End User License Agreement
READ THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE
INSTALLING OR USING THE PRODUCT TO WHICH THIS EULA APPLIES. BY ACCEPTING
THIS EULA, COMPLETING THE REGISTRATION PROCESS, AND/OR INSTALLING OR USING
THE PRODUCT, YOU AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY (IF
APPLICABLE) TO THE TERMS BELOW. IF YOU DO NOT AGREE WITH THESE TERMS, OR DO
NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY, DO NOT INSTALL, REGISTER FOR
OR USE THE PRODUCT, AND DESTROY OR RETURN ALL COPIES OF THE PRODUCT. ONCE
YOU HAVE DONE THIS, YOU MAY REQUEST FROM THE POINT OF PURCHASE A FULL
REFUND OF THE LICENSE FEES, IF ANY, PAID FOR THE PRODUCT (OR, IF THE
PRODUCT IS PROVIDED TO YOU AS A HOSTED SERVICE, A REFUND OF THE PREPAID
SERVICE FEES FOR THE REMAINDER OF THE SUBSCRIPTION PERIOD OF THE PRODUCT).
SUCH REQUEST MUST BE COMPLETED WITHIN THIRTY (30) DAYS OF DELIVERY OF THE
PRODUCT TO YOU. UNLESS OTHERWISE SPECIFIED IN THIS EULA, PROGRESS SOFTWARE
CORPORATION IS THE LICENSOR OF THE PRODUCT. THE LICENSOR MAY BE REFERRED TO
HEREIN AS “Licensor”, “we”, “us”, or “our”. IF YOU ARE AGREEING TO
THIS EULA ON BEHALF OF YOURSELF IN YOUR INDIVIDUAL CAPACITY, THEN YOU ARE
THE LICENSEE AND YOU MAY BE REFERRED TO HEREIN AS “Licensee”, “you”, or “your”. IF YOU ARE AGREEING TO THIS EULA ON BEHALF OF YOUR
COMPANY, THEN YOUR COMPANY IS THE LICENSEE AND ANY REFERENCES TO “Licensee”, “you”, or “your” WILL MEAN YOUR COMPANY.
This EULA includes the following sections:
1. GENERAL TERMS AND CONDITIONS
1.1.1. “Affiliate” means any legal entity that directly or
indirectly controls, is controlled by, or is under common control with you
or us. For the purposes of this definition, “control” means ownership,
directly or indirectly, of more than fifty percent (50%) of the voting
shares or other equity interest in an entity.
1.1.2. “Applicable Laws” means national, federal, state,
and local laws, rules, and regulations including, without limitation, those
laws and regulations relating to data privacy and security in each
1.1.3. “Authorized Reseller” means a third party who is
not our Affiliate and who is authorized by us or our Affiliate to resell
1.1.4. “Authorized User” means you, your employee
or a third-party consultant or agent that you authorize to use the
Product for your benefit in accordance with section 1.2.3 (Third Party
1.1.5. “Documentation” means any technical instructions or
materials describing the operation of the Product made available to you
(electronically or otherwise) by us for use with the Product, expressly
excluding any user blogs, reviews or forums.
1.1.6. “Hosted Services” means computer software
program(s), content and related services provided by us on a
software-as-a-service basis through computers we or our Affiliates or our
respective contractors (including cloud infrastructure suppliers) control.
1.1.7. “Intellectual Property Rights” means any and all
current and future (a) rights associated with works of authorship,
including copyrights, mask work rights, and moral rights; (b) trademark or
service mark rights; (c) trade secret rights; (d) patents, patent rights,
and industrial property rights; (e) layout design rights, design rights,
and other proprietary rights of every kind and nature other than
trademarks, service marks, trade dress, and similar rights; and (f)
registrations, applications, renewals, extensions, or reissues of any of
(a) to (e) , in each case, in any jurisdiction throughout the world.
1.1.8. “On-Premise Product(s)” means computer software
program(s) provided to you to download, install and use on computer(s)
controlled directly or indirectly by you.
1.1.9. “Order” means a written or electronic order
document entered into between you and us (or our Affiliate or an Authorized
Reseller) for the Product. Unless an Order says something different, each
Order will be governed by the terms of this EULA and include the name of
the Product being licensed and any usage limitations, applicable fees, and
any other details related to the transaction.
1.1.10. “Our Technology” means any software, code, tools,
libraries, scripts, application programming interfaces, templates,
algorithms, data science recipes (including any source code for data
science recipes and any modifications to such source code), data science
workflows, user interfaces, links, proprietary methods and systems,
know-how, trade secrets, techniques, designs, inventions, and other
tangible or intangible technical material, information and works of
authorship underlying or otherwise used to make available the Product,
including, without limitation, all Intellectual Property Rights therein and
1.1.11. “Permitted Third Party” has the meaning given in
section 1.2.3 (Third Party Use).
1.1.12. “Product” means the On-Premise Product(s) or
Hosted Services, as applicable, identified in an Order, and any Updates.
1.1.13. “Update” means any update, enhancement, error
correction, modification or new release to the Product that we make
available to you.
1.2. General License Terms, Restrictions and Order of Precedence.
1.2.1. General License Terms. The Product is licensed, not
sold, to you by us under the terms of this EULA and the Order. The scope of
license granted by us to you for the Product is set out in section 3
(Product Family Specific Terms) and section 4 (Product Specific Terms).
1.2.2. Authorized Users. Anything your Authorized Users do
or fail to do will be considered your act or omission, and you accept full
responsibility for any such act or omission to the extent you would be
liable if it were your act or omission.
1.2.3. Third Party Use. You may allow your agents,
contractors and outsourcing service providers (each a “ Permitted Third Party”) to use the Product(s) licensed to
you hereunder solely for your benefit in accordance with the terms of this
EULA and you are responsible for any such Permitted Third Party’s
compliance with this EULA in such use. Any breach by any Permitted Third
Party of the terms of this EULA will be considered your breach.
1.2.4. Restrictions. Except as otherwise expressly
permitted in this EULA, you will not (and will not allow any of your
Affiliates or any third party to):
(a) copy, modify, adapt, translate, or otherwise create derivative works of
the Product, Documentation, or any software, services, or other technology
of third party vendor(s) or hosting provider(s) that we or our Affiliate
(b) disassemble, decompile or “unlock”, decode or otherwise reverse
translate or engineer, or attempt in any manner to reconstruct or discover
the source code or underlying structure, ideas, or algorithms of the
Product except as expressly permitted by law in effect in the jurisdiction
in which you are located;
(c) rent, lease, sell, distribute, pledge, assign, sublicense or otherwise
transfer or encumber rights to the Product;
(d) make the Product available on a timesharing or service bureau basis or
otherwise allow any third party to use or access the Product;
(e) remove or modify any proprietary notices, legends, or labels on the
Product or Documentation;
(f) use or access the Product in a manner that: (i) violates any Applicable
Laws; (ii) violates the rights of any third party; (iii) purports to
subject us or our Affiliates to any other obligations; (iv) could be
fraudulent; or (v) is not permitted under this EULA;
(g) use the Product to develop, test, support or market products that
are competitive with and/or provide similar functionality to the
(h) permit your Affiliates to access or use the Product unless specifically
authorized elsewhere in this EULA or the Order.
1.2.5. Limitations on Evaluation or Trial Licenses. If the
Product is licensed to you on an evaluation or trial basis, then you may
use the Product only for such purposes until the earlier of: (a) the end of
the evaluation period, if any, specified in the Order, this EULA or
otherwise communicated by us to you at the time of delivery; or (b) the
start date of a paid for license to the Product; or (c) termination in
accordance with the terms of this EULA. You may not extend the evaluation
period by uninstalling and re-installing the Product(s) or by any other
means other than our written consent. You must not use the Product in a
production environment. You will be required to pay for a license for the
Product at our then applicable license price if you continue to use the
Product, whether in a production or non-production environment, after the
evaluation license expires or terminates, and the terms and conditions of
the EULA in effect at that time will apply to your continued use of the
Product. A Product licensed to you on an evaluation or trial basis may be
subject to one or more usage limits specified in section 3 (Product Family
Specific Terms), section 4 (Product Specific Terms), the Order or otherwise
communicated at the time of delivery (including posting of such limits at
the location where you download the Product for evaluation). We may, at our
sole discretion, decide whether to offer any maintenance and support for
the Product during the evaluation period, and to include any conditions or
limits on such maintenance and support.
You may not circumvent any technical limitations included in the
Product licensed to you on an evaluation or trial basis.
1.2.6. Redistribution. If the Order or section 3 (Product
Family Specific Terms) or section 4 (Product Specific Terms) grants you the
express right to redistribute or offer access to all or a portion of the
Product (“Redistributables”), then, in conjunction with
any such grant, you must comply with any limitations or requirements
specified in the Order, section 3 (Product Family Specific Terms) or
section 4 (Product Specific Terms), as applicable, and you must distribute
or offer access to the Redistributables subject to a license agreement or
Redistributables (“your customer”) that: (a) protects our
interests consistent with the terms contained in this EULA, (b) prohibits
your customer from any further distribution of the Redistributables (unless
expressly permitted pursuant to section 3 (Product Family Specific Terms)
or section 4 (Product Specific Terms)), (c) includes a limitation of
damages clause that, to the maximum extent permitted by applicable law,
disclaims on behalf of us, our Affiliates or our or their respective
licensors, suppliers or Authorized Resellers, liability for any and all
damages, whether direct, special, incidental or consequential damages, (d)
contains terms substantially similar to those in subparts (a) through (g)
of section 1.2.4 (Restrictions), section 1.5.1 (Export Compliance) and
section 1.5.2 (U.S. Government Customers), and (e) includes a notice
substantially similar to section 1.2.7 (Third Party Notices).
1.2.7. Third Party Notices. The Product may contain or be
accompanied by certain third-party components which are subject to
additional restrictions. These components, are identified in, and subject
to, special license terms and conditions which, in the case of On-Premise
Product(s), are set out in the “readme.txt” file, the “notices.txt” file,
or the “Third Party Software” file accompanying the Product or portions
thereof, and in the case of Hosted Services, are set out in the third-party
license agreement or notices that comes with the third-party component or
is otherwise provided on the web page on which such third-party component
is made available (“Special Notices”). The Special Notices
include important licensing and warranty information and disclaimers.
Unless otherwise expressly stated for a given third-party component, all
such third-party components may be used solely in connection with the use
of the Product subject to and in accordance with the terms and conditions
of this EULA and the Special Notices. In the event of conflict between the
Special Notices and the other portions of this EULA, the Special Notices
will take precedence (but solely with respect to the third-party
component(s) to which the Special Notice relates).
1.2.8. Order of Precedence between EULA and Order. If
there is any conflict between the terms and conditions in the Order and the
terms and conditions of this EULA, or if the Order changes any of the terms
of this EULA, the terms and conditions of the Order will apply, except if
the Order is between you and an Authorized Reseller, or the Order is
issued/generated by you. In the case where the Order is between you and an
Authorized Reseller, the terms of the Order will apply subject to the
following: (a) any terms and conditions in the Order imposing obligations
on the Authorized Reseller that are in addition to or different from the
obligations we have to you pursuant to this EULA will be born solely by the
Authorized Reseller and our obligations to you and limits on our liability
will be governed solely by the terms and conditions of this EULA and (b)
any terms and conditions that conflict with or would otherwise alter any of
the following under this EULA will have no effect unless expressly agreed
to in a written instrument executed by us: our ownership rights, yours and
our confidentiality obligations, your export compliance obligations,
limitations on your rights as a U.S. Government customer (if applicable),
our audit rights, restrictions on your right to assign or governing law and
jurisdiction. In cases where the Order is issued/generated by you, the
terms and conditions of Section 1.18.2. of this EULA, governing a purchase
order or other document you supply in connection with this EULA, shall
apply to such Order.
1.2.9. Order of Precedence within EULA. If there is any
conflict among the terms and conditions of this EULA, or if a section
changes the terms of another section within this EULA, the order of
precedence will be as follows: first, section 4 (Product Specific Terms)
(if any); second, section 3 (Product Family Specific Terms) (if any);
third, section 2.A (Terms for On-Premise Products) and/or section 2.B
(Terms for Hosted Services), as applicable; and fourth and finally, section
1 (General Terms and Conditions).
1.3. License Types.
1.3.1. Overview of License Types. The license type for the
Product will, unless otherwise specified in this EULA, be one of the
following license types: perpetual, term or subscription. This will be
confirmed in the Order or will be the default license type listed in
section 3 (Product Family Specific Terms) or section 4 (Product Specific
1.3.2. Perpetual License Type. Your license to use the
Product will continue in perpetuity unless earlier terminated in accordance
with the terms of this EULA.
1.3.3. Term License Type. Your license to use the Product
will continue until the expiration of the term identified in the Order
unless earlier terminated in accordance with the terms of this EULA. If we
continue to make the Product generally available to our customers, you may
purchase a new term license for the Product from us or our Authorized
1.3.4. Subscription License Type. Your license to use the
Product will continue until the expiration of the subscription period
identified in the Order unless earlier terminated in accordance with the
terms of this EULA. The procedure for renewing your license to the Product
is set out in section 3 (Product Family Specific Terms) or section 4
(Product Specific Terms). If you upgrade your subscription to the Product,
the upgrade will take effect immediately and you will be charged and must
pay the applicable fee, and the term of your then-current subscription
period may be extended, as described at the time you upgrade. You may not
downgrade a subscription to the Product.
1.4. Our Business Principles. We will apply the principles set out in our
Code of Conduct and Business Ethics (published on our website at http://investors.progress.com/governance.cfm) in our performance under this EULA.
1.5. Export Compliance and U.S. Government Customers.
1.5.1. Export Compliance. Export laws and regulations of
the United States and any other relevant local export laws and regulations
apply to the Products. You agree that such export control laws, including,
without limitation, the U.S. Export Administration Act and its associated
regulations, govern your use of the Product (including technical data), and
you agree to comply with all such export laws and regulations (including
“deemed export” and “deemed re-export” regulations). You agree that no
data, information and/or Product (or direct product thereof) will be
exported, directly or indirectly, in violation of these laws, or will be
used for any purpose prohibited by these laws including, without
limitation, nuclear, chemical, or biological weapons proliferation, or
development of missile technology.
1.5.2. U.S. Government Customers. If the Product is being
acquired by or on behalf of the U.S. Government or by a U.S. Government
prime contractor or subcontractor (at any tier), then the U.S. Government’s
rights in the Product will be only as set out herein. The Product and
Documentation are “commercial items” as that term is defined at 48 C.F.R.
2.101, consisting of “commercial computer software” and “commercial
software documentation” as such terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, all U.S. Government end users acquire the Product and such
Documentation with only those rights set out herein.
1.6. IP Ownership and Feedback.
1.6.1. IP Ownership. The Product, Our Technology, Documentation, and all
other current or future intellectual property developed by us or our
Affiliates, and all worldwide Intellectual Property Rights in each of the
foregoing and all Updates, upgrades, enhancements, new versions, releases,
corrections, and other modifications thereto and derivative works thereof,
are the exclusive property of us or our Affiliates or our or their
licensors or suppliers. Except for the rights and licenses expressly
granted herein, all such rights are reserved by us and our Affiliates and
our or their licensors and suppliers. All title and Intellectual Property
Rights in and to the content that may be accessed through use of the
Product is the property of the respective content owner and may be
protected by applicable copyright or other intellectual property laws and
treaties. This EULA grants you no rights to use such content.
1.6.2. Feedback. If you provide us any ideas, thoughts, criticisms,
suggested improvements or other feedback related to Our Technology
(collectively “Feedback”) you own the Feedback and you grant to us a
worldwide, royalty-free, fully paid, perpetual, irrevocable license to use,
reproduce, modify, translate, distribute, perform, display, import, sell,
license, offer for sale, make, have made and otherwise exploit the Feedback
in any form, media, or technology, whether now known or hereafter
developed, and to allow others to do the same without restriction or
obligation of any kind, on account of confidential information,
intellectual property rights or otherwise, and may incorporate into our
products or services any service, product, technology, enhancement,
documentation or other development (“Improvement”) incorporating or derived
from any Feedback with no obligation to license or to make available the
Improvement to you or any other person or entity. This is true whether you
provide the Feedback through use of the Product or through any other method
of communication with us, unless we have entered into a separate agreement
with you that provides otherwise.
1.7.1. Our Maintenance and Support Policies. If we offer and you purchase
maintenance and support for the Product, then it will be provided in
accordance with our then current maintenance and support policies for the
applicable Product in effect at the time of purchase. You may access our
maintenance and support policies by clicking on the applicable Product
family link located at https://www.progress.com/support.
1.7.2. Maintenance and Support for Perpetual or Term License Types. For
Perpetual and Term License Types, unless otherwise expressly stated by us
in the Order, first year annual maintenance and support (if offered by us)
is required for the Product and starts on the date the Product is
delivered. Thereafter, you may choose to purchase annual maintenance and
support (if offered by us). If you do not purchase renewal maintenance and
support services for a Product, then you will not receive any maintenance
and support services for that Product and will have no entitlement to any
benefits of maintenance and support services including, bug fixes, patches,
upgrades, enhancements, new releases or technical support. If you want to
reinstate lapsed maintenance and support services on a Product, and we
offer reinstatement to our customers, then you may re-instate maintenance
and support services by paying the then-current fee, plus a reinstatement
fee for the lapsed maintenance and support period in accordance with our
maintenance and support reinstatement policies then in effect.
1.7.3. Maintenance and Support for Subscription License Type. If
the license type for the Product licensed to you is the subscription
license type, then maintenance and support (if offered by us) is included
in the subscription fees for each subscription period.
1.8. Fees and Taxes.
1.8.1. Payment Terms and Taxes. All fees payable to us are payable in the
currency specified in the Order, or if no currency is specified, in United
States Dollars, are due within 30 days from the invoice date and, except as
otherwise expressly specified herein, are non-cancellable and
non-refundable. We may charge you interest at a rate of 1.5% per month (or
the highest rate permitted by law, if less) on all overdue payments. You
agree to pay any sales, value-added or other similar taxes imposed by
applicable law that we must pay on such fees, except those based on our
income. Invoices may be issued by our Affiliate. If you and we agree that
you will pay by credit card, you will provide us with valid and updated
credit card information and you authorize us to store such information and
bill such credit card for all fees applicable: (a) at the time that you
order the Product and (b) at the time of any renewal or upgrade.
1.8.2. Fees for Renewal Subscription Licenses. If the
license type for the Product licensed to you is the Subscription License
Type then each renewal subscription will be calculated at the then-current
price offered for the Product at the time of renewal.
1.8.3. Fees for Renewal Maintenance Terms. If the license
type for the Product licensed to you is a Perpetual license or Term
license, then, unless otherwise specified in the Order or in section 3
(Product Family Specific Terms) or section 4 (Product-Specific Terms), the
fee for an optional annual renewal maintenance and support term for the
Product will be calculated based on the annual rate applicable for the
initial maintenance and support term or immediately preceding renewal
maintenance and support term, whichever is applicable, plus a rate
increase, if applicable, calculated at the lesser of any standard price
increase or CPI (or equivalent index) after applying any increases as a
consequence of our Lifetime Support policy, if applicable.
1.8.4. Orders between You and Our Authorized Reseller. Notwithstanding the
above terms of this section 1.8 (Fees and Taxes), if you purchased your
license to the Product and/or maintenance and support from an Authorized
Reseller, then the fees will be set out in the Order between you and the
Authorized Reseller. The Authorized Reseller may be responsible for billing
and/or collecting payment from you and if so, the billing and collection
terms agreed to between you and the Authorized Reseller may differ from the
terms set out in this section 1.8 (Fees and Taxes).
1.8.5. No Reliance on Future Availability of any Product or Update. You
agree that you have not relied on the future availability of any Product or
Updates in your purchasing decision or in entering into the payment
obligations in your Order.
1.9.1. Authority. Each party represents and warrants that
it has the legal power and authority to enter into this EULA.
1.9.2. Product Compliance with Documentation. We warrant
to you that, for six (6) months from delivery (in the case of an On-Premise
Product) or for the duration of the license (in the case of a Hosted
Service), the Product will comply with the applicable Documentation in all
material respects. Your exclusive remedy, and our sole liability, with
respect to any breach of this warranty will be for us to use commercially
reasonable efforts to promptly correct the non-compliance (provided that
you notify us in writing within the warranty period and allow us a
reasonable cure period). If we, at our discretion, reasonably determine
that correction is not economically or technically feasible, we may
terminate your license to the Product and provide you a full refund of the
fees paid to us with respect to the Product (in the case of an On-Premise
Product) or a refund of the prepaid fees for the unused portion of the
license period (in the case of a Hosted Service). Delivery of additional
copies of, or Updates to, the Product will not restart or otherwise affect
the warranty period.
1.9.3. Warranty Exclusions. The warranty specified in
section 1.9.2 (Product Compliance with Documentation) does not cover any
Product provided on an unpaid evaluation or trial basis, or defects to the
Product due to accident, abuse, service, alteration, modification or
improper installation or configuration by you, your Affiliates, your or
their personnel or any third party not engaged by us.
1.9.4. Warranty Disclaimers. EXCEPT FOR THE WARRANTIES
EXPRESSLY STATED IN THIS SECTION 1.9 OR THE ADDITIONAL WARRANTIES (IF ANY)
EXPRESSLY STATED IN SECTION 3 (PRODUCT FAMILY SPECIFIC TERMS) OR SECTION 4
(PRODUCT SPECIFIC TERMS), THE PRODUCT, DOCUMENTATION AND OUR TECHNOLOGY ARE
PROVIDED “AS IS”, WITH ALL FAULTS, AND WE DISCLAIM ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AVAILABILITY,
ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT
THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED
WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM
PERMITTED UNDER APPLICABLE LAW.
1.10.1. Our Indemnification Obligation.
184.108.40.206. Intellectual Property Infringement. We will
defend you, and your officers, directors, employees, and agents from and
against any and all third party claims, lawsuits, and proceedings alleging
that your use of the Product, in accordance with the terms and conditions
of this EULA, constitutes a direct infringement or misappropriation of such
third party’s patent, copyright or trade secret rights (the “ IP Claim”), and we will indemnify you for damages finally
awarded against you by a court of competent jurisdiction with respect to
the IP Claim.
220.127.116.11. Exceptions. We will not indemnify you to the
extent that the alleged infringement or misappropriation results from (a)
use of the Product in combination with any other software or item not
supplied by us; (b) failure to promptly implement an Update provided by us
pursuant to 18.104.22.168 (Our Options); (c) modification of the Product not
made or provided by us; or (d) use of the Product in a manner not permitted
by this EULA. We also will not indemnify you if we notify you of our
decision to terminate this EULA, and the license to the Product granted
hereunder, in accordance with section 22.214.171.124 (Our Options) and you have
not ceased all use of the Product within thirty (30) days of such
126.96.36.199. Our Options. If a final injunction is, or we
reasonably believe that it could be, obtained against your use of the
Product, or if in our opinion the Product is likely to become the subject
of a successful claim of infringement, we may, at our option and expense,
(a) replace or modify the Product so that it becomes non-infringing
(provided that the functionality is substantially equivalent), (b) obtain
for you a license to continue to use the Product, or (c) if neither (a) nor
(b) are reasonably practicable, terminate this EULA on thirty (30) days’
notice and, if the Product was licensed to you on a Perpetual License or
Term License basis, refund to you the license fee paid to us for the
Product less an amount for depreciation determined on a straight-line five
year (or actual term if shorter) depreciation basis with a commencement
date as of the date of delivery of the Product, or if the Product was
licensed to you on a Subscription License basis, refund to you the unused
portion of the fees paid in advance to us for the then-current subscription
period for the Product. THE INDEMNIFICATION PROVISIONS SET OUT IN THIS
SECTION 1.10.1 STATE OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT BY US OF
ANY INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE
PRODUCT OR ITS USE.
1.10.2. Your Indemnification Obligation.
188.8.131.52. Indemnification for Third Party-Claims. To the
extent permitted by applicable law, you will defend us and our Affiliates,
and our and their respective officers, directors, employees, and agents
from and against any and all third party claims, lawsuits, and proceedings
that arise or result from (a) your breach of this EULA, (b) your use,
distribution and/or licensing of the Redistributables, if applicable,
except to the extent it arises from an IP Claim covered under section
1.10.1 above, or (c) your failure or alleged failure to comply with
Applicable Laws or any violation of a third party’s rights in connection
with your use of the Product (each a “Third-Party Claim”
and collectively “Third-Party Claims”) and you will
indemnify for damages finally awarded by a court of competent jurisdiction
with respect to any Third-Party Claim.
1.10.3. Control of the Defense or Settlement. For any
indemnification obligation covered in section 1.10.1,“Indemnifying Party” means us, “ Indemnified Party” means you, and “Claim”
means an IP Claim. For any indemnification obligation covered in section
1.10.2, “Indemnifying Party” means you, “ Indemnified Party” means us, and “Claim”
means a Third-Party Claim. The Indemnified Party must provide the
Indemnifying Party with prompt written notice of a Claim; however, the
Indemnified Party’s failure to provide or delay in providing such notice
will not relieve the Indemnifying Party of its obligations under this
section except to the extent the Indemnifying Party is prejudiced by the
Indemnified Party’s failure or delay. The Indemnified Party will give the
Indemnifying Party full control of the defense and settlement of the Claim
as long as such settlement does not include a financial obligation on or
admission of liability by the Indemnified Party. If the Indemnified Party
does not do so, then the Indemnified Party waives the Indemnifying Party’s
indemnification obligations under section 1.10.1 or 1.10.2, as applicable.
The Indemnified Party will reasonably cooperate in the defense of the Claim
and may appear, at its own expense, through counsel reasonably acceptable
to the Indemnifying Party.
1.11.1. Confidentiality Obligations. Except as otherwise
provided herein, each party agrees to retain in confidence all information
and know-how transmitted or disclosed to the other that the disclosing
party has identified as being proprietary and/or confidential or should
reasonably be understood to be confidential given the nature of the
information and the circumstances surrounding its disclosure, and agrees to
make no use of such information and know-how except under the terms of this
EULA. However, neither party will have an obligation to maintain the
confidentiality of information that (a) it received rightfully from a third
party without an obligation to maintain such information in confidence; (b)
was known to the receiving party prior to its disclosure by the disclosing
party; (c) is or becomes a matter of public knowledge through no fault of
the receiving party; or (d) is independently developed by the receiving
party without use of the confidential information of the disclosing party.
Further, either party may disclose confidential information of the other
party as required by governmental or judicial order, provided such party
gives the other party prompt written notice prior to such disclosure
(unless such prior notice is not permitted by applicable law) and complies
with any protective order (or equivalent) imposed on such disclosure. You
will treat any source code for the Product as our confidential information
and will not disclose, disseminate or distribute such materials to any
third party without our prior written permission. Each party’s obligations
under this section 1.11 will apply during the term of this EULA and for
five (5) years following termination of this EULA, provided, however, that
(i) obligations with respect to source code will survive forever and (ii)
trade secrets will be maintained as such until they fall into the public
1.11.2. Product Benchmark Results. You acknowledge that
any benchmark results pertaining to the Product are our confidential
information and may not be disclosed or published without our prior written
consent. This provision applies regardless of whether the benchmark tests
are conducted by you or us.
1.11.3. Remedies for Breach of Confidentiality Obligations
. Each party acknowledges that in the event of a breach or threat of breach
of this section 1.11, money damages will not be adequate. Therefore, in
addition to any other legal or equitable remedies, the non-breaching party
will be entitled to seek injunctive or similar equitable relief against
such breach or threat of breach without proof of actual injury and without
posting of a bond.
Data Collection and Personal Data.
Data Collection through use of the Product.
THE PRODUCT MAY INCLUDE FEATURE(S) THAT (A) GATHER PRODUCT ACTIVATION,
USAGE AND/OR ENVIRONMENT INFORMATION, (B) IDENTIFY TRENDS AND/OR BUGS,
(C) COLLECT USAGE STATISTICS, AND/OR (D) TRACK OTHER DATA RELATED TO
YOUR USE OF THE PRODUCT, AS FURTHER DESCRIBED IN THE CURRENT VERSION OF
. BY YOUR ACCEPTANCE OF THE TERMS OF THIS EULA AND/OR USE OF THE
PRODUCT, YOU AUTHORIZE THE COLLECTION, USE AND DISCLOSURE OF THIS DATA
Additional Data Collection Terms. Depending on the Product licensed to
you, this EULA may contain additional data collection terms in section
3 (Product Family Specific Terms) or section 4 (Product Specific Terms)
and/or, if we are hosting the Product, in section 2.B (Terms for Hosted
Your Personal Data.
If you determine that you will be supplying us with your Personal Data (as
defined in the Data Processing Addendum referenced below) for us to process
on your behalf, in the provision of maintenance and support services or
hosting services (if the Product licensed to you is a Hosted Service) or
during the course of any audits we conduct pursuant to section 1.14
(Audit), you may submit a written request at email@example.com for the
mutual execution of a Data Processing Addendum substantially in the form we
make available at https://www.progress.com/docs/default-source/progress-software/data-processing-addendum.pdf
and we will enter into such Data Processing Addendum with you. To the
extent there is any conflict between this EULA and such Data Processing
Addendum, the Data Processing Addendum will prevail with respect to our
handling and processing of your Personal Data.
1.13. Limitation of Liability and Disclaimer of Certain Types of Damages.
Limitation of Liability. Except for a party’s indemnification obligations set OUT in this EULA OR
A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION
1.11 (CONFIDENTIALITY), or your material violation of our intellectual
property rights or OF the license restrictions set OUT in this EULA, to the
extent permitted by applicable law, IN NO EVENT WILL EITHER PARTY’S
LIABILITY FOR all costS, damageS, and expenses ARISING OUt of or related to
this EULA whether based upon warranty, contract, tort (including
negligence), strict liability or otherwise at law exceed, in the aggregate,
the fees paid TO US FOr the producT AND/OR SErvice that is THE SUBJecT OF
THE claim, proVIDED, HOWEVER, THAT IF THE FEES PAID FOR SUCH PRODUCT AND/OR
SERVICE ARE PAID ON A RECURRING BASIS, THEN the not to exceed limit will be
the fees paid to us for the product aND/OR SERVICE DURING THE TWELVE (12)
MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. Our Affiliates
and licensors, and the suppliers to us, our Affiliates or licensors, will,
to the extent permitted by applicable law, have no liability to you or to
any other person or entity for damages, direct or otherwise, arising out of
this EULA, including, without limitation, damages in connection with the
performance or operation of Our Products or our performance of services.
1.13.2 Disclaimer of Certain Types of Damages. Except for
a party’s indemnification obligations set OUT in this EULA or your material
violation of our intellectual property rights or the license restrictions
set OUT in this EULA, to the extent permitted by applicable law, in no
event will either party, its Affiliates or its licensors or their
respective suppliers be liable for any special, indirect, consequential,
incidental, punitive or tort damages arising in connection with this EULA
or either party’s performance under this EULA or the performance of Our
Products, or FOR any damages resulting from loss of use, loss of
opportunity, loss of data, LOSS OF REVENUE, loss of profits, or loss of
business, even if the party, its Affiliates, its licensors, or any of their
respective suppliers have been advised of the possibility of those damages.
1.14. Audit. We may install and use automated license tracking, management
and/or enforcement solutions with the Product, which you may not disrupt or
alter. You will maintain records in connection with this EULA and the use
of the Product and any Updates and/or services provided hereunder. Such
records will include at a minimum the number of licenses purchased and
being used by you. At our expense and with reasonable written notice to
you, we or a third party appointed by us may audit the records, and if
necessary and as applicable, the systems on which the Product or any Update
is installed for the sole purpose of ensuring compliance with the terms of
this EULA. We will have the right to conduct audits as necessary. These
audits may be conducted on site at a location where you have installed the
Product, remotely from our offices, or a combination of both, if applicable
to the Product. On-site audits will be conducted during regular business
hours, and neither on-site nor remote audits will interfere unreasonably
with your business operations. You agree to share with us copies of all
records referenced herein, as well as Product log files and other
information reasonably requested by us promptly following such request, but
in no event more than five (5) business days following receipt of our
written request (or such longer period, if applicable, that we specify in
the written request). We will treat all such information obtained or
accessed by us during the audit as confidential information pursuant to
section 1.11 (Confidentiality) for use by us only as necessary to ensure
compliance with and enforcement of the terms of this EULA. If any audit
reveals that you have underpaid license, maintenance and support or
subscription fees, you will be invoiced for all such underpaid fees based
on our list price in effect at the time the audit is completed. If the
underpaid fees exceed five percent (5%) of the fees previously paid by you,
then you will also pay our reasonable costs of conducting the audit and
enforcement of this EULA.
1.15.1. Termination for Breach. We may terminate this EULA
by written notice at any time if you do not comply with any of your
obligations under this EULA and fail to cure such failure to our
satisfaction within thirty (30) days after such notice. This remedy will
not be exclusive and will be in addition to any other remedies which we may
have under this EULA or otherwise.
1.15.2. Effect of Termination. Upon expiration of your
license term to the Product (if applicable) or earlier termination of this
EULA, your license to access and/or use the Product and/or distribute the
Redistributables (if applicable) will terminate. You must immediately cease
use of the Product and destroy all copies of the Product in your possession
(and required any Permitted Third Parties to do the same). Any licenses you
have granted to the Redistributables in accordance with the terms and
conditions of this EULA will, unless otherwise specified in section 3
(Product Family Specific Terms) or section 4 (Product Specific Terms),
survive termination of this EULA.
1.15.3. Survival. Any provisions of this EULA containing
licensing restrictions, warranties and warranty disclaimers,
confidentiality obligations, limitations of liability and/or indemnity
terms, audits rights, and any term of this EULA which, by its nature, is
intended to survive termination or expiration, will remain in effect
following any termination or expiration if this EULA, as will your
obligation to pay any fees accrued and owing to us as of termination or
1.16. Assignment. You may not, without our prior written consent, assign or
novate this EULA, any of your rights or obligations under this EULA, or the
Products or any of our Confidential Information, in whole or in part, by
operation of law, sale of assets, merger or otherwise, to any other party,
including any parent, subsidiary or affiliated entity. Your Change of
Control will constitute an assignment for purposes of the preceding
sentence. A “Change of Control” will include, but not be limited to, any
merger, consolidation, amalgamation, reorganization or sale, transfer or
exchange of the capital stock or equity interests of you in a transaction
or series of transactions which results in the holders of your capital
stock or equity interests holding less than 50% of the outstanding capital
stock or equity interests immediately following such transaction(s).
1.17. Choice of Law. This EULA is governed by the laws of the Commonwealth
of Massachusetts, U.S.A., without regard to the conflict of laws principles
thereof. If any dispute, controversy, or claim cannot be resolved by a
good-faith discussion between the parties, then it will be submitted for
resolution to a state or federal court in Boston, Massachusetts, USA, and
the parties hereby irrevocably and unconditionally agree to submit to the
exclusive jurisdiction and venue of such court. The Uniform Computer
Information Transactions Act and the United Nations Convention on the
International Sale of Goods will not apply to this EULA.
1.18.1. Notices. Notices of termination, material breach,
your insolvency or an indemnifiable claim (“Legal Notices
”) must be clearly identified as Legal Notices and sent via overnight
courier or certified mail with proof of delivery to the following
addresses: For us: 14 Oak Park Drive, Bedford, MA 01730, Attention: General
Counsel. For you: your address set out in the Order. Legal Notices sent in
accordance with the above will be effective upon the second business day
after mailing. Either party may change its address for receipt of notices
upon written notice to the other party.
1.18.2. Entire Agreement. This EULA, and any terms
expressly incorporated herein by reference, will constitute the entire
agreement between you and us with respect to the subject matter of this
EULA and supersedes all prior and contemporaneous communications, oral or
written, signed or unsigned, regarding such subject matter. Use of any
purchase order or other document you supply in connection with this EULA
will be for administrative convenience only and all terms and conditions
stated therein will be void and of no effect. Except as otherwise expressly
contemplated in this EULA, this EULA may not be modified or amended other
than in writing signed by you and us.
1.18.3. Severability. If any provision of this EULA is
terminated or held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, the remainder of this EULA will remain in full
force and effect.
1.18.4. Waiver. Failure or delay in exercising any right,
power, privilege or remedy hereunder will not constitute a waiver thereof.
A waiver of default will not operate as a waiver of any other default or of
the same type of default on future occasions.
1.18.5. English Language. This EULA has been drawn up in
English at the express wish of the parties. Le présent contrat a été rédigé
en anglais à la demande expresse des parties.
1.18.6. Force Majeure. Neither you nor we will be liable
for any delay or failure to take any action required under this EULA
(except for payment) due to any cause beyond the reasonable control of you
or us, as the case may be, including, but not limited to unavailability or
shortages of labour, materials, or equipment, failure or delay in the
delivery of vendors and suppliers and delays in transportation.
1.18.7. Our Use of Our Affiliates. We may, at our
discretion, engage one or more of our Affiliates in the fulfilment of our
obligations, including, our obligations for delivery of the Product to you
and/or the provision of any maintenance and support services.
2.A. TERMS FOR ON-PREMISE PRODUCTS
2.A.1. Delivery. Unless otherwise specified by us,
On-Premise Product(s) will be provided to you via electronic delivery, and
delivery is deemed complete when the On-Premise Product(s) is/are made
available at the electronic software download site specified by us and you
are e-mailed or otherwise provided with any necessary instructions,
password and/or license keys required for you to be able to access,
download and install the On-Premise Product(s). If we provide the
On-Premise Product(s) on physical media, shipping terms will be FOB
2.A.2. Updates. Each Update to an On-Premise Product
replaces part or all of the On-Premise Product (or earlier Update)
previously licensed to you (“Replaced Product”) and will
terminate such previously licensed Replaced Product to the extent replaced
by the Update; provided, however, that you may continue to operate the
Replaced Product for up to ninety (90) days from delivery of the Update to
allow you to complete your implementation of the Update. You must cease all
use of the Replaced Product at the end of the ninety (90) day period. Each
Update will be subject to the terms and conditions of this EULA, except
that (i) to the extent the Update contains new or updated Special Notices,
your use of any third party components shall be subject to section 1.2.7 of
this EULA and the Special Notices accompanying the Update; and, (ii) to the
extent section(s) 3 and/or 4 of the license agreement accompanying the
Update contain(s) additional or conflicting terms and conditions related to
new Products, components, features and/or functionality contained in the
Update, or related to additions or modifications to the license
definitions, license model or use restrictions, then your use of the Update
will be subject to this EULA, as altered by such additional or conflicting
terms and conditions of section(s) 3 and/or 4 of the license agreement
accompanying the Update which must be accepted by you at the time you
download or install the Update. If you do not agree to such additional or
conflicting terms and conditions, do not download or install the Update.
2.A.3. Cloud Environment. You may upload the On-Premise
Product(s) licensed to you pursuant to this EULA onto a cloud instance
supplied by a third party, provided that the operation of the On-Premise
Product(s) in the cloud instance complies with all license model
restrictions and usage limitations applicable to the On-Premise Product(s).
You may also allow the third party to upload, install, operate and/or use
the On-Premise Products on the cloud instance, provided that the third
party’s access to and use of the On-Premise Products is solely for your
benefit in accordance with the terms of this EULA. The third party will be
considered a Permitted Third Party, and you will be responsible for the
Permitted Third Party’s compliance with this EULA in accordance with
section 1.2.3 (Third Party Use).
2.B. TERMS FOR HOSTED SERVICES THIS SECTION IS NOT APPLICABLE
3. PRODUCT FAMILY SPECIFIC TERMS
This section specifies terms and conditions that are applicable to the
following On-Premise Products: Progress Sitefinity (all commercially
available packages or configurations).
Default License Type for each of the above-referenced On-Premise Products: Perpetual (except for Ucommerce for Sitefinity Add-on,
and other Add-ons for which the default license type is specified as
3.1. Product Family Definitions.
Any defined term used in this section 3 (Product Family Specific Terms) but
not defined herein will have the meaning in section 1 (General Terms and
Conditions) or section 2.A (Terms for On-Premise Products).
3.1.1. “Add-on” means any optional (available for
purchase) features, package(s). product(s) or license(s) additional to
Sitefinity (including by not limited to: Domain Add-ons, Support Add-ons
(including Mission Critical Support), Site Synchronization, Connector for
Salesforce, Connector for Sharepoint and Ucommerce for Sitefinity) which may be available for purchase.
3.1.2. “CMS User” means an individual user within your
company who has been assigned a unique username and password that
authorizes such individual to access and use the administrative/content
management capabilities of Sitefinity. Each CMS User is deemed to be an
“Authorized User” as that term is defined in section 1.1.4.
3.1.3. “Developer User” means one of your employees or
third-party consultants who: (a) subject to the same conditions and
limitations applicable to you herein, is authorized by you to develop,
host, or manage a website or Intranet Application specifically for your
benefit using Sitefinity in accordance with this EULA; and (b) you, to the
extent permitted by applicable law, hereby agree to assume all liability
and responsibility for hereunder. Each Developer User is deemed to be an
“Authorized User” as that term is defined in section 1.1.4.
3.1.4. “Development Purpose” means use or deployment of
Sitefinity (and, if applicable, Ucommerce for Sitefinity Add-on) solely for
access by Developer Users and solely for development, quality assurance,
and staging purposes prior to the use or deployment of the Sitefinity (and,
if applicable, Ucommerce for Sitefinity Add-on) for a Production Purpose.
“Intranet Applications” means those internal websites and
applications that can be accessed only by your: employees, Affiliates’
employees, or onsite contractors.
3.1.6. “Kendo” means our proprietary development tools
known as Progress Kendo UI for jQuery included with your license to
Sitefinity and that can be used not as a standalone product, but only to
assist in the website development with Sitefinity.
3.1.7. “License” means either a perpetual or Subscription
based license to use Sitefinity in accordance with the terms and conditions
of this EULA.
3.1.8. “Production Domain” means a domain name used for a
3.1.9. “Production Purpose” means use or deployment of
Sitefinity for publishing and/or administering a website or other
application accessible by and/or visible to your Site Visitors.
3.1.10. “Production Server” means a Server on which
Sitefinity is used for a Production Purpose.
3.1.11. “Server” means one: (i) physical server (i.e. one
piece of hardware), virtual server, or cloud service instance (e.g.
Microsoft Azure App Service); with (ii) computing power equivalent to at
most eight (8) CPU cores.
3.1.12. “Sitefinity” means a license to Progress
Sitefinity licensed to you including the products Kendo, UI Controls and
respective Documentation to assist in the website development.
3.1.13. “Site Visitor” means an individual, device, and/or
a software application, whether internal or external, that can access only
the published portion(s) of a website at the Production Domain created with
Sitefinity. Site Visitors do not have username and password access to the
administrative/content management capabilities of Sitefinity.
3.1.14. “Subscription” means your subscription-based
License to use Sitefinity pursuant to the terms of this EULA. A
Subscription is only active during the period, and to the extent, for which
you have subscribed and paid all applicable Subscription fees.
3.1.15. “Ucommerce for Sitefinity Add-on” means the
Ucommerce for Sitefinity product and associated Documentation,
3.1.16. “UI Controls” means our proprietary development
tools known as Progress Telerik UI for ASP.NET AJAX and Progress Data
Access included with your license to Sitefinity and that can be used not as
a standalone product, but only to assist in the website development
3.2. Restrictions on Eligibility to Purchase a License.
Individuals and companies that are Content Management System and/or .NET
component vendors are not allowed to use Sitefinity without our express
permission. If you or the company you represent is a Content Management
System and/or .NET` component vendor, you may not purchase a license for or
use Sitefinity unless you contact us directly and obtain permission.
3.3. Trial License.
3.3.1. License Grant. If you downloaded the free trial
license for Sitefinity (“Trial License”), then your use of
Sitefinity is subject to the limitations and conditions specified in
section 1.2.5 (Limitations on Evaluation or Trial Licenses). Unless
otherwise expressly agreed by us in writing, the term of the Trial License
will not exceed thirty (30) days after you use the license key provided by
us to access the trial version of Sitefinity. At the end of the evaluation
period, the Trial License will automatically expire, and lockout functions
within Sitefinity will cause Sitefinity to stop functioning unless you
obtain a commercial license for Sitefinity.
3.4. Commercial License.
3.4.1. Subscription License. If you have purchased a
Subscription, then, subject to the terms of this EULA, for as long as you
maintain an active Subscription, we grant you a limited, non-transferable,
revocable, royalty-free, non-exclusive license to, and to allow your
Developer User(s) to: (a) install and use Sitefinity specified in the
Order, and any updates, upgrades, modifications and error corrections
thereto provided to you by us; and (b) build, use and distribute add-on
modules to Sitefinity solely for use in conjunction with Sitefinity.
184.108.40.206. Subscription Renewals. Unless otherwise
specified in the Order, your License to Sitefinity will not automatically
renew. Your License to Sitefinity will terminate at the end of the
then-current Subscription period purchased by you unless we offer, and you
purchase a Subscription renewal term prior to the expiration of such
Subscription period. All renewals will be charged at the rate then in
effect at the time of purchase. If you purchase a renewal Subscription
License, your Subscription will be renewed at the level we, in our sole
discretion, identify as being closest to your previous Subscription. If you
do not purchase a renewal Subscription License, then the terms of section
1.15.2 (Effect of Termination) will apply.
220.127.116.11. Subscription Upgrades or Downgrades. If You
obtained a paid Subscription License, payment is non-refundable, even if
you and/or any/all of your Authorized Users stop using Sitefinity. If You
upgrade your Subscription License, the upgrade will take effect
immediately, you will be charged and must pay the applicable fee, and the
term of your Subscription period may be extended, as described at the time
you upgrade. You generally may not downgrade a Subscription License and
there is no automated mechanism available to you by which to downgrade.
Downgrades require our approval and assistance and may result in the loss
of your Content. Please contact us at sales@Sitefinity.com if you wish
to request a downgrade. If You downgrade your Subscription License, unless
otherwise specified, the downgrade will take effect at the end of the term
of your existing Subscription period.
3.4.2. Perpetual License. If you have purchased a
perpetual License, then, subject to the terms of this EULA, we grant you a
limited, non-transferable, perpetual, royalty-free, non-exclusive license
to, and to allow your Developer User(s) to: (a) install and use Sitefinity
specified in the Order, and any updates, modifications and error
corrections thereto provided by us to you; and (b) build, use and
distribute add-on modules to Sitefinity solely for use in conjunction with
3.4.3. General Terms Applicable to Sitefinity.
18.104.22.168. Site Visitors. There is no limit on how many Site
Visitors may visit a website developed and administered using Sitefinity.
22.214.171.124. Domain Registration and Limitations.
a. You must register all domains (whether or not used for a Production
Purpose) with us. You may not change your Production Domain designation(s)
once registered. You are also required to register subdomains (i.e. by
registering a license key for Sitefinity for the Production Domain
mysite.com, you will also be able to register and use it for all subdomains
– www.mysite.com, support.mysite.com, staging.mysite.com, etc.). There is
no limitation to the number of subdomains within a registered Production
Domain on which you may install and use Sitefinity for Development
Purposes. If offered by us for your Sitefinity package, you may purchase
the right to use more than one Production Domain and/or one or more
subdomains for Production Purposes (“Domain Add-ons”);
please contact us at sales@Sitefinity.com if you wish
to do so.
b. If you purchase a license to use Sitefinity in connection with Domain
Add-on(s) on or after the date that you agree to this EULA, you may use
Sitefinity to administer such Domain Add-on(s) pursuant to the same terms,
conditions and restrictions of this EULA applicable to the Production
Domain which was initially designated by you at the time you registered a
license key for Sitefinity (the ”Primary Domain”),
provided the Domain Add-on(s) are administered for the same entity or
individual that benefits from your administration of the Primary Domain.
For example, if you urrently administer the
Primary Domain for Company X, you may not administer any Domain Add-on(s)
for Company Y; the administration of a Production Domain for Company Y
requires a separate Primary Domain and thus the purchase of an additional
Sitefinity License will be necessary.
126.96.36.199. Administrative Use Limited to CMS Users. At no
time may Sitefinity be (i) used for administrative/content management
purposes by anyone other than CMS Users or (ii) used simultaneously by more
than the number of CMS Users permitted to use Sitefinity at any given time
under the License of Sitefinity you purchased.
188.8.131.52. Limitations on Use of Kendo and UI Controls. You
may only use Kendo and the UI Controls for the purpose of website development with Sitefinity.
184.108.40.206. Limitations on Use and Distribution of add-on Modules. You
may not use Sitefinity to create add-on modules for use with third party
website development and administration software products or in any
environment other than Sitefinity. If you want to use an add-on module that
you have created through use of Sitefinity to administer a publicly
viewable website, you may only do so if such website is developed and
administered with Sitefinity. You may distribute add-on modules that you
create by using Sitefinity, provided however, that (a) you may only
distribute such add-on modules to third parties that agree to use such
add-on modules in conjunction with Sitefinity pursuant to a valid
Sitefinity license obtained by such third parties from us or an Authorized
Reseller, and (b) you do not distribute such add-on modules on terms that
make Sitefinity subject to a license that requires (i) the source code for
Sitefinity to be disclosed or distributed; (ii) Sitefinity to be licensed
for the purpose of making derivative works; or (iii) Sitefinity to be
redistributable without charge.
3.4.4. Trademarks and Branding.
220.127.116.11. Web Page Footers. Web pages on a website created
using Sitefinity may (but are not required to) contain our Sitefinity® logo
on the footer of each web page.
18.104.22.168. No Alteration. You may not remove, alter or
obscure any of our trademarks, logos, tag lines or other branding of ours
included in Sitefinity.
22.214.171.124. Co-Branding. You may (but are not required to)
co-brand Sitefinity with your own company’s trademarks. Any co-branding
efforts you undertake are at your own risk and you agree to indemnify and
hold us harmless from all third party suits and proceedings, and all
damages, losses, costs (including attorneys’ fees) and other liabilities,
resulting from your co-branding efforts. Any goodwill accruing from your
use of your own trademarks will accrue to and be owned by you. Any goodwill
accruing from our placement of our trademarks, logos, tag lines or other
branding of ours on Sitefinity, or from your placement of the Sitefinity®
logo on the footers of web pages created using Sitefinity, will accrue to
and be owned by us.
126.96.36.199. Quality Control. We reserve the right to review
your website and add-on modules you create using Sitefinity to ensure your
compliance with the terms of this section 188.8.131.52; your breach of this
section will be grounds for our termination of this EULA and the License
granted to you hereunder.
184.108.40.206. Support Eligibility. The level of support (if
any) that you receive for Sitefinity depends on which Sitefinity package
you select at the time of License purchase (Sitefinity package). To be
eligible for support (including but not limited to support under a Mission
Critical Support Add-on): (i) your use of Sitefinity must be in full
compliance with the terms of this EULA; (ii) you must provide all
information and evidence necessary for our support personnel to adequately
understand your support issue and diagnose the cause of such issue; and
(iii) in the case of multiple Licenses, the Production Domain for which you
are requesting support must be eligible for the level of support requested.
220.127.116.11. Support Description. As part of your License you
are entitled to the Support Package, identified for the Sitefinity package,
and described in greater detail at
https://www.progress.com/support/sitefinity-support-plans. You are entitled
to receive support while you maintain an active Subscription, or, in the
case of perpetual Licenses, for one (1) year after you purchase the License
for Sitefinity. During that time, you will be entitled to receive support
for an unlimited number of support inquiries. Our goal is to provide an
initial response (but not necessarily a resolution) to each support inquiry
within: (i) forty-eight (48) hours for Sitefinity Standard; or (ii)
twenty-four (24) hours for other Sitefinity packages of receipt of such
support inquiry, and we will use reasonable efforts to resolve the issue
generating the inquiry as soon as is reasonably possible. You are
responsible for backing up copies of all your data and software prior to
seeking support from us. In the case of perpetual Licenses you will lose
the right to receive support after such one (1) year period, unless you
purchase additional support from us at additional cost. In the case of
Subscriptions you will lose the right to receive support at the end of your
Subscription, unless you renew your Subscription with us at additional
cost. You are eligible to receive all Updates to the Sitefinity package
while you maintain an active Subscription, or, in the case of perpetual
Licenses, during the one (1) year period commencing on the date on which
you purchase the License for the Sitefinity package; in the case of
perpetual Licenses you will lose the right to receive Updates after such
one (1) year period, unless you purchase additional maintenance from us at
additional cost. In the case of Subscriptions you will lose the right to
receive Updates at the end of your Subscription, unless you renew your
Subscription with us at additional cost. The support of Add-on (s) (if
purchased) and all access to support under the Mission Critical Support
Add-on (if purchased) will be bound to the support term of the Sitefinity
package for which it is purchased, so that it becomes renewable at the same
time as the renewal of the support term for the Sitefinity package
regardless of when the Add-on was purchased.
18.104.22.168. Mission Critical Support. Our Mission Critical
Support Add-on may be available as an option for an additional fee for
certain Sitefinity packages. Each purchase of a Mission Critical Support
Add-on is specific to, and will be bound to, the support and support term
of the particular Sitefinity package for which it is purchased. If you
purchase a Mission Critical Support Add-on in connection with your License
you are entitled to the Mission Critical Support Package described in
greater detail at
https://www.progress.com/support/sitefinity-support-plans. You will be
entitled to receive support for an unlimited number of support inquiries.
Our goal is to provide an initial response (but not necessarily a
resolution) to each support inquiry within twenty-four (24) hours of
receipt of such support inquiry and we will use reasonable efforts to
resolve the issue generating the inquiry as soon as is reasonably possible.
Unless you purchase additional Mission Critical Support Add-on support from
us at additional cost, you will lose the right to receive support under a
Mission Critical Support Add-on at the end of the sooner of: one (1) year
from the purchase of the Mission Critical Support Add-on; and (ii) the
expiration of the support term of the particular Sitefinity package for
which the Mission Critical Support Add-on was purchased.
Exclusions and Limitations on Support Applicable to all Sitefinity
. A description of items within scope and items out of scope of Support can
be found at
. The list of items out of scope of Support is not an exhaustive list and
if an item is not explicitly mentioned as being within scope of Support
then it is excluded. For the avoidance of doubt, and without limiting the
above, the Lucene.Net component of Sitefinity and the MaxMind software and
database components of Sitefinity are excluded from the scope of Support.
If it is determined by us in our sole discretion that you have received
support from us for which you were not eligible, we may assess, and you
agree to pay reasonable and appropriate fees for such support.
22.214.171.124. Support Incidents. A single support incident
(including but not limited to Mission Critical Support incidents) may
involve several communications and offline work in order to be resolved.
You agree to provide us with detailed information about the issue
encountered and cooperate with our requests for additional information as
we attempt to resolve the issue. Our support engineers will make reasonable
efforts to resolve your support issues; however, we do not guarantee that
all support issues will be resolved. Bug reports and product feature
suggestions are not considered support incidents, and we are not obligated
to acknowledge or address such bug reports and/or product feature
126.96.36.199. Product Discontinuance. We reserve the right to
discontinue at any time any component of Sitefinity, whether or not it is
offered as a standalone product or solely as a component of Sitefinity. To
the extent we are obligated to provide support for Sitefinity in accordance
with the terms set out in this EULA, we will provide support for prior
versions of Sitefinity in accordance with our product lifecycle policy
(or any successor website location) and updated by us from time to time.
3.5. Google Maps API. Sitefinity contains a feature that
will enable you to show geolocation information on your website, using the
Google Maps API service. This License does not grant you a license or any
rights to the “Google Maps API”. If you choose to use Google Maps in
connection with Sitefinity’s address field feature, you must obtain an API
Key directly from Google. You are solely responsible for compliance with
the Google Maps API Terms of Service and any other applicable Google
licensing requirements related to your use or implementation of the Google
Maps API. You are solely responsible for any and all fees that Google may
assess related to your use or implementation of the Google Maps API.
3.6. Additional Disclaimer of Liability. In addition to
the limits on liability and disclaimers specified in section 1.13
(Limitation of Liability and Disclaimer of Certain Types of Damages), the
following additional disclaimers apply to Sitefinity: neither we nor our
licensors are responsible for any liability arising out of (a) content
provided by you or a third party that is accessed through Sitefinity or on
a website built using Sitefinity, (b) any material linked through such
content or such website, (c) any add-on modules you develop using
Sitefinity, or (d) use of the Lucene.net or MaxMind software and database
components of Sitefinity.
4. PRODUCT SPECIFIC TERMS
This section specifies terms and conditions that are applicable to
commercially available packages or configurations of the Progress
4.1. Product-Specific Definitions.
Any defined term used in this section 4 (Product Specific Terms) but not
defined herein will have the meaning in section 1 (General Terms and
Conditions), section 2.A (Terms for On-Premise Products) or section 3
(Product Family Specific Terms).
4.2. Progress Sitefinity Specific Terms.
The Sitefinity may be used for commercial or non-commercial purposes.
You may only (i) by default use and access the Sitefinity on one (1)
Production Domain, which shall be the Primary Domain as defined in
section 4.A.3.3 (Domain Registration and Limitations); (ii) purchase
Domain Add-ons for use with the Sitefinity; and (iii) use and access
the Sitefinity for Production Purposes on the Primary Domain and any
Domain Add-ons which you have registered in connection with such
Sitefinity and paid all applicable fees.
4.2.2. Default CMS User Limits. Unless you have purchased
a license to Sitefinity Standard, you may permit up to ten (10) CMS Users
to be logged into the Sitefinity at any given time. Different CMS Users
within your company may log in to the Sitefinity at different times, as
long as no more than ten (10) CMS Users are logged into the Sitefinity at
any given time. You may purchase the rights to increase the limit for
additional concurrent CMS Users if we make it available as an Add-on.
188.8.131.52. Standard. For Sitefinity Standard you may permit
up to four (4) CMS Users to be logged into Sitefinity at any given time.
Different CMS Users within your company may log in to Sitefinity at
different times, as long as no more than four (4) CMS Users are logged into
Sitefinity at any given time
184.108.40.206. Enterprise Package. For Sitefinity Enterprise
there is no limit to the number of CMS Users you may permit to be logged
into Sitefinity at any given time.
4.2.3. Standard. A single license of Sitefinity Standard
may not be used on more than two (2) Production Servers at any time.
Sitefinity Standard may not be used in a load balancing environment.
Ucommerce for Sitefinity Add-on Specific Terms.
4.3.1. Non-Production Use License. If you download the
Ucommerce for Sitefinity Add-on from NuGet or another repository that we or
our licensor use to distribute the Ucommerce for Sitefinity Add-on
(“Distribution Repository”), then we grant you a limited, non-transferable,
revocable, royalty-free, non-exclusive license to, and to allow any number
of your Authorized Users to, install and use the Ucommerce for Sitefinity
Add-on on any number of Servers or Domains solely for a Development Purpose
subject to and in accordance with the terms of this EULA. The license
described in this section 4.3.1 (Non-Production Use License) does not
include any support and does not allow you to use the Ucommerce for
Sitefinity Add-on for any purpose other than a Development Purpose. You
must purchase a production license for the Ucommerce for Sitefinity Add-on
from us or our Authorized Reseller to obtain the support referenced in
section 4.3.3 (Ucommerce for Sitefinity Add-on Package Support) or to use
the Ucommerce for Sitefinity Add-on for a Production Purpose.
Notwithstanding anything to the contrary in section 220.127.116.11 (Subscription
Renewals), your license to install and use the Ucommerce for Sitefinity
Add-on for a Development Purpose as set forth in this section 4.3.1 will
commence on the date of download or delivery and will automatically
continue for successive one year Subscription periods unless we or our
licensor posts a notice on the Distribution Repository advising that the
royalty-free non-production use license for the Ucommerce for Sitefinity
Add-on is terminating or has terminated and shall no longer automatically
renew, in which case your license will terminate at the end of your
then-current annual subscription period. It is your responsibility
to check the Distribution Repository to confirm that no such notice has
been posted prior to your continued use for a successive annual renewal
4.3.2. Production License.
18.104.22.168. Pre-requisites on Eligibility to Purchase a License.
a. Sitefinity License Pre-requisite. You may purchase a
Subscription License to use the Ucommerce for Sitefinity Add-on for a
Production Purpose (for an initial or renewal Subscription period, as
applicable) only if you hold a valid license to Sitefinity with a paid up
maintenance and support period (if the license to Sitefinity is a perpetual
license) or paid up Subscription period (if the license to Sitefinity is a
subscription license). The Ucommerce for Sitefinity Add-on is only
available for purchase under a Subscription license model. You may only use
the Ucommerce for Sitefinity Add-on for a Production Purpose.
Notwithstanding anything to the contrary in this EULA, if you intend to
purchase a production license to the Ucommerce for Sitefinity Add-on to use
in conjunction with our Sitefinity Cloud Platform as a Service offering,
then your production license to the Ucommerce for Sitefinity Add-on will be
governed by the terms and conditions of the then-applicable end-user
license agreement for our Sitefinity Cloud Platform as a Service offering
and not this EULA.
Co-termination with Maintenance and Support Period or Subscription
Period for Sitefinity
. Unless otherwise specified in the Order, the period of your Subscription
to the Ucommerce for Sitefinity Add-on will, at the time of purchase, be
pro-rated, as necessary, to co-terminate with the then-current maintenance
and support period for Sitefinity (if a perpetual license) or then-current
Subscription period for Sitefinity (if a subscription license).
22.214.171.124. Domain License Model. If you purchase a
Subscription License for the Ucommerce for Sitefinity Add-on under a Domain
license model, we will grant you, while you have an active Subscription, a
limited, non-transferable, revocable, non-exclusive License to, and to
allow your Authorized Users to install and use the Ucommerce for Sitefinity
Add-on, and any Updates thereto provided to you by us, in accordance with
the Documentation and subject to the following limitations:
a. Domain Registration.
The Production Domain designated by you at the time you register a
license key for the Ucommerce for Sitefinity Add-on must be the Primary
Domain for Sitefinity. You must register all domains (whether or not
used for a Production Purpose) with us. You may not change your
Production Domain designation(s) once registered. You are also required
to register subdomains (i.e. by registering a license key for the
Ucommerce for Sitefinity Add-on for the Production Domain mysite.com,
you will also be able to register and use it for all subdomains
– www.mysite.com, support.mysite.com, staging.mysite.com, etc.). There is
no limitation to the number of subdomains within the Production Domain on
which you may install and use the Ucommerce for Sitefinity Add-on for
Development Purposes. You may purchase the right to use the Ucommerce for
Sitefinity Add-on on more than one Production Domain and/or one or more
subdomains for Production Purposes (“ Ucommerce for Sitefinity Domain Add-ons”); provided that
for each Ucommerce for Sitefinity Domain Add-on purchased, you must have a
corresponding Domain Add-on license Sitefinity; please contact us at sales@Sitefinity.com if you wish
to purchase a Ucommerce for Sitefinity Domain Add-on.
b. Limitations on Domain Add-ons.
If you purchase a license to use the Ucommerce for Sitefinity Add-on on
one or more Ucommerce for Sitefinity Domain Add-on(s) on or after the
date that you agree to this EULA, you may use the Ucommerce for
Sitefinity Add-on to administer such Ucommerce for Sitefinity Domain
Add-on(s) pursuant to the same terms, conditions and restrictions of
this EULA applicable to the Primary Domain, provided the Ucommerce for
Sitefinity Domain Add-on(s) are administered for the same entity or
individual that benefits from your administration of the Primary
Domain. For example, if you currently administer the Primary Domain for
Company X, you may not use the UCommerce for Sitefinity Add-on in
connection with the administration of any Ucommerce for Sitefinity
Domain Add-on(s) for Company Y; the administration of a Production
Domain for Company Y requires a separate Primary Domain and thus the
purchase of an additional License to the UCommerce for Sitefinity
Add-on will be necessary.
126.96.36.199. Server License Model. If you purchase a
Subscription License for the Ucommerce for Sitefinity Add-on under a Server
license model, we will grant you while you have an active Subscription, a
limited, non-transferable, revocable, non-exclusive License to, and to
allow your Authorized Users to install and use the Ucommerce for Sitefinity
Add-on, and any Updates thereto provided to you by us, in accordance with
the Documentation and subject to the following limitations:
a. Limitations on a Server License. You may only install,
use and access the Ucommerce for Sitefinity Add-on on the Licensed Server
for Sitefinity. There is no limit on the number of Production Domains on
the Licensed Server; however, each Production Domain on the Licensed Server
must be administered for the same entity or individual and you must
register all domains and subdomains (regardless of whether or not such
domains and subdomains are used for a Production Purpose) with us. You may
purchase the right to install, use and access the Ucommerce for Sitefinity
Add-on on additional Production Servers for an additional fee; provided
that a pre-requisite to such purchase is that you hold an active license
for Sitefinity on each additional Production Server on which you intend to
install, use and access the Ucommerce for Sitefinity Add-on. You may not
access the Ucommerce for Sitefinity Add-on from Production Servers outside
of the Licensed Server at any time.
4.3.3. Ucommerce for Sitefinity Add-on Package Support. You are only eligible
to receive support for the Ucommerce for Sitefinity Add-on if (i) you have
purchased a Subscription License to Ucommerce for Sitefinity Add-on for a
Production Purpose and (ii) you have satisfied the requirements of section
188.8.131.52 (Pre-requisites on Eligibility to Purchase a License). The level of
support that you receive for the Ucommerce for Sitefinity Add-on depends on
the Sitefinity package licensed to you. Support for the Ucommerce for
Sitefinity Add-on will be governed by the same terms applicable to the
Sitefinity package licensed to you as set forth in section 3.4.5 (Support).
4.3.4. Subscription Renewals. The terms set forth in
section 184.108.40.206 will apply to the renewal of your Production License
Subscription License to the Ucommerce for Sitefinity Add-on.
4.4. NativeChat Integration with Sitefinity.
If the Product Documentation specifies integration with NativeChat, then
Sitefinity will include a configuration to connect to NativeChat. You
acknowledge that a separate license to NativeChat governed by the terms and
conditions of the End User License Agreement for NativeChat and a proper
Order (this last one, if applicable) will be required for your use of
NativeChat integrated with Sitefinity. We also may make a license to
NativeChat available to you as an Add-on.
4.5. MOVEit Integration with Sitefinity.
If the Product Documentation specifies integration with MOVEit, then
Sitefinity will include a configuration to connect to MOVEit. You
acknowledge that a separate license to MOVEit governed by the terms and
conditions of the End User License Agreement for MOVEit and a proper Order
(this last one, if applicable) will be required for your use of MOVEit
integrated with Sitefinity. We also may make a license to MOVEit available
to you as an Add-on.
4.6. CLOUDINARY Integration with Sitefinity.
If the Product Documentation specifies integration with CLOUDINARY technology (owned or licensed by Cloudinary Inc.), then Sitefinity will include a configuration to connect to CLOUDINARY. You acknowledge that a separate license to CLOUDINARY governed by the terms and conditions of a license agreement by Cloudinary Inc. for CLOUDINARY technology and a proper Order (this last one, if applicable) will be required for your use of CLOUDINARY integrated with Sitefinity. We also may make a license to CLOUDINARY available to you as an Add-on.
4.7. FRONTIFY Integration with Sitefinity.
If the Product Documentation specifies integration with FRONTIFY technology (owned or licensed by Frontify AG), then Sitefinity will include a configuration to connect to FRONTIFY. You acknowledge that a separate license to FRONTIFY governed by the terms and conditions of a license agreement by Frontify AG for FRONTIFY technology and a proper Order (this last one, if applicable) will be required for your use of FRONTIFY integrated with Sitefinity. We also may make a license to FRONTIFY available to you as an Add-on.