PROGRESS SOFTWARE CORPORATION OPENEDGE DEVELOPERS KIT LICENSE AGREEMENT ("Agreement")
IMPORTANT – READ CAREFULLY: This Agreement is a legal agreement between you (either an individual or a single entity) and Progress Software Corporation (“PSC”, “we” or “our") for the Software and Program Materials (both defined below). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY DOWNLOADING, INSTALLING (IF APPLICABLE), COPYING OR OTHERWISE USING THE SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS. IF YOU DO NOT AGREE, DO NOT INSTALL (IF APPLICABLE) OR USE THE SOFTWARE AND/OR PROGRAM MATERIALS; YOU MAY RETURN THEM TO PSC (IF YOU PURCHASED THE SUBSCRIPTION FROM PSC) OR THE AUTHORIZED DEALER FROM WHOM YOU PURCHASED THE SUBSCRIPTION FOR A FULL REFUND, PROVIDED THAT SUCH RETURN IS MADE WITHIN A REASONABLE PERIOD FOLLOWING YOUR PURCHASE OF THE SUBSCRIPTION (SUCH PERIOD NOT TO EXCEED THIRTY (30) DAYS FROM YOUR DATE OF PURCHASE OF THE SUBSCRIPTION). In addition, by downloading, installing, copying or otherwise using Updates (defined below) that you receive during the Subscription Period (also defined below), you agree to be bound by the additional license terms, if any, that accompany such Updates. In the event of conflict between the terms and conditions of this Agreement and the terms and conditions accompanying an Update, the terms and conditions of the Update shall govern. If you do not agree to the additional license terms that accompany such Updates, you may not download, install, copy or use such Updates.
The Software and/or Program Materials are licensed through the PSC OpenEdge Developers’ Kit Software (“OEDK”) subscription program. The OpenEdge Developers’ Kit was created to assist You in developing and testing software applications based on the Progress OpenEdge Platform. The OpenEdge Developers’ Kit is available to individual developers, whether independent or within an organization, who have been issued a Progress ID. You may obtain a Progress ID by registering on the Progress Community website at https://community.progress.com.
1.1 Documentation. The term “Documentation” means any and all product documentation, whether in printed or electronic form, describing the Products, software tools and/or utilities that may be delivered to you or which you may be permitted to access depending on the OEDK edition you have subscribed to.
1.2 Products. The term "Products" means certain commercially released software products owned by PSC or its licensors which may be delivered to you or which you have been permitted to download depending on the OEDK edition you have subscribed to.
1.3 Program Materials. The term “Program Materials” means all information and materials, including Documentation, training materials, technical information and presentation materials related to the Software made available to you as part of the OEDK.
1.4 Software. The term “Software” means commercially released software Products owned by PSC or its licensors, and any Updates thereto, which may be delivered to you or which you may be permitted to download from the PSC website depending on which OEDK edition you have subscribed to.
1.5 Subscription Period. The term “Subscription Period” means the period set forth in the written or electronic order document, form or invoice provided by PSC, during which you may use the OEDK edition you have selected.
1.6 Training Materials. The term “Training Materials” means any training course materials and related instructional guides (if any), in printed, electronic, or other form, including, without limitation, computer-based training materials, which may be delivered to you or which you may be permitted to download from the PSC website depending on which OEDK edition you have subscribed to.
1.7 Updates. The term “Updates” means any software patches, updates, new versions or new releases of the Software or updates or supplements to the Documentation or Program Materials, which you may receive. Your use of Software Updates is subject to the terms of this Agreement, together with the applicable clickwrap license, if any, accompanying the Update.
1.8 User. An individual authorized to use the Products subject to this Agreement and the applicable clickwrap licenses accompanying the Products.
2. Grant of License.
2.1 General Grant of License. Depending on the OEDK edition you have chosen, the items licensed to you under the OEDK subscription may consist of Software, Documentation and/or Program Materials. Your right to use such items shall be subject to and in accordance with the terms and conditions of this Agreement and the applicable clickwrap licenses accompanying the downloaded Software. If this Agreement is being provided to you in connection with your purchase of a renewal Subscription Period, then the terms and conditions of this Agreement shall govern with respect to: (a) your use of any Software, Documentation and/or Program Materials delivered to you, or which you are permitted to download from the PSC website, during your current Subscription Period, and (b) your continued use of any Software, Documentation and/or Program Materials previously delivered to you, or which you previously downloaded from the PSC website, during your prior Subscription Period(s). Notwithstanding anything to the contrary, your use of the Software shall be limited to your Subscription Period.
2.1.1 You have the right to use a specific version of an OEDK edition to design, develop, and test certain Products. The version of the OEDK edition you have subscribed is identified in the order. At https://www.progress.com/docs/default-source/openedge/oedk-contents.pdf you will find a list of the specific products in each OEDK edition, and how they are licensed —whether by number of registered clients, CPUs, connections, or machines. It is also detailed there the platforms and versions made available with each OEDK edition.
2.2 Program Materials. PSC grants to you a non-exclusive, non-transferable, limited term license to make and use copies of the Program Materials (excluding Training Materials) solely for the purpose of assisting you in developing, maintaining and testing your software applications. If you are an individual, you may make and use one or more copies of the Program Materials provided that all such copies remain in your possession and control, and are used solely by you. If you are an entity, you may grant one or more employees and/or authorized contractors in your organization the right to make and use one or more copies of the Program Materials, provided that: (a) all such employees and/or authorized contractors are put on notice by you of the terms and conditions of this Agreement and are required to abide by said terms and conditions, (b) use of the Program Materials by such employees and/or authorized contractors is limited to use solely to assist in the development, maintenance and/or testing of your software applications, and (c) no copies of the Program Materials are provided to anyone other than the above-referenced employees and/or authorized contractors.
2.3 Software. Subject to the terms and conditions of this Agreement, and subject also to the applicable clickwrap license agreement accompanying any Software You download from the PSC website, PSC grants You a non-exclusive, non-transferable, limited term license to use the Software and Program Materials only for the purpose of internal design, development, and testing of application software designed to function with the Progress OpenEdge Platform. Your use is subject without limitation, to the following restrictions:
2.3.1 The Software may include one or more Products. Your use of such Products shall be subject to the additional usage restrictions set forth in the accompanying Product clickwrap licenses.
2.3.2 If you are an entity, you may permit your employees and/or authorized contractors to use the Software solely in accordance with and subject to the terms and conditions of this Agreement, including, without limitation, the following conditions:
(a) All such employees and/or authorized contractors are put on notice by you of the terms and conditions of this Agreement and are required to abide by said terms and conditions.
(b) Your use of the software is subject to the terms and conditions of the Agreement and depending on the OEDK edition you have purchased the terms and conditions in the order and at https://www.progress.com/docs/default-source/openedge/oedk-contents.pdf. Your use of the Products is subject to the limitation on the maximum number of Users permitted access to the Products set forth in your order, or any Update thereof.
(c) If, during your Subscription, you require the right to increase the number of licensed Users, you may obtain additional Licenses for an additional fee based on PSC's then-current pricing in effect at the time of the purchase.
(d) You may use the Software and Program Materials solely for the purposes of designing, developing and testing Your OpenEdge-compatible software applications in a test environment, and for no other purpose. You may not deploy or use the Software and/or Program Materials in a production environment.
(e) From time to time, you may have access to Pre-Release Code. In addition to the limitations described in this Agreement, you acknowledge that the Pre-Release Code is in the development stage, that it may contain known and unknown errors, that the results of its use and operation may be unreliable, and that damage to your development environment may be caused by the use of Pre-Release Code.
2.4 Pre-Release Code. Depending on the OEDK edition you have chosen, you may have access to Pre-Release Code. In addition to the limitations on your right to use the Software described herein, the following additional terms and conditions shall apply to your use of any portion of the Software that is Pre-Release Code:
2.4.1 You acknowledge that the Pre-Release Code is in the development stage, that it may contain known and unknown errors, that the results of its use and operation may be unreliable, and that damage to your development environment may be caused by your use of the Pre-Release Code.
2.4.2 You agree that your use of the Pre-Release Code will at all times be entirely voluntary, at your request and at your own risk.
2.4.3 You agree that PSC shall have sole authority and discretion to determine the period of time for testing and evaluation of any Pre-Release Code, and that PSC shall be the sole judge of the success of such testing and the sole decision maker as to whether or not to offer the Pre-Release Code, or any portion thereof, as a commercial product.
2.4.4 You agree that PSC reserves the right, prior to providing you with access to any Pre-Release Code, to condition your access to such Pre-Release Code on your agreement to the terms and conditions of PSC’s standard form of pre-release or beta software license agreement then-applicable for other recipients of such Pre-Release Code.
2.5 Updates. All Updates shall be considered part of the Software, Documentation and/or Program Materials (as applicable) and subject to the terms and conditions of this Agreement. Additional license terms and conditions may accompany Updates as described in the first paragraph of this Agreement. By downloading, installing, copying or otherwise using any Update, you agree to be bound by the terms and conditions accompanying each such Update, and further agree that such additional license terms and conditions shall govern with respect to your use of each such Update and the previously supplied Software, Documentation and/or Program Materials. In the event of conflict between the terms and conditions of this Agreement and the additional terms and conditions accompanying the Update, the additional terms and conditions accompanying the Update shall govern if you install, copy or otherwise use such Update. If you do not agree to the additional license terms and conditions accompanying such Update, do not install, copy or otherwise use the Update and return the Update (and all copies thereof) to PSC.
2.6 Documentation. Depending on the OEDK edition you have subscribed to, you may receive Documentation under your OEDK subscription. PSC grants to you a non-exclusive, non-transferable, limited license to copy and use the Documentation on an internal use basis in support of your application development, maintenance and/or testing activities.
2.7 Training Materials. Depending on the OEDK edition you have subscribed to, you may receive Training Materials under your OEDK subscription. PSC grants to you a non-exclusive, non-transferable, limited license to use such Training Materials solely on an internal use basis in support of your application development, maintenance and/or testing activities. Use of the Training Materials, including, without limitation, any corresponding training course files, on your Intranet shall be your sole responsibility, and you shall be solely responsible for all support requirements associated with such use. Without limiting the foregoing, PSC shall have no responsibility or liability for network degradation, if any, resulting from the use of the Training Materials on your Intranet. You may not install the Training Materials, or any portion thereof, outside of your firewall. In addition, if you are an entity, then you agree to restrict access to the Training Materials to your employees and/or authorized contractors who have been put on notice by you of the terms and conditions of this Agreement and who have agreed to abide by said terms and conditions.
2.8 OEDK Classroom Edition. Notwithstanding anything to the contrary in this Agreement, if you have installed, downloaded or accessed the OEDK Classroom edition, you shall have a limited, non-exclusive, non-transferable, perpetual license to use the Software, Documentation and/or Program Materials solely for purposes directly related to teaching, training, degree-granting programs, and research and development that is part of the instructional function. User may not use the Software, Documentation or Program Materials for: (i) research and development purposes if the results thereof are primarily intended to benefit a third party; (ii) for any commercial purpose, such as developing software for sale or license; or (iii) administrative uses, such as the development of software for recording of student records, accounting purposes, and the like. User’s use of the Software, Documentation and/or Program Materials shall continue until terminated as provided in this Agreement. Upon termination of this license, User agrees to return the Software, Documentation and/or Program Materials to PSC or destroy the Software, Documentation and/or Program Materials.
3. Other Restrictions.
3.1 The Product may contain or be accompanied by certain third-party components which are subject to additional restrictions. These components, if any, are identified in, and subject to, special license terms and conditions set forth in either the “[readme].txt” file, the [notices.txt] file or the “docs/ThirdPartyLicense” folder accompanying the Product (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates).
4. Limitations on Transfer.
4.1 Except as otherwise expressly permitted hereunder, you may not transfer, sell, assign, or otherwise convey the Software, Documentation and/or Program Materials, or any portion of the foregoing, to another individual or entity. You may not sell, rent, license, or grant sublicenses, leases, or other rights in said Software, Documentation and/or Program Materials, or any portion of the foregoing, to others. Without limiting the foregoing, you shall have no right to use the Software to provide time-sharing services or act as or operate a service bureau or provide subscription or hosting services for others.
5.1 The Software, Documentation and Program Materials are proprietary products and/or materials of PSC, or its licensors, and are protected by copyright law. By virtue of this Agreement, you acquire only the non–exclusive right to use the Software, Documentation and/or Program Materials, if any, delivered to you or which you may download from the PSC website in accordance with the terms and conditions of this Agreement. You do not acquire any rights of ownership in the Software, Documentation and/or Program Materials, or the media upon which any of the foregoing are embodied. PSC, or its licensors, shall at all times retain all right, title, and interest in such Software, Documentation and Program Materials.
6. Term and Termination.
6.1.1 This Agreement shall remain in effect during the duration of your subscription. Except as otherwise expressly stated herein, this Agreement shall expire and all of your rights to use the Software, Documentation and/or Program Materials granted hereunder shall cease immediately following the expiration of your subscription unless PSC generally makes available to you, and you purchase prior to the expiration of your then current subscription, a renewal subscription. Under such circumstances, your right to continue using the Software, Documentation and/or Program Materials shall be subject to the terms and conditions of the Agreement delivered to you by PSC in connection with your purchase of a renewal subscription.
6.1.2 If you had the right to use certain Software, Documentation and/or Program Materials under a prior subscription that is no longer included in your purchase of a renewal subscription, then, with respect to that certain Software, Documentation and/or Program Materials that are no longer included in the renewal subscription, you must satisfy the destruction requirements specified in Section 6.2.2 below.
6.1.3 PSC may, at its discretion, replace the OEDK program with one or more alternative subscription offerings for one or more Products. If PSC makes such alternative subscription offerings available to its customers during your current subscription, then you will have a choice to either (a) continue to use the Software, Program Materials and Documentation provided to you under the OEDK edition you purchased for the balance of your then-current subscription or (b) terminate your OEDK subscription and apply a pro-rated amount of the fees you paid to Progress for the unused full months of your subscription toward the purchase of one or more of the alternative subscription offerings made available by PSC. If you elect option (b), then you will be required to satisfy the destruction requirements specified in Section 6.2.2 at the time of your election to terminate your OEDK subscription.
6.2.1 Without prejudice to any of its other rights, PSC may immediately terminate this Agreement if you do not abide by the terms and conditions of this Agreement.
6.2.2 If your subscription expires and you do not purchase a renewal subscription in accordance with Section 6.1 above, or if this Agreement terminates pursuant to Section 6.2.1 above, then you will, immediately following such expiration or termination, destroy all copies of the Software, Documentation and/or Program Materials, and all portions thereof, in your possession. If you are an entity, such destruction requirement applies to all copies of the above-referenced items, and any portion thereof, in the possession of your employees and/or authorized contractors. You will, at PSC’s request, certify in writing that all such copies have been destroyed.
6.2.3 The terms and conditions specified in Sections 3 through 10 shall survive the expiration or earlier termination of this Agreement.
7. Nondisclosure Obligations/Reverse Engineering/Copying.
7.1 Nondisclosure Obligations.
7.1.1 You acknowledge that the Software, Documentation and/or Program Materials provided to you through the OEDK edition for which you have subscribed to, or which you download from the PSC website, are the valuable proprietary and trade secret information of PSC or its licensors. If you are an entity, unless otherwise expressly permitted hereunder, you agree to limit use and disclosure of the Software, Documentation and/or Program Materials to your employees and authorized contractors who are permitted to use such items pursuant to the terms and conditions of this Agreement and who agree to be bound by the terms and conditions contained herein. Further, except as otherwise expressly permitted herein, you agree: (i) not to provide or disclose any of the Software, Documentation and/or Program Materials, or any portion of the foregoing, to another individual or entity; and (ii) to take all reasonable precautions to maintain the confidentiality of said items.
7.1.2 You agree not to disclose any benchmark results relating to your use of any of the Software without the prior written consent of PSC.
7.1.3 Depending on the OEDK edition you have subscribed to, you may have access from time to time during your subscription to certain information about PSC’s future product development plans and/or business development strategies. Such information shall be considered confidential information of PSC and your use of, or access to, such information shall be subject to the same nondisclosure terms and conditions specified in Section 7.1.1 above applicable for the Software, Documentation and/or Program Materials. Further, you acknowledge that PSC reserves the right, in its sole discretion, to modify or abandon, without notice to you, any such future product plans and/or business development strategies.
7.1.4 PSC is not interested in obtaining any information that you consider to be your proprietary or confidential information. You agree that PSC shall have no obligation of confidentiality and that there shall be no limitation of use imposed on PSC with respect to any ideas, concepts, know-how or techniques that you share with PSC relating to the Software, Documentation and/or Program Materials. PSC shall have the right to use, without restriction or obligation to you, any such ideas, concepts, know-how or techniques.
7.2 Restrictions on Reverse Engineering and Copying.
7.2.1 You agree not to cause or permit the reverse engineering, disassembly, or decompilation of the Software, except to reproduce machine–readable object code portions for archival purposes and installation of new releases, under penalty of license termination but not exclusive of any other remedies. If the Software, or any portion thereof, is licensed to you for use in a country which is a member of the European Community, you may reverse engineer and/or decompile such Software to the extent that sufficient information is not available for the purpose of creating an interoperable software program (but only for such purposes and to the extent that sufficient information is not provided by PSC upon written request). Furthermore, you are not restricted in a country which is a member of the European Community from observing, studying or testing the functioning of the Software solely in order to understand the ideas and principles which underlie any element of the Software.
7.2.2 You may copy the Software for installation, archival, or other purposes as described in this Agreement or in the Documentation. You may not copy nor allow others to copy the Software for any other purpose. You agree not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software, Documentation and/or Program Materials, or any permitted copies thereof.
7.3 Equitable Relief. You acknowledge that, in the event of any breach of this Section 7, PSC will not have an adequate remedy in money or damages. PSC therefore shall be entitled in such event to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. PSC’s right to obtain such relief shall not limit its right to obtain other remedies.
8. Limited Warranty.
8.1 PSC warrants that, for a period of ninety (90) days from either the date of the initial shipment or availability for download from a PSC website of the Software, whichever occurs first (the “Warranty Period”), the Software will conform in all material respects to the Documentation. As the sole and exclusive remedy for any failure of the Software to materially conform to the Documentation, PSC shall repair or replace the Software if such failure is reported during the Warranty Period or, if PSC, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement and the licenses granted hereunder will terminate and PSC or its supplier (as applicable) shall provide a full refund of the license fee paid with respect to the particular Product. The above warranties do not cover Updates, any Software provided on an evaluation basis, or defects to the Software due to accident, abuse, service, alteration, modification or improper installation or configuration by you, employees and/or authorized contractors or any third party.
8.2 PSC does not warrant that operation of the Software will be uninterrupted or error free. You assume responsibility for selecting the Software to achieve its intended results and for the use and results obtained from the Software.
8.3 THE LIMITED WARRANTY SPECIFIED IN SECTION 8.1 SETS FORTH ALL WARRANTIES AND REPRESENTATIONS PROVIDED TO YOU WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS OR TO ANY SERVICES PERTAINING TO THE SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS OR OTHERWISE PERTAINING TO THE OEDK SUBSCRIPTION PROVIDED HEREUNDER, AND SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY PSC AND NOT ITS LICENSORS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT PSC, ITS LICENSORS AND THEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, OR ANY SERVICES OR UPDATES PROVIDED FOR UNDER THIS AGREEMENT. ANY UPDATES OR SERVICES DELIVERED HEREUNDER ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE, OR ANY SERVICES AND UPDATES PROVIDED UNDER THIS AGREEMENT ARE DISCLAIMED.
8.4 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.
9. Limitation of Liability/Exclusion of Damages.
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF PSC, IF ANY, FOR DAMAGES RELATING TO ANY SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS DELIVERED TO YOU OR WHICH YOU DOWNLOADED FROM THE PSC WEBSITE PURSUANT TO YOUR OEDK SUBSCRIPTION, OR ANY RELATED SERVICE PROVIDED TO YOU UNDER THE OEDK SUBSCRIPTION, SHALL BE LIMITED TO THE ACTUAL OEDK SUBSCRIPTION FEES PAID BY YOU FOR YOUR CURRENT SUBSCRIPTION PERIOD. PSC’S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING THE SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS OR DISTRIBUTING ANY PORTION THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO.
9.2 NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL PSC, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION AND/OR PROGRAM MATERIALS, OR ANY PORTION THEREOF, OR OTHERWISE ARISING OUT OF ANY RELATED SERVICES PROVIDED TO YOU UNDER YOUR OEDK SUBSCRIPTION, EVEN IF PSC, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Maintenance and Support.
10.1 Provided that you have paid the applicable subscription fees, PSC agrees to provide you with technical support. Support will be provided in accordance with Progress’ then current and applicable support policies as described at https://www.progress.com/support/maintenance, the level of support shall be as indicated in the order and is dependent upon which edition you have purchased. You will lose the right to receive support at the end of any paid subscription, unless you have renewed your subscription from PSC at additional cost. PSC reserves the right to update the support description and change the manner and means by which technical support may be provided to you.
11.1 Export Administration. You agree to comply fully with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to assure that the Software, Documentation and/or Program Materials are not imported, exported or re–exported in violation of United States law. Further, except as otherwise provided, you shall not directly or indirectly export or re–export any Software, Documentation, Program Materials, or the direct product thereof without first obtaining PSC’s written approval.
11.2 U.S. Government Restricted Rights. The Software, Documentation and/or Program Materials are provided to you with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1 (a) and 227.7202-3 (a) (1995), DFARS 252.227-7013 (c) (1) (ii) (Oct 1988), FAR 12.212 (a) (1995), FAR 52.227-19 (June 1987), or FAR 52.227-14 (ALT III) (June 1987), as applicable. Contractor/manufacturer is Progress Software Corporation, 14 Oak Park, Bedford, MA 01730. Unpublished—all rights reserved under the copyright laws of the United States.
11.3 Records Inspection. You shall maintain books and records in connection with your actions under this Agreement. Such records shall include the subscription level purchased by you. PSC (or its designee) may, at PSC’s expense, audit your records to ensure compliance with the terms of this Agreement, bundle, install, enable and utilize automated license tracking, management, and/or enforcement solutions with Software or Program Materials, which you may not disrupt nor alter, and require you to demonstrate the accuracy of those records. Any such audit shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your activities. If any audit reveals that you have underpaid OEDK subscription fees to PSC, you shall be invoiced for such underpaid fees based on PSC's list price in effect at the time the audit is conducted. If the underpaid fees are in excess of five percent (5%) of the OEDK subscription fees paid by you for the current Subscription Period, then you shall pay PSC's reasonable costs of conducting the audit.
11.4.1 THIS AGREEMENT, TOGETHER WITH THE END USER LICENSE AGREEMENT ACCOMPANYING THE PROGRAMS ARE THE COMPLETE AND ENTIRE AGREEMENT BETWEEN YOU AND PSC WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, PROGRAM MATERIALS AND/OR RELATED SERVICES DELIVERED TO YOU, OR WHICH YOU DOWNLOAD FROM THE PSC WEBSITE, PURSUANT TO THE OEDK SUBSCRIPTION PURCHASED BY YOU, AND SUPERCEDES ANY OTHER COMMUNICATION OR ADVERTISING WITH RESPECT TO THE OEDK AND/OR THE SOFTWARE, DOCUMENTATION, AND/OR PROGRAM MATERIALS THAT YOU OBTAIN THEREUNDER.
11.4.2 To the extent there are any terms and conditions contained in your purchase order or other documentation supplied by you (“Your Documents”) that are in conflict with or in addition to those terms and conditions specified in this Agreement, the terms and conditions contained in Your Documents shall be null and void and the terms and conditions of this Agreement shall govern. Further, to the extent there is any conflict among the terms and conditions that may appear during the installation of a Product and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern.
11.4.3 The headings of the Sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
11.4.4 Except as otherwise expressly set forth herein, this Agreement is governed by the laws of the Commonwealth of Massachusetts, excluding conflict of laws provisions. Les parties ont demandée que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.