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Telerik End User License Agreement for Progress® Kendo UI® Builder

(Last updated May 1, 2018)

IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE.  THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND TELERIK EAD (“Telerik” or “Licensor”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY TELERIK THROUGH THIS WEB SITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.

 

Content Management System, .NET, PHP, Java and/or JavaScript component vendors are not allowed to use the Software (as defined below) without the express permission of Telerik. If You or the company You represent is a Content Management System, .NET, PHP, Java or JavaScript component vendor, You may not purchase a license for or use the Software unless You contact Telerik directly and obtain permission.

 

This is a license agreement and not an agreement for sale.

1. Software License.

 

Subject to the terms of this Agreement, Telerik hereby grants to You the following limited, non–exclusive, non–transferable license (the “License”) to use the Telerik computer software identified as Progress Kendo UI Builder and any updates, upgrades, modifications and error corrections thereto provided to You by Telerik (the “Programs”) and any accompanying documentation (the “Documentation” and, together with the Programs, the “Software”) as set forth below.

For purposes of this Agreement:

“Your Integrated Products” are limited to those software applications which: (i) are developed by Your Licensed Developers; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Software; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Software or any components of the Software.

“Licensed Developers” means one of Your employees or third-party consultants authorized to develop Your Integrated Products specifically for You using the Software in accordance with this Agreement. Licensed Developers must correspond to the maximum number of seats You have purchased from Telerik hereunder. This means that, at any given time, the number of Licensed Developers cannot exceed the number of seats that You have purchased from Telerik and for which You have paid all applicable License Fees pursuant to this Agreement. The Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g.  hard disk or other storage device). Your Licensed Developers may install the Software on multiple machines, so long as the Software is not being used simultaneously for development purposes at any given time by more Licensed Developers than You have seats.

 

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party.  For purposes of this definition, “control” means ownership, directly or indirectly, of more than fifty percent (50%) of the voting shares or other equity interest in an entity.

1.1 LicenseYour Licensed Developers may use the Software in minified and source code form (in accordance with Section 1.2) in the development of Your Integrated Products. You may also embed copies of the Progress Kendo UI Builder Programs in Your Integrated Products that You license and distribute to Your own end-user licensees, including but not limited to, Your employees (“Authorized End-Users”) solely in accordance with the requirements set forth in Section 2 below.

1.2 No Support. No dedicated technical support is provided with the Software. However, as part of your license you are allowed to access the support resources offered by Telerik at its sole discretion (documentation, Knowledge Base articles, forums). In no event will Telerik or its Affiliates provide support of any kind to end-users of Your Integrated Products.

1.3 Source Code. Any of the Software’s source code that is provided to You hereunder is provided to You solely so that You can create modifications under the terms of this Agreement.

1.3.1 While Telerik does not claim any ownership rights in Your Integrated Products, any modifications You develop to the Software source code will be the exclusive property of Telerik, and You agree to and hereby do assign all right, title and interest in and to such modifications and all rights associated therewith to Telerik.

1.3.2 You will be entitled to use modifications of the Software’s source code developed by You under the terms of this Agreement and Telerik hereby grants You a license to use such modifications pursuant to Section 1.1.

1.3.3 You acknowledge that the Software’s source code is confidential and contains valuable and proprietary trade secrets of Telerik. Under no circumstances may any portion of the Software’s source code or any modified version of the source code be distributed, disclosed or otherwise made available to any third party.

1.3.4 Telerik and its Affiliates DO NOT provide technical support for any source code that has been modified by any party other than Telerik.

1.3.5 The Software’s source code is provided “as is”, without warranty of any kind. Refunds are not available for any licenses that include a right to receive source code.

 

1.4 Testing and Building License. You may also use the Software in the testing and building of Your Integrated Products.

2. License Options for Redistribution

2.1 Redistribution under Commercial License.  You may distribute the Programs in minified form as embedded in Your Integrated Products to Your Authorized End-Users only pursuant to an end-user license that meets the requirements of this Section. You are not permitted to distribute the Software pursuant to this Section: as a standalone product, or as a part of any product other than Your Integrated Product, or in any form that allows it to be reused by any application other than Your Integrated Product. For the avoidance of doubt, Your Authorized End Users are not permitted to use the Software, or any portions thereof, for software development or application development purposes unless they also purchase a separate Developer license from Telerik for each of the users. Your end-user license agreement must: prohibit distribution of the Software by Your Authorized End Users; limit the liability of Your licensors or suppliers to the maximum extent permitted by applicable law; and prohibit any attempt to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software, except to the limited extent as is permitted by law notwithstanding contractual prohibition. Provided Your end-user license complies with the requirements of this Section and Your Authorized End-Users are in compliance with their license agreements with You, any sublicenses to use the Software granted by You to Your Authorized End-Users will survive any termination of this Agreement or the License set forth herein between You and Telerik. You are not allowed to, and are expressly prohibited from granting Your Authorized End-Users any right to further sublicense the Software. You must include a valid copyright message in Your Integrated Products in a location viewable by Authorized End-Users that will serve to protect Telerik’s copyright and other intellectual property rights in the Software.

 

2.2 Redistribution of Kendo UI Core under Open Source License. Kendo UI Core, a suite of components licensed under the Apache 2.0 license, is shipped with Kendo UI Professional and publicly available on Github at https://github.com/telerik/kendo-ui-core. You may use and distribute the Kendo UI Core software solely pursuant to the terms of the Apache 2.0 software.  In no event may You distribute any source code other than Kendo UI Core.

3. No Trademark License

You may not use the Telerik or its Affiliates product names, logos or trademarks to market Your Integrated Product.

4. Delivery

Telerik or its Affiliates shall make a master copy of the Software available for download by Licensee in electronic files only.

5. Collection and Use of Data

Telerik uses tools to deliver certain Software features and extensions, identify trends and bugs, collect activation information, usage statistics and track other data related to Your use of the Software as further described in the most current version of Telerik’s Privacy Policy (located at: http://www.telerik.com/company/privacy-policy). By Your acceptance of the terms of this Agreement and/or use of the Software, You authorize the collection, use and disclosure of this data for the purposes provided for in this Agreement and/or the Privacy Policy.

6. Updates

Telerik is not obligated to provide any Updates, but may, from time to time, provide Updates at Telerik’s sole discretion. All such Updates shall be subject to the terms and conditions of this Agreement, including, without limitation, the terms and conditions set forth in this section. The parties agree and acknowledge that updates provided to You as part of this Agreement may include new software products governed by additional terms and conditions. These additional terms and conditions must be accepted by You at the time You download such new products.  If You do not agree to these additional terms and conditions, You should not download the new products. In case of a conflict between the terms and conditions of this Agreement and the terms and conditions applicable to any new product made available to You as part of any updates, the terms and conditions of this Agreement shall govern.

7. Term and Termination

This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to Telerik’s other rights or remedies, Telerik shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Telerik.  Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use and distribution of the Software; provided, however, that any sublicenses granted to Your Authorized End-Users in accordance with Section 2 shall survive such termination. You must also destroy (i) all copies of the Software not integrated into a live, functioning instance(s) of Your Integrated Product(s) already installed, implemented and deployed for Your Authorized End-User(s), and (ii) any product and company logos provided by Telerik in connection with this Agreement.

8. Product Discontinuance

Telerik reserves the right to discontinue the Software or any component of the Software, whether offered as a standalone product or solely as a component, at any time.

9. Intellectual Property

All title and ownership rights in and to the Software (including, but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Telerik or its Affiliates that are used in connection with the Software are and shall at all times remain exclusively owned by Telerik and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. The Software may contain or be accompanied by certain third party components which are subject to additional restrictions.  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, or the “Third Party Software” file accompanying the Software (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. 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). Any open source software that may be delivered by Telerik embedded in or in association with Telerik products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license.

10. Limited Warranty

Telerik warrants solely to You that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days after the date on which You purchase the License for the Software. Telerik does not warrant the use of the Software will be uninterrupted or error free at all times and in all circumstances, nor that program errors will be corrected. This limited warranty shall not apply to any error or failure resulting from (i) machine error, (ii) Your failure to follow operating instructions, (iii) negligence or accident, or (iv) modifications to the Software by any person or entity other than Telerik. In the event of a breach of warranty, Your sole and exclusive remedy and Telerik’s sole and exclusive obligation, is repair of all or any portion of the Software. If such remedy fails of its essential purpose, Licensee’s sole remedy and Telerik’s maximum liability shall be a refund of the paid purchase price for the defective Software only. This limited warranty is only valid if Telerik 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 9, TELERIK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

11. Limitation of Liability

To the maximum extent permitted by applicable law, in no event will Telerik or its Affiliates be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Telerik and its Affiliate’s entire liability under any provision of this Agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to Telerik or its Affiliates for the Software 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. Telerik and its Affiliates are not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software and/or any material linked through such content. Any data included in the Software upon shipment from Telerik is for testing use only and Telerik hereby disclaims any and all liability arising therefrom.

12. Indemnity

You agree to indemnify, hold harmless, and defend Telerik, its Affiliates, and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (i) Your use of the Software in violation of this Agreement, (ii) the use or distribution of Your Integrated Product or (iii) Your modification of the Software’s source code.

13. Confidentiality

Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Programs as confidential information and shall not disclose, disseminate or distribute such materials to any third party without Telerik’s prior written permission. Each party’s obligations under this Section 12 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.

14. 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 of competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods shall 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.

15. Entire Agreement

This Agreement sets forth our entire agreement with respect to the Software and supersedes any prior or contemporaneous communications regarding the Software. You agree that You are not relying on any representation or obligation other than those set forth in this Agreement.  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 unless otherwise agreed to in writing by both parties. In cases where this license is being obtained through an approved third party, these terms shall supersede any third party license or purchase agreement.

16. No Assignment

You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Telerik’s prior written consent.

 

17. Survival

Any provisions of the Agreement containing license restrictions, including, but not limited to those related to the Program source code, 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.

18. 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.

19. 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.

 

20. Export Classifications

You expressly agree not to export or re-export Telerik Software or Your Integrated Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Your export privileges.

21.  Commercial Software

The Programs and the Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 

 

22.  Reports and Audit Rights.

Licensee shall grant Telerik audit rights against Licensee twice within a calendar three hundred and sixty-five (365) day period upon two weeks written notice, to verify Licensee’s compliance with this Agreement.  Licensee shall keep adequate records to verify Licensee’s compliance with this Agreement.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN TELERIK AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.