Progress® Modulus Private Cloud License Agreement
Agreement Last Modified: June 8, 2015
1.1 “Activation Instructions” means any instructions, user IDs, software license keys or passwords Progress (or if applicable a Progress Channel Partner (as defined in Section 3.1 below)) may provide you to enable you to activate and access the Modulus Platform.
1.2 “AUP” means the policy identified as the “Acceptable Use Policy,” the current version of which is set forth at http://my.modulus.io/legal/acceptable-use and as it may be updated by Progress from time to time.
1.3 “Licensee Server” means hardware owned and operated solely by you which is used to store and execute the Modulus Platform.
1.4 “Licensee Applications” means Modulus Platform-enabled applications developed by you for your own internal use.
1.5 “Modulus Platform” means the software, documentation, and other materials that Progress makes available for download from the Modulus Site, and any update, upgrade or new versions of the foregoing.
1.6 “Policies” means the AUP, together with all restrictions described on the Modulus Site, and any other policy or terms referenced in or incorporated into this Agreement. The term “Policies” does not include whitepapers or other marketing materials referenced on the Modulus Site or the Progress Site. Progress may modify any of the Policies at any time by posting a revised version on the Modulus Site. The modified Policies will become effective upon posting.
1.7 “Modulus Site” means the site at www.modulus.io or such other site as Progress may designate from time to time.
1.8 “Progress Site” means http://www.progress.com and any successor or related site designated by Progress.
1,9 :Service Level Agreement” or “SLA” means any service level agreement that Progress has posted on the Modulus Site with respect to any version or plan level of the Modulus Platform, as it may be updated by Progress from time to time. 1.9 “Servo” means one instance of a Licensee Application that runs on the Modulus Platform.
1.10 “Third Party Provider” means a third party provider from whom you purchase access to the third party provider’s cloud-based infrastructure (e.g., CPU, memory, storage) to store and execute the Modulus Platform.
1.11 “Your Content” means any and all data, information, software, files and other materials that you cause to interface with the Modulus Platform, or upload to the Modulus Platform under your account or otherwise transfer, process, use or store in connection with your account.
2. Evaluation Use
2.1 If you are provided by Progress with a limited-functionality evaluation version of the Modulus Platform, you may use that version of the Modulus Platform on an evaluation basis free of charge until the earlier of: (i) the end of the free evaluation period (if applicable); or (ii) the start date of any Service Order (hereinafter defined) under which you license a full production version of the Modulus Platform. The Modulus Platform provided for evaluation will be subject to all of the terms and conditions of this Agreement, except that, notwithstanding any provision to the contrary herein, your right to use the Modulus Platform will be subject to the following additional requirements and limits:
(a) You may use the Modulus Platform solely for evaluation and testing purposes. Without limiting the foregoing, you may not use the Modulus Platform in a production environment or otherwise in your internal business operations.
(b) Your use of the Modulus Platform may be subject to certain usage limits, including, without limitation, limits on the number of Servos you may use, and any other limits imposed by Progress and described at the Modulus Site. You will not be permitted to use the Modulus Platform in excess of such limits.
(c) THE MODULUS PLATFORM IS PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.
(d) If you subsequently license a full production version of the Modulus Platform, such license and your use of the Modulus Platform will be governed by the terms and conditions of this Agreement without regard to this Section 2, and will take effect at the start date of any Service Order (hereinafter defined) under which you license the full production version of the Modulus Platform.
3. Licensed Product
3.1 If you are procuring the Modulus Platform directly from Progress, you may order the Modulus Platform by completing and submitting to Progress a written or electronic service order in a form supplied by Progress identifying your desired level of service (“Service Plan”) (based on the description of available Service Plans in the pricing pages on the Modulus Site or as otherwise agreed to in writing by Progress). If you are procuring the Modulus Platform through an authorized reseller, independent software vendor or other distributor of Progress product offerings (a “Progress Channel Partner”), you may submit to the Progress Channel Partner a service order (in the form supplied by the Progress Channel Partner) identifying your desired Service Plan, and the Progress Channel Partner will in turn route the service order to Progress on your behalf or otherwise arrange for the provision of the Modulus Platform to you. The service order that you submit (whether directly to Progress or to the Progress Channel Partner) is referred to herein as a “Service Order”. Service Orders are subject to acceptance by Progress (or if applicable the Progress Channel Partner); such acceptance is deemed to occur when Progress (or if applicable the Progress Channel Partner) agrees in writing to accept your Service Order or issues you Activation Instructions for the Modulus Platform. You understand and agree that by submitting the Service Order and consenting to the terms of this Agreement, you have made a binding selection of the type of Service Plan to be provided to you and all associated prices and policies related to the Modulus Platform. The Service Plan you select may limit the number of Servos that you are permitted to use on the Modulus Platform.
3.2 Each Service Order submitted by you and accepted by Progress or the Progress Channel Partner (as applicable) is incorporated into and is subject to the terms and conditions of this Agreement; provided, however, that in the event of conflict between the terms contained in the Service Order and the terms in this Agreement, the terms contained in this Agreement shall control.
3.3 If you use a Third Party Provider, you represent and warrant that you maintain exclusive control over the uploading and management of the Modulus Platform within the Third Party Provider’s cloud-based infrastructure and that the Third Party Provider will not be permitted to access or use the Modulus Platform. In the event your agreement with the Third Party Provider is terminated or you otherwise cease to use the Third Party Provider, you will ensure that all copies of the Modulus Platform, in whole or part, are removed from the Third Party Provider’s cloud-based infrastructure and destroyed.
3.4 Progress shall have no responsibilities whatsoever, financial or otherwise, (i) for any Licensee Server, any Third Party Provider services, or any acts or omissions of Progress Channel Partners that you interact with in connection with your procurement and use of the Modulus Platform, or (ii) to any end-user clients to whom you grant access to the Modulus Platform.
4. Grant of License
4.1 Conditioned on your compliance with the terms and conditions of this Agreement, Progress grants you a non-exclusive, non-sublicensable, non-transferable license during the Initial and any Renewal Term of this Agreement: (i) to access and use the Modulus Platform solely for the purpose of developing and using Licensee Applications in conjunction with the Modulus Platform for your own internal use, and (ii) to provide training and maintenance and support services for Licensee Applications. If you are procuring the Modulus Platform for use on a Licensee Server, you may provide end-user clients of yours with remote access to the Modulus Platform, conditioned on your acknowledgement and agreement that any act or omission of such an end-user client relating to end-user client’s access and use of the Modulus Platform that would constitute a breach of this Agreement if the act or omission was made by you will be deemed to be a breach by you of this Agreement.
4.2 The Modulus Platform may contain or be accompanied by certain third-party components which are subject to additional restrictions and/or license terms that differ from those set forth in this Agreement. These components, if any, are identified in, and subject to, special license terms and conditions set forth in either the “readme.txt” file or the “notices.txt” file accompanying the Modulus Platform (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates). Unless otherwise expressly stated in the Special Notices for any particular third party component, all third party components included in or accompanying the Modulus Platform may be used solely in connection with the operation of the Modulus Platform subject to and in accordance with the terms and conditions of this Agreement.
5. License Restrictions.
5.1 You agree to use the Modulus Platform only for the purposes permitted by this Agreement and for no other purpose. Without limiting the foregoing, except as otherwise expressly provided for herein or in any applicable Special Notice, you agree not to:
(a) reproduce, copy, duplicate, modify, or create a derivative work of the Modulus Platform (or any part thereof);
(b) reverse engineer, decompile, or otherwise attempt to discover the source code of the Modulus Platform (or any part thereof) except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, in which case you agree to observe strict obligations of confidentiality and provide Progress reasonable advance written notice and the opportunity to assist with and/or conduct such activity on your behalf and at your expense;
(c) sell, resell, trade, rent, lease, distribute, sublicense, assign, grant a security interest in or otherwise transfer any right in the Modulus Platform (or any part thereof).
5.2 You may not, and will not permit others to, combine or use the Modulus Platform, in whole or in part, with any other software code or materials, including without limitation "free" or "open source" software, in such a way that would require the disclosure, licensing or distribution of any source code for any portion of the Modulus Platform or the licensing or distribution of the Modulus Platform at no charge.
5.3 You may not, and will not permit others to, use the Modulus Platform to develop applications that offer substantially similar functionality as the Modulus Platform.
5.4 You may not develop multiple Licensee Applications to simulate or act as a single Licensee Application or otherwise access or use the Modulus Platform in a manner intended to avoid incurring fees.
6. Limited Rights.
6.1 Your rights in the Modulus Platform are limited to those expressly granted in Section 4. Progress reserves all other rights, title and interest in and to the Modulus Platform not expressly granted to you under this Agreement.
6.2 Progress acknowledges and agrees that you and/or your licensors own all legal right, title and interest in and to Your Content. Except as provided in this Agreement, Progress obtains no rights from you or your licensors to Your Content. You consent to Progress’ access to your account and Progress’ use of Your Content, including information necessary to login to certain third party service accounts and other information that Progress requests from you, to the extent Progress deems such access and use necessary to provide you with access to and use of the Modulus Platform as set forth herein, or for the purpose of administration related to the Modulus Platform. Except as permitted under this Agreement, Progress will not edit or delete the contents of Your Content unless authorized by you or unless Progress is required to do so by law or in good faith belief that such action is necessary to: (a) conform with applicable laws or comply with legal process served on Progress; (b) protect and defend the rights or property of Progress or others; or (c) enforce the terms and conditions of this Agreement.
7. Marketing Obligations; Maintenance and Support.
7.1 You agree to: (i) conduct business in a manner that reflects favorably at all times on the Modulus Platform and the good name, goodwill and reputation of Progress; (iii) make no false or misleading representations with regard to Progress or the Modulus Platform; and (iv) make no representations, warranties or guarantees with respect to the specifications, features or functionality of the Modulus Platform that are inconsistent with the literature distributed by Progress.
7.2 You agree to provide all training and maintenance and support services for Licensee Applications. Progress will have no obligation to provide training, maintenance or support services in connection with Licensee Applications. You are also solely responsible for Your Content, which responsibilities include without limitation (i) the handling and processing of notices sent to you by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act; and (ii) taking steps to maintain appropriate security, protection and backup of Your Content. You will be responsible for any and all costs and expenses that you incur in connection with your performance under this Agreement. Without limiting the foregoing, Progress reserves the right to take down Your Content or, if necessary, the Licensee Application itself upon receipt of a valid Digital Millenium Copyright Act notice.
7.3 In all events, Progress reserves the right, from time to time, in its sole discretion and without liability to you of any kind, to: (i) change the Modulus Platform; and (ii) change or terminate the level or type of service or support that Progress makes available for the Modulus Platform.
7.4 As part of the Modulus Platform, third party content and/or third party services may be made available to you. You may also have access to links (either by way of hyperlinks, icons or bookmarks) to specific third party websites. You acknowledge and agree that, notwithstanding that the Modulus Platform may provide links to third party websites and may make available third party services and/or third party content through the Modulus Platform, SUCH THIRD PARTY SERVICES AND THIRD PARTY CONTENT ARE NOT UNDER THE CONTROL OF PROGRESS AND ARE IN NO WAY ENDORSED BY OR THE RESPONSIBILITY OF PROGRESS. You further acknowledge and agree that Progress will not be responsible or liable, directly or indirectly, for any damages or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such services, website or resource.
8. Export Control. The Modulus Platform, including technical data, is subject to the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will comply with all applicable import, re-import, export and re-export control laws and regulations, including, without limitation, the U.S. Export Administration Act and its associated regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance with such laws and regulations in relation to the manner in which you use the Modulus Platform. Without limiting the foregoing, you agree that (i) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (ii) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which access or use of the Modulus Platform would be prohibited by United States law. You will not use the Modulus Platform for, and will not permit the Modulus Platform to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
9. Government Use. If the Modulus Platform is being used 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 Modulus Platform will be only as set forth herein. Any portion of the Modulus Platform that is software, and related documentation are each a "commercial item" as that term is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer 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 any portion of the Modulus Platform that is software, and such documentation with only those rights set forth herein. Contract/Manufacturer is Progress Software Corporation, 14 Oak Park, Bedford, Massachusetts 01730.
10. Support; Managed Services; SLA
10.1 Provided that you have paid the fees associated with a Modulus Enterprise Service Plan for the Modulus Platform and have met any applicable requirements to qualify, Progress agrees to provide you with technical support in accordance with Progress’ then-current support description located at http://enterprise.modulus.io/features or such other websites that Progress designates from time to time. Progress reserves the right to update the support description and change the manner and means by which technical support may be provided to you.
10.2 Progress may, from time to time during the Term of this Agreement provide Updates to the Modulus Platform. For purposes of this Agreement, an “Update” shall mean any update, patch, version and/or new release of or to the Modulus Platform or any modification to the Modulus Platform that Progress furnishes generally to its customers who are current on maintenance and support. Updates shall be subject to the terms and conditions of this Agreement.
10.3 If your Service Plan includes Managed Services, Progress will provide the additional services described at https://modulus.io/solutions/infrastructure-management-and-monitoring.. The SLA referred to in the description of the Modulus Managed Services is described at https://modulus.io/solutions/SLA and applies only to the Managed Services offering. Progress may change, discontinue or add Service Level Agreements from time to time.
11.1 If you procured the Modulus Platform directly from Progress:
(a) You agree to pay the fee(s) applicable to the Service Plan identified in your Service Order, plus all applicable additional usage charges. All fees for additional Servos will be billed in whole month increments, including additional Servos purchased in the middle of any month during the Initial or any Renewal Term.
(b) Progress will charge you based on the payment options you select in your Service Order or as otherwise agreed to by Progress, in advance of the provision of Service, and payment of such fees will be due immediately. You will provide Progress with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information, you authorize Progress to bill such credit card: (a) at the time that you order any products or services, for all products and services set forth in the Service Order; and (b) at the time of any renewal, for the amount charged for any Renewal Term. You acknowledge and agree that any credit card and related billing and payment information that you provide to Progress may be shared by Progress with companies who work on Progress’ behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Progress and servicing your account. If Progress, at its discretion, permits you to make payment using a method other than a credit card, Progress will invoice you at the time of your initial order and at the time of any Renewal Term. All amounts invoiced hereunder shall be due within thirty (30) days of the date of invoice. All payments will be in U.S. dollars. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Progress may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
11.2 If you procured the Modulus Platform through a Progress Channel Partner:
(a) you agree to pay the fee(s) applicable to the Service Plan identified in your Service Order, plus all applicable additional usage charges.
(b) the Progress Channel Partner may be responsible for billing and/or collecting payment from you. If the Progress Channel Partner is responsible for billing and/or collection, the billing and collection terms agreed to between you and the Progress Channel Partner may differ from the terms set forth in Section 11.1 above.
11.3 If Progress must initiate a collections process to recover fees due and payable hereunder, then you will pay all costs associated with such collection efforts.
11.4 All fees and charges are exclusive of applicable taxes and duties, including VAT and sales tax. You agree to provide Progress (or if applicable, the Progress Channel Partner) any information Progress or the Progress Channel Partner may reasonably request to determine whether Progress or the Progress Channel Partner is obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Progress (or if applicable the Progress Channel Partner) with legally-sufficient tax exemption certificates for each taxing jurisdiction. Tax on charges under your account occurring after the date of receipt of a valid tax exemption certificate(s) will be excluded. If any deduction or withholding is required by law, you will notify Progress (or if applicable the Progress Channel Partner) and will pay any additional amounts necessary to ensure that the net amount that Progress receives, after any deduction and withholding, equals the amount Progress would have received if no deduction or withholding had been required. Additionally, you will provide Progress (or if applicable, the Progress Channel Partner) with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
12. Confidentiality; Privacy
12.1 The parties acknowledge that during the course of performance of this Agreement, the parties may disclose to each other certain information which may be considered confidential and trade secret information (“Confidential Information”). Confidential Information shall be limited to any information that (i) if disclosed in written or other tangible form, is clearly marked as being the confidential or proprietary information of the disclosing party or (ii) if disclosed orally, is reduced to written form, clearly marked as the confidential and proprietary information of the disclosing party and transmitted to the receiving party within ten (10) days of the oral disclosure. The parties acknowledge and agree that the Modulus Platform shall be considered the Confidential Information of Progress without the requirement of marking.
12.2 Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or becomes a part of the public domain through no wrongful act or omission of the other party; (ii) was in the receiving party’s possession before receipt from the party providing such Confidential Information; (iii) is rightfully received by the receiving party from a third party without any duty of confidentiality; (iv) is disclosed to a third party by the party providing the Confidential Information without a duty of confidentiality on the third party; (v) is independently developed by the other party without access to the first party’s Confidential Information; (vi) is disclosed under operation of law, provided the disclosing party gives the other party notice of any such request so that the other party may seek an appropriate protective order; or (vii) is disclosed with the prior written approval of the party providing such Confidential Information.
12.3 Each party shall use the other party’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement. All Confidential Information owned by one party and disclosed to the other party shall remain solely the property of the disclosing party. The parties agree, both during the term of this Agreement and for a period of three (3) years after termination or expiration of this Agreement to hold each other’s Confidential Information in confidence and to protect the Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as they use to protect their own confidential information of a like nature. Each party agrees to restrict disclosure of the Confidential Information to those of its employees who have a “need to know” and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees in violation of the provisions of this Agreement.
12.4 Without limiting the foregoing, you agree not to disclose the results of any benchmark or other testing relating to the Modulus Platform to any third party without the prior written consent of Progress.
12.5 Progress Confidential Information may include information about Progress’ current and future plans and/or strategies relating to products, services, and business development. Progress reserves the right, in its sole discretion, to modify, change, alter or eliminate any such plans or strategies from time to time without notice, obligation or liability to you. Any future features or functionality that may be part of a product or service roadmap are for discussion purposes only and are not a commitment on the part of Progress to provide any such enhancement as part of any future release or service offering. You acknowledge that any buying decision is based solely on the features and functionality currently available as part of the current generally available product or service. All future features and functionality shared with you may be made available in a product or service at the sole discretion of Progress.
12.7 You acknowledge that, in the event of any breach of the terms and conditions of this Agreement, Progress will not have an adequate remedy in money or damages. In such event, Progress will be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and without the requirement of posting any bond. Progress' right to obtain such relief shall not limit its right to obtain other remedies.
As part of using the Modulus Platform, Progress may provide you with the opportunity to submit comments, suggestions, ideas, feedback, information or other disclosures regarding your use of the Modulus Platform (collectively “Feedback”). You are not required to provide any Feedback, but if you do, then you agree that Progress is free to use without restriction (but is not obligated to use) any Feedback you provide, including without limitation, any ideas, concepts, know-how, or techniques relating to the Modulus Platform (or any part thereof), for any purpose and without restriction and without any accounting, royalty or other obligation to you. Progress will own all right, title, and interest in and to the Feedback, even if you have designated the Feedback as confidential. You hereby irrevocably assign to Progress all right, title and interest in and to the Feedback and agree to provide Progress any assistance it may require to document, perfect and maintain Progress’ rights in the Feedback.
14. Warranties; Disclaimer of Warranties
14.1 Progress warrants that (a) Progress has validly entered into this Agreement and has the legal power to do so and (b) the Modulus Platform will perform materially in accordance with the documentation accompanying the Modulus Platform. For any breach of the foregoing warranty, your sole and exclusive remedy shall be to terminate this Agreement pursuant to Section 17.2(b) and obtain a pro-rata refund of the Service fee in accordance with Section 17.5.
14.2 You warrant that you have validly entered into this Agreement and have the legal power to do so. You also represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any output of the Modulus Platform within and outside of the country in which you are located in connection with your use of the Modulus Platform (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, and contractors). You represent and warrant to Progress that you have all rights in Your Content necessary to for you to use and make Your Content available and that you have all rights necessary to grant the rights contemplated by this Agreement.
14.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. EXCEPT AS SET FORTH IN PARAGRAPH 14.1 ABOVE, PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN PARTICULAR (BUT WITHOUT LIMITING THE FOREGOING DISCLAIMER), PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE MODULUS PLATFORM WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE MODULUS PLATFORM WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE USE OF THE MODULUS PLATFORM WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE MODULUS PLATFORM WILL BE CORRECTED.
15. Limitation of Liability
15.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH IN SECTION 15.2 BELOW MAY NOT APPLY TO YOU.
15.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, OR OTHER INTANGIBLE LOSSES (EVEN IF PROGRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE MODULUS PLATFORM; (II) ANY CHANGES MADE TO THE MODULUS PLATFORM; OR (III) OTHERWISE ARISING UNDER THIS AGREEMENT. IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL PROGRESS’ LIABILITY TO YOU EXCEED THE FEE YOU PAID FOR THE PERIOD OF THE INITIAL TERM OR RENEWAL TERM IN EFFECT AT THE TIME SUCH LIABILITY ACCRUED. You agree that you are solely responsible for (and that Progress has no responsibility to you or to any third party for) the Licensee Application or any of YOUR content that you create, transmit or display while using the Modulus Platform and for the consequences of your actions (including any loss or damage which Progress may suffer) by doing so. You agree that Progress has no responsibility or liability for the deletion or failure to store any of your content and other communications maintained or transmitted through use of the Modulus Platform. You further acknowledge that you are solely responsible for securing and backing up the Licensee Applications and your content.
16.1 You will defend, indemnify, and hold harmless Progress, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any: (I) third party claim concerning: (a) use of the Modulus Platform by you or any or any end-user client to whom you have granted access to the Modulus Platform (including any activities under your account and use by your employees and personnel or the employees and personnel of your end-user clients); (b) breach of this Agreement or violation of applicable law by you or any end-user client to whom you have granted access to the Modulus Platform; or (c) Licensee Applications or the combination of Licensee Applications with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Licensee Applications or by the use, development, design, production, advertising or marketing of Licensee Applications; or (II) third party claim brought by an end-user client to whom you have granted access to the Modulus Platform regarding such end-user client’s use of the Modulus Platform or any Licensee Applications deployed on the Modulus Platform. If Progress or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse Progress for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Progress’ then-current hourly rates.
16.2 Progress will promptly notify you of any claim subject to Section 16.1, but Progress’ failure to promptly notify you will only affect your obligations under Section 16.1 to the extent that Progress’ failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to Progress’ written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain Progress’ prior written consent before entering into any settlement. Progress may also assume control of the defense and settlement of the claim at any time if you have failed to appropriately protect Progress’ interests.
17. Term and Termination
17.1 The Initial Term for the Service Plan you purchased will commence upon acceptance of the Service Order and will continue for the period of time set forth in the Service Order, unless earlier terminated. If you procured the Modulus Platform directly from Progress, then your Service Plan will automatically renew for successive Renewal Terms each equal in duration to the Initial Term, unless either you or Progress terminates your Service Plan and this Agreement in accordance with Section 17.3 below. If you procured the Modulus Platform through a Progress Channel Partner, renewal terms may differ from those set forth in the previous sentence; you should contact the Progress Channel Partner for details regarding the renewal process and the terms of successive Renewal Term(s) (if any).
17.2 Any revisions to this Agreement (other than to the Policies, which are addressed in Section 1.6 above) are not effective unless and until agreed to in writing by both parties.
17.3 This Agreement may be terminated as follows:
(a) Either party may terminate your Service Plan and this Agreement for any reason or no reason at all by providing the other party with written notice of its intention to do so within ten (10) days (if you purchased a monthly Service Plan) or thirty (30) days (if you purchased any other Service Plan) prior to the expiration of the Initial Term or Renewal Term, as applicable. Any termination of your Service Plan and this Agreement pursuant to this Section 17.3(a) will be effective upon the expiration of your Initial Term or then-current Renewal Term, as applicable.
(b) Either party may terminate your Service Plan and this Agreement immediately for cause if there is any material default or breach of this Agreement by the other party and the breaching party fails to cure such default or breach within thirty (30) days of receipt of notice of the default or breach from the non-breaching party.
(c) Notwithstanding anything in Section 17.3(b) or elsewhere in this Agreement, Progress may also terminate your Service Plan and this Agreement immediately upon notice to you if: (i) your use of the Modulus Platform may subject Progress, its affiliates, or any third party to liability; (ii) you violate or breach the license set forth in Section 4 or any of the license restrictions set forth in Section 5 of this Agreement; or (iii) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
(d) If you procured the Modulus Platform through a Progress Channel Partner, your agreement with the Progress Channel Partner may have termination provisions that differ from those set forth in this Section 17.3; in the case of such difference, the termination provisions in your agreement with the Progress Channel Partner shall apply. Notwithstanding the foregoing sentence, and regardless of whether you procured the Modulus Platform through a Progress Channel Partner, Progress shall always have the right to terminate your Service Plan and this Agreement pursuant to the terms set forth in Section 17.3(c) of this Agreement.
17.4 Upon any termination of this Agreement:
(a) all your rights under this Agreement immediately terminate;
(b) you will remain responsible for all fees and charges you have incurred through the date of termination;
(c) you will immediately return or, if instructed by Progress or the Progress Channel Partner, destroy all copies, in whole or in part, of the Modulus Platform in your possession;
(d) you will, if applicable, require the removal from the Third Party Provider’s cloud-based infrastructure and destruction of all copies, in whole or in part, of the Modulus Platform; and
(e) All rights of action accruing prior to termination, payment obligations any other terms and conditions of this Agreement which by their nature would naturally survive the termination of this Agreement will continue to apply; and
(f) you are solely responsible for exporting Your Content and Licensee Application(s) from the Modulus Platform.
17.5 If you procured the Modulus Platform directly from Progress, all fees paid by you are non-refundable except that if your Service Plan and this Agreement is terminated by Progress without cause pursuant to and in accordance with subsections 17.3(a) or by you pursuant to and in accordance with Section 17.3(b), Progress will refund to you a service credit for the Modulus Platform that is equal to a pro-rata portion of the Service fee paid by you where such pro-rata portion is calculated based on the remainder of your then-current Initial Term or Renewal Term, as applicable. If you procured the Modulus Platform through a Progress Channel Partner, refunds (if any) may be subject to different terms that have been agreed to by you and the Progress Channel Partner.
17.6 Upon termination of this Agreement, you will cease all use of the Modulus Platform. The parties’ rights and obligations under Sections 1, 5, 6, 8, 9, 11-22 (inclusive), and any other obligations hereunder which by their nature would continue beyond the expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
18. Governing Law
18.1 Any litigation or other dispute resolution between you and Progress arising out of or relating to this Agreement or your use of the Service will take place in the Commonwealth of Massachusetts, and you and Progress hereby consent to the personal jurisdiction of, and exclusive venue in, the state and federal courts within Massachusetts with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts, except that body of Massachusetts law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18.2 Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
19.1 Progress may provide any notice to you under this Agreement by: (i) posting a notice on the Modulus Site; or (ii) sending a message to the email address then associated with your account. Notices Progress provides by posting on the Modulus Site will be effective upon posting and notices Progress provides by email will be effective when Progress sends the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when Progress sends the email, whether or not you actually receive the email.
19.2 To give Progress notice under this Agreement, you must contact Progress as follows: (i) by e-mail to email@example.com, or (ii) by personal delivery, overnight courier or registered or certified mail to: attention General Counsel, Progress Software Corporation, 14 Oak Park Drive, Bedford, MA 01730. Progress may update the e-mail address or address for notices to Progress by posting a notice on the Modulus Site.
20. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure. The delayed party’s performance will be excused for the duration of the Force Majeure, but if the Force Majeure lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement, or the applicable Service Plan by giving written notice to the delayed party.
21. Audit Rights. Progress may install, enable and utilize automated license tracking, management and/or enforcement solutions with the Modulus Platform, which you may not disrupt or alter. You will maintain books and records in connection with this Agreement and your use of the Modulus Platform. Such books and records shall include at a minimum the Service Plan purchased and your use of the Modulus Platform. At its expense and with reasonable written notice to you, Progress or a third party appointed by Progress may audit these books, records, and if necessary, the systems on which the Modulus Platform is installed for the sole purpose of ensuring compliance with the terms of this Agreement. Progress shall have the right to conduct follow-up audits as necessary. All audits shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business activities. Progress shall treat all such records and books as confidential information. If any audit reveals that you have underpaid license or support fees, you will be invoiced for all such underpaid fees based on the Progress list price in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the fees you previously paid, then you agree to also pay Progress’ reasonable costs of conducting the audit and enforcement of this Agreement.
22. General. This Agreement and the Policies constitute the entire agreement between you and Progress and govern your use of the Modulus Platform, and supersede any other prior or contemporaneous agreement, proposal, communication or advertising, oral or written, signed or unsigned, between you and Progress with respect to the Modulus Platform. In the event of conflict between the terms and conditions of this Agreement and any Policy incorporated herein by reference, the terms and conditions of this Agreement shall govern. To the extent there are any terms and conditions contained in your purchase order or other documentation supplied by you such terms and conditions shall be deemed stricken and the terms and conditions of this Agreement shall govern. Except as otherwise expressly provided for herein, this Agreement shall not be changed, modified or altered in any manner except by an instrument in writing and signed by both parties. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Progress to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. You may not assign this Agreement or any rights hereunder and may not delegate any duties under this Agreement without Progress’ prior written consent. Any attempt to assign or delegate this Agreement without such consent will be null and void.