Progress Test Studio for APIs Public BETA End-User License Agreement
(Last updated May 16, 2017)
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 (Telerik.com). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee”, “You” or “Your”) AND TELERIK INC (“Telerik” or “Licensor”). PLEASE CLICK “I AGREE” IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING “AGREE”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 THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY. IF YOU CANNOT TRUTHFULLY MAKE THESE REPRESENTATIONS, DO NOT CLICK “AGREE”.
BY AGREEING TO THIS AGREEMENT YOU ARE BECOMING A PARTICIPANT IN THE PROGRESS TEST STUDIO FOR APIs PUBLIC BETA PROGRAM (“PROGRAM”). THE SOFTWARE PROVIDED TO YOU AS PART OF THE PROGRAM IS BELIEVED TO CONTAIN DEFECTS. A PRIMARY PURPOSE IN PROVIDING THE SOFTWARE, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM YOU, IS TO OBTAIN YOUR FEEDBACK ON THE SOFTWARE’S PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
SOFTWARE PRODUCT LICENSE
This is a license agreement and not an agreement for sale.
You acknowledge, understand and agree that the Software is in “Beta”, which means that (i) it is a test version of unreleased software that may contain bugs, defects and errors, (ii) it is not expected to contain the functionality or functions of the version of such software that Telerik may make available for commercial distribution, and (iii) any feedback with respect to Your use of the Software is subject to the ownership provisions of Section 4, and may be used and incorporated into the software product commercially released by Telerik.
The “Software”, as used herein, includes the Beta version of the Telerik computer software currently referred to as Progress Test Studio for APIs or any new products, updates, components, features or functionality that Telerik provides to you as well as any accompanying documentation. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and contains confidential information and trade secrets. Telerik retains all rights not expressly granted to you in this Agreement.
1. BETA LICENSE
1.1 Grant. Telerik hereby grants to you, and you accept, a personal, internal use only, non–exclusive, non–transferable license to install and use the Software in object code form, solely as authorized below (“Beta License”). You acknowledge that you receive no right under this Agreement to receive a license to any future commercial product which may be similar to, based upon or identical to the Software.
1.2 Scope of Use. Under the Beta License granted to you pursuant to this Section 1, you may use the Software during the Term for the sole purpose of testing the Software’s functionality. You are not allowed to integrate the Software into end products or use it for any commercial or productive purpose. You expressly acknowledge and understand that such use is at your own risk and is subject to the assumption of risk, disclaimers and warranties set forth in this Agreement.
1.3 Assumption of Risk. Use of the Software is at Your sole discretion and risk. You should take adequate precautionary measures to back up and protect Your data. As set forth in this Agreement, the Software is in a Beta phase and is subject to changes following Your initial download of the Software.
1.4 No Redistribution. You may NOT redistribute the Software.
2.1 During the Term of this Agreement and subject to the limitations and restrictions described in the Fair Usage Policy set forth in Section 2.2, you are entitled to enter unlimited support requests via Telerik’s ticketing system with a 72 hour response time (excluding Saturdays and Sundays) as well as access to the public support resources offered by Telerik in its sole discretion (e.g. documentation, code library, forums). You are encouraged to use the ticketing system and forums to share feedback related to the Software.
2.2 Fair Usage Policy. Telerik may limit or terminate Your access to any or all of the support services available under this Agreement if Your use of the support services is determined by Telerik, in its sole and reasonable discretion, to be excessive.
3. LICENSE LIMITATIONS
3.1 Except as required by law or expressly required by third party licenses applicable herein, You are not allowed 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.
3.2 You are not allowed to resell, transfer, rent, lease, or sublicense the Software and Your associated rights.
3.3 You are not allowed to copy, modify, merge, or distribute copies of the Software or any accompanying documents.
As a participant in the Program, Your feedback is valuable to Telerik. You license to Telerik without charge all intellectual property or other rights necessary for Telerik to use, share, and commercialize in any way or for any purpose any feedback about the Software you provide. You also license to all third parties without charge all intellectual property or other rights necessary for their products, technologies and services to use or interface with any specific parts of Telerik software or services that includes the feedback. You will not give feedback that is subject to any license that requires Telerik to license its software or documentation or provide its services to third parties. The rights granted in this paragraph are perpetual and world-wide and survive the termination or expiration of this Agreement.
5. SOFTWARE ACTIVATION, USE OF DATA, LICENSE METERING
5.1 Software Activation. In order to protect against unlicensed or illegal use of the Software and to improve customer service, the Software may use Your internal network and internet connection for the purpose of transmitting and validating license-related data at the time of installation, registration or update to a license server. Activation is based on the exchange of license related data between Your computer and a Telerik server. You agree that Telerik and its licensors may use these measures and You agree to follow any applicable requirements.
5.3 Activation Checks. Communication with External Servers. From time to time the Software will communicate with the Telerik server to ensure the software is properly activated. The Software may also communicate with external servers for the purposes of maintenance of quality of the service, trends identification and usage statistics. You agree that the Software may use Your internal network and internet connection for the above purposes.
5.4 Moving Software. If You wish to move the Software to a different computer You must first deactivate the Software on the computer where it is currently in use. Only then You can activate the Software on another computer. If You do not have an internet connection, You can use the manual de-activation option. If You experience any troubles, please contact Telerik sales team (email@example.com).
5.5 Archival Copies. Regardless of which version of the Software You have acquired, You may make one archival (backup) copy of the Software. The archival copy may not be used or installed as long as another copy of the Software is installed on any computer.
5.6 Prior Versions. Prior versions of the Software may be installed on the same computer with a properly licensed current version of Software. A prior version may be used by a properly licensed user in place of the current version of the Software. The prior version is not an additional license of the Software; it may be used only as a substitute for the current version.
Telerik shall make the Software available to Licensee for downloading in electronic format only.
7. 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 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).
8. PRE-RELEASE CODE; NO WARRANTY
THE SOFTWARE CONTAINS PRE-RELEASE CODE THAT IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING AND MAY NOT OPERATE CORRECTLY. YOUR EXERCISE OF ANY RIGHTS UNDER THIS BETA LICENSE IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM OR IN CONNECTION WITH THE EXERCISE OF SUCH RIGHTS, INCLUDING WITHOUT LIMITATION THE LOSS OF ANY DATA OR OTHER CONTENT.
THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. TELERIK GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, TELERIK EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TELERIK 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, TELERIK’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED $5, 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 IS 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.
10. TERM AND TERMINATION
Unless terminated earlier, this Agreement shall remain in effect through October 31, 2016 (“Term”). Telerik may terminate this Agreement at any time upon written notice to You. This Agreement shall terminate immediately: (i) upon any generally available commercial release by Telerik of the Software or a substantially similar product; and/or (ii) if You breach the terms and conditions of this Agreement. Upon termination of this Agreement for any reason, all licenses granted to You under this Agreement shall terminate.
You agree to indemnify, hold harmless, and defend Telerik 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 Your use of the Software in violation of this Agreement.
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 Software 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 11 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.
13. 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. 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.
14. 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. 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.
15. 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.
For avoidance of doubt, 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.
18. 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.
19. 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.
20. EXPORT CLASSIFICATIONS
You specifically agree not to export, re-export, or transfer the Software to any country in violation of U.S. export laws or regulations. You expressly agree not to export or re-export Telerik Software 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.
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.