NativeScript Developer Support Agreement
Last Updated January 1, 2019
IMPORTANT – PLEASE READ THIS DEVELOPER SUPPORT AGREEMENT FOR PROGRESS NATIVESCRIPT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING ANY SERVICES (AS DEFINED BELOW) 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 (“Recipient”, “You” or “you”), AND PROGRESS SOFTWARE CORPORATION (“Progress”). BY PURCHASING THE SERVICES 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.
This is a support agreement only, this Agreement does not grant You a license or any rights to use or distribute the Programs or Documentation (as defined below). To obtain a license to any or all of the Programs and Documentation (a “License”), please visit https://www.nativescript.org and/or https://www.telerik.com.
“Application” means a software application which: (i) is developed by Your Licensed Users; and (ii) is not a commercial alternative for, or competitive in the marketplace with, any proprietary software of Progress or its affiliates or any components of such software.
“Documentation” means the documentation accompanying the Programs.
“Licensed User” means one of Your employees or third-party consultants authorized to access the Services and use the Software specifically for Your benefit in accordance with the License and this Agreement and for whom to the extent permitted by applicable law You accept full responsibility for hereunder as if such Licensed User’s acts or omissions were Your own.
“Parties” - Recipient and Progress shall collectively be referred to herein as (“the Parties”), and individually as a party.
“Programs” means Progress’ computer software identified as: (i) Progress NativeScript and any updates, upgrades, modifications and error corrections provided to or used by Recipient during the term of the Agreement; (ii) Progress NativeScript UI and any updates, upgrades, modifications and error corrections provided to or used by Recipient during the term of the Agreement, and (iii) Progress NativeScript Sidekick and any updates, upgrades, modifications and error corrections provided to or used by Recipient during the term of the Agreement.
“Services” means the support services and/or materials delivered to You by Progress hereunder.
“Software” means the Programs, the Documentation, and the Developed IP (as defined below) collectively.
2.0 SUPPORT SERVICES
For the period of one (1) year from the date on which You have purchased support (the “Subscription Period”), provided you have obtained, agreed to, and your use of the Software is in compliance with, a valid and active License, You will have access to the Services, as described in further detail below.
2.0.2 Developer Support.
During the Subscription Period, your Licensed User(s) may access any or all of the Services as described in greater detail here solely in support of Your licensed use of the Software in connection with Your Application(s) or as applicable:
Hotfixes, as available, for issues verified as bugs by Progress in its sole discretion.
24 hour per day (GMT), ticket submission support for all support issues, Monday – Friday excluding U.S. and Bulgarian national holidays. During this time, Progress will provide an initial response (but not necessarily a resolution) to each support inquiry within 24 hours of receipt, and will use reasonable efforts to resolve the issue generating the inquiry as soon as is reasonably possible.
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, Recipient.
2.0.3 Supported Versions.
Supported Versions of the Software are based on a Major.Minor ordered pair (e.g. 1.0, 1.1, 1.2, etc).
Progress will support the latest released Major.Minor ordered pair of NativeScript and of Progress NativeScript UI and will make reasonable efforts to assist with your Licensed User’(s) questions related to previous versions.
Progress will support the latest released Major.Minor ordered pair of the Progress NativeScript Sidekick Downloaded Software and the version of the Hosted Services actively hosted by Progress at the time support is being provided. The terms “Downloaded Software” and “Hosted Services” shall have the meaning assigned to such terms under the General Terms of Service for Progress NativeScript Sidekick.
2.0.4 Exclusions, Limitations, and Fair Usage Policy.
220.127.116.11 Services (including but not limited to support services) are not available or provided hereunder for or related to:
- Any software other than the Software;
- Machine error;
- Recipient’s failure to follow operating instructions;
- Recipient’s use of the Software that is not in accordance with the Documentation;
- Recipient’s negligence or improper use of the Software;
- Modifications to the Software by any person or entity other than Progress;
- Any data or software other than the Software, including, but not limited to, applications, application programs, databases, files, source codes, object codes or proprietary data (including, but not limited to, any of the forgoing which support and/or have been developed using Your Application(s), or any configuration, installation or reinstallation of any software or data. You are responsible for backing up copies of all your data and software prior to seeking support from Progress;
- Any custom development, integration or implementation, project upgrades or project migrations; or
- 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.
- In no event will Progress provide the Services or any support of any kind to anyone other than your named Licensed Users.
If it is determined by Progress in its sole discretion that you have received support from Progress for which you were not eligible or to which the above exclusions and limitations apply, or if Your use of the Services is determined by Progress, in its sole and reasonable discretion, to be excessive, Progress may limit or terminate Your access to any or all of the Services available hereunder.
18.104.22.168 Support Incidents. A single support incident may involve several e-mails and/or offline work in furtherance of Progress’ efforts to resolve the issue. You agree to provide Progress with detailed information about the issue encountered and cooperate with Progress’ requests for additional information as it attempts to resolve the issue. Progress support engineers will make reasonable efforts to resolve your support issues; however, Progress does not guarantee that all support issues will be resolved. Bug reports and product feature suggestions are not considered support incidents, and Progress is not obligated to acknowledge or address such bug reports and/or product feature suggestions.
22.214.171.124 Progress shall retain all right, title and interest, including, all intellectual property rights, in and to all intellectual property created and/or delivered in the course of performing the Services (collectively “Developed IP”), including all rights in 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.
126.96.36.199 Progress hereby grants to Recipient a limited, non-transferable, perpetual, worldwide, royalty-free, non-exclusive license to use, distribute and sublicense any Developed IP, which Progress delivers to Recipient, solely in conjunction with the Software and subject to the terms and conditions set forth herein.
2.0.5 Scope of Use. The number of Licensed Users accessing the Services must correspond to the maximum number of seats You have purchased from Progress hereunder. This means that, at any given time, the number of Licensed Users cannot exceed the number of seats that You have purchased from Progress and for which You have paid all applicable fees.
3. OTHER RECIPIENT OBLIGATIONS
In addition to other terms and conditions set forth in this Agreement, Recipient agrees as follows:
3.1 Recipient shall not export the Services or the Software in violation of the export control laws of the United States or of any other country, and agrees to indemnify Progress for any breach of this warranty.
3.2 Except where prohibited by law, Recipient shall not, directly or indirectly, engage in the marketing, sale or licensing of any third party products which, in Progress’ opinion, are competitive with the Services or the Software.
4. INTELLECTUAL PROPERTY
All title and ownership rights in and to the Services (including but not limited to any code, software, images, photographs, animations, video, audio, music, or text embedded in, incorporated in, or delivered with the Services), the intellectual property embodied in the Services (including but not limited to any Developed IP), and any trademarks or service marks of Progress that are used in connection with the Services are and shall at all times remain exclusively owned by Progress and its licensors. Any and all rights in the Services and or the Software not expressly granted to Recipient hereunder or in the License are reserved in all respects by Progress. Any third party or open source software that may be delivered by Progress embedded in or in association with Progress products and/or services (including but not limited to Developed IP) is provided pursuant to the open source or other third party license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license. The use of certain resources (e.g. GotoMeeting, etc.) for the receipt of Services may be subject to the terms and conditions of the providers of such resources.
5. TERM AND TERMINATION
Term: This Agreement shall continue throughout the Subscription Period unless and until terminated in accordance with this Section.
Termination: Unless renewed, this Agreement shall automatically terminate at the end of the Subscription Period. Subscription fees, features, and availability may change over time. Progress offers no assurance that the Services will be available for renewal or that, if available, that the Services will be available for renewal at a level and/or with features comparable to Your previous Subscription. 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 immediately if You breach any of the material terms of this Agreement or the License, and You fail to cure such material breach within thirty (30) days of receipt of notice from Progress. Upon such termination for cause of this Agreement and the License all Licenses granted to You hereunder and/or thereunder shall terminate automatically and You shall immediately cease use and distribution of the Software and destroy all copies of the Software in Your possession. IN NO EVENT SHALL PROGRESS BE REQUIRED TO PAY RECIPIENT OR ANY THIRD PARTY ANY TERMINATION DAMAGES OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING ON ACCOUNT OF THE TERMINATION.
Progress warrants that it will use commercially reasonable efforts to deliver the Services throughout the Subscription Period. Progress does not warrant the Services or Software or your use of the Services or Software will be uninterrupted or error free at all times and in all circumstances, nor that errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Recipient’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, Recipient’s sole and exclusive remedy and Progress’ sole and exclusive obligation, is repair or re-performance of all or any portion of the Services. If such remedy fails of its essential purpose, Recipient’s sole remedy and Progress’ maximum liability shall be a refund of the paid purchase price for the defective Services 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, 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.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROGRESS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, PROGRESS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES RECIPIENT PAID TO PROGRESS FOR THE CURRENT SUBSCRIPTION PERIOD FOR THE SERVICES GIVING RISE TO SUCH DAMAGES, 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 RECIPIENT OR A THIRD PARTY THAT IS ACCESSED THROUGH OR IN RELATION TO THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN THE SERVICES UPON SHIPMENT FROM PROGRESS IS FOR TESTING USE ONLY AND PROGRESS HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
Recipient will defend and indemnify Progress, its affiliates and their directors, officers and employees from or against any and all claims, lawsuits and proceedings (collectively “Claims”), brought by a third party arising out of Recipient’s acts, omissions, or exercise of Recipient’s rights under this Agreement or the License, including, but not limited to, a breach of Section 9 (Proprietary and Confidential Information).
9. PROPRIETARY AND CONFIDENTIAL INFORMATION
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to it 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, Recipient 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 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.
10. Compliance with Laws
10.1 In performing this Agreement, Recipient agrees to comply with all applicable laws, rules, regulations and policies and to obtain any governmental approvals, permits or licenses required to perform its obligations under this Agreement, and shall render Progress harmless and indemnify Progress from the failure of Recipient to do so. In addition, Recipient warrants that neither this Agreement, nor any performance or exercise of rights under this Agreement, shall require any termination payment or compulsory licensing under any law or regulation of any organization, country, group of countries or political or governmental body.
10.2 Recipient agrees to comply with the United States Foreign Corrupt Practices Act, including without limitation, that Recipient and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of the United States Government or any other government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Recipient in obtaining, retaining or directing any such business.
11. Governing Law
This Agreement will be governed by the law of the Commonwealth of Massachusetts, U.S.A., without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. 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.
12. 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 and may only be amended by a written and signed agreement between the parties. Use of any purchase order or other Recipient document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. In cases where the Services are being purchased or obtained through an approved third party, these terms shall supersede any third party service or purchase agreement.
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. This Agreement represents the entire understanding between the parties with respect to the subject matter.
16. 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.
17. Export Classifications
You expressly agree not to use, deploy, export or re-export the Software in or to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, including without limitation any country listed in U.S.A. Export Administration Regulation Country Group E-1, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Industry and Security, U.S. Department of Commerce, nor any other federal agency has suspended, revoked or denied your export privileges.
18. Commercial Software
The Software is "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 PURCHASING THE SERVICES, 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.