End User License Agreement
READ THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE INSTALLING OR
USING THE PRODUCT TO WHICH THIS EULA APPLIES. BY ACCEPTING THIS EULA,
COMPLETING THE REGISTRATION PROCESS, AND/OR INSTALLING OR USING THE
PRODUCT, YOU AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY (IF APPLICABLE)
TO THE TERMS BELOW. IF YOU DO NOT AGREE WITH THESE TERMS, OR DO NOT HAVE
THE AUTHORITY TO BIND YOUR COMPANY, DO NOT INSTALL, REGISTER FOR OR USE THE
PRODUCT, AND DESTROY OR RETURN ALL COPIES OF THE PRODUCT. ONCE YOU HAVE
DONE THIS, YOU MAY REQUEST FROM THE POINT OF PURCHASE A FULL REFUND OF THE
LICENSE FEES, IF ANY, PAID FOR THE PRODUCT (OR, IF THE PRODUCT IS PROVIDED
TO YOU AS A HOSTED SERVICE, A REFUND OF THE PREPAID SERVICE FEES FOR THE
REMAINDER OF THE SUBSCRIPTION PERIOD OF THE PRODUCT). SUCH REQUEST MUST BE
COMPLETED WITHIN THIRTY (30) DAYS OF DELIVERY OF THE PRODUCT TO YOU. UNLESS
OTHERWISE SPECIFIED IN THIS EULA, PROGRESS SOFTWARE CORPORATION IS THE
LICENSOR OF THE PRODUCT. THE LICENSOR MAY BE REFERRED TO HEREIN AS “ Licensor”, “we”, “us”, or “our”. IF YOU ARE
AGREEING TO THIS EULA ON BEHALF OF YOURSELF IN YOUR INDIVIDUAL CAPACITY,
THEN YOU ARE THE LICENSEE AND YOU MAY BE REFERRED TO HEREIN AS “ Licensee”, “you”, or “your”. IF YOU ARE AGREEING TO
THIS EULA ON BEHALF OF YOUR COMPANY, THEN YOUR COMPANY IS THE LICENSEE AND
ANY REFERENCES TO “Licensee”, “you”, or “your” WILL
MEAN YOUR COMPANY.
This EULA includes the following sections:
1. GENERAL TERMS AND CONDITIONS
1.1. Definitions.
1.1.1. “Affiliate” means any legal entity that directly or
indirectly controls, is controlled by, or is under common control with you
or us. For the 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.
1.1.2. “Applicable Laws” means national, federal, state, and local
laws, rules, and regulations including, without limitation, those laws and
regulations relating to data privacy and security in each applicable
jurisdiction.
1.1.3. “Authorized Reseller” means a third party who is not our
Affiliate and who is authorized by us or our Affiliate to resell the
Product.
1.1.4. “Authorized User” means you, your employee or a third-party
consultant or agent that you authorize to use the Product for your benefit
in accordance with section 1.2.3 (Third Party Use).
1.1.5. “Documentation” means any technical instructions or materials
describing the operation of the Product made available to you
(electronically or otherwise) by us for use with the Product, expressly
excluding any user blogs, reviews or forums.
1.1.6. “Hosted Services” means computer software program(s), content
and related services provided by us on a software-as-a-service basis
through computers we or our Affiliates or our respective contractors
(including cloud infrastructure suppliers) control.
1.1.7. “Intellectual Property Rights” means any and all current and
future (a) rights associated with works of authorship, including
copyrights, mask work rights, and moral rights; (b) trademark or service
mark rights; (c) trade secret rights; (d) patents, patent rights, and
industrial property rights; (e) layout design rights, design rights, and
other proprietary rights of every kind and nature other than trademarks,
service marks, trade dress, and similar rights; and (f) registrations,
applications, renewals, extensions, or reissues of any of (a) to (e) , in
each case, in any jurisdiction throughout the world.
1.1.8. “On-Premise Product(s)” means computer software program(s)
provided to you to download, install and use on computer(s) controlled
directly or indirectly by you.
1.1.9. “Order” means a written or electronic order document entered
into between you and us (or our Affiliate or an Authorized Reseller) for
the Product. Unless an Order says something different, each Order will be
governed by the terms of this EULA and include the name of the Product
being licensed and any usage limitations, applicable fees, and any other
details related to the transaction.
1.1.10. “Our Technology” means any software, code, tools, libraries,
scripts, application programming interfaces, templates, algorithms, data
science recipes (including any source code for data science recipes and any
modifications to such source code), data science workflows, user
interfaces, links, proprietary methods and systems, know-how, trade
secrets, techniques, designs, inventions, and other tangible or intangible
technical material, information and works of authorship underlying or
otherwise used to make available the Product, including, without
limitation, all Intellectual Property Rights therein and thereto.
1.1.11. “Permitted Third Party” has the meaning given in section
1.2.3 (Third Party Use).
1.1.12. “Product” means the On-Premise Product(s) or Hosted
Services, as applicable, identified in an Order, and any Updates.
1.1.13. “Update” means any update, enhancement, error correction,
modification or new release to the Product that we make available to you.
1.2. General License Terms, Restrictions and Order of Precedence.
1.2.1. General License Terms. The Product is licensed, not sold, to
you by us under the terms of this EULA and the Order. The scope of license
granted by us to you for the Product is set out in section 3 (Product
Family Specific Terms) and section 4 (Product Specific Terms).
1.2.2. Authorized Users. Anything your Authorized Users do or fail
to do will be considered your act or omission, and you accept full
responsibility for any such act or omission to the extent you would be
liable if it were your act or omission.
1.2.3. Third Party Use. You may allow your agents, contractors and
outsourcing service providers (each a “Permitted Third Party”) to
use the Product(s) licensed to you hereunder solely for your benefit in
accordance with the terms of this EULA and you are responsible for any such
Permitted Third Party’s compliance with this EULA in such use. Any breach
by any Permitted Third Party of the terms of this EULA will be considered
your breach.
1.2.4. Restrictions. Except as otherwise expressly permitted in this
EULA, you will not (and will not allow any of your Affiliates or any third
party to):
(a) copy, modify, adapt, translate, or otherwise create derivative works of
the Product, Documentation, or any software, services, or other technology
of third party vendor(s) or hosting provider(s) that we or our Affiliate
engage;
(b) disassemble, decompile or “unlock”, decode or otherwise reverse
translate or engineer, or attempt in any manner to reconstruct or discover
the source code or underlying structure, ideas, or algorithms of the
Product except as expressly permitted by law in effect in the jurisdiction
in which you are located;
(c) rent, lease, sell, distribute, pledge, assign, sublicense or otherwise
transfer or encumber rights to the Product;
(d) make the Product available on a timesharing or service bureau basis or
otherwise allow any third party to use or access the Product;
(e) remove or modify any proprietary notices, legends, or labels on the
Product or Documentation;
(f) use or access the Product in a manner that: (i) violates any Applicable
Laws; (ii) violates the rights of any third party; (iii) purports to
subject us or our Affiliates to any other obligations; (iv) could be
fraudulent; or (v) is not permitted under this EULA;
(g) use the Product to develop, test, support or market products that are
competitive with and/or provide similar functionality to the Product; or
(h) permit your Affiliates to access or use the Product unless specifically
authorized elsewhere in this EULA or the Order.
1.2.5. Limitations on Evaluation or Trial Licenses. If the Product
is licensed to you on an evaluation or trial basis, then you may use the
Product only for such purposes until the earlier of: (a) the end of the
evaluation period, if any, specified in the Order, this EULA or otherwise
communicated by us to you at the time of delivery; or (b) the start date of
a paid for license to the Product; or (c) termination in accordance with
the terms of this EULA. You may not extend the evaluation period by
uninstalling and re-installing the Product(s) or by any other means other
than our written consent. You must not use the Product in a production
environment. You will be required to pay for a license for the Product at
our then applicable license price if you continue to use the Product,
whether in a production or non-production environment, after the evaluation
license expires or terminates, and the terms and conditions of the EULA in
effect at that time will apply to your continued use of the Product. A
Product licensed to you on an evaluation or trial basis may be subject to
one or more usage limits specified in section 3 (Product Family Specific
Terms), section 4 (Product Specific Terms), the Order or otherwise
communicated at the time of delivery (including posting of such limits at
the location where you download the Product for evaluation). We may, at our
sole discretion, decide whether to offer any maintenance and support for
the Product during the evaluation period, and to include any conditions or
limits on such maintenance and support. You may not circumvent any
technical limitations included in the Product licensed to you on an
evaluation or trial basis.
1.2.6. Redistribution. If the Order or section 3 (Product Family
Specific Terms) or section 4 (Product Specific Terms) grants you the
express right to redistribute or offer access to all or a portion of the
Product (“Redistributables”), then, in conjunction with any such
grant, you must comply with any limitations or requirements specified in
the Order, section 3 (Product Family Specific Terms) or section 4 (Product
Specific Terms), as applicable, and you must distribute or offer access to
the Redistributables subject to a license agreement or terms of use between
you and each third party receiving or accessing the Redistributables (“ your customer”) that: (a) protects our interests consistent with the
terms contained in this EULA, (b) prohibits your customer from any further
distribution of the Redistributables (unless expressly permitted pursuant
to section 3 (Product Family Specific Terms) or section 4 (Product Specific
Terms)), (c) includes a limitation of damages clause that, to the maximum
extent permitted by applicable law, disclaims on behalf of us, our
Affiliates or our or their respective licensors, suppliers or Authorized
Resellers, liability for any and all damages, whether direct, special,
incidental or consequential damages, (d) contains terms substantially
similar to those in subparts (a) through (g) of section 1.2.4
(Restrictions), section 1.5.1 (Export Compliance) and section 1.5.2 (U.S.
Government Customers), and (e) includes a notice substantially similar to
section 1.2.7 (Third Party Notices).
1.2.7. Third Party Notices. The Product may contain or be
accompanied by certain third-party components which are subject to
additional restrictions. These components, are identified in, and subject
to, special license terms and conditions which, in the case of On-Premise
Product(s), are set out in the “readme.txt” file, the “notices.txt” file,
or the “Third Party Software” file accompanying the Product or portions
thereof, and in the case of Hosted Services, are set out in the third-party
license agreement or notices that comes with the third-party component or
is otherwise provided on the web page on which such third-party component
is made available (“Special Notices”). The Special Notices include
important licensing and warranty information and disclaimers. Unless
otherwise expressly stated for a given third-party component, all such
third-party components may be used solely in connection with the use of the
Product subject to and in accordance with the terms and conditions of this
EULA and the Special Notices. In the event of conflict between the Special
Notices and the other portions of this EULA, the Special Notices will take
precedence (but solely with respect to the third-party component(s) to
which the Special Notice relates).
1.2.8. Order of Precedence between EULA and Order. If there is any
conflict between the terms and conditions in the Order and the terms and
conditions of this EULA, or if the Order changes any of the terms of this
EULA, the terms and conditions of the Order will apply, except if the Order
is between you and an Authorized Reseller, or the Order is issued/generated
by you. In the case where the Order is between you and an Authorized
Reseller, the terms of the Order will apply subject to the following: (a)
any terms and conditions in the Order imposing obligations on the
Authorized Reseller that are in addition to or different from the
obligations we have to you pursuant to this EULA will be born solely by the
Authorized Reseller and our obligations to you and limits on our liability
will be governed solely by the terms and conditions of this EULA and (b)
any terms and conditions that conflict with or would otherwise alter any of
the following under this EULA will have no effect unless expressly agreed
to in a written instrument executed by us: our ownership rights, yours and
our confidentiality obligations, your export compliance obligations,
limitations on your rights as a U.S. Government customer (if applicable),
our audit rights, restrictions on your right to assign, our publicity
rights or governing law and jurisdiction. In cases where the Order is
issued/generated by you, the terms and conditions of Section 1.19.2. of
this EULA, governing a purchase order or other document you supply in
connection with this EULA, shall apply to such Order.
1.2.9. Order of Precedence within EULA. If there is any conflict
among the terms and conditions of this EULA, or if a section changes the
terms of another section within this EULA, the order of precedence will be
as follows: first, section 4 (Product Specific Terms) (if any); second,
section 3 (Product Family Specific Terms) (if any); third, section 2.A
(Terms for On-Premise Products) and/or section 2.B (Terms for Hosted
Services), as applicable; and fourth and finally, section 1 (General Terms
and Conditions).
1.3. License Types.
1.3.1. Overview of License Types. The license type for the Product
will, unless otherwise specified in this EULA, be one of the following
license types: perpetual, term or subscription. This will be confirmed in
the Order or will be the default license type listed in section 3 (Product
Family Specific Terms) or section 4 (Product Specific Terms).
1.3.2. Perpetual License Type. Your license to use the Product will
continue in perpetuity unless earlier terminated in accordance with the
terms of this EULA.
1.3.3. Term License Type. Your license to use the Product will
continue until the expiration of the term identified in the Order unless
earlier terminated in accordance with the terms of this EULA. If we
continue to make the Product generally available to our customers, you may
purchase a new term license for the Product from us or our Authorized
Reseller.
1.3.4. Subscription License Type. Your license to use the Product
will continue until the expiration of the subscription period identified in
the Order unless earlier terminated in accordance with the terms of this
EULA. The procedure for renewing your license to the Product is set out in
section 3 (Product Family Specific Terms) or section 4 (Product Specific
Terms). If you upgrade your subscription to the Product, the upgrade will
take effect immediately and you will be charged and must pay the applicable
fee, and the term of your then-current subscription period may be extended,
as described at the time you upgrade. You may not downgrade a subscription
to the Product.
1.4. Our Business Principles.
We will apply the principles set out in our
Code of Conduct and Business Ethics (published on our website at
http://investors.progress.com/governance.cfm
) in our performance under this EULA.
1.5. Export Compliance and U.S. Government Customers.
1.5.1. Export Compliance. Export laws and regulations of the United
States and any other relevant local export laws and regulations apply to
the Products. You agree that such export control laws, including, without
limitation, the U.S. Export Administration Act and its associated
regulations, govern your use of the Product (including technical data), and
you agree to comply with all such export laws and regulations (including
“deemed export” and “deemed re-export” regulations). You agree that no
data, information and/or Product (or direct product thereof) will be
exported, directly or indirectly, in violation of these laws, or will be
used for any purpose prohibited by these laws including, without
limitation, nuclear, chemical, or biological weapons proliferation, or
development of missile technology.
1.5.2. U.S. Government Customers. If the Product is being acquired
by or on behalf of the U.S. Government or by a U.S. Government prime
contractor or subcontractor (at any tier), then the U.S. Government’s
rights in the Product will be only as set out herein. The Product and
Documentation are “commercial items” as that term is defined at 48 C.F.R.
2.101, consisting of “commercial computer software” and “commercial
software documentation” as such terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, all U.S. Government end users acquire the Product and such
Documentation with only those rights set out herein.
1.6. IP Ownership and Feedback.
1.6.1. IP Ownership.
The Product, Our Technology, Documentation, and all
other current or future intellectual property developed by us or our
Affiliates, and all worldwide Intellectual Property Rights in each of the
foregoing and all Updates, upgrades, enhancements, new versions, releases,
corrections, and other modifications thereto and derivative works thereof,
are the exclusive property of us or our Affiliates or our or their
licensors or suppliers. Except for the rights and licenses expressly
granted herein, all such rights are reserved by us and our Affiliates and
our or their licensors and suppliers. All title and Intellectual Property
Rights in and to the content that may be accessed through use of the
Product is the property of the respective content owner and may be
protected by applicable copyright or other intellectual property laws and
treaties. This EULA grants you no rights to use such content.
1.6.2. Feedback.
If you provide us any ideas, thoughts, criticisms,
suggested improvements or other feedback related to Our Technology
(collectively “Feedback”) you own the Feedback and you grant to us a
worldwide, royalty-free, fully paid, perpetual, irrevocable license to use,
reproduce, modify, translate, distribute, perform, display, import, sell,
license, offer for sale, make, have made and otherwise exploit the Feedback
in any form, media, or technology, whether now known or hereafter
developed, and to allow others to do the same without restriction or
obligation of any kind, on account of confidential information,
intellectual property rights or otherwise, and may incorporate into our
products or services any service, product, technology, enhancement,
documentation or other development (“Improvement”) incorporating or derived
from any Feedback with no obligation to license or to make available the
Improvement to you or any other person or entity. This is true whether you
provide the Feedback through use of the Product or through any other method
of communication with us, unless we have entered into a separate agreement
with you that provides otherwise.
1.7. Maintenance.
1.7.1. Our Maintenance and Support Policies.
If we offer and you purchase
maintenance and support for the Product, then it will be provided in
accordance with our then current maintenance and support policies for the
applicable Product in effect at the time of purchase. You may access our
maintenance and support policies by clicking on the applicable Product
family link located at
https://www.progress.com/support
.
1.7.2. Maintenance and Support for Perpetual or Term License Types.
For Perpetual and Term License Types, unless otherwise expressly stated by us
in the Order, first year annual maintenance and support (if offered by us)
is required for the Product and starts on the date the Product is
delivered. Thereafter, you may choose to purchase annual maintenance and
support (if offered by us). If you do not purchase renewal maintenance and
support services for a Product, then you will not receive any maintenance
and support services for that Product and will have no entitlement to any
benefits of maintenance and support services including, bug fixes, patches,
upgrades, enhancements, new releases or technical support. If you want to
reinstate lapsed maintenance and support services on a Product, and we
offer reinstatement to our customers, then you may re-instate maintenance
and support services by paying the then-current fee, plus a reinstatement
fee for the lapsed maintenance and support period in accordance with our
maintenance and support reinstatement policies then in effect.
1.7.3. Maintenance and Support for Subscription License Type. If the
license type for the Product licensed to you is the subscription license
type, then maintenance and support (if offered by us) is included in the
subscription fees for each subscription period.
1.8. Fees and Taxes.
1.8.1. Payment Terms and Taxes.
All fees payable to us are payable in the
currency specified in the Order, or if no currency is specified, in United
States Dollars, are due within 30 days from the invoice date and, except as
otherwise expressly specified herein, are non-cancellable and
non-refundable. We may charge you interest at a rate of 1.5% per month (or
the highest rate permitted by law, if less) on all overdue payments. You
agree to pay any sales, value-added or other similar taxes imposed by
applicable law that we must pay on such fees, except those based on our
income. Invoices may be issued by our Affiliate. If you and we agree that
you will pay by credit card, you will provide us with valid and updated
credit card information and you authorize us to store such information and
bill such credit card for all fees applicable: (a) at the time that you
order the Product and (b) at the time of any renewal or upgrade.
1.8.2. Fees for Renewal Subscription Licenses. If the license type
for the Product licensed to you is the Subscription License Type then each
renewal subscription will be calculated at the then-current price offered
for the Product at the time of renewal.
1.8.3. Fees for Renewal Maintenance Terms. If the license type for
the Product licensed to you is a Perpetual license or Term license, then,
unless otherwise specified in the Order or in section 3 (Product Family
Specific Terms) or section 4 (Product-Specific Terms), the fee for an
optional annual renewal maintenance and support term for the Product will
be calculated based on the annual rate applicable for the initial
maintenance and support term or immediately preceding renewal maintenance
and support term, whichever is applicable, plus a rate increase, if
applicable, calculated at the lesser of any standard price increase or CPI
(or equivalent index) after applying any increases as a consequence of our
Lifetime Support policy, if applicable.
1.8.4. Orders between You and Our Authorized Reseller.
Notwithstanding the
above terms of this section 1.8 (Fees and Taxes), if you purchased your
license to the Product and/or maintenance and support from an Authorized
Reseller, then the fees will be set out in the Order between you and the
Authorized Reseller. The Authorized Reseller may be responsible for billing
and/or collecting payment from you and if so, the billing and collection
terms agreed to between you and the Authorized Reseller may differ from the
terms set out in this section 1.8 (Fees and Taxes).
1.8.5. No Reliance on Future Availability of any Product or Update.
You
agree that you have not relied on the future availability of any Product or
Updates in your purchasing decision or in entering into the payment
obligations in your Order.
1.9. Warranties.
1.9.1. Authority. Each party represents and warrants that it has the
legal power and authority to enter into this EULA.
1.9.2. Product Compliance with Documentation. We warrant to you
that, for six (6) months from delivery (in the case of an On-Premise
Product) or for the duration of the license (in the case of a Hosted
Service), the Product will comply with the applicable Documentation in all
material respects. Your exclusive remedy, and our sole liability, with
respect to any breach of this warranty will be for us to use commercially
reasonable efforts to promptly correct the non-compliance (provided that
you notify us in writing within the warranty period and allow us a
reasonable cure period). If we, at our discretion, reasonably determine
that correction is not economically or technically feasible, we may
terminate your license to the Product and provide you a full refund of the
fees paid to us with respect to the Product (in the case of an On-Premise
Product) or a refund of the prepaid fees for the unused portion of the
license period (in the case of a Hosted Service). Delivery of additional
copies of, or Updates to, the Product will not restart or otherwise affect
the warranty period.
1.9.3. Warranty Exclusions. The warranty specified in section 1.9.2
(Product Compliance with Documentation) does not cover any Product provided
on an unpaid evaluation or trial basis, or defects to the Product due to
accident, abuse, service, alteration, modification or improper installation
or configuration by you, your Affiliates, your or their personnel or any
third party not engaged by us.
1.9.4. Warranty Disclaimers. EXCEPT FOR THE WARRANTIES EXPRESSLY
STATED IN THIS SECTION 1.9 OR THE ADDITIONAL WARRANTIES (IF ANY) EXPRESSLY
STATED IN SECTION 3 (PRODUCT FAMILY SPECIFIC TERMS) OR SECTION 4 (PRODUCT
SPECIFIC TERMS), THE PRODUCT, DOCUMENTATION AND OUR TECHNOLOGY ARE PROVIDED
“AS IS”, WITH ALL FAULTS, AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AVAILABILITY,
ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT
THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED
WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM
PERMITTED UNDER APPLICABLE LAW.
1.10. Indemnification.
1.10.1. Our Indemnification Obligation.
1.10.1.1. Intellectual Property Infringement. We will defend you,
and your officers, directors, employees, and agents from and against any
and all third party claims, lawsuits, and proceedings alleging that your
use of the Product, in accordance with the terms and conditions of this
EULA, constitutes a direct infringement or misappropriation of such third
party’s patent, copyright or trade secret rights (the “IP Claim”),
and we will indemnify you for damages finally awarded against you by a
court of competent jurisdiction with respect to the IP Claim.
1.10.1.2. Exceptions. We will not indemnify you to the extent that
the alleged infringement or misappropriation results from (a) use of the
Product in combination with any other software or item not supplied by us;
(b) failure to promptly implement an Update provided by us pursuant to
1.10.1.3 (Our Options); (c) modification of the Product not made or
provided by us; or (d) use of the Product in a manner not permitted by this
EULA. We also will not indemnify you if we notify you of our decision to
terminate this EULA, and the license to the Product granted hereunder, in
accordance with section 1.10.1.3 (Our Options) and you have not ceased all
use of the Product within thirty (30) days of such notification.
1.10.1.3. Our Options. If a final injunction is, or we reasonably
believe that it could be, obtained against your use of the Product, or if
in our opinion the Product is likely to become the subject of a successful
claim of infringement, we may, at our option and expense, (a) replace or
modify the Product so that it becomes non-infringing (provided that the
functionality is substantially equivalent), (b) obtain for you a license to
continue to use the Product, or (c) if neither (a) nor (b) are reasonably
practicable, terminate this EULA on thirty (30) days’ notice and, if the
Product was licensed to you on a Perpetual License or Term License basis,
refund to you the license fee paid to us for the Product less an amount for
depreciation determined on a straight-line five year (or actual term if
shorter) depreciation basis with a commencement date as of the date of
delivery of the Product, or if the Product was licensed to you on a
Subscription License basis, refund to you the unused portion of the fees
paid in advance to us for the then-current subscription period for the
Product. THE INDEMNIFICATION PROVISIONS SET OUT IN THIS SECTION 1.10.1
STATE OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT
TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT BY US OF ANY INTELLECTUAL
PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE PRODUCT OR ITS USE.
1.10.2. Your Indemnification Obligation.
1.10.2.1. Indemnification for Third Party-Claims. To the extent
permitted by applicable law, you will defend us and our Affiliates, and our
and their respective officers, directors, employees, and agents from and
against any and all third party claims, lawsuits, and proceedings that
arise or result from (a) your breach of this EULA, (b) your use,
distribution and/or licensing of the Redistributables, if applicable,
except to the extent it arises from an IP Claim covered under section
1.10.1 above, or (c) your failure or alleged failure to comply with
Applicable Laws or any violation of a third party’s rights in connection
with your use of the Product (each a “Third-Party Claim” and
collectively “Third-Party Claims”) and you will indemnify for
damages finally awarded by a court of competent jurisdiction with respect
to any Third-Party Claim.
1.10.3. Control of the Defense or Settlement. For any
indemnification obligation covered in section 1.10.1,“ Indemnifying Party” means us, “Indemnified Party” means you,
and “Claim” means an IP Claim. For any indemnification obligation
covered in section 1.10.2, “Indemnifying Party” means you, “ Indemnified Party” means us, and “Claim” means a Third-Party
Claim. The Indemnified Party must provide the Indemnifying Party with
prompt written notice of a Claim; however, the Indemnified Party’s failure
to provide or delay in providing such notice will not relieve the
Indemnifying Party of its obligations under this section except to the
extent the Indemnifying Party is prejudiced by the Indemnified Party’s
failure or delay. The Indemnified Party will give the Indemnifying Party
full control of the defense and settlement of the Claim as long as such
settlement does not include a financial obligation on or admission of
liability by the Indemnified Party. If the Indemnified Party does not do
so, then the Indemnified Party waives the Indemnifying Party’s
indemnification obligations under section 1.10.1 or 1.10.2, as applicable.
The Indemnified Party will reasonably cooperate in the defense of the Claim
and may appear, at its own expense, through counsel reasonably acceptable
to the Indemnifying Party.
1.11. Confidentiality.
1.11.1. Confidentiality Obligations. Except as otherwise provided
herein, each party agrees 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 should
reasonably be understood to be confidential given the nature of the
information and the circumstances surrounding its disclosure, and agrees to
make no use of such information and know-how except under the terms of this
EULA. However, neither party will have an obligation to maintain the
confidentiality of information that (a) it received rightfully from a third
party without an obligation to maintain such information in confidence; (b)
was known to the receiving party prior to its disclosure by the disclosing
party; (c) is or becomes a matter of public knowledge through no fault of
the receiving party; or (d) 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
(unless such prior notice is not permitted by applicable law) and complies
with any protective order (or equivalent) imposed on such disclosure. You
will treat any source code for the Product as our confidential information
and will not disclose, disseminate or distribute such materials to any
third party without our prior written permission. Each party’s obligations
under this section 1.11 will apply during the term of this EULA and for
five (5) years following termination of this EULA, provided, however, that
(i) obligations with respect to source code will survive forever and (ii)
trade secrets will be maintained as such until they fall into the public
domain.
1.11.2. Product Benchmark Results. You acknowledge that any
benchmark results pertaining to the Product are our confidential
information and may not be disclosed or published without our prior written
consent. This provision applies regardless of whether the benchmark tests
are conducted by you or us.
1.11.3. Remedies for Breach of Confidentiality Obligations. Each
party acknowledges that in the event of a breach or threat of breach of
this section 1.11, money damages will not be adequate. Therefore, in
addition to any other legal or equitable remedies, the non-breaching party
will be entitled to seek injunctive or similar equitable relief against
such breach or threat of breach without proof of actual injury and without
posting of a bond.
1.12.
Data Collection and Personal Data.
1.12.1.
Data Collection through use of the Product
.
THE PRODUCT MAY INCLUDE FEATURE(S) THAT (A) GATHER PRODUCT ACTIVATION,
USAGE AND/OR ENVIRONMENT INFORMATION, (B) IDENTIFY TRENDS AND/OR BUGS,
(C) COLLECT USAGE STATISTICS, AND/OR (D) TRACK OTHER DATA RELATED TO
YOUR USE OF THE PRODUCT, AS FURTHER DESCRIBED IN THE CURRENT VERSION OF
OUR PRIVACY POLICY AVAILABLE AT
https://www.progress.com/legal/privacy-policy
. BY YOUR ACCEPTANCE OF THE TERMS OF THIS EULA AND/OR USE OF THE
PRODUCT, YOU AUTHORIZE THE COLLECTION, USE AND DISCLOSURE OF THIS DATA
FOR THE PURPOSES PROVIDED FOR IN THIS EULA AND/OR THE PRIVACY POLICY.
1.12.2.
Additional Data Collection Terms
. Depending on the Product licensed to you, this EULA may contain
additional data collection terms in section 3 (Product Family Specific
Terms) or section 4 (Product Specific Terms) and/or, if we are hosting
the Product, in section 2.B (Terms for Hosted Services).
1.12.3. Your Personal Data. If you determine that
you will be supplying us with your Personal Data (as defined in the Data
Processing Addendum referenced below) for us to process on your behalf, in
the provision of maintenance and support services or hosting services (if
the Product licensed to you is a Hosted Service) or during the course of
any audits we conduct pursuant to section 1.14 (Audit), you may submit a
written request at privacy@progress.com for the
mutual execution of a Data Processing Addendum substantially in the form we
make available at
https://www.progress.com/docs/default-source/progress-software/data-processing-addendum.pdf
and we will enter into such Data Processing Addendum with you. To the
extent there is any conflict between this EULA and such Data Processing
Addendum, the Data Processing Addendum will prevail with respect to our
handling and processing of your Personal Data.
1.13. Limitation of Liability and Disclaimer of Certain Types of Damages.
1.13.1. Limitation of Liability. EXCEPT FOR A PARTY’S
INDEMNIFICATION OBLIGATIONS SET OUT IN THIS EULA OR A PARTY’S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 1.11 (CONFIDENTIALITY), OR
YOUR MATERIAL VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS OR OF THE
LICENSE RESTRICTIONS SET OUT IN THIS EULA, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ALL COSTS,
DAMAGES, AND EXPENSES ARISING OUT OF OR RELATED TO THIS EULA WHETHER BASED
UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE AT LAW EXCEED, IN THE AGGREGATE, THE FEES PAID TO US FOR THE
PRODUCT AND/OR SERVICE THAT IS THE SUBJECT OF THE CLAIM, PROVIDED, HOWEVER,
THAT IF THE FEES PAID FOR SUCH PRODUCT AND/OR SERVICE ARE PAID ON A
RECURRING BASIS, THEN THE NOT TO EXCEED LIMIT WILL BE THE FEES PAID TO US
FOR THE PRODUCT AND/OR SERVICE DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. OUR AFFILIATES AND
LICENSORS, AND THE SUPPLIERS TO US, OUR AFFILIATES OR LICENSORS, WILL, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, HAVE NO LIABILITY TO YOU OR TO ANY
OTHER PERSON OR ENTITY FOR DAMAGES, DIRECT OR OTHERWISE, ARISING OUT OF
THIS EULA, INCLUDING, WITHOUT LIMITATION, DAMAGES IN CONNECTION WITH THE
PERFORMANCE OR OPERATION OF OUR PRODUCTS OR OUR PERFORMANCE OF SERVICES.
1.13.2 Disclaimer of Certain Types of Damages. EXCEPT FOR A PARTY’S
INDEMNIFICATION OBLIGATIONS SET OUT IN THIS EULA OR YOUR MATERIAL VIOLATION
OF OUR INTELLECTUAL PROPERTY RIGHTS OR THE LICENSE RESTRICTIONS SET OUT IN
THIS EULA, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
EITHER PARTY, ITS AFFILIATES OR ITS LICENSORS OR THEIR RESPECTIVE SUPPLIERS
BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR
TORT DAMAGES ARISING IN CONNECTION WITH THIS EULA OR EITHER PARTY’S
PERFORMANCE UNDER THIS EULA OR THE PERFORMANCE OF OUR PRODUCTS, OR FOR ANY
DAMAGES RESULTING FROM LOSS OF USE, LOSS OF OPPORTUNITY, LOSS OF DATA, LOSS
OF REVENUE, LOSS OF PROFITS, OR LOSS OF BUSINESS, EVEN IF THE PARTY, ITS
AFFILIATES, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN
ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
1.14. Audit.
We may install and use automated license tracking, management
and/or enforcement solutions with the Product, which you may not disrupt or
alter. You will maintain records in connection with this EULA and the use
of the Product and any Updates and/or services provided hereunder. Such
records will include at a minimum the number of licenses purchased and
being used by you. At our expense and with reasonable written notice to
you, we or a third party appointed by us may audit the records, and if
necessary and as applicable, the systems on which the Product or any Update
is installed for the sole purpose of ensuring compliance with the terms of
this EULA. We will have the right to conduct audits as necessary. These
audits may be conducted on site at a location where you have installed the
Product, remotely from our offices, or a combination of both, if applicable
to the Product. On-site audits will be conducted during regular business
hours, and neither on-site nor remote audits will interfere unreasonably
with your business operations. You agree to share with us copies of all
records referenced herein, as well as Product log files and other
information reasonably requested by us promptly following such request, but
in no event more than five (5) business days following receipt of our
written request (or such longer period, if applicable, that we specify in
the written request). We will treat all such information obtained or
accessed by us during the audit as confidential information pursuant to
section 1.11 (Confidentiality) for use by us only as necessary to ensure
compliance with and enforcement of the terms of this EULA. If any audit
reveals that you have underpaid license, maintenance and support or
subscription fees, you will be invoiced for all such underpaid fees based
on our list price in effect at the time the audit is completed. If the
underpaid fees exceed five percent (5%) of the fees previously paid by you,
then you will also pay our reasonable costs of conducting the audit and
enforcement of this EULA.
1.15. Termination.
1.15.1. Termination for Breach. We may terminate this EULA by
written notice at any time if you do not comply with any of your
obligations under this EULA and fail to cure such failure to our
satisfaction within thirty (30) days after such notice. This remedy will
not be exclusive and will be in addition to any other remedies which we may
have under this EULA or otherwise.
1.15.2. Effect of Termination. Upon expiration of your license term
to the Product (if applicable) or earlier termination of this EULA, your
license to access and/or use the Product and/or distribute the
Redistributables (if applicable) will terminate. You must immediately cease
use of the Product and destroy all copies of the Product in your possession
(and required any Permitted Third Parties to do the same). Any licenses you
have granted to the Redistributables in accordance with the terms and
conditions of this EULA will, unless otherwise specified in section 3
(Product Family Specific Terms) or section 4 (Product Specific Terms),
survive termination of this EULA.
1.15.3. Survival. Any provisions of this EULA containing licensing
restrictions, warranties and warranty disclaimers, confidentiality
obligations, limitations of liability and/or indemnity terms, audits
rights, and any term of this EULA which, by its nature, is intended to
survive termination or expiration, will remain in effect following any
termination or expiration if this EULA, as will your obligation to pay any
fees accrued and owing to us as of termination or expiration.
1.16. Assignment.
You may not, without our prior written consent, assign or
novate this EULA, any of your rights or obligations under this EULA, or the
Products or any of our 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. Your 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 you in a transaction
or series of transactions which results in the holders of your capital
stock or equity interests holding less than 50% of the outstanding capital
stock or equity interests immediately following such transaction(s).
1.17. Choice of Law.
This EULA is governed by the laws 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 will be submitted for
resolution to a state or federal court in Boston, Massachusetts, USA, and
the parties hereby irrevocably and unconditionally agree to submit to the
exclusive jurisdiction and venue of such court. The Uniform Computer
Information Transactions Act and the United Nations Convention on the
International Sale of Goods will not apply to this EULA.
1.18. Publicity.
You agree that we may, in our sole discretion, publicize
your use of the Product, and you license to us (and our Affiliates and
necessary sublicensees) any intellectual property rights required to allow
us (and our Affiliates and necessary sublicensees) to use your name, trade
name(s), trademark(s), service mark(s), logo(s) and domain name(s) in
connection with such publicity.
1.19. Miscellaneous.
1.19.1. Notices. Notices of termination, material breach, your
insolvency or an indemnifiable claim (“Legal Notices”) must be
clearly identified as Legal Notices and sent via overnight courier or
certified mail with proof of delivery to the following addresses: For us:
14 Oak Park Drive, Bedford, MA 01730, Attention: General Counsel. For you:
your address set out in the Order. Legal Notices sent in accordance with
the above will be effective upon the second business day after mailing.
Either party may change its address for receipt of notices upon written
notice to the other party.
1.19.2. Entire Agreement. This EULA, and any terms expressly
incorporated herein by reference, will constitute the entire agreement
between you and us with respect to the subject matter of this EULA and
supersedes all prior and contemporaneous communications, oral or written,
signed or unsigned, regarding such subject matter. Use of any purchase
order or other document you supply in connection with this EULA will be for
administrative convenience only and all terms and conditions stated therein
will be void and of no effect. Except as otherwise expressly contemplated
in this EULA, this EULA may not be modified or amended other than in
writing signed by you and us.
1.19.3. Severability. If any provision of this EULA is terminated or
held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, the remainder of this EULA will remain in full force and
effect.
1.19.4. Waiver. Failure or delay in exercising any right, power,
privilege or remedy hereunder will not constitute a waiver thereof. A
waiver of default will not operate as a waiver of any other default or of
the same type of default on future occasions.
1.19.5. English Language. This EULA has been drawn up in English at
the express wish of the parties. Le présent contrat a été rédigé en anglais
à la demande expresse des parties.
1.19.6. Force Majeure. Neither you nor we will be liable for any
delay or failure to take any action required under this EULA (except for
payment) due to any cause beyond the reasonable control of you or us, as
the case may be, including, but not limited to unavailability or shortages
of labour, materials, or equipment, failure or delay in the delivery of
vendors and suppliers and delays in transportation.
1.19.7. Our Use of Our Affiliates. We may, at our discretion, engage
one or more of our Affiliates in the fulfilment of our obligations,
including, our obligations for delivery of the Product to you and/or the
provision of any maintenance and support services.
2.A. TERMS FOR ON-PREMISE PRODUCTS
2.A.1. Delivery. Unless otherwise specified by us, On-Premise
Product(s) will be provided to you via electronic delivery, and delivery is
deemed complete when the On-Premise Product(s) is/are made available at the
electronic software download site specified by us and you are e-mailed or
otherwise provided with any necessary instructions, password and/or license
keys required for you to be able to access, download and install the
On-Premise Product(s). If we provide the On-Premise Product(s) on physical
media, shipping terms will be FOB shipping point.
2.A.2. Updates. Each Update to an On-Premise Product replaces part
or all of the On-Premise Product (or earlier Update) previously licensed to
you (“Replaced Product”) and will terminate such previously licensed
Replaced Product to the extent replaced by the Update; provided, however,
that you may continue to operate the Replaced Product for up to ninety (90)
days from delivery of the Update to allow you to complete your
implementation of the Update. You must cease all use of the Replaced
Product at the end of the ninety (90) day period. Each Update will be
subject to the terms and conditions of the license agreement accompanying
the Update which must be accepted by you at the time you download or
install the Update. If you do not agree to the license agreement
accompanying the Update, do not download or install the Update.
2.A.3. Cloud Environment. You may upload the On-Premise Product(s)
licensed to you pursuant to this EULA onto a cloud instance supplied by a
third party, provided that the operation of the On-Premise Product(s) in
the cloud instance complies with all license model restrictions and usage
limitations applicable to the On-Premise Product(s). You may also allow the
third party to upload, install, operate and/or use the On-Premise Products
on the cloud instance, provided that the third party’s access to and use of
the On-Premise Products is solely for your benefit in accordance with the
terms of this EULA. The third party will be considered a Permitted Third
Party, and you will be responsible for the Permitted Third Party’s
compliance with this EULA in accordance with section 1.2.3 (Third Party
Use).
2.B. TERMS FOR HOSTED SERVICES THIS SECTION IS NOT APPLICABLE
3. PRODUCT FAMILY SPECIFIC TERMS
This section specifies terms and conditions that are applicable to the
following On-Premise Products, as made generally available by us to our
customers: (1) all iMacros products; (2) all iMail products; and (3) all
MessageWay products, but excluding any cloud versions and any software
products available for download by selecting the “Free Tools” selection
option from the Resources drop down menu on the Progress Ipswitch Resource
Center website page located at
https://www.ipswitch.com/resources#?language=en-US&page=1
and designated as a “Free Tool” or “Free Toolkit” (collectively, “ Free Software”). Such Free Software will not be subject to the terms
and conditions of this Agreement and any rights you may have to download,
install, access and/or use such Free Software will be governed solely by a
separate license agreement presented to you for acceptance at the time of
download and/or installation of the Free Software.
Default License Type for each of the above-referenced On-Premise Products:
Perpetual
3.1.
Product Family Definitions
.
Any defined term used in this section 3 (Product Family Specific Terms) but
not defined herein will have the meaning ascribed to it in section 1
(General Terms and Conditions) or section 2 (Terms for On-Premise
Products).
3.1.1. “Server” means one physical server that is not running
virtualization software, or one virtual server instance.
3.2.
License
.
3.2.1. General License Terms.
3.2.1.1. License Grant. Subject to the terms and conditions
contained in this EULA, we hereby grant you a non-exclusive, worldwide,
royalty-free, non-transferable license, without the right to sublicense and
solely for your internal business purposes to (i) install and use the
Product, in its object code form only, on computing resources owned and/or
operated by you or a Permitted Third Party (as defined in section 1.2.3
(Third Party Use)); and (ii) use the Documentation solely as reasonably
necessary to access and use the Product and/or allow a Permitted Third
Party to host the Product on your behalf. You may copy reasonable
quantities of the Documentation for your internal use or use by a Permitted
Third Party, and may make one copy of each Product solely for your
archival, back-up, disaster recovery, or emergency restart purposes, or to
replace copies made on defective media, if applicable. You will reproduce
and include our proprietary rights and copyright notices on any copies of
the Product you make pursuant to this section 3.2.1. The license includes
the right to deploy and use any of our programs associated with the
Product, such as tools or utilities, that are listed in the Documentation.
Such programs will be considered “Our Technology” as defined in section
1.1.10 of this EULA and, except as otherwise expressly stated in this
section 3.2.1.1, all terms and conditions in section 1 (General Terms and
Conditions) pertaining to Our Technology will apply to such programs
associated with the Product. For the avoidance of doubt, and except as
expressly permitted hereunder, the Product is licensed on a per-Server
basis. This means that you may only install and use the Product on the
number of Servers, including both production, non-production and failover,
disaster recovery or high availability Servers, equal to the number of
licenses you purchase via the applicable Order. Notwithstanding the
foregoing, certain Products may be licensed on a model other than on a
per-Server basis and/or may be subject to additional usage restrictions as
set forth in section 4 below.
3.2.1.2. License Type. Unless otherwise stated in the Order, your
license to the Product will be perpetual. If the Order specifies that your
license is a term license or a subscription license, then, unless otherwise
specified in the Order, your license will not automatically renew. Your
license to the Product will terminate at the end of the then-current term
or subscription period purchased by you unless we offer, and you purchase a
term or subscription renewal, as applicable, prior to the expiration of
such term or subscription period. All renewals will be charged at the rate
then in effect at the time of purchase. If you purchase a renewal term or
subscription license, then term or subscription license, as applicable,
will be renewed at the level we, in our sole discretion, identify as being
closest to your previous term or subscription license. If you do not
purchase a renewal term or subscription license for the Product, then the
terms of section 1.15.2 (Effect of Termination) will apply.
3.2.1.3. Optional Features and Functionality. You may only use an
optional feature or functionality with the Product if you have selected the
feature or functionality in the Order and paid any additional fees for the
feature or functionality.
3.2.1.4.
Non-Production Licenses, High Availability and/or Disaster Recovery
Purpose License
. Non-production licenses may be used solely for testing, training,
development or other non-production and non-failover, disaster recovery or
high availability purposes. If you obtain a license for failover, disaster
recovery or high availability purposes (“Redundant Software”): (i)
you may not run such Redundant Software on a primary production Server,
unless (a) the primary production Server related to the primary production
version of the Product fails, (b) the Product or Server associated with the
primary production license is being upgraded or replaced or (c) other
temporary reasons disrupt all or a material part of your business
operations and (ii) you will promptly get the primary production Server
hosting the primary production license operating correctly in order to
support your daily activities.
3.2.1.5. Product Restrictions. In addition to the restrictions set
forth in section 1.2.4 (Restrictions), you will not: (i) isolate or extract
any components embedded in the Product, nor otherwise utilize any
components embedded in the Product for any purposes other than those
supported by the core functions of the Product; (ii) unless otherwise
expressly stated for a given third-party component, install or configure,
administer, customize, or directly access any such third party component
embedded in the Product independently of the APIs and functions of the
Product; (iii) independently upgrade or change any third party components
embedded in the Product in any way except through patches, updates or
versions officially released by us; or (iv) publish a review of the
Product, information regarding any bugs or defects in the Product, in each
case, without our prior written consent.
3.2.2. Beta Testing, Release Candidates or Evaluation Purposes. With
respect to beta versions or release candidates of any Product, or Products
provided to you for evaluation purposes only, the following terms and
conditions apply, but sections 1.9 (Warranties), 3.2.1.1 (General License
Grant), and 3.2.5 (Database Schema) of this EULA do not.
3.2.2.1. License Grant. Notwithstanding section 3.2.1.1 (General
License Grant), we hereby grant you a non-exclusive, worldwide,
royalty-free, non-transferable, license, without the right to sublicense,
to use the Product, in its object code form only, and any associated
Documentation, solely for your internal beta testing, internal release
candidate testing or internal evaluation purposes. Your license will be
effective during the time specified by us, or until terminated by us in our
sole discretion. If the license is for beta testing purposes, you may
install the Product only on a non-production Server. If the license is for
internal evaluation purposes, then, except as otherwise expressly provided
in this section 3.2.4, the terms set forth in section 1.2.5 (Limitations on
Evaluation or Trial Licenses) will apply to your use of the Product.
3.2.2.2. Feedback and Improvements. As consideration for the
royalty-free license granted in section 3.2.4.1 (License Grant), you agree
(i) to advise us in writing of any problems or bugs in connection with the
operation of the Product, and (ii) if the license is for release candidate
or evaluation purposes, either obtain a commercial license for the Product,
or advise us, in reasonable detail, of the reasons you have decided not to
obtain a commercial license. Any Improvements (as defined in section 1.6.2
(Feedback)) to the Product, including without limitation any suggested by
you or any of your employees, agents or affiliates, or any based on your
use and license of the Product, will be considered Feedback (as also
defined in section 1.6.2) and subject to the terms and conditions of
section 1.6.2.
3.2.2.3. Confidentiality. The features and functions of the Product
licensed for beta testing, release candidate or evaluation purposes are our
Confidential Information and subject to the terms and conditions of section
1.11 (Confidentiality).
3.2.3. Database Schema. If we provide you with the data base schema
(“Schema”), you agree that your use of the Schema will be subject to
the same license and restrictions with respect to the Product under this
EULA, including without limitation sections 1.2.1 (General License Terms),
1.2.4 (Restrictions), 1.6 (IP Ownership and Feedback), 1.15 (Termination),
3.2.1.5 (Product Restrictions), 3.3.3 (Credentials) and 3.6 (System Data).
We may revise, modify or cease to provide the Schema or any part thereof at
any time. You understand and agree that any change to the Schema or the
database may adversely affect the Product and/or the operation or
performance thereof, for which we will have no responsibility.
Notwithstanding anything to the contrary in this EULA, including without
limitation anything to the contrary in section 1.9 (Warranties), the Schema
is provided solely on an “AS IS” basis without any warranty of any kind. We
make no warranties with respect to the Schema, express, implied, or arising
by custom or trade usage, and specifically make no warranty of
merchantability or fitness for a particular purpose. Your use of the Schema
will be at your own risk. The Schema is our Confidential Information and
subject to the terms and conditions of section 1.11 (Confidentiality).
3.3.
Credentials
. You will be required to create a user name and password (“ Credentials”) that will be required to order Product(s) or Support
(as defined in section 3.4 (Support)). You may only access Product(s) and
Support using your Credentials, and may not access Product(s) or Support
using Credentials of any other person. You may not make your Credentials
available to others, nor allow use of the Product(s) or Support by others
through your Credentials. You agree to accept sole responsibility and
liability for maintaining the confidentiality of your Credentials, for
restricting access to your Credentials and for all use, whether authorized
or unauthorized, of the Product(s) or Support under your Credentials.
3.4.
Support
. If and for so long as you maintain an active support term, we will
provide to you support and assistance in accordance with the level of
support you purchase (“Support”). More information regarding our
support policies can be found at
https://www.progress.com/support
. Annual or multi-year Support terms are paid in advance and are
non-refundable. Unless otherwise specified in the Order or in a written
instrument mutually executed between you and us, Support will not
automatically renew. You may purchase renewal Support terms in accordance
with section 1.7.2 (Maintenance and Support for Perpetual or Term License
Types) and this section 3.4 (Support) at our then-current pricing for
Support at the time of purchase.
3.5. Systems Data
. You acknowledge and agree that we and our affiliates will collect and use
the following information about the use of the Product: install started;
install finished (with error code if error); install type (evaluation,
upgrade new perpetual); hashed serial number for a generic ID; and
additional technical information about your computer, system and
application software, and peripherals that is gathered periodically to
facilitate the provision of software updates, product support and other
services to you (if any), and to verify compliance with the terms of this
EULA (any such data collected by us or our affiliates under this section
3.5, “System Data”). System Data will not include any personally
identifiable information and will be used only on an anonymous, aggregated
basis for our and/or our affiliates’ internal business purposes. We will
own any and all such System Data, and you hereby assign to us all right,
title and interest in and to the System Data.
3.6.
Third Party Beneficiaries
. This EULA is intended for the sole and exclusive benefit of the parties
and is not intended to benefit any third party.
4. PRODUCT SPECIFIC TERMS
This section specifies specific terms and conditions that are applicable to
one or more Products designated as Fee-Based Software, as defined in
section 3 (Product Family Specific Terms).
4.1.
Product Specific Definitions
. Any defined term used in this section 4 (Product-Specific Terms) but not
defined herein will have the meaning ascribed to it in section 1 (General
Terms and Conditions), section 2 (Terms for On-Premise Products) or section
3 (Product Family Specific Terms).
4.2.
Additional Terms for Certain Fee-Based Software
. The following additional terms and conditions apply with respect to:
iMail, iMacros and MessageWay.
4.2.1. License Terms. You may use the Product on the number of
computing devices identified in the Order. If you use the Product on a
virtual machine or in an environment where multiple users share computer
resources, each instance of the Product in use at any time is considered
one computing device. For Products in which more than one feature set
(e.g., “standard”, “premium”) is available, you may solely use one specific
feature set. If you desire a different feature set, you must purchase an
upgrade. Feature sets are defined in the Documentation and identified at
the time of purchase. For Products in which more than one level (e.g., “100
users”, “300 devices”) is available, you may solely use the specific level
identified in the Order. If you desire a different level, you must purchase
an upgrade.
4.2.2. Network Environments. For Products in which more than one
network environment (e.g., “Internally owned and operated”, “externally
owned and operated”) is available, you may solely use the Product in an
internally or externally owned and operated network as specified in the
Order. If you desire to monitor an internal or external network environment
that you are not already authorized to operate the Product in accordance
with the Order, then you must purchase a separate license.
4.2.3. Dynamic Content. For Products which include dynamic content
(e.g., anti-virus and anti-spam definitions), said content is sold on a
subscription basis and remains current as long as you maintain an active
subscription with us.
4.2.4. Software Development Kits. For Products designated as a
Software Development Kit (SDK), you may create, reproduce and distribute
solutions, plug-ins or other derivative works solely to Authorized Users
who have a valid and current license for the associated Product. Any such
solutions, plug-ins or other derivative works referenced in the preceding
sentence are considered “Redistributables” as defined in section 1.2.6
(Redistribution) and, except as otherwise expressly stated in this section
3.2.2.4, all terms and conditions in section 1 (General Terms and
Conditions) pertaining to Redistributables will apply to such solutions,
plug-ins or other derivative works. For SDK Products designated as
“internal Use”, you must further restrict distribution solely to Authorized
Users in your organization.
4.3.
Product-Specific Systems Data
. Notwithstanding anything to the contrary in section 3.5, the following
describes modifications to the scope of Systems Data collected and used by
us in relation to the following specific Products:
iMacros Product
. The iMacros product does not collect any of the following: install
started, install finished (with error code if error). The remainder of the
description of System Data in section 3.5 (System Data) applies to the
iMacros product. The iMacros product does collect the mac address and
hardware information for the sole purpose of iMacros license enforcement.
When a user elects to press the iMacros “About Box”, the iMacros product
will send the version number to our iMacros server to check for available
product updates.
iMail Product
. The iMail product does not collect any of the following: install started,
install finished (with error code if error). The remainder of the
description of System Data in section 3.5 (System Data) applies to the
iMail Product. The iMail product does collect the mac address and hardware
information for the sole purpose of iMail license enforcement. The iMail
product does not collect any other data, personal or otherwise.
MessageWay Product
. The MessageWay product does not collect any of the following: install
started, install finished (with error code if error). The remainder of the
description of System Data in section 3.5 (System Data) applies to the
MessageWay product.
Rev. TMPLT06JAN2020iMacros-iMail-MessageWay30JUN2020