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Progress Telerik Remote Assistance Agreement

(Last Updated January 1, 2019)

IMPORTANT – PLEASE READ THIS PROGRESS TELERIK REMOTE ASSISTANCE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING ANY REMOTE ASSISTANCE 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 (“CUSTOMER” or “You”), AND PROGRESS SOFTWARE CORPORATION (“PROGRESS”). BY PURCHASING THE REMOTE ASSISTANCE 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 licensed certain PROGRESS software, services or other products from PROGRESS that are eligible for the Services, as defined below, (the “Software”) pursuant to an applicable end user license agreement or terms of service (“Software Terms”).

CUSTOMER wishes to receive certain professional support services related to Customer’s use of the Software pursuant to the terms and conditions set forth in this Agreement.

SECTION 1 – SUPPORT SERVICES

1.1 Scope of Services

1.1.1 PROGRESS shall provide to CUSTOMER support services directly related to the implementation of the Software (the “Services”). In the event that CUSTOMER requests additional services outside the scope of the Services, the parties may agree to provide such services pursuant to a separate document executed by both parties.  The Services shall be purchased by CUSTOMER in indivisible, nontransferable one (1) hour blocks to be provided remotely from PROGRESS’ premises (each single block a “Remote Assistance Credit”). A minimum of one (1) Remote Assistance Credit is required for any Services to be performed. Remote Assistance Credits may be applied consecutively, however, it is Your responsibility to purchase sufficient Remote Assistance Credit’s for the Services. Remote Assistance Credits purchased for one type of Software cannot be used for Services related to another type of Software. For example, Test Studio Remote Assistance Credits can only be redeemed for Services related to Test Studio.

1.1.2 CUSTOMER shall initially request the Services by submitting a support ticket describing the requested Services. CUSTOMER and PROGRESS will then agree upon the scope of Services to be provided. At CUSTOMER’s election, PROGRESS software engineers 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.

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 Machine error;

1.2.2 Customer’s failure to follow operating instructions;

1.2.3 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;

1.2.4 Customer’s negligence or improper use of the Software;

1.2.5 Modifications to the Software (whether or not permitted under the Software Terms) by any person or entity other than PROGRESS;

1.2.6 Any third-party or open source component(s) of the Software;

1.2.7 Any data or software other than the Software, including, but not limited to, application programs, databases, files, source codes, object codes or proprietary data, or any configuration, installation or reinstallation of any software or data. You are responsible for backing up copies of all your applications, content and any other data or software prior to seeking support from PROGRESS;

1.2.8 Any custom development, integration or implementation, project upgrades or project migrations; or

1.2.9 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.

1.3 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, PROGRESS may assess and you agree to pay reasonable and appropriate fees for such support.

SECTION 2 - PERSONNEL

2.1 PROGRESS' Services shall be rendered by its employees and/or independent contractors. 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 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:

1. 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));
2. 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;
3. Discloser’s administrative, financial, purchasing, information systems, telecommunications technology, distribution, marketing, labor and other business operations, policies and practices; and
4. 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

1. not use, or authorize the use of, any Confidential Information for any purpose other than solely to perform the Services;
2. 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
3. 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 independent contractors) who have a legitimate need to know the Confidential Information to perform the Services and who are bound by confidentiality obligations prohibiting the further use and disclosure thereof, and (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:

1. was known to Recipient prior to its receipt from Discloser;
2. is or lawfully becomes generally known to the public;
3. is lawfully acquired from third parties who have a right to disclose such information;
4. by mutual agreement is released from a confidential status; or
5. 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 the Remote Assistance Credits expire one (1) year from the effective date of purchase and that CUSTOMER must utilize the Services available pursuant to this Agreement prior to that date, unless otherwise agreed in writing.  Thereafter, this Agreement and all rights and obligations hereunder 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

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROGRESS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, OR THE SERVICES PERFORMED HEREUNDER. PROGRESS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE SUM OF THE FEE’S CUSTOMER PAID TO PROGRESS FOR THE SERVICES GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

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 - 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 9 – INTELLECTUAL PROPERTY RIGHTS

9.1 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.

9.2 Each party retains all right, title and interest, including, without limitation, all intellectual property rights, in and to its Confidential Information. 

9.3 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 (“Deliverables”), including 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.

9.4 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 PROGRESS 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.

In the absence of any express license for the Deliverables in a separate document executed by both parties, PROGRESS grants to CUSTOMER a limited license to use the Deliverables for its internal business purposes in conjunction with the Software. 

SECTION 10– REPRESENTATIONS AND WARRANTIES

10.1 Each party represents and warrants that it has the legal right and power to enter into this Agreement.

10.2 THE SERVICES ARE PROVIDED TO YOU “AS IS” AND YOUR USE OF THE SERVICE IS AT YOUR OWN RISK.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PROGRESS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

SECTION 11 - COMPLIANCE WITH LAW

Each party will comply with all statutes, ordinances, and regulations of all Federal, state, county and municipal or local governments during its performance of its obligations under this Agreement.

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 constitutes the entire agreement between the parties with respect to the subject matter herein, and supersedes all prior contracts, agreements and understandings relating to the same subject matter between the parties.

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 REMOTE ASSISTANCE 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.