TESTSTUDIO TRAINING SERVICES AGREEMENT
(Last Updated September 17, 2020)
IMPORTANT - PLEASE READ THIS TRAINING SERVICES AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE SCHEDULING ANY TRAINING SERVICES. 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"). PLEASE CHECK THE "I HAVE READ AND AGREE TO THE SERVICE AGREEMENT" BOX WHEN SCHEDULING A TRAINING SESSION. BY CHECKING THE "I HAVE READ AND AGREE TO THE SERVICE AGREEMENT" BOX AND/OR BY SCHEDULING A TRAINING SESSION, 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. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR DO NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY, DO NOT REGISTER FOR A TRAINING SESSION. IF FOR ONE OF THE AFOREMENTIONED REASONS YOU ELECT NOT TO REGISTER FOR A TRAINING SESSION, YOU MAY REQUEST FROM THE POINT OF PURCHASE A FULL REFUND OF THE TRAINING FEES, IF ANY, THAT YOU HAVE PAID FOR THE TRAINING SERVICES. SUCH REQUEST MUST BE COMPLETED WITHIN THIRTY (30) DAYS OF YOUR ORIGINAL PURCHASE OF THE TRAINING SERVICES.
BACKGROUND
CUSTOMER has obtained one or more licenses to certain Telerik Test Studio software pursuant to the Progress End User License Agreement available at: https://www.telerik.com/purchase/license-agreement/teststudio (the "Test Studio Agreement");
CUSTOMER wishes to receive certain professional training services pursuant to the terms and conditions set forth in this Agreement.
Section 1 - Services
1.1 CUSTOMER has purchased and PROGRESS shall provide to CUSTOMER one of the following Instructor Led professional training services offerings directly related to the Telerik Test Studio software licensed pursuant to the Test Studio Agreement: (i) Group Online Training Session; or (ii) a Private Online Team Training Session, each as described at: https://www.telerik.com/teststudio/training (the "Professional Services"). PROGRESS may also provide certain training material deliverables and documentation (the "Deliverables") as described at: https://www.telerik.com/teststudio/training. The Professional Services and Deliverables are collectively referred to as the "Services".
1.2 If CUSTOMER wishes to change the scope of the Services or wishes to obtain additional services or deliverables 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/delivering the changed or additional services and/or deliverables. Such changed or additional services and/or deliverables shall be provided pursuant to a separate agreement the terms of which shall be mutually agreed upon by the parties.
1.3 It is understood and agreed that PROGRESS' 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.
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 4 (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 the other 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 that Recipient is advised by Discloser in writing or has reason to know is the confidential information of Discloser (including, without limitation, employee lists, customer lists, vendor lists, developer contacts and talent contacts).
3.2 Recipient agrees that during the term and for a period of five (5) 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) hold all Confidential Information in strictest confidence and 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 independent contractors) who have a legitimate need to know the Confidential Information to effectuate the Purpose 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:
(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 PROGRESS' obligations hereunder, 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 therefor, 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 fees for the Services are nonrefundable, that the Services expire three (3) months from the effective date of purchase, and that CUSTOMER must schedule a Training Session and 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 THEREUNDER. 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 LICENSEE PAID TO PROGRESS FOR THE SERVICES GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Section 7 - 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 8 - Intellectual Property Rights
8.1 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 this Agreement or independently developed by a party shall remain the property of such party.
8.2 Each party retains all right, title and interest, including, without limitation, all intellectual property rights, in and to its Confidential Information.
8.3 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 PROGRESS' future 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 Agreement, 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.
8.4 In the absence of any express license for the Deliverables in a separate document executed by both parties, the parties acknowledge and agree that the Deliverables are the Confidential Information of Progress. Progress grants to CUSTOMER a limited license to use the Deliverables for its internal business purposes only in conjunction with the software licensed pursuant to the Test Studio Agreement.
Section 9- Representations and Warranties
9.1 Each party represents and warrants that it has the legal right and power to enter into this Agreement.
9.2 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 SERVICE, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 10 - 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 11 - Miscellaneous
11.1 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.
11.2 CUSTOMER may not, without PROGRESS’ prior written consent, assign or novate this Agreement, any of CUSTOMER’S rights or obligations under this Agreement, or any of PROGRESS’ Confidential Information, in whole or in part, by operation of law, sale of assets, merger or otherwise, to any other party, including any parent, subsidiary or affiliated entity. CUSTOMER’S Change of Control will constitute an assignment for purposes of the preceding sentence. A “Change of Control” will include, but not be limited to, any merger, consolidation, amalgamation, reorganization or sale, transfer or exchange of the capital stock or equity interests of CUSTOMER in a transaction or series of transactions which results in the holders of CUSTOMER’S capital stock or equity interests holding less than 50% of the outstanding capital stock or equity interests immediately following such transaction(s).
11.3 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.
11.4 The rights and obligations of CUSTOMER and PROGRESS under Sections 2.2, 3, 4.3, 5, 6, 7, 8, 9, 11, and any other provision of this Agreement, which by its nature is intended to survive, shall survive the termination or expiration of this Agreement.
11.5 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.
11.6 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 TRAINING SERVICES OR SCHEDULING OR ATTENDING A TRAINING SESSION, 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.