Services Credits Agreement for Progress NativeChat
Progress NativeChat Services Credits Agreement
Last Updated December 1, 2018
IMPORTANT – PLEASE READ THIS PROGRESS NATIVECHAT SERVICES CREDITS AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING ANY PROGRESS NATIVECHAT SERVICES CREDITS 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 (“Licensee” “Customer” or “You”), AND PROGRESS SOFTWARE CORPORATION (“Progress”). BY PURCHASING THE PROGRESS NATIVECHAT SERVICES CREDITS 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.
BACKGROUND
CUSTOMER has obtained a subscription based license from Progress to use certain Progress NativeChat software (“NativeChat” or the “Software”) pursuant to the Progress General Terms of Service for Progress NativeChat (the “Software Terms”).
CUSTOMER wishes to receive certain services related to Customer’s use of the Software pursuant to the terms and conditions set forth in this Agreement.
SECTION 1 – SERVICES
1.1 Scope of Services
1.1.1 PROGRESS shall provide to CUSTOMER services directly related to the Software and consisting of only one or more of the following (the “Services”):
The Services will be delivered off-site via remote sessions. In the course of performing the Services, Progress may also provide certain deliverables specific to certain Services (the “Deliverables”) which shall be limited to one or more of the following:
References herein to the Services shall mean collectively the Services and the Deliverables. The Deliverables hereunder do not include any software or materials included as part of the Software. The parties’ rights and obligations relating to the Software shall be as set forth in the Software Terms. Nothing in this Agreement shall change or supersede the terms of the Software Terms. In the event that CUSTOMER requests additional services outside the scope of the Services, the parties may agree to the provision of such services pursuant to a separate document executed by both parties. Access to the Services shall be purchased by CUSTOMER in indivisible, nontransferable one (1) hour blocks (each single block a “NativeChat Services Credit”). All Services shall be provided by a Progress NativeChat Application Developer. Services shall be provided remotely from Progress’ premises or the premises of Progress’ affiliates or independent contractors. A minimum of one (1) NativeChat Services Credit is required for any Services to be performed. NativeChat Services Credits may be applied consecutively; however, it is CUSTOMER’S responsibility to purchase sufficient NativeChat Services Credits for the Services. NativeChat Services Credits may only be redeemed for the Services described above in this Section may only be redeemed for Services related to the Software, and cannot be used for Services related to another type of software.
1.1.2 CUSTOMER shall initially request the Services by contacting Progress at: NativeChatProfessionalServices@progress.com and describing the requested Services. Progress will provide an initial response to each request within a reasonable period of time following the receipt of such Services request. CUSTOMER and Progress will then agree upon the scope of Services to be provided, a reasonable estimate of the number of NativeChat Services Credits which may be necessary to perform/deliver such Services, and a reasonable estimate of the time(s) at which such Services shall be provided. Progress will use reasonable efforts to provide the Services at the times agreed, however Progress offers no assurances or guarantees of any particular outcome or success nor that all Services will be provided as anticipated nor that the amount of NativeChat Services Credits which CUSTOMER purchases nor that the Services themselves will be sufficient to address CUSTOMER’s specific requirements. Progress NativeChat Application Developers may remotely access CUSTOMER’s machine, Progress account, including any related accounts and anything stored in, supported by, or associated with such accounts, using desktop or other applicable credentials provided by CUSTOMER. CUSTOMER agrees to cooperate with Progress' reasonable requests with respect to the scheduling and performance of the Services. CUSTOMER agrees to provide remote access to any code, configuration, database and other application files necessary to facilitate Progress’ providing the Services. Progress shall provide CUSTOMER with timesheet on a weekly basis relating to Services performed, which timesheet shall set forth an itemized listing of hours worked and the number of NativeChat Services Credits to be redeemed from CUSTOMER’s account related to the performance of such Services. Unless CUSTOMER rejects the timesheet within seven business days after receiving it, the parties agree that CUSTOMER is deemed to have automatically accepted the timesheet as correct and authorized the deduction of applicable number of NativeChat Services Credits from CUSTOMER’s account. If CUSTOMER wishes to change the scope of the Services or wishes to obtain additional services not initially covered by this Agreement, CUSTOMER shall so advise Progress and shall submit specifications to Progress. After receipt of the specifications, Progress shall provide CUSTOMER with a cost estimate for performing the changed or additional services. Such changed or additional services shall be provided pursuant to a separate written agreement the terms of which shall be mutually agreed upon and executed by the parties.
1.1.3 It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, CUSTOMER.
1.2 Exclusions and Limitations on Services. Services are not available or provided hereunder for or related to:
1.2.1 any services other than those described above in Section 1.1.1 ;
1.2.2 any software other than the Software;
1.2.3 any services provided by anyone other than a NativeChat Application Developer;
1.2.4 Customer’s unlicensed use of the Software and/or use of the Software that is not in accordance with the Software Terms and/or any applicable documentation or operating instructions;
1.2.5 Customer’s negligence or improper use of the Software;
1.2.6 Any installation, deployment, or use of the Software: (i) in any country or by any individual or entity subject to U.S. Export restrictions; (ii) for any purpose(s) which Progress determines in its sole discretion is/are unlawful, immoral, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or in violation of any party’s privacy or intellectual property rights; (iii) in any situation where failure or fault of the Software could lead to death or serious bodily injury of any person, or to physical or environmental damage.
SECTION 2 - PERSONNEL
2.1 Progress' Services shall be rendered by those of its employees, its affiliates’ employees, and/or its independent contractors which Progress has designated to be “NativeChat Application Developers”. Progress shall ensure that all employees are familiar with and comply in all respects with the provisions of Section 3 (Confidentiality) of this Agreement, and that all independent contractors have agreed to terms no less protective of CUSTOMER’s confidential information than this Agreement.
2.2 CUSTOMER will not, at any time during the term of this Agreement and for a period of one (1) year following the expiration or termination hereof, directly or indirectly, employ, offer to employ or otherwise engage or solicit for employment or a contractor relationship any person who is now, or is, or was, at any time during the term of this Agreement, an employee of Progress or any of its affiliates, without Progress’ written consent.
SECTION 3 - CONFIDENTIALITY
3.1 For purposes of this Agreement, "Confidential Information" means all information disclosed, directly or indirectly, through any means of communication (whether electronic, written, graphic, oral, aural or visual), by or on behalf of one party (the “Discloser”) to or for the benefit of the other party (the “Recipient”) or any of its personnel, that relates to:
(a) Discloser’s products, services, projects, productions and work product, and all business and technical information pertaining thereto (including, without limitation, reports, analyses, budgets, and technology (including prototypes, designs, specifications and implementations));
(b) Discloser’s research and development, asset management, production pipelines and technologies, development strategies, techniques, processes and plans, intellectual properties, trade secrets and technical know-how;
(c) Discloser’s administrative, financial, purchasing, information systems, telecommunications technology, distribution, marketing, labor and other business operations, policies and practices; and
(d) Any other matter disclosed in written or other tangible form, that is clearly marked as being confidential or if disclosed orally, within ten (10) days of such oral disclosure is reduced by Discloser to a writing and marked as confidential and supplied to the other party.
3.2 Recipient agrees that during the term and for a period of two (2) years thereafter it will
(a) not use, or authorize the use of, any Confidential Information for any purpose other than solely for the performance of its obligations under this Agreement (the "Purpose");
(b) protect all Confidential Information with the same degree of care (but no less than a reasonable degree of care) normally used to protect its own confidential information; and
(c) take reasonable steps to prevent any Confidential Information or any information derived therefrom from being revealed to any person or entity other than to (i) those of its personnel (such term to include employees of affiliates and independent contractors) who have a legitimate need to know the Confidential Information to perform the Purpose and who are bound by confidentiality obligations prohibiting the further use and disclosure thereof, and/or (ii) those to whom Discloser has authorized in writing the disclosure of the Confidential Information. CUSTOMER shall ensure that all employees are familiar with and comply in all respects with the provisions of this Section (Confidentiality) of this Agreement, and that all independent contractors have agreed to terms no less protective of Progress’ confidential information than those contained herein.
Recipient further agrees that in the event that it receives a request from any third party for any Confidential Information, or is directed to disclose any portion of any Confidential Information by operation of law or in connection with a judicial or governmental proceeding or arbitration, Recipient will promptly notify Discloser prior to such disclosure and will consult with Discloser in seeking a suitable protective order or assurance of confidential treatment and in any other steps deemed reasonably necessary by Discloser to preserve the confidentiality of any such Confidential Information.
3.3 The foregoing obligations shall not apply to an item of Confidential Information which Recipient can establish:
(a) was known to Recipient prior to its receipt from Discloser;
(b) is or lawfully becomes generally known to the public;
(c) is lawfully acquired from third parties who have a right to disclose such information;
(d) by mutual agreement is released from a confidential status; or
(e) Recipient is required by law to release, provided that Discloser is given advance written notice of such requirement pursuant to Section 3.2.
3.4 All rights in and title to all Confidential Information will remain with Discloser. Neither the execution and delivery of this Agreement, nor the performance of the Services, nor the furnishing of any Confidential Information, will be construed as granting or conferring to Recipient either expressly, by implication, or otherwise, any license or any right to use Discloser’s Confidential Information. All materials representing or embodying Confidential Information that are furnished to Recipient remain the property of Discloser and, upon termination or expiration of this Agreement or promptly following Discloser's written request therefore, all such materials, together with all copies thereof made by or for Recipient, will be returned to Discloser or, at Discloser's sole discretion, destroyed by Recipient.
3.5 Recipient acknowledges that the unauthorized use or disclosure of Confidential Information may cause Discloser irreparable harm and that money damages may be inadequate to compensate Discloser for such harm. Accordingly, Recipient agrees that, in addition to any other available remedies at law or in equity, Discloser will be entitled to seek equitable relief, including injunctive relief and/or specific performance, the granting of which shall not be subject to or conditioned upon any requirement of posting a bond or other security.
SECTION 4 - EXPIRATION OF AGREEMENT AND TERMINATION
4.1 CUSTOMER acknowledges that NativeChat Services Credits expire three (3) months from the effective date of purchase of such NativeChat Services Credit(s), unused NativeChat Services Credits are non-refundable, and that CUSTOMER must utilize the Services available pursuant to this Agreement prior to the expiration of the NativeChat Services Credits, unless otherwise agreed in writing. Thereafter, this Agreement and all rights and obligations hereunder (except as otherwise set forth herein) shall terminate and be of no further force or effect.
4.2 Either party may terminate this Agreement for material breach upon thirty (30) days written notice specifying the nature of the breach, if such breach has not been cured within the thirty (30) day period.
SECTION 5 – RELATIONSHIP OF PARTIES
Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. Neither party has any authority to act on behalf of or to enter into any contract, incur any liability or make any representation on behalf of the other party.
SECTION 6 – LIMITATION OF LIABILITY
LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. NEITHER PARTY’S LIABILITY FOR DAMAGES SHALL IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID AND DUE AND PAYABLE BY CLIENT TO SERVICE PROVIDER WITH RESPECT TO THE SERVICE(S) THAT IS/ARE THE SUBJECT OF THE CLAIM. Notwithstanding the foregoing, the limitations of liability set forth in this Paragraph 6 will not apply to losses in connection with: (a) death, personal injury or tangible property damage caused by either party; (b) a party’s gross negligence or the willful or reckless misconduct of a party; or (c) misappropriation of a party’s intellectual property rights (or the intellectual property rights of Progress’ affiliates and/or independent contractors, if applicable).
SECTION 7 - PUBLICITY
Progress may publicize that CUSTOMER is a customer of Progress and use CUSTOMER’s name and logo in connection therewith.
SECTION 8 - INDEMNIFICATION
CUSTOMER agrees to indemnify, hold harmless, and defend Progress and its licensors 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 use or misuse of the Deliverables.
Progress agrees to defend You from and against any and all third party Claims alleging that the Deliverables: 1. infringe any third party’s United States patent; 2. infringe 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. misappropriate 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 the Deliverables, (ii) modify or replace the Deliverables 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 Deliverables (and return any portion of the Deliverables in Your possession) and refund all fees paid by You with respect thereto.
Progress shall have no obligation under this Section for any Claim that arises from: (i) combination of the Deliverables with hardware, software or content not provided by Progress; (ii) modification of the Deliverables not made or provided by Progress; (iii) unlicensed use of the Deliverables or (iv) operation, or use of the Deliverables in an operating environment or with other products not approved or recommended by Progress.
Each party’s indemnification obligations in this Section 8 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 8 STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
Except as expressly provided in this Agreement, each party disclaims all other indemnities, whether express, implied, statutory or otherwise.
SECTION 9 - FORCE MAJEURE
Neither CUSTOMER nor Progress shall be liable for delays in performing or any failure to perform any of the terms of this Agreement, except failure to pay amounts properly due, caused by the effects of fire, flood, strike, war (declared or undeclared), acts of terrorism, insurrection, government restriction or prohibition, curtailment of travel, force majeure or other causes reasonably beyond its control and without its fault, but the party failing to perform shall use commercially reasonable efforts to resume performance of this Agreement as soon as feasible.
SECTION 10 – INTELLECTUAL PROPERTY RIGHTS
10.1 Except as otherwise expressly set forth to the contrary in a written agreement executed by both parties, neither this Agreement, nor the provision of Services hereunder, shall give either Progress or CUSTOMER any ownership interest in or rights to the intellectual property rights of the other party, and all intellectual property rights that are owned by a party prior to the commencement of the Services or independently developed by a party shall remain the property of such party.
10.2 Each party retains all right, title and interest, including, without limitation, all intellectual property rights, in and to its Confidential Information. All title and intellectual property rights in and to the content that may be accessed through use of the Deliverables 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.
10.3 Progress retains all right, title and interest, including, without limitation, all intellectual property rights, in and to all intellectual property created in the course of performing the Services, including all rights in anything delivered in the course of providing the Services, including but not limited to the Deliverables, all works of authorship, information, data, ideas, designs, inventions, know-how, analytical methodologies, software, and any other materials authored, invented, discovered, conceived, reduced to practice, designed, developed, possessed, owned and/or used under third party license by Progress as well as any derivative works.
10.4 Progress hereby grants to CUSTOMER a limited, non-transferable, worldwide, royalty-free, non-exclusive license to use the Deliverables solely in conjunction with the Software and subject to the license terms (including all license restrictions) set forth in the Software Terms. The license granted to CUSTOMER pursuant to this Section (10.4) shall last as long as CUSTOMER possesses a valid and active subscription based license to use the Software.
10.5 CUSTOMER hereby grants to Progress a perpetual, royalty-free, irrevocable, world-wide, non-exclusive right and license, under CUSTOMER’s applicable intellectual property rights, to use in the performance of Services and in future Progress products, services and business, any data, ideas, concepts or know-how related to or arising out of the material furnished to PProgress in connection with the Services, subject to the condition that Progress may not use or re-use any portions of the foregoing in its future products and services to the extent that such use or re-use would disclose any Confidential Information belonging to CUSTOMER to any third parties. CUSTOMER may provide suggestions, comments or other feedback about the Deliverables, Services or Progress products (“Feedback”) to Progress. Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by CUSTOMER, shall not, absent a separate written agreement, create any confidentiality obligation for Progress. Progress shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
SECTION 11– REPRESENTATIONS AND WARRANTIES
11.1 Each party represents and warrants that it has the legal right and power to enter into this Agreement.
11.2 THE SERVICES AND DELIVERABLES (IF ANY) ARE PROVIDED TO YOU “AS IS” AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PROGRESS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 12 - MISCELLANEOUS
12.1 The waiver by either party of a breach or violation of any provision of this Agreement shall not be construed to be a waiver of any subsequent breach. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.2 Neither party shall have the right to assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other party, except that Progress may assign this Agreement to an affiliate or a subsidiary or a successor to that area of its business to which this Agreement is related.
12.3 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.
12.4 Section 2.2 and all provisions of this Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, feedback obligations, limitations of liability and/or indemnity terms, and any provision of this Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of this Agreement.
12.5 The Agreement may not be amended, nor any provision thereof waived, except by a written amendment executed by duly authorized representatives of the respective parties (“Amendment”). In the event of a conflict between the specific terms and provisions contained in an Amendment and this Agreement, the terms and provisions of the Amendment shall govern.
12.6 This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to its conflict of laws rules. If any dispute, controversy, or claim cannot be resolved by such good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY PURCHASING THE NATIVECHAT SERVICES CREDITS, 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.