End User License Agreement for Progress Telerik JustMock
(Last Updated January 1, 2018)
IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE (Telerik.com). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND PROGRESS SOFTWARE CORPORATION (“Progress” or “Licensor”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY PROGRESS THROUGH THIS 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.
Content Management System and/or .NET component vendors are not allowed to use the Software (as defined below) without the express permission of Progress. If You or the company You represent is a Content Management System or .NET component vendor, You may not purchase a license for or use the Software unless You contact Progress directly and obtain permission.
This is a license agreement and not an agreement for sale.
1. Software License
1.1 License Grant. Subject to the terms and conditions set forth in this Agreement, Progress hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, non-exclusive license (the “License”) to use the Progress computer software identified as Progress Telerik JustMock and any updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) in object code form only. You are granted either a Trial License pursuant to Section 1.3 or a Developer License with Updates and Support pursuant to Section 1.4. Which version of the License applies (i.e., Trial License or Developer License with Updates and Support) is determined at the time of the License purchase.
1.2 Scope of Use. The Software is licensed, not sold, on a per-seat basis. You may only allow the number of individuals in Your organization to use the Software that corresponds to the maximum number of License seats You have purchased from Progress hereunder. This means that at any given time, the number of individuals authorized to use the Software under the License (each a “Licensed Developer”) cannot exceed the number of License seats that You have purchased from Progress and for which You have paid Progress all applicable License Fees pursuant to this Agreement. The Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk or other storage device) of that computer for development purposes. Your Licensed Developers may install the Software on multiple machines, so long as the Software is not being used simultaneously for development purposes at any given time by more Licensed Developers than You have seats. You are not limited by the number of License seats with respect to how many individuals within Your organization may access and use the Software for purposes other than development (e.g. testing purposes).
1.3 Trial License
1.3.1 License Grant. If You download the free Trial License, then, subject to the terms and conditions set forth in this agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a license for evaluation purposes only. You are authorized to install, copy, and use the Software for the sole purpose of testing its functionality. You are not allowed to integrate it in end products or use it for any commercial or productive purpose. The term of the Trial License shall be 30 days.
1.3.2 Support. As part of Your Trial License You are entitled to the “Trial” support package as described in greater detail here: http://www.telerik.com/purchase/support-plans/devtools, subject to the limitations and restrictions described in the following Fair Usage Policy.
220.127.116.11 Support Package Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under the “Trial” support package if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
1.3.3 Updates. You are not eligible to receive any updates for the Software.
1.3.4 THE TRIAL VERSION OF 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.
1.4 Developer License with Updates and Support. If You purchase a Developer License with Updates and Support, then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a License to install and use the Software in object code form only. In addition, for the applicable period of one (1), two (2) or three (3) years from the date on which You purchased the Software, for which You have purchased updates and support (the “Subscription Period”), You will receive minor and major updates for the Software, as well as the applicable Support Package, each as described in further detail below.
1.4.1 Support Package. During the Subscription Period, You are entitled to either the “Lite”, “Priority”, or “Ultimate” Support Package as described in greater detail here: http://www.telerik.com/purchase/support-plans/devtools, and 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 Subscription Period, unless you renew your access to updates and support for additional Subscription Period(s) with Progress 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 at any time during an active Subscription Period provided Progress continues 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 Subscription Period (i.e. the renewal/expiration date of Your Subscription 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.
18.104.22.168 Support Package Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
1.4.2 Updates. During the Subscription Period You are eligible to receive all updates for the version of the Software that You license hereunder. Updates replace and/or supplement (and may disable) the version of the Software that formed the basis for Your eligibility for the update. You may use the resulting updated Software only in accordance with the terms of this Agreement. Subscription renewals will be governed by the terms of this Agreement.
1.4.3 Support and Maintenance Auto Renewal Program
22.214.171.124 You may elect to enroll in the Support and Maintenance Auto Renewal Program at the time of purchase for a license purchased online at www.telerik.com or at any time thereafter by enabling auto renew within Your www.telerik.com account (“Your Account”) and/or by contacting Progress directly. By enrolling in the Support and Maintenance Auto Renewal Program, you understand and agree that Your access to updates and support will automatically renew for subsequent one-year Subscription Periods for the entire time that You remain actively enrolled in the Support and Maintenance Auto Renewal Program.
126.96.36.199 As a condition of Your initial and continued enrollment in the Support and Maintenance Auto Renewal Program, You agree to keep Your credit card, billing, and contact information up-to-date at all times via Your Account. You may change Your auto renewal preference at any time within Your Account or by contacting Progress directly. Progress may switch Your auto renewal preference to “off” at any time Progress determines or suspects that Your credit card, billing, and/or contact information is out of date, inaccurate, or fraudulent. Progress may disable or discontinue the Auto Renewal Program at any time for any reason without providing advance notice to You.
188.8.131.52 Access to updates and support is sold and invoiced by Progress. ONCE YOU HAVE ENROLLED IN THE SUPPORT AND MAINTENANCE AUTO RENEWAL PROGRAM, UNLESS YOU SET THE SUBSCRIPTION AUTO RENEWAL PREFERENCE TO “OFF” IN YOUR ACCOUNT PRIOR TO THE END OF YOUR EXISTING SUBSCRIPTION PERIOD, YOUR ACCESS TO UPDATES AND SUPPORT WILL AUTOMATICALLY RENEW, AND YOU AUTHORIZE PROGRESS (WITHOUT NOTICE) TO COLLECT THE THEN-APPLICABLE FEE AND ANY TAXES FOR THE RENEWAL SUBSCRIPTION PERIOD, USING THE CREDIT CARD OR BILLING CREDENTIALS THAT YOU PROVIDED WITH RESPECT TO YOUR INITIAL PURCHASE AND/OR YOUR ENROLLMENT IN THE SUPPORT AND MAINTENANCE AUTO RENEWAL PROGRAM.
184.108.40.206 All payments are non-refundable, even if You / Your Licensed Developers stop using the Software and/or stop using/accessing support and updates. The fees and features applicable to support and updates may change over time. Your access will be renewed at an annual fee of 50% of the retail cost of a new Software license (at time of renewal), and at the level Progress, in its sole discretion, identifies as being closest to that which was provided during Your previous Subscription Period.
2. License Limitations
2.1 At no time may the Software be used for development purposes by other individuals than the Licensed Developer(s).
2.2 You are not allowed to integrate the Software in end products. You are not allowed to redistribute, resell, transfer, rent, lease, or sublicense the Software or Your associated rights.
2.3 You may not use the Progress product names, logos or trademarks to market Your end products.
2.4 Except to the limited extent as is permitted by law notwithstanding contractual prohibition, You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Software that is provided to You.
Progress shall make the Software available for download by Licensee a master copy of the Software licensed hereunder in electronic files only.
4. Collection and Use of Data.
5. Term and Termination
This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to Progress’ other rights or remedies, Progress shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Progress. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use of the Software. You must also destroy all copies of the Software.
6. Product Discontinuance
Progress reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product, a bundled set of products, or solely as a component, at any time. However, Progress is obligated to provide support in accordance with the terms set forth in this Agreement for all such discontinued Software, bundle, or components for a period of one year after the date of discontinuance.
7. Intellectual Property
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Progress that are used in connection with the Software are and shall at all times remain exclusively owned by Progress and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. Any open source software that may be delivered by Progress embedded in or in association with Progress products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license. As required by the Common Public License (“CPL”), if a user wishes to obtain the source code for the components licensed under the CPL a user may access them at http://wixtoolset.org.
8. Limited Warranty
Except as specified in Section 1.3.4 (Trial License) Progress warrants solely that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which You purchase the License for the Software. Progress does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Licensee’s failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Progress. In the event of a breach of warranty, Licensee’s sole and exclusive remedy and Progress’ sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Progress’ maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if Progress 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 8, PROGRESS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Progress be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Progress’ entire liability under any provision of this agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to Progress for the Software giving rise to such damages, or in the case of a Trial License, 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. In addition, Progress is not responsible for Licensee’s use of the Software in violation of applicable laws or any third party’s property rights. 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. The extent of Progress’ liability for the limited warranty section shall be as set forth therein.
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 or misuse of the Software.
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that: (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Software as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Progress’ prior written permission. Each party’s obligations under this Section 11 shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that (i) obligations with respect to source code shall survive in perpetuity and (ii) trade secrets shall be maintained as such until they fall into the public domain.
12. Governing Law
This License will be governed by the law of the Commonwealth of Massachusetts, U.S.A., without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
13. Entire Agreement
This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. The terms and conditions contained in this Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Licensee.
14. No Assignment
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Progress’ prior written consent.
Any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
17. Force Majeure
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
18. Export Classifications
You expressly agree not to export or re-export Progress Software or Your Integrated Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.
19. Commercial Software
The Programs and the Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
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.