General Terms of Service for Progress NativeChat
(Last Updated December 1, 2018)
What the Agreement Covers:
Progress NativeChat, aka NativeChat (as defined below), is being made available by Progress Software Corporation (“Progress,” “we,” “us,” or “our”) to You on the condition that You agree to these terms and conditions (the “Agreement”). “Licensee,” “You,” or “Your” refers to the person accessing or using NativeChat, or, if NativeChat is being used on behalf of an organization, such as an employer, “License,” "You," or “Your” means such organization. In the latter case, the person accessing or using NativeChat represents and warrants that he or she has the authority to do so and bind such organization to this Agreement. Violation of any of the terms below will result in the termination of this Agreement and Your access to NativeChat. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING ANY PORTION OF NATIVECHAT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND LICENSEE TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE NATIVECHAT OR ANY PORTION THEREOF.
This is a license agreement and not an agreement for sale.
NativeChat is a hosted platform enabling the development and deployment of, and providing backend support for, software applications (commonly referred to as chatbots) which are capable of conducting conversations via textual methods.
Progress reserves the right to add, modify or discontinue any product, feature or service (collectively “Progress Products”) made available through NativeChat. Such modifications or additions may be subject to additional terms (the “Additional Terms”) which will be made available by Progress at the time of such modification or addition at: https://www.telerik.com/purchase/license-agreements. The Additional Terms (if any) are made a part of and are subject to this Agreement and by agreeing to the terms of this Agreement You also agree to the Additional Terms.
If there is any conflict between the terms of the Agreement and the Additional Terms, then the Additional Terms take precedence in relation to that Progress Product. Hereinafter, all references to this Agreement shall mean the terms of this Agreement and any applicable Additional Terms and all other documents incorporated by reference in this Agreement.
Progress may change the terms of this Agreement at its sole discretion. If we change the terms, then we will make a new copy of the Agreement available at https://www.telerik.com/purchase/license-agreements. Your use of NativeChat is subject to the most current version of the Agreement at the time of such use. By continuing to use NativeChat following the update of this Agreement and/or the posting or update of any Additional Terms, you acknowledge that you have reviewed and accepted the then current terms of the Agreement including any Additional Terms.
1. Certain Definitions.
“Account” means Your account through which Your Licensed Developers access NativeChat for Your benefit and/or on Your behalf.
“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.
“AUP” means the policy identified as the “NativeChat Acceptable Use Policy,” the current version of which is set forth at https://www.telerik.com/purchase/license-agreement/nativechat-aup and as it may be updated by Progress from time to time.
“Channel” means a unique: website (URL), social media account, or mobile application.
“Chatbot” means those software applications which: (i) are developed, processed, stored, accessed, published, and/or supported by You/Your Licensed Developers using NativeChat; and (ii) are not commercial alternatives for, or competitive in the marketplace with NativeChat, any components of NativeChat, or any other Progress products or services.
“Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential." However, Confidential Information will not include any information which: (i) is Content; (ii) is or becomes known to the general public other than through a breach of the receiving party’s obligations hereunder; (iii) is already in the receiving party's possession prior to disclosure by the disclosing party; (iv) is received rightfully from a third party without an obligation to maintain such information in confidence; or (v) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
“Content” means all data and content, such as data files, written text, keys, computer software, music, audio files or other sounds, photographs, videos or other images that You upload to or process using NativeChat. Content includes but is not limited to Customer Data.
"Customer Data" means the data concerning the characteristics, inquiries, responses, conversations, and activities of End-users that is collected through use of the Integrated Software and then forwarded to the Servers and analyzed, processed, and (where applicable) responded to by the Hosted Services.
"Documentation" means any accompanying documentation made available to You (electronically or otherwise) by Progress for use with NativeChat, expressly excluding any user blogs, reviews, or forums.
"End-user" or "End-users" means visitors to/users of Your Channel(s) on which Your Chatbot(s) is/are deployed who use, query, respond to, or interact with Your Chatbot(s) in any way.
“Hosted Services” means the hosted cloud-based services available to you by Progress as a part of NativeChat in connection with your Subscription.
“Integrated Software” means the code, software components, and/or files made available to You by Progress via the Hosted Services which are intended to comprise, and/or intended for integration within, your Chatbot.
“Intellectual Property” or “Intellectual Property Rights” means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions, and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions, and renewals of any such grant, registration, and/or right.
“Language” means the human method of communication employed by Your Chatbot(s). Examples of Languages include: Afrikaans, Albanian, Arabic, Azerbaijani, Bengali, Bosnian, Bulgarian, Burmese, Catalan, Central Khmer, Chinese, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, Georgian, German, Greek, Hausa, Hebrew, Hindi, Hungarian, Icelandic, Igbo, Indonesian, Inuktitut, Italian, Japanese, Kannada, Kinyarwanda, Korean, Latin, Latvian, Lithuanian, Macedonian, Malay, Maori, Mongolian, Norwegian, Persian, Polish, Portuguese, Romanian, Russian, Serbian, Slovak, Slovenian, Somali, Southern Ndebele, Southern Sotho, Spanish, Swahili, Swati, Swedish, Tagalog, Tamil, Thai, Tsonga, Tswana, Turkish, Ukrainian, Urdu, Uzbek, Venda, Vietnamese, Xhosa, Yoruba and Zulu.
“Licensed Developer” means You or an individual person, employee or third-party consultant authorized to use NativeChat for You in accordance with this Agreement and for whom you, to the extent permitted by applicable law, do hereby accept full responsibility as if the acts and/or omissions of such Licensed Developer were Your own.
“NativeChat” or “Software” means the Documentation, the Hosted Services, the Integrated Software, and any updates, upgrades, modifications and error corrections thereto provided to You by Progress.
"Servers" means the servers controlled by Progress (or its parent, subsidiaries, affiliates, or service providers) on which the Hosting Software and Content are stored.
“Subscription” means Your subscription to NativeChat pursuant to the terms of this Agreement. Subscription is further limited to the specific level of service to which You have subscribed.
The words "include" and "including" mean "including but not limited to."
2. Nonexclusive Licenses.
2.1. Licenses. Subject to the terms and conditions set forth in this Agreement and the AUP, Progress hereby grants to You, and You hereby accept: (i) a limited, personal, non-transferable, non-sublicensable (except to the extent set forth herein) and non-exclusive license to, and to allow Your Licensed Developer(s) to: 1) access and use the Hosted Services to develop and support your Chatbot while You have an active Subscription; and 2) integrate and deploy the Integrated Software while You have an active Subscription, solely as comprising or integrated within your Chatbot as deployed on your Channel(s). Any and all rights in the Software not expressly granted to You hereunder are reserved in all respects by Progress. Except as expressly granted in this Agreement, You are not licensed to use, copy, modify, or distribute copies of all or any portion of the Software.
2.2 Scope of License Grants.
2.2.1 Hosted Services License Grant. Subject to the terms and conditions set forth in this Agreement and the AUP, You/Your Licensed Developer(s) may access and use the Hosted Services in the development, testing, building, deployment and support of Your Chatbots: 1. while You have an active Subscription; and 2. solely within the use/deployment limits to which you have subscribed. NativeChat is licensed per Chatbot, per Language, per Channel. Therefore, by way of example, if Your Subscription includes one Chatbot, one Language (e.g. English), and one Channel, You may for the term of Your Subscription, access and use the Hosted Services in the development, testing, building, deployment and support of a single English Language Chatbot on the Channel specified for Your Subscription.
2.2.2 License for Deployment/Redistribution. While You maintain an active Subscription, You may deploy/distribute (as applicable given the nature of the licensed Channel) the Integrated Software in object code form only as comprising, or embedded in, the object code form of Your Chatbot for use by Your End-users in: the quantities for which You have subscribed; the Language(s) to which You have subscribed; and on the Channel(s) for which You have subscribed. The use of Your Chatbot by Your End-users must be subject to an End-user license or terms of use that meets the requirements of this Section. You are not permitted to distribute the Integrated Software pursuant to this Section as a standalone product or as a part of any product other than Your Chatbot. Your End-user license agreement or terms of use must: impose the limitations set forth in this paragraph on Your End-users; prohibit distribution of the Integrated Software by Your End-users; limit the liability of Your licensors or suppliers to the maximum extent permitted by applicable law; and prohibit any attempt to disassemble the code, or attempt in any manner to reconstruct, discover, reuse or modify any source code or underlying algorithms of the Integrated Software, except to the limited extent as is permitted by law notwithstanding contractual prohibition. For avoidance of doubt, Your End-users are not permitted to use NativeChat, including any of the Integrated Software, or any portions thereof, for software development or Chatbot development purposes unless they also purchase a separate commercial license from Progress for their own use.
2.2.3 Third Party Notice Requirements. You must comply with these terms and conditions, including the notice requirements of any third party and open source software licenses which govern the Integrated Software included in Your Chatbot.
2.3. Limitations.
2.3.1 You must ensure that absolutely no portion of the Integrated Software is distributed in any form that allows it to be reused by any application other than Your Chatbot.
2.3.2 Except as specifically permitted in the terms of this Agreement You may not (and You may not allow any of Your Licensed Developers to):
(i) use the product names, logos or trademarks of Progress or any of its affiliates to market Your Chatbot;
(i) copy, modify, adapt, translate, or otherwise create derivative works of NativeChat, Progress Intellectual Property or any software, services, or other technology of the affiliates, third-party vendor(s), or hosting partner(s) who Progress engages to provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide NativeChat;
(ii) 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 NativeChat, or Progress Intellectual Property, except as expressly permitted by the law in effect in the jurisdiction in which You are located;
(iii) rent, lease, sell, resell, assign, sublicense, except as required by law or expressly provided in this Agreement, or otherwise transfer rights in or to NativeChat or Progress Intellectual Property, or make NativeChat or Progress Intellectual Property available on a “service bureau” basis or (except as otherwise provided for in this Agreement) otherwise allow any third party to use or access any of the foregoing;
(iv) remove or modify any proprietary notices, legends, or labels on NativeChat or Progress Intellectual Property;
(v) use, post, transmit, or introduce into NativeChat or Progress Intellectual Property any device, software, virus, worm, back door, Trojan Horse, similar harmful code, or routine which interferes or attempts to interfere with the operation of NativeChat or Progress Intellectual Property;
(vi) use or access NativeChat or Progress Intellectual Property in a manner that: (a) violates any Applicable Laws; (b) violates the rights of any third party; (c) purports to subject Progress to any other obligations; (d) could be fraudulent; or (e) for any purpose not specifically permitted in this Agreement;
(vii) access NativeChat for the purpose of bringing an intellectual property infringement claim against Progress; or
(viii) use NativeChat in any situation where failure or fault of NativeChat could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, NativeChat in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.
3. Delivery.
Progress shall, as applicable to the nature of each of its particular components, either make available for deployment to You, or host for access by You/Your Licensed Developer(s), a copy of NativeChat.
You are solely responsible for obtaining and maintaining all computer hardware, internet access and internet services necessary to access and use NativeChat.
4. Support and Services
4.1 Support. No dedicated technical support is provided with the NativeChat, however, as part of your license you are allowed to access those support resources offered by Progress at its sole discretion (which may include documentation, Knowledge Base articles, and/or forums). Technical support and/or credits redeemable for certain professional services related to the Software (“NativeChat Services Credits”) may be available for purchase separately, please contact Progress’ authorized distributor, Telerik Inc, if you are interested in more information about obtaining a paid support subscription or NativeChat Services Credits.
4.2 NativeChat Services Credits. If you have obtained NativeChat Services Credits from Progress for use with your particular Subscription, such credits are specific to the Subscription for which they were obtained, are nontransferable, and are subject to the terms and conditions of the NativeChat Services Credits Agreement available here: https://www.telerik.com/purchase/license-agreement/nativechat-services-credits-agreement. By purchasing, accepting, redeeming, and/or attempting to redeem NativeChat Services Credits you expressly agree to the terms and conditions of the NativeChat Services Credits Agreement.
5. Content.
5.1. Storage of Content. Progress may allow You/Your Licensed Developer(s) to create, upload, store, process, collect, access, transmit, display and query Content in the Hosted Services provided You comply with the terms of this Agreement. You agree that You are solely responsible for (and that Progress has no responsibility to You or to any third party for) any Content that You/Your Licensed Developer(s) create, upload, store, process, collect, access, transmit, display or query while using the Hosted Services and/or for the consequences of Your/Your Licensed Developer(s) actions (including any loss or damage which Progress may suffer) by doing so. You are solely responsible for the backup of Your Content and acknowledge that You/Your Licensed Developer(s) upload, store and process Content at Your own risk. The Hosted Services may be periodically inaccessible for reasons including maintenance updates, power outages, system failures, extended downtime and other interruptions. During such periods, You/Your Licensed Developer(s) may be unable to access or use all or a portion of the Hosted Services and some or all of Your Content may be deleted. If Progress determines that an outage or interruption may cause risk to the Hosted Services, Progress may suspend the Hosted Services.
5.2 Transmission of Content. You understand that the technical processing and transmission of the Hosted Services, including Your Content, may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. You understand that Progress uses affiliates, third party vendors and hosting partners to provide the necessary infrastructure, hardware, software, networking, storage, and related technology required to run the Hosted Services.
5.3. Content Removal. Progress does not pre-screen Content, but Progress and its designees (including its affiliates, third-party vendors and hosting partners) have the right (but not the obligation) in their sole discretion to access, review, and monitor Your Content and to refuse, remove or delete any Content, without notice, that it determines in its sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property rights or the terms of this Agreement. You may backup Your Content to Your own or a third party system, but otherwise Progress has no obligation to hold, export, or return any Content. Progress has no liability for the deletion of any (or all) Content at any time.
6. Chatbot Publishing.
6.1 By Your/Your Licensed Developer(s) use of the Hosted Services to publish Your Chatbot to Your Channel, You expressly authorize Progress to submit and publish Your Chatbot on Your behalf. You agree and acknowledge that the relationship of the parties shall be as an independent contractor and not as partner, joint venturer, or agent of the other. You are solely responsible for acquiring the necessary rights to publish Your Chatbot.
6.2 License to Progress. You license to Progress (and its affiliates and necessary sublicensees), all intellectual property or other rights required to allow Progress to use or process Content or other information through the Hosted Services. Progress may only use such rights, Content and information to provide, operate, and improve the Software. Other than as necessary to provide, operate, and improve the Software, Progress has no right of ownership or control over Licensee’s Content or other information provided by You/Your Licensed Developer(s) in connection with the use of the Hosted Services. Licensee is solely responsible for protecting rights it has, or may have, in its Chatbot(s), Content or information.
7 Member Account, Password, and Security.
7.1 To access NativeChat, You must create an Account associated with a valid e-mail address and login credentials. There is no limit to the number of Licensed Developers You may authorize to access Your Account in order to utilize NativeChat on Your behalf. All Licensed Developers must access Your Account utilizing the same set of login credentials. You will notify Progress immediately if You believe an unauthorized third party may be using Your Account. Progress will not be liable for any loss resulting from an unauthorized person using Your Account, login credentials or any assigned credentials.
8 Term and Termination.
8.1 This Agreement, and the Licenses granted hereunder, shall continue until they expire or are terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License to use the Hosted Services granted hereunder and the License to deploy/redistribute the Integrated Software granted hereunder shall last as long as You maintain an active Subscription and Your/Your Licensed Developers use of NativeChat and deployment/redistribution of the Integrated Software remain in full compliance with the terms of this Agreement. The Licenses granted hereunder may be renewed for successive Subscription periods, pursuant to the applicable Subscription purchased/obtained, until terminated in accordance with this Section. If You do not maintain an active Subscription, the Licenses granted hereunder to access and/or use the Hosted Services and use, redistribute/deploy the Integrated Software, along with Your and Your Licensed Developer’s use of and access to NativeChat Hosted Services, will terminate.
8.2 If You have obtained a free or trial Subscription, Progress reserves the right at any time to modify or discontinue, temporarily or permanently, such free or trial Subscription and Your access to the NativeChat Hosted Services thereunder with or without notice. Unless modified or discontinued by Progress in its sole discretion, Your free or trial (as applicable) Subscription shall continue until the earlier of: (i) the expiration of the term specified by Progress (or Progress’ authorized distributor) at the time You obtained such Subscription; and (ii) such time that You cancel such free or trial Subscription or upgrade to a paid Subscription for any of the Progress Products.
If You have obtained a paid Subscription, payment is non-refundable, even if You / Your Licensed Developers stop using any or all of NativeChat. If You upgrade Your Subscription, the upgrade will take effect immediately, You will be charged and must pay the applicable fee, and the term of Your Subscription period may be extended, as described at the time You upgrade. You generally may not downgrade a Subscription and there is no automated mechanism available to You by which to downgrade. Downgrades require Progress’ approval and assistance. Please contact Progress at sales@telerik.com if You wish to request a downgrade. If You downgrade Your Subscription, unless otherwise specified, the downgrade will take effect at the end of the term of Your existing Subscription period.
8.3 Promotional and Trial Offers. Progress may offer trial or promotional Subscriptions (”Promotional Subscriptions”) for Progress Products. Unless otherwise specified, a Promotional Subscription will remain active only for as long as You maintain an active, paid Subscription to NativeChat or the other Progress product, software or service which formed the basis of Your eligibility for the Promotional Subscription. Progress reserves the right at any time to modify or discontinue, temporarily or permanently, any Promotional Subscription and Your access to the Progress Product thereunder with or without notice.
8.4 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 Licenses granted hereunder immediately if: (i) You breach any of the terms of this Agreement, (ii) if Progress’ relationship with a third-party vendor or hosting partner who provides software, services, or other technology that Progress uses to provide NativeChat expires, terminates or requires Progress to change the way in which such software, services, or other technology is provided as part of NativeChat, (iii) if Progress believes providing NativeChat could create a substantial economic or technical burden or material security risk for Progress or any of its affiliates, (iv) in order to comply with the law or requests of governmental entities, or (v) if Progress determines Your use of, or Progress’ provision of, NativeChat has become impractical or unfeasible for any legal or regulatory reason.
8.5 Unless otherwise specified in the Additional Terms, upon expiration, cancellation, suspension or termination, all Licenses granted to You hereunder shall terminate automatically and Your right to use NativeChat (including any/all Integrated Software) shall cease. You are solely responsible for backing up Your Content and Chatbot(s). Except in the case of termination by Progress for Your breach of the terms of this Agreement, You may create a new Developer Account and/or obtain a new Subscription following the expiration or termination of Your Subscription.
9. Confidentiality.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent, except for the purpose of performing its obligations under this Agreement or if required by law, regulation, or court order, in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
10. Use of Third-Party Vendors; Transmission of Data.
Progress may use affiliates and/or third-party vendors and hosting partners to provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide NativeChat, and such parties may be granted access to Your Chatbots and/or Content in connection with providing such services to Progress. You agree that You shall have no rights against such parties in connection with NativeChat. In addition, You understand that the technical processing and transmission of NativeChat, including Your Content and/or Chatbot(s), may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
11. Security.
Progress may apply security technologies and procedures to help protect against unauthorized access or use of NativeChat. Progress does not guarantee the success of such technologies and procedures. You are solely responsible for the security, protection and backup of Your Chatbots and Content, and any other content or software You/Your Licensed Developer(s) use in connection with NativeChat.
12. Privacy.
Data/Information Collection, Use, and Storage by You. Your/Your Licensed Developer(s)’ creation or configuration of Your Chatbot and selections within the Hosted Services will determine the nature and scope of Customer Data collected and processed by the Software. Progress reserves the right to modify available settings from time to time at its discretion. You are solely and exclusively responsible for Your/Your Licensed Developer(s)’ configuration decisions, selected settings, data collection practices, and compliance with Applicable Laws. The Software provided by Progress merely enables You to collect, store, analyze, generate, and respond to Customer Data. Progress makes no representation or warranty that Your use of the Software conforms to Applicable Laws in any jurisdiction, and provides no legal advice. You are solely and exclusively responsible for Your and Your Licensed Developer(s)’ usage of the Software, and all decisions regarding the Software including but not limited to its use, deployment and settings. You are the data controller, and Progress will process the Customer Data only in accordance with Your directions.
You represent and warrant to Progress that Your collection and provision of the Customer Data to Progress complies with Applicable Laws, and that You have an unqualified right to grant Progress a non-exclusive license in and to the Customer Data for the purposes described herein. You acknowledge and agree that You are solely responsible for complying with all Applicable Laws regarding the collection and use of Customer Data.
At all times during Your and Your Licensed Developer(s)’ use of the Services, You shall publish and maintain a privacy policy with respect to each Channel on which Your Chatbot is deployed. Each such privacy policy shall be clearly written and shall be prominently linked from the Channel. At all times during the Term, You shall ensure that Your relationship with Progress, as described herein, is in compliance with such privacy policies.
Such privacy policies shall prominently and clearly disclose: (i) the nature and scope of the data collection via the applicable Chatbot; (ii) the use of the Software and its features; and (iv) how End-users may opt-out of or opt-in to the collection of Customer Data. You are exclusively responsible for configuring Your Chatbot as required by and in accordance with all Applicable Laws.
Data/Information Collection, Use and Disclosure by Progress. With respect to NativeChat, Progress may access, collect, use, and/or disclose information about You, Your Account, Your Licensed Developers, Developer Accounts, the content of Your or Your Licensed Developers’ communications, and/or Your/Your Licensed Developers’ operating environment(s) (including, but not limited to, information about hardware and other software present within the operating environment or otherwise utilized by You/Your Licensed Developers) in order to (i) provide, operate, support, and improve NativeChat; (ii) identify trends and bugs, collect activation information, usage statistics and track other data related to Your/You Licensed Developers use of NativeChat as further described in the most current version of the Privacy Policy (as defined below); (iii) comply with Applicable Laws or respond to lawful requests or legal process; or (iv) protect the rights or property of Progress or other parties, including the enforcement of Progress’ agreements or policies governing the use of NativeChat. Personal data collected or otherwise processed by Progress in the performance of services related to NativeChat may be transferred to, and stored and processed in, the United States or any other country in which Progress or its affiliates or service providers maintain facilities. For more information read the privacy statement at https://www.progress.com/legal/privacy-policy (the “Privacy Policy”).
By Your acceptance of the terms of this Agreement and/or use of NativeChat, You authorize the collection, use and disclosure of this information and data for the purposes provided for in this Agreement and/or the Privacy Policy.
13. Indemnification.
13.1 To the extent permitted by Applicable Law, You will indemnify, hold harmless, and defend Progress and its affiliates, and its and their respective officers, directors, employees, and agents from and against any and all claims, lawsuits, and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages, settlements, penalties, fines, and other liabilities resulting from such Claims, that arise or result from: (i) Your breach of this Agreement; (ii) the use or distribution of Your Chatbots; (iii) Your / Your Licensed Developers’ use of NativeChat; (iv) Your violations of Applicable Laws or obligations of privacy to any third party; (v) any representations and warranties made by You concerning any aspect of NativeChat to any third party; and/or (v) modification of any NativeChat source code.
13.2 Progress agrees to defend You from and against any and all third party Claims alleging that NativeChat: 1. infringes any third party’s United States patent; 2. infringes any third party’s copyright of a country that is a party to the Agreement for Trade Related Aspects of Intellectual Property Rights (“TRIPS”); or 3. misappropriates a third party’s trade secret, and will indemnify You from any costs (including reasonable attorney’s fees) associated with the defense or settlement of and/or damages finally awarded against You in any such Claim. If a Claim is made or appears likely to be made, Progress, at its option, shall have the right to either (i) procure for You the right to continue to use NativeChat, (ii) modify or replace NativeChat in a manner that retains its functionality and quality so that it is no longer infringing, misappropriating or violating such right or (iii) require You to terminate the use of NativeChat (and return any portion of NativeChat in Your/Your Licensed Developer’s possession) and refund all license fees paid by You with respect thereto.
13.3 Progress shall have no obligation under this Section 13 for any Claim that arises from: (i) combination of NativeChat with hardware, software or content not provided by Progress; (ii) modification of NativeChat not made or provided by Progress; (iii) unlicensed use of NativeChat or (iv) operation, or use of NativeChat in an operating environment or with other products not approved or recommended by Progress.
13.4 Each party’s indemnification obligations in this Section 13 are subject to: (i) prompt notification in writing of any Claim (provided that the indemnified party’s failure to provide reasonable written notice shall only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim); (ii) the transfer of sole control of the defense and any related settlement negotiations to the indemnifying party; and (iii) the indemnified party’s cooperation in the defense of such claim. THIS SECTION 13 STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
13.5 Except as expressly provided in this Agreement, each party disclaims all other indemnities, whether express, implied, statutory or otherwise.
14. Modifications to Terms of This Agreement and Other Policies.
Progress may modify the terms of this Agreement, including any Additional Terms or any other terms that apply to NativeChat to, for example, reflect changes to the law or changes to NativeChat. You should look at the terms of this Agreement regularly. Progress will post modifications to the terms of this Agreement at https://www.telerik.com/purchase/license-agreements or policies referenced herein at the applicable URL for such policies. If You use NativeChat after changes are posted, You will be deemed to have accepted them. If You do not agree to the modified terms of the Agreement or changes to other policies, You should discontinue Your use of NativeChat, which termination is Your sole and exclusive remedy.
15. WARRANTY DISCLAIMER.
YOUR USE OF NATIVECHAT IS AT YOUR SOLE RISK. NATIVECHAT IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AVAILABILITY OF CHATBOTS AND CONTENT FROM NATIVECHAT. PROGRESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO NATIVECHAT OR SUPPORT SERVICES (IF ANY). YOU UNDERSTAND THAT PROGRESS USES AFFILIATES, THIRD-PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, AND RELATED TECHNOLOGY REQUIRED TO RUN NATIVECHAT AND THAT PROGRESS IS NOT RESPONSIBLE FOR THE SERVICES PROVIDED BY SUCH AFFILIATES, THIRD-PARTY VENDORS AND/OR HOSTING PARTNERS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, PROGRESS DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT PROGRESS 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.
16. Limitation of Liability.
EXCEPT WITH RESPECT TO (I) A BREACH BY LICENSEE OF THE MATERIAL LICENSE RESTRICTIONS CONTAINED IN THIS AGREEMENT OR (II) A BREACH BY EITHER PARTY OF, SECTION 9 (CONFIDENTIALITY) OR THE PROVISIONS AND OBLIGATIONS RELATED TO THE CONFIDENTIAL NATURE OF NATIVECHAT AND/OR THE NATIVECHAT SOURCE CODE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE NATIVECHAT, OR OTHERWISE ARISING UNDER THE TERMS 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, EXCEPT WITH RESPECT TO (I) A BREACH BY LICENSEE OF THE MATERIAL LICENSE RESTRICTIONS CONTAINED IN THIS AGREEMENT, (II) EITHER PARTY’S OBLIGATIONS UNDER SECTION 13 (INDEMNITY), OR (III) A BREACH BY EITHER PARTY OF, SECTION 9 (CONFIDENTIALITY) OR THE PROVISIONS AND OBLIGATIONS RELATED TO THE CONFIDENTIAL NATURE OF NATIVECHAT AND/OR THE NATIVECHAT SOURCE CODE, EACH PARTY’S ENTIRE LIABILITY UNDER ANY PROVISION OF THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL TERMS, SHALL NOT EXCEED, IN THE AGGREGATE, THE SUM OF THE FEES PAID BY YOU TO PROGRESS OVER THE PRECEDING TWELVE MONTH PERIOD UNDER THIS AGREEMENT, 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 TO YOU. PROGRESS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CHATBOTS, CONTENT OR DATA PROVIDED BY YOU, YOUR LICENSED DEVELOPERS, OR A THIRD PARTY THAT IS ACCESSED THROUGH NATIVECHAT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN PROGRESS AND LICENSEE, AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO LICENSEE IN THIS AGREEMENT ARE EXCLUSIVE.
17. Links to Third-Party Sites.
NativeChat may include links to third-party sites. Progress does not control such sites and is not responsible for the content of any linked site, any links contained in a linked site, or any changes or updates to such sites. Progress is not responsible for any form of transmission received from any linked site. You acknowledge and agree that Progress is not liable for any loss or damage which may be incurred by You as a result of the availability of third-party vendor resources or external sites.
18. Intellectual Property.
All title and ownership rights in and to NativeChat and all Intellectual Property rights therein, and any trademarks or service marks of Progress or its affiliates that are used in connection with NativeChat are and shall at all times remain exclusively owned by Progress and its affiliates and licensors. For the avoidance of doubt, Progress retains all right, title, and interest in and to: (i) the NativeChat Hosted Services and Integrated Software, (ii) all data (other than Content), software, products, works, data science recipes (including any source code for the data science recipes and any modifications to such source code), algorithms, data science workflows and (iii) any other intellectual property created, used, or provided by us for the purposes of this Agreement.
Licensee shall not (and shall ensure that its Licensed Developers do not) challenge, or assist any person or entity in challenging, Progress’ right, title, and interest in the Progress Intellectual Property.
To the extent You or any of Your Licensed Developers provide us (or our affiliates or authorized reseller) with any feedback relating to NativeChat (including, without limitation, feedback related to usability, performance, interactivity, bug reports, meta data, and test results)(“Feedback”) and/or any Meta Learning (as defined below), we will own all right, title and interest in and to such Feedback and Meta Learning (and You and Your Licensed Developers hereby make all assignments necessary to achieve such ownership). Meta Learning means any meta data (including but not limited to conversational prompts and responses) created from the models which are utilized, built for, or run by You/Your Licensed Developers in the development, deployment, use and support of Your Chatbot, the experience gained by exploiting the meta data, and the resulting learning or adjustments that NativeChat makes to the model as a result of such experience.
19. Third Party Materials
The Integrated Software may contain or be accompanied by certain third-party components which are subject to additional restrictions and certain third-party components or services which are subject to additional restrictions may host or be embedded in, hosted with, or accessible in connection with the Hosted Services. 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, the “Release Notes” file, or the “Third-Party Software” file accessible through Your Account (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. Unless otherwise expressly stated, for any particular third-party component, all third-party components included in connection with or accompanying NativeChat may be used solely in connection with the use of the NativeChat subject to and in accordance with the terms and conditions of this Agreement and the Special Notices. 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).
20. Publicity.
Progress may, in its sole discretion, publicize Your use of NativeChat, and You license to Progress (and its affiliates and necessary sublicensees), all Intellectual Property or other rights required to allow Progress to use Your name, trade name(s), trademark(s), service mark(s), logo(s), and domain name(s) in connection therewith.
21. Commercial Items Notice.
Where Licensee is the U.S. Government or an agency thereof, any/all software and documentation licensed hereunder are/is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 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: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
22. Governing Law.
This Agreement is 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 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 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.
23. 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.
24. 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.
25. Survival.
Any provisions of this Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability, and/or indemnity terms, and any term of the Agreement which, by its nature, is intended to survive termination or expiration, shall remain in effect following any termination or expiration of this Agreement.
26. Severability.
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.
27. 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.
28. Export Restrictions.
You expressly agree not to utilize NativeChat in, or export or re-export any portion of NativeChat (including but not limited to any Integrated Software which comprises or has been integrated with your Chatbot(s)) to, any country, person, entity, or End-user subject to U.S. export restrictions. You specifically agree not to deploy, export, re-export, or transfer any portion(s) of NativeChat in or to, or to use NativeChat in, 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 NativeChat (or any portion thereof) 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 United States Bureau of Industry and Security, U.S. Department of Commerce, nor any other federal agency has suspended, revoked, or denied Your export privileges.
You consent and agree that Your clicking of the “I Accept” or “I Agree” button constitutes Your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by You in writing. Further, You agree that no certification authority or other third-party verification is necessary to the enforceability of Your signature. At our request, any electronically signed document must be re-executed in original form by You. No party hereto may raise the use of an electronic signature as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Agreement.