End User License Agreement for Progress Test Studio
(Last Updated January 1, 2019)
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 PROGRESS SOFTWARE CORPORATION (“PROGRESS” OR “LICENSOR”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX 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 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.
Content Management System and/or .NET component vendors are not allowed to use the Software (as defined below) without the express permission of Progress. If You or the company You represent is a Content Management System or .NET component vendor, You may not purchase a license for or use the Software unless You contact Progress directly and obtain permission.
This Agreement does not grant You a license or any rights to the “2007 Microsoft Office System User Interface” and You must contact Microsoft directly to obtain such a license. Any and all rights in the Software not expressly granted to You herein are reserved in all respects by Progress. This is a license agreement and not an agreement for sale.
1. Software License
1.1 License Grant. Subject to the terms and conditions set forth in this Agreement, Progress hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, non-exclusive license (the “License”) to use, as applicable, (i) the Progress computer software identified as Telerik Test Studio Ultimate, Telerik Test Studio Dev Edition, Telerik Test Studio Web & Desktop, Telerik Test Studio Load, Telerik Test Studio Run-Time Edition, or related trial versions of such computer software (each a “Trial”) and any updates, upgrades, modifications and error corrections thereto provided to Licensee (collectively, the “Test Studio Programs”) and (ii) solely in conjunction with certain specified Test Studio Programs, the Progress computer software identified as the Virtual User Pack and any updates, upgrades, modifications and error corrections thereto provided to Licensee (together with the Test Studio Programs, the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) solely as specified in this Agreement.
1.2 License Grant Options. You are granted either a Trial License pursuant to Section 2, or a commercial License pursuant to Section 3 to either (i) Telerik Test Studio Ultimate, (ii) Telerik Test Studio Dev Edition (iii) Telerik Test Studio Web & Desktop, (iv) Telerik Test Studio Load, or (v) Telerik Test Studio Run-Time Edition. Which version of the License applies (i.e., Trial License; Telerik Test Studio Ultimate; Telerik Test Studio Dev Edition; Telerik Test Studio Web & Desktop; Telerik Test Studio Load, or Telerik Test Studio Run-Time Edition) is determined at the time of the License purchase.
1.3 Scope of Use. The Software is licensed per machine. This means the Software may not be activated nor running at the same time on different computers or virtual machines. The computer on which the Software is installed can be used by multiple users as long as only one (1) user is using the computer at a given time.
2. Trial License
2.1 License Grant. If You download a Trial, then, subject to the terms and conditions set forth in this agreement, Progress hereby grants You and You accept a License for evaluation purposes only. You are authorized to install, copy, and use the Trial for 30 days from the time of the Software activation, for the sole purpose of testing its functionality and performance (“Trial Period”). The Trial may have limited features and will cease operating at the end of the Trial Period.
2.2 Trial License Restrictions. In addition to the license limitations set forth in Section 6, under the terms of this Trial License:
2.2.1 You may not disclose the results of software performance benchmarks obtained using the Trial to any third party without Progress' prior written consent.
2.2.2 You may not integrate the Software into end products or use it for any commercial, productive or training purpose.
2.2.3 Any tests created during the Trial Period may not be used or executed after the Trial Period unless You purchase the commercial license.
2.3 Support and Updates
2.3.1 Support. During the Trial Period, You are entitled to the “Trial” support package as described in greater detail here: http://www.telerik.com/purchase/support-plans/teststudio, subject to the limitations and restrictions described in the following Fair Usage Policy.
18.104.22.168 Support Package Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under the Trial support package if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
2.4 No Warranty
EACH TRIAL IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. PROGRESS 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, PROGRESS EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
3. Commercial License
3.1 License Grant. If You (i) purchase a Perpetual License with Updates and Priority Support or (ii) have an active month-to-month or annual subscription to the Software (an “Active Subscription”), then, subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, non-exclusive license to install and use such Software in executable, object code form only.
3.2 Support and Updates
You will receive minor and major updates for the Software as well as the “Priority” support package for either (i) one (1) year from the date on which You purchased or renewed Your Perpetual License with Updates and Priority Support or (ii) while You have an Active Subscription (each, a “Subscription Period”), as described in further detail below.
3.2.1 Priority Support Package. During the Subscription Period, You are entitled to the “Priority” support package as described in greater detail here: http://www.telerik.com/purchase/support-plans/teststudio, subject to the limitations and restrictions described in the following Fair Usage Policy.
22.214.171.124 Support Package Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under the Priority support package if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
3.2.2 Update Subscription. During the Subscription Period, You are eligible to receive all updates for the version of the Software that You license. Updates replace and/or supplement (and may disable) the version of the Software that formed the basis for Your eligibility for the update. The parties agree and acknowledge that updates provided to You as part of this Agreement may include new software features or functionality governed by additional terms and conditions. By accepting, downloading, installing or in any way using new features or functionality, You shall be deemed to have accepted these additional license terms. If You do not agree to these additional terms and conditions, You should not download, install or use the updates. In case of a conflict between the terms and conditions of the 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.
4. Virtual User Packs
Each of Telerik Test Studio Ultimate and Telerik Test Studio Load includes a limited number of licenses for the use of Virtual User Packs. If You have licensed Telerik Test Studio Ultimate, Telerik Test Studio Load, or additional Virtual User Packs, then subject to the terms and conditions set forth in this Agreement, Progress hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, non-exclusive license to use the Virtual Packs solely in conjunction with the version of the Software which You have purchased.
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 Progress server. You agree that Progress 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 Progress 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 Progress sales team (firstname.lastname@example.org).
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.
6. License Limitations
6.1 You may not copy (except as expressly permitted in this Agreement), modify, alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
6.2 You may not modify the Software or create derivative works based upon the Software.
6.3 You may not redistribute the Software.
6.4 You may not rent, lease, or sublicense or permit the use of the Software on a timeshare or service bureau basis. You may not host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason.
6.5 You may not use the Progress product names, logos or trademarks to market Your software.
Progress shall make available for download to Licensee a master copy of the Software.
8. Term and Termination
The term of this Agreement and the License granted hereunder depends on the type of License which You have purchased and shall continue until terminated in accordance with this Section.
8.1 Perpetual License with Updates and Priority Support. If you select the Perpetual License with Updates and Priority Support, the License granted is perpetual and shall last as long as You use the Software in compliance with the terms herein. Updates and Priority support must be renewed annually in order to continue receiving major updates and Priority support.
8.2 Month-to-Month. If you select the month-to-month plan, the License is valid during each month for which you have paid the applicable fees and will renew automatically, unless cancelled. You can cancel Your subscription at any time by accessing Your Account on the Progress site or by contacting email@example.com, at which point, Your access to the Software will be disabled. Your credit card will be charged the fees stated at the time of purchase, plus applicable taxes each month.
8.3 Annual Commitment. If you select the annual commitment, the License shall last as long as You have an active subscription to the Software. Your credit card will be charged the fees stated at the time of purchase plus any applicable taxes each month during Your Subscription Period. Prices are valid for each 12 month term and may change at the end of each year. The plan will start as soon as Your credit card is successfully charged and will automatically renew unless You disable the automatic renewal in Your Account. You have the right to cancel Your subscription at any time by contacting firstname.lastname@example.org, at which point, Your access to the Software will be disabled. You are solely responsible for properly cancelling Your subscription. An email or phone request to cancel Your subscription is not considered cancelled until explicitly confirmed by Progress. If You cancel before the end of Your Subscription Period, Your cancellation will take effect immediately, however, You will not be relieved of your payment obligations for any time remaining in the Subscription Period. Termination by Progress for failure to pay current dues or cancellation by You will result in the deactivation of the Software.
8.4 Termination for Breach. 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 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 Progress. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically and You shall immediately cease use of the Software. You must also destroy (i) all copies of the Software and (ii) any product and company logos provided by Progress in connection with this Agreement.
9. Product Discontinuance
Progress 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. However, Progress is obligated to provide support in accordance with the terms set forth in this Agreement for discontinued Software or components for a period of one (1) year after the date of discontinuance.
10. 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 Progress that are used in connection with the Software are and shall at all times remain exclusively owned by Progress 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).
11. Limited Warranty
Except as specified in Section 2 (Trial License), Progress warrants solely 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. Progress 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) Licensee’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, Licensee’s sole and exclusive remedy and Progress’ 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 Progress’ maximum liability shall be a refund of the paid purchase price for the defective Software 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 11, 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.
12. 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 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, Progress’ entire liability under any provision of this agreement shall not exceed in the aggregate the sum of the license fees Licensee paid to Progress for the Software giving rise to such damages, or in the case of a Trial License, 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. Progress 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 Progress is for testing use only and Progress hereby disclaims any and all liability arising therefrom. The extent of Progress’ liability for the limited warranty section shall be as set forth therein.
You agree to indemnify, hold harmless, and defend Progress 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 or misuse of the Software.
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 Progress’ prior written permission. Each party’s obligations under this Section 14 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.
15. Governing Law
This License 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.
16. 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.
17. No Assignment
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.
20. 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.
21. 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 Progress 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 PROGRESS AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.