Section 4, during the Maintenance Period, you are entitled to either the
“Lite”, “Priority”, or “Ultimate” support package as determined at time of
purchase and set forth on the Order and described in greater detail here:
https://www.telerik.com/purchase/support-plans
subject to the limitations and restrictions described in the following Fair
Usage Policy. You will lose the right to receive support and Updates at the
end of your Maintenance Period, unless you renew your access to updates and
support for additional Maintenance Period(s) with us at additional cost.
Your level of support (Lite, Priority or Ultimate) is determined at the
time of initial license purchase. You may upgrade your level of support for
individually purchased Products at any time during an active Maintenance
Period provided we continue to make such levels of support generally
available. Any support level upgrades (if purchased) and all access to
support and Updates thereunder will be bound to the term of the then active
Maintenance Period (i.e. the renewal/expiration date of your Maintenance
Period will not change as a result of the support level upgrade). You
generally may not downgrade your level of support and there is no automated
mechanism available to you by which to downgrade. The following additional
terms apply to support hereunder:
(a) We may apply a Fair Usage Policy that allows us to limit or terminate
your access to any or all of the support services if your use of the
support services is determined by us, in our sole and reasonable
discretion, to be excessive.
(b) In no event will we provide support of any kind to your Permitted End
Users.
3.5.2. Updates. During the Maintenance Period, you will be
eligible to receive all major Updates and minor Updates for the version of
the Product Package that you license hereunder.
Notwithstanding anything to the contrary in Section 2.A.2., you may use
the resulting updated Product Package in accordance with the terms of this
EULA, except that: (i) to the extent the Update contains new or updated
Special Notices, your use of any third party components shall be subject to
Section 1.2.7 of this EULA and the Special Notices accompanying the Update;
and, (ii) to the extent the Update contains new Products, components,
features and/or functionality which are subject to additional or conflicting terms and conditions
than those set forth in this EULA, your use of such new Products,
components, features and/or functionality will be subject to the terms and
conditions of the license agreement accompanying the Update which must be
accepted by you at the time you download or install the Update. If you do
not agree to such additional or conflicting terms and conditions, do not
download or install the Update.
3.7.
No Publicity
. Licensee may not publicize or disclose its use of the Product Package (or
any portion thereof) in any way nor use Licensor's name, trademarks,
service marks or logos without Licensor's prior written consent. For
avoidance of doubt, use of the Product within Your Integrated Product (if
permitted in accordance with Section 4) shall be "white label".
3.8.
Destruction Requirement upon Termination
. Upon termination of this EULA, all licenses granted to you hereunder will
terminate automatically and the terms of section 1.15.2 (Effect of
Termination) will apply. Additionally, you must destroy: (i) all copies of
the Product Package not integrated into a live, functioning instance(s) of
Your Integrated Product(s) already installed, implemented and deployed for
your Permitted End Users, and (ii) any product and company logos provided
by us in connection with this EULA.
3.9.
Product Discontinuance
. We reserve the right to discontinue any Product Package or any component
of any Product Package, whether offered as a standalone product or solely
as a component, at any time. However, we are obligated to provide support
in accordance with the terms of this EULA for the discontinued Product
Package or any discontinued component of the Product Package for a period
of one year after the date of discontinuance (provided you are under an
active Maintenance Period).
4. PRODUCT-SPECIFIC TERMS
Any defined term used in this section 4 (Product-Specific Terms) but not
defined herein will have the meaning ascribed to it in section 1 (General
Terms and Conditions), section 2.A (Terms for On-Premise Products), or 3
(Product Family Specific Terms).
4.A
FiddlerCore Embedded Engine.
This section specifies terms and conditions that are applicable to the
FiddlerCore Embedded Engine.
4.A.1.
License
.
Subject to the terms of this EULA, we grant to you the following limited,
non-exclusive, non-transferable license (the “License”) to
use the Product Package as set out herein. You are granted either a Trial
License pursuant to section 3.4 (Trial License) or an internal business systems license (“
Internal Business Systems
License
”) pursuant to section 4.A.1.1 (Internal Business Systems License). Which
version of the License applies (i.e., Trial License or Internal Business
Systems License) is determined at the time of the License purchase.
4.A.1.1 Internal Business Systems License
If You purchase an Internal Business Systems License with Updates and
Support, your Licensed Developers may use the Product Package in object code form only in the
development of one (1) Your Integrated Product. In addition, for the
applicable period of one (1), two (2), or three (3) years from the date on
which you purchased a license to use the Product Package, for which you
have purchased updates and support (the " Subscription Period"), you will receive minor and major
updates for the Product Package, as well as the "Priority" support package,
each as described in 4.A.1.2.
4.A.1.2
Maintenance and Support-
Internal Business Systems License
During the Subscription Period, you are entitled to the "Priority" support
package as described in greater detail here:
http://www.telerik.com/purchase/support-plans/, subject to the limitations
and restrictions described herein.
Licensor may limit or terminate your access to any or all of the support
services available under the "Priority" support package if your use of the
support services is determined by Licensor, in its sole and reasonable
discretion, to be excessive.
4.A.1.3 Third-Party Libraries
In addition to and without limiting the applicability of any Special
Notices, the Product Package installation includes optional third-party
libraries which are licensed by third-parties under their own separate
terms. If you choose to utilize these libraries, you must comply with the
terms outlined by their owners, each as described in section 4.A.1.3.1 and
4.A.1.3.2.
4.A.1.3.1 Library BCMakeCert.dll
The included library BCMakeCert.dll is the C# version of "The Legion of the
Bouncy Castle" http://www.bouncycastle.org/ and its use and redistribution
are governed by the terms specified by its owners. See
http://www.bouncycastle.org/csharp/licence.html for details.
4.A.1.3.2 Library MakeCert.exe
The included library MakeCert.exe is Microsoft's certificate generation
library. This library is redistributed under the license terms included
with Visual Studio 2008.
4.A.1.3
Redistribution
If you have purchased an Internal Business Systems License, subject to the
terms of this EULA, Licensee is granted a limited, non-transferable right
to internally distribute the Product in object code form only as embedded
in Your Integrated Product to your Permitted End Users for use solely
within your organization. You are not permitted to distribute the Product
pursuant to this section: (i) in any format other than in object form, (ii)
as a standalone product, or (iii) as a part of any product other than Your
Integrated Product, or (iv) in any manner which causes the Product to be
stored on a server not owned or controlled by you. You must ensure that the
Product is not distributed in any form that allows it to be reused by any
application other than Your Integrated Product. Licensee is not allowed to
and is expressly prohibited from granting its Permitted End Users any right
to further sublicense the Product. For avoidance of doubt, your Permitted
End Users are not permitted to use the Product, or any portions thereof,
for software development or application development purposes unless they
also purchase a separate commercial license from Licensor for each of the
users. This EULA does not grant you a license or any rights to use or
distribute the FiddlerCore Embedded Engine in a public facing,
redistributable Your Integrated Product. For the FiddlerCore Embedded
Engine Commercial License, please contact sales at sales@telerik.com.