1.1 “AUP” means the policy identified as the “Acceptable Use Policy,” the current version of which is set forth in the Progress Cloud Services Site and as it may be updated by Progress from time to time.
1.2 “Authorized User” means an individual you have authorized to access and use the Service.
1.3 “Documentation” means written technical materials and end-user instructions pertaining to the operation of the Service and/or On-Premise Product(s) delivered by Progress in combination with said Service and/or the On-Premise Product(s), and any updates to such written technical materials and end-user instructions made available by Progress.
1.4 “On-Premise Product” means any computer software programs available for download from the Progress Cloud Services Site which you may be required to download and install on your computer in order to connect to and/or use the applicable Service, and any related Documentation and any update, upgrade or new versions of the foregoing.
1.5 “Progress Cloud Services Content” means any and all software, documentation, sample code, tools, libraries, application programming interfaces (APIs), data, files and other materials that Progress makes available in connection with the applicable Service or on the Progress Cloud Services Site to allow access to and use of the applicable Service, and any update, upgrade or new versions of the foregoing.
1.6 “Progress Cloud Services Offering” means the Service(s) that you are authorized to access and use pursuant to the terms and conditions of this Agreement and any On-Premise Product and Progress Cloud Services Content associated with such Service(s).
1.8 “Progress Cloud Services Site” means collectively the websites where each of the Services are offered, including, without limitation, http://www.progress.com/products/rollbase, http://www.progress.com/products/datadirect-cloud, or such other websites as Progress may designate from time to time.
1.9 “Progress Site” means http://www.progress.com and any successor or related site designated by Progress.
1.10 “Service” means any Progress hosted cloud-based service available on the Progress Cloud Services Site.
1.11 “Service Level Agreement” means any service level agreement that Progress has posted on the Progress Cloud Services Site with respect to any version of a Service or Service level, as it may be updated by Progress from time to time.
1.13 “Your Content” means any and all data, information, software, files and other materials that you cause to interface with the Service, or upload to the Service under your account or otherwise transfer, process, use or store in connection with your account.
2. Changes to Policies, Progress Cloud Services Offering, and Other Changes
2.1 Progress may modify any of the Policies at any time by posting a revised version on the Progress Cloud Services Site. The modified Policies will become effective upon posting.
2.2 Progress may modify the functionality or features of the Progress Cloud Services Offering at any time, provided that the modification does not materially denigrate the functionality of the Progress Cloud Services Offering (as described in the applicable documentation). Progress will not be liable to you or any third party for any such modification.
2.3 Service Level Agreements may only apply to certain Services or to certain Service plan levels for a Service. Progress may change, discontinue or add Service Level Agreements from time to time.
2.4 The website links contained in this Agreement are subject to update from time to time.
3. Evaluation Use; Access to Non-GA Services
3.1 If you register on the Progress Cloud Services Site for a free evaluation of any Service, Progress may make certain other Services available to you on an evaluation basis free of charge until the end of the free evaluation period applicable for the particular Service; provided, however, that if you purchase any Service during the free evaluation period, then the free evaluation period for that particular Service will end as of the start date of the purchased Service ordered by you. The Services 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 Services will be subject to the following additional requirements and limits:
3.1.1 You may use the Services solely for evaluation and testing.
3.1.2 Your use of the Services may be subject to certain usage limits, including, without limitation, limits on Authorized Users, SQL statements (if applicable), records, storage, bandwidth, and any other limits imposed by Progress and described on the Progress Cloud Services Site web pages associated with the particular Service. You will not be permitted to use the Services in excess of such limits.
3.1.3 THE SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.
3.1.4 If you subsequently purchase a Service plan for any of the Services, such purchase and your use of the Service will be governed by the terms and conditions of the version of this Agreement then in effect at the time of your purchase and posted on the Progress Cloud Services Site at http://www.progress.com/legal/license-agreements/progress-cloud-service-agreement.
3.2 From time to time, Progress may invite you to try, at no charge, Progress’ products or services not generally available to our customers (“Non-GA Services”). You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, pre-release, non-production or by a similar description. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Progress may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
4. Purchased Service
4.1 You may order a Service by completing and submitting a written or electronic service order in a form supplied by Progress identifying the Service and your desired Service plan (based on the description of available Service plans in the pricing web pages associated with the particular Service)(“Service Order”). Service Orders are subject to acceptance by Progress; such acceptance is deemed to occur when Progress grants you access to and use of the Service. 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 to be provided to you and all associated prices and policies related to the delivery of the Service. The Service you have identified in the Service Order may be subject to certain usage limitations and other terms and conditions specific to the particular Service identified in the Service Order, as described in Exhibit A to this Agreement. You understand and agree that your access to and use of the Service is subject to your compliance with the terms and conditions of this Agreement including any usage limitations and other terms and conditions specific to the Service you have selected as set forth in Exhibit A.
4.2 Each Service Order submitted by you and accepted by Progress 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.
4.3 If Service plan upgrades are available for the Service you have purchased, then you may upgrade your Service plan during your Initial Service Term or Renewal Service Term (as those terms are defined in Section 20.1). Your new upgraded Service plan will become effective on the date Progress processes your upgrade request. You will be required to pay the increase in the Service fees for the upgraded Service plan for the remainder of your then-current Initial Service Term or Renewal Service Term, as applicable. You may not down grade your Service plan during your Initial Service Term or Renewal Service Term.
5. Scope of Use
5.1 You may access and use the Service and the applicable Progress Cloud Services Content in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Progress Cloud Services Offering, including the AUP and the other Policies as defined in Section 1.
5.2 A valid Progress ID (user name and password) is required to access a Service. Each Progress ID allows one Authorized User to create an account and to access and use a Service. Progress ID’s are not transferable to other individuals. You are responsible for all activities that occur under your account and ensuring that all such activities are completed in compliance with the terms and conditions of this Agreement, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and you will be liable for any non-compliance by any such parties. Progress and its affiliates are not responsible for unauthorized access to your account. You will contact Progress immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
6. Proprietary Rights
6.1 You acknowledge and agree that Progress and/or its licensors own all legal right, title and interest in and to the Progress Cloud Services Offering including any and all intellectual property rights therein, whether registered or not, and wherever in the world they may exist. You further agree that the Progress Cloud Services Offering contains proprietary and confidential information of Progress and/or its licensors and incorporates trade secrets of Progress and/or its licensors protected by applicable intellectual property and other laws. You agree not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Progress Cloud Offering.
6.2 Progress acknowledges and agrees that you and/or your licensors own all legal right, title and interest in and to Your Content, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. 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 the Service or for the purpose of administration related to the Service. Except as permitted under this Agreement, Progress will not edit, delete or disclose 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 (c) enforce the terms and conditions of this Agreement.
6.3 You represent and warrant to Progress that you have all rights in Your Content necessary to grant the rights contemplated by this Agreement.
7. License from Progress
7.1 Progress grants you a non-exclusive, non-transferable, non-sub-licensable, revocable, limited internal use license during the Term to access and use the Service and any Progress Cloud Services Content in accordance with this Agreement.
7.2 If the Progress Cloud Services Content includes an On-Premise Product then the license grant set forth in Section 7.1 includes the right to download, install and use the On-Premise Product only for the purpose of connecting to and using the Service and the applicable Progress Cloud Services Content. Your download, installation and/or use of the On-Premise Product will also be subject to the following additional terms and conditions:
7.2.1 As a pre-requisite to your use of the On-Premise Product, you must have a valid subscription to the applicable Service to which the On-Premise Product relates.
7.2.2 By virtue of this Agreement, you acquire only a non-exclusive, non-transferable, non-sublicenseable, limited, personal, internal use license to permit the Authorized User to use the On-Premise Product pursuant to the terms and conditions hereof, and you do not acquire any rights of ownership to (i) the On-Premise Product, (ii) any Documentation provided therewith or (iii) the media, if any, upon which the On-Premise Product and Documentation are embodied. Progress and/or its licensors shall at all times retain all right, title, and interest in the On-Premise Product, Documentation, and any media provided therewith. Except for the license rights expressly granted herein, you are granted no additional express or implied license, right or interest in the On-Premise Product or in any copyright, patent, trade secret, trademark, invention or other intellectual property rights of Progress, its affiliates or their licensors. Progress reserves all rights not expressly granted to you in this Agreement.
7.2.3 All rights granted hereunder to use the On-Premise Product will automatically terminate immediately following the termination of your Service plan or this Agreement. You will return or, if instructed by Progress, destroy the On-Premise Product and Documentation and all copies thereof in your possession (or in the possession of the Authorized User) immediately following such termination.
7.2.4 Additional terms and conditions related to your use of the On-Premise Product in conjunction with a particular Service may be set forth in Exhibit A.
7.3 Except as provided in this Section 7 or Exhibit A, you obtain no rights under this Agreement from Progress or its licensors to the Progress Cloud Services Offering, including any related intellectual property rights.
8. Limitations on Use; Your Responsibilities
8.1 You agree to use the Progress Cloud Services Offering solely for your own internal use as permitted by this Agreement and for no other purpose. Without limiting the foregoing, except as otherwise expressly provided for herein, you agree not to (and not to permit anyone else to):
- reproduce, copy, duplicate, modify, or create a derivative work of the Progress Cloud Services Offering (or any part thereof),
- reverse engineer, decompile, or otherwise attempt to discover the source code of the Progress Cloud Services Offering (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,
- sell, resell, trade, rent, lease, distribute, sublicense, assign, grant a security interest in or otherwise transfer any right in the Progress Cloud Services Offering (or any part thereof) or permit any other person to use the Progress Cloud Services Content and/or Service (or any part thereof) on a time sharing, hosting or any other basis, or
- interfere or attempt to interfere with the proper operation of the Progress Cloud Services Site or Service or any activities conducted on the Progress Cloud Services Site or bypass any measures Progress uses to prevent or restrict access to the Progress Cloud Services Site or Service.
8.2 You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
(a) the technical operation of Your Content;
(b) any claims relating to Your Content;
(c) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act; and
(d) properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving of Your Content.
9. Export Control
The Progress Cloud Services Offering, 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 Progress Cloud Services Offering, including, without limitation, your transfer and processing of Your Content and your downloading and/or use of any On-Premise Product. 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 Progress Cloud Services Offering would be prohibited by United States law. You will not use the Progress Cloud Services Offering for, and will not permit the Progress Cloud Services Offering 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.
10. Government Use
If the Progress Cloud Services Offering is being used or 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 Progress Cloud Services Offering will be only as set forth herein. Any Progress Cloud Services Content 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 the Progress Cloud Services Content 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.
11. Support; Limitations on Availability of Service
11.1 Progress agrees to provide you with technical support for the applicable Service in accordance with the technical support terms and conditions set forth in Exhibit A.
11.2 It may be necessary for Progress to perform scheduled or unscheduled repairs or maintenance to the Progress Cloud Services Offering, which may temporarily degrade the quality of the Progress Cloud Services Offering or result in a partial or complete outage of the Progress Cloud Services Offering. Although Progress cannot guarantee that you will receive advance notice of repairs or maintenance, Progress will post information concerning scheduled maintenance and/or downtime on the Progress Cloud Services Site location associated with the applicable Service; see Exhibit A for additional information on the Progress Cloud Services Site locations associated with each Service. Without limiting the scope of the disclaimers of warranties and liability limitation set forth in Sections 17 and 18 respectively or the force majeure provisions in Section 23, Progress will exercise commercially reasonable efforts to resolve any unanticipated and unscheduled downtime for the Progress Cloud Services Offering as soon as possible.
11.3 Progress may, from time to time during the Term of this Agreement provide Updates to the Progress Cloud Services Offering. For purposes of this Agreement, an “Update” shall mean any update, patch, version and/or new release of or to the Progress Cloud Services Content or any modification to the Service that Progress furnishes generally to its customers. Updates shall be subject to the terms and conditions of this Agreement.
11.4 Progress reserves the right to provide some or all of the Progress Cloud Services Offering from locations, and/or through use of third party suppliers, worldwide.
12.1 You agree to pay the Service fee(s) applicable to the Service and the Service plan identified in the Service Order, plus all applicable additional usage charges. Progress may increase and/or add new fees and charges for the Service or any new Service you have purchased by posting information about the new fees and charges on the Progress Cloud Services Site location where information about fees and charges for the relevant Service(s) is(are) posted and such increase or additional fees and charges will take effect: (i) at the end of the calendar month immediately following the calendar month in which the rate change was posted if you are on a monthly Service plan or (ii) otherwise, at the commencement of the Renewal Service Term immediately following the above-mentioned posting.
12.2 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 Service Term. 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 Service Term. All amounts invoiced hereunder shall be due within thirty (30) days of the date of invoice. Unless otherwise expressly provided by Progress, 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. 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.
12.3 All fees and charges are exclusive of applicable taxes and duties, including VAT and sales tax. You agree to provide Progress any information Progress may reasonably request to determine whether Progress 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 with legally-sufficient tax exemption certificates for each taxing jurisdiction. Progress will exclude tax on charges under your account occurring after the date Progress receives a valid tax exemption certificate(s). If any deduction or withholding is required by law, you will notify Progress and will pay Progress 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 with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
13. Temporary Suspension
13.1 Progress may suspend your right to access or use any portion or all of the Service immediately upon notice to you if Progress determines:
(a) your use of the Progress Cloud Services Offering (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Progress Cloud Services Offering or the systems or content of any other customer, or (iii) may subject Progress, its affiliates, or any third party to liability;
(b) you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or
(c) 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.
13.2 If Progress suspends your right to access or use any portion or all of the Service:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension; and
(b) you remain responsible for any applicable fees and charges for any portion of the Service to which you continue to have access, as well as applicable data fees and charges, and fees and charges for in-process tasks completed after the date of suspension.
If the circumstances surrounding the suspension are resolved and Progress reactivates your access to the Progress Cloud Services Offering, or the suspended portion thereof, Progress reserves the right to charge you a reactivation fee. Progress’ right to suspend your right to access or use the Progress Cloud Services Offering or any portion thereof is in addition to Progress’ right to terminate this Agreement pursuant to Section 20.3.
14. Confidentiality; Privacy; Equitable Relief
14.1 You acknowledge that the Progress Cloud Services Offering is the valuable proprietary and trade secret information of Progress or its licensors (if any). In the course of using the Progress Cloud Services Offering, you may also receive information relating to Progress and/or the Progress Cloud Services Offering which is of a confidential and proprietary nature to Progress. The Progress Cloud Services Offering and any such information shall be collectively referred to in this Section 14 as “Progress Proprietary Information”. You shall (i) limit use and disclosure of the Progress Proprietary Information solely for the purpose permitted hereunder and only to your employees and consultants (collectively “Your Personnel”) who have a need to know in order to complete such purpose; (ii) obtain and/or maintain written nondisclosure agreements with Your Personnel sufficient for you to comply with all of the terms and conditions of this Agreement prior to granting Your Personnel access to the Progress Proprietary Information; (iii) not provide access to the Progress Proprietary Information to another party; and (iv) exercise the same degree of care that you use to protect your own confidential information, but in any event no less than reasonable care to protect the confidentiality of the Progress Proprietary Information. Without limiting the foregoing, you agree not to disclose the results of any benchmark or other testing relating to the Progress Cloud Services Offering to any third party without the prior written consent of Progress. You will ensure that Your Personnel comply with the terms and conditions of this Agreement and their respective nondisclosure agreements. You will notify Progress immediately upon discovery of unauthorized use or disclosure of Progress Proprietary Information or any other breach of the terms and conditions of this Agreement by you. You will cooperate with Progress in every reasonable way to help Progress regain possession of such Progress Proprietary Information and prevent its further unauthorized use.
14.2 Progress Proprietary 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.
14.4 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 Progress Cloud Services Offering, Progress may provide you with the opportunity to submit comments, suggestions, ideas, feedback, information or other disclosures regarding your use of the Progress Cloud Services Offering (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 Progress Cloud Services Offering (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.
16. Third Party Materials and Links to Third Party Sites
16.1 The Progress Cloud Services Site or the Service may permit you to integrate Your Content with other services and link to other websites or resources on the Internet, and other websites or resources may contain links to the Progress Cloud Services Site. These other services, websites and resources are not under Progress’ control, and you acknowledge that Progress is not responsible or liable for any content, functions, accuracy, appropriateness or any other aspect of such services, websites or resources. The inclusion of any such integration, functionality or link does not imply endorsement by Progress or any association with its operators. In no event will Progress be liable to anyone for any damage arising from or caused, directly or indirectly, by the creation or use of a third party’s services, website, or resource, or the information or material accessed through such services, website or resource. 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.
16.2 If the Progress Cloud Services Content associated with the Service includes an On-Premise Product, then the On-Premise 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 or the “notices.txt” file accompanying the On-Premise Product (“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 On-Premise Product may be used solely in connection with the operation of the On-Premise Product subject to and in accordance with the terms and conditions of this Agreement and the On-Premise Product License.
17. Warranties; Disclaimer of Warranties
17.1 Progress warrants that (a) Progress has validly entered into this Agreement and has the legal power to do so and (b) the Service will perform materially in accordance with the Documentation. For any breach of the foregoing warranty, your sole and exclusive remedy shall be to terminate this Agreement pursuant to Section 20.2(b) and obtain a pro-rata refund of the Service fee in accordance with Section 20.5.
17.2 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 of Your Content within and outside of the country in which you are located in connection with our performance of the Service or your use of the Service (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, and contractors).
17.3 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 17.1 ABOVE, PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ANDQUIET ENJOYMENT. 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 PROGRESS CLOUD SERVICES OFFERING WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE PROGRESS CLOUD SERVICES OFFERING WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PROGRESS CLOUD SERVICES OFFERING WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE PROGRESS CLOUD SERVICES OFFERING WILL BE CORRECTED.
17.4 Without limiting the disclaimers set forth in Section 17.3 above, you understand and agree that Progress has no control over Your Content, or the manner in which you use the Service to process Your Content, and that Progress is not responsible for and shall have no liability in connection with any loss or corruption of Your Content.
18. Limitation of Liability
18.1 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 18.2 BELOW MAY NOT APPLY TO YOU.
18.2 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, 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 PROGRESS CLOUD SERVICES OFFERING OR ANY PORTION THEREOF; (II) ANY CHANGES MADE TO THE PROGRESS CLOUD SERVICES OFFERING, OR ANY TEMPORARY OR PERMANENT CESSATION OF ACCESS TO THE PROGRESS CLOUD SERVICES OFFERING OR ANY PART THEREOF; OR (III) OTHERWISE ARISING UNDER THIS AGREEMENT. PROGRESS’ AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL HAVE NO LIABILITY TO YOU FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTY AS A RESULT OF USING THE PROGRESS CLOUD SERVICES OFFERING. IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL PROGRESS’ LIABILITY TO YOU EXCEED THE SERVICE FEE YOU PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM FOR THE PERIOD OF THE INITIAL SERVICE TERM OR RENEWAL SERVICE TERM IN EFFECT AT THE TIME SUCH LIABILITY ACCRUED.
19.1 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 third party claim concerning: (a) your use of the Progress Cloud Services Offering, or any portion thereof (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you; or (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content. 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.
19.2 Progress will promptly notify you of any claim subject to Section 19.1, but Progress’ failure to promptly notify you will only affect your obligations under Section 19.1 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.
20. Term and Termination
20.1 The initial term for the Service plan you purchased will commence upon Progress’ acceptance of the Service Order and will continue for the period of time set forth in the Service Order (“Initial Service Term”). Your Service plan will automatically renew for successive renewal terms each equal in duration to the Initial Service Term (each a “Renewal Service Term”), under the version of this Agreement in effect at the time of such renewal, unless either you or Progress terminates your Service plan and this Agreement in accordance with Section 20.3 below.
20.2 Progress may modify this Agreement at any time by posting a revised version on the Progress Cloud Services Site or an alternate site Progress identifies or by notifying you in accordance with Section 22.1. Modified terms that relate to additions to the Service(s) will be effective upon your purchase of the applicable Service(s) and by continuing to use such Service(s) you will be bound by such modified terms. Modified terms that are required by law will be effective immediately, and by continuing to use the Service(s) you will be bound by such modified terms. All other modified terms will be effective at the commencement of the Renewal Service Term (as defined in Section 20.1).immediately following the above-mentioned posting. If Progress posts any revisions to this Agreement after the date on which you are required to notify Progress that you do not want to renew the Service (pursuant to Section 20.3(a) below) and you do not agree with the terms and conditions of the revised Agreement, you may notify Progress that you do not want to renew the Service at any time prior to the commencement of the Renewal Service Term. It is your responsibility to check the Progress Cloud Services Site at http://www.progress.com/legal/license-agreements/progress-cloud-service-agreement regularly for revisions to this Agreement. Progress last revised this Agreement on the date listed at the beginning of this Agreement.
20.3 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 Service Term or Renewal Service Term, as applicable. Any termination of your Service plan and this Agreement pursuant to this Section 20.3(a) will be effective upon the expiration of your Initial Service Term or then-current Renewal Service 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) Progress may also terminate your Service plan and this Agreement immediately upon notice to you (i) for cause, if any act or omission by you results in a suspension described in Section 13.1, (ii) if our relationship with a third party partner who provides software or other technology Progress uses to provide the applicable Service(s) expires, terminates or requires Progress to change the way it provides the software or other technology as part of the Service(s), or (iii) if Progress believes providing the Service(s) could create a substantial economic or technical burden or material security risk for Progress.
20.4 Upon any termination or earlier expiration 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, including fees and charges for in-process tasks completed after the date of termination;
(c) you will immediately return or, if instructed by Progress, destroy all Progress Cloud Services Content in your possession; and
(d) All rights of action accruing prior to termination, payment obligations, and any other terms and conditions of this Agreement which by their nature would naturally survive the termination of this Agreement will continue to apply.
20.5 All fees paid by you are non-refundable except that if your Service plan and this Agreement is terminated by Progress pursuant to and in accordance with subsections 20.3(c)(ii) or (iii) or by you pursuant to and in accordance with Section 20.3(b), Progress will refund to you 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 Service Term or Renewal Service Term, as applicable.
20.6 Upon termination of this Agreement, you will cease all use of the Progress Cloud Services Offering. You may extract and/or delete Your Content at any time during the term of this Agreement. If the Service(s) involves other than transient storage of Your Content, when this Agreement expires or terminates, Progress will retain Your Content you have not deleted for thirty (30) days commencing on the expiration or termination date so that you may extract it, except for Services you used on an evaluation basis, where we may delete Your Content immediately without any retention period. Following the expiration of this retention period, we will immediately delete Your Content, including any cached or back-up copies. You agree that Progress has no additional obligation to continue to hold, export or return Your Content and that Progress has no liability whatsoever for deletion of Your Content pursuant to these terms. The parties’ rights and obligations under Sections 1, 6, 8, 9, 10, 12, 14-24 (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.
21. Governing Law
21.1 Any litigation or other dispute resolution between you and Progress arising out of or relating to this Agreement or your use of the Service(s) 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.
21.2 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.
22.1 Progress may provide any notice to you under this Agreement by: (i) posting a notice on the Progress Cloud Services Site location(s) applicable to the Service(s) you are permitted to access and use in accordance herewith; or (ii) sending a message to the email address then associated with your account. Notices Progress provides by posting on the applicable Progress Cloud Services Site location(s) 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.
22.2 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 applicable Progress Cloud Services Site location(s) associated with the Service(s) you are permitted to access and use in accordance herewith.
23. 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 (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of a Service) (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.
This Agreement and the Policies constitute the entire agreement between you and Progress and govern your use of the applicable Service(s) and the portions of the Progress Cloud Services Offering related to such Service(s), and supersede any other prior or contemporaneous agreement, proposal, communication or advertising, oral or written, signed or unsigned, with respect to such portions of the Progress Cloud Services Offering; except that if you have entered into a mutually executed written agreement with Progress in connection with your access to and use of one or more Services; then, notwithstanding anything to the contrary herein, the mutually executed agreement between you and Progress will supersede this Agreement and will govern your access to and use of such Services. 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.