Progress® Rollbase® Private Cloud License Agreement
AGREEMENT LAST MODIFIED: August 22, 2015
BY ACCESSING OR USING THE PROGRESS® ROLLBASE® PRIVATE CLOUD (“ROLLBASE PLATFORM”), YOU, YOUR EMPLOYEES, AGENTS, CONTRACTORS, AND ANY OTHER PERSON OR ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (COLLECTIVELY “YOU” OR “YOUR”) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS PROGRESS® ROLLBASE® PRIVATE CLOUD LICENSE AGREEMENT (THE “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS, OR USE THE ROLLBASE PLATFORM. IF YOU HAVE ENTERED INTO A MUTUALLY EXECUTED WRITTEN AGREEMENT WITH PROGRESS IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE ROLLBASE PLATFORM, THEN, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE MUTUALLY EXECUTED AGREEMENT BETWEEN YOU AND PROGRESS WILL SUPERSEDE THIS AGREEMENT AND WILL GOVERN YOUR ACCESS TO AND USE OF THE ROLLBASE PLATFORM. "PROGRESS" AS USED HEREIN MEANS PROGRESS SOFTWARE CORPORATION, LOCATED AT 14 OAK PARK DRIVE, BEDFORD, MASSACHUSETTS 01730.
1.1 “Activation Instructions” means any instructions, user IDs, software license keys or passwords Progress (or if applicable a Progress Channel Partner (as defined in Section 3.1 below)) may provide you to enable you to activate and access the Rollbase Platform.
1.2 “AUP” means the policy identified as the “Acceptable Use Policy,” the current version of which is set forth in the Progress Rollbase App Builder Site and as it may be updated by Progress from time to time.
1.3 “Authorized User” means an individual who has been authorized to access and use the Rollbase Platform, where such individual may be within your own organization or within the organization of one of your end-user clients that you have provided with access to the Rollbase Platform in accordance with the terms of this Agreement,.
1.4 “Exclusive Territory” means licensing and usage of the Rollbase Platform in the Philippines.
1.5 “Hosted Server” means hardware owned and operated solely by you which is used to store and execute the Rollbase Platform.
1.6 “Licensee Applications” means Rollbase Platform-enabled applications developed by you for your own internal use, and not for distribution or for offering services to other third parties.
1.7 “Policies” means the AUP, together with all restrictions described on the Progress Rollbase App Builder Site, and any other policy or terms referenced in or incorporated into this Agreement. The term “Policies” does not include whitepapers or other marketing materials referenced on the Progress Rollbase App Builder Site or the Progress Site. Progress may modify any of the Policies at any time by posting a revised version on the Progress Rollbase App Builder Site. The modified Policies will become effective upon posting.
1.8 “Progress Rollbase App Builder Site” means the site at http://www.progress.com/products/rollbase, or such other site 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 “ Rollbase Platform” means the software, documentation, and other materials that Progress makes available for download from the Progress Rollbase App Builder Site, and any update, upgrade or new versions of the foregoing.
1.11 “Third Party Provider” means a third party provider from whom you purchase access to the third party provider’s cloud-based infrastructure (e.g., CPU, memory, storage) to store and execute the Rollbase Platform.
2. Evaluation Use
2.1 If you download a limited-functionality evaluation version of the Rollbase Platform, you may use that version of the Rollbase Platform on an evaluation basis free of charge until the earlier of: (i) the end of the free evaluation period (if applicable); or (ii) the start date of any Service Order (hereinafter defined) under which you license a full production version of the Rollbase Platform. The Rollbase Platform provided for evaluation will be subject to all of the terms and conditions of this Agreement, except that, notwithstanding any provision to the contrary herein, your right to use the Rollbase Platform will be subject to the following additional requirements and limits:
(a) You may use the Rollbase Platform solely for evaluation and testing purposes. Without limiting the foregoing, you may not use the Rollbase Platform in a production environment or otherwise in your internal business operations.
(b) Your use of the Rollbase Platform may be subject to certain usage limits, including, without limitation, limits on the number of Authorized Users who may access and use the Rollbase Platform and any other limits imposed by Progress and described at Progress Rollbase App Builder Site. You will not be permitted to use the Rollbase Platform in excess of such limits.
(c) THE ROLLBASE PLATFORM IS PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.
(d) If you subsequently license a full production version of the Rollbase Platform, such license and your use of the Rollbase Platform will be governed by the terms and conditions of the version of this Agreement in effect at the start date of any Service Order (hereinafter defined) under which you license the full production version of the Rollbase Platform posted on the Progress Rollbase App Builder Site.
3. Licensed Product
3.1 If you are procuring the Rollbase Platform directly from Progress, you may order the Rollbase Platform by completing and submitting to Progress a written or electronic service order in a form supplied by Progress identifying your desired level of service (“Service Plan”) (based on the description of available Service Plans provided at http://www.progress.com/products/rollbase/pricing/rollbase-private-cloud, or such other site as Progress may designate from time to time). If you are procuring the Rollbase Platform through an authorized reseller, independent software vendor or other distributor of Progress product offerings (a “Progress Channel Partner”), you may submit to the Progress Channel Partner a service order (in the form supplied by the Progress Channel Partner) identifying your desired Service Plan, and the Progress Channel Partner will in turn route the service order to Progress on your behalf or otherwise arrange for the provision of the Rollbase Platform to you. The service order that you submit (whether directly to Progress or to the Progress Channel Partner) is referred to herein as a “Service Order”. Service Orders are subject to acceptance by Progress (or if applicable the Progress Channel Partner); such acceptance is deemed to occur when Progress (or if applicable the Progress Channel Partner) issues you Activation Instructions for the Rollbase Platform. Note that any Service Order originating from an Exclusive Territory that is submitted directly to Progress will be automatically referred to a Progress Channel Partner located within the Exclusive Territory. You understand and agree that by submitting the Service Order and consenting to the terms of this Agreement, you have made a binding selection of the type of Service Plan to be provided to you and all associated prices and policies related to the Rollbase Platform. The maximum number of Authorized Users that you authorize to access and use the Rollbase Platform shall not exceed the number of Authorized User licenses you have purchased, as evidenced in the Service Order. Authorized User licenses cannot be shared or used by more than one individual. The Service Plan you select may include a limited number of Authorized Users. You can determine what usage limits apply to your Service Plan at Progress Rollbase App Builder Site.
3.2 Each Service Order submitted by you and accepted by Progress or the Progress Channel Partner (as applicable) is incorporated into and is subject to the terms and conditions of this Agreement; provided, however, that in the event of conflict between the terms contained in the Service Order and the terms in this Agreement, the terms contained in this Agreement shall control.
3.3 If you use a Third Party Provider, you represent and warrant that you maintain exclusive control over the uploading and management of the Rollbase Platform within the Third Party Provider’s cloud-based infrastructure and that the Third Party Provider will not be permitted to access or use the Rollbase Platform. In the event your agreement with the Third Party Provider is terminated or you otherwise cease to use the Third Party Provider, you will ensure that all copies of the Rollbase Platform, in whole or part, are removed from the Third Party Provider’s cloud-based infrastructure and destroyed.
3.4 If you grant access to the Rollbase Platform to your end-user clients, you must limit the number of Authorized Users at the end-user clients, and ensure that the cumulative number of Authorized Users designated within your organization and across all end-user clients that you have permitted to access the Rollbase Platform does not exceed the total number of Authorized Users that you have purchased under your Service Order.
3.4 Progress shall have no responsibilities whatsoever, financial or otherwise, for any Hosted Server, any Third Party Provider services, or any acts or omissions of Progress Channel Partners that you interact with in connection with your procurement and use of the Rollbase Platform. To the extent a Service Order submitted to and accepted by a Progress Channel Partner contains warranties or other terms that are in addition to those set forth in this Agreement, you acknowledge and agree that the Progress Channel Partner is solely responsible for such additional warranties and other terms, and that Progress shall have no responsibilities or liability with respect to such additional warranties or other terms. Furthermore, Progress shall have no responsibilities whatsoever, financial or otherwise, to any end-user clients to whom you grant access to the Rollbase Platform.
3.5 Progress may install Progress® OpenEdge® products with the Rollbase Platform (“Installed OpenEdge”). You may, subject to and in accordance with the terms and conditions of this Agreement and the applicable subscription terms and conditions, and any relevant terms and conditions specified in the Service Order, use such Installed OpenEdge during the term of this Agreement. You understand and agree that Installed OpenEdge is licensed to you for use in conjunction with Licensee Applications only. Furthermore, the maximum number of Authorized Users using Installed OpenEdge in conjunction with Licensee Applications shall not exceed the number of Authorized User licenses you have purchased. You may not alter, amend or modify the database schema of the Installed OpenEdge, including but not limited to the table definitions and/or the index definitions.
3.6 If You have obtained a separate license to use a Progress® OpenEdge® database product, including but not limited to OpenEdge Enterprise RDBMS, OpenEdge Workgroup RDBMS, OpenEdge Personal RDBMS, Enterprise RDBMS, Workgroup RDBMS, Personal RDBMS or any future Progress® OpenEdge® database products (collectively “External OpenEdge Database”), you may not migrate database tables or any substantial portion of the data contained therein from External OpenEdge Database to Installed OpenEdge.
3.7 Rollbase Platform may include Kendo UI Professional (“Kendo”). You may, subject to and in accordance with the terms and conditions of this Agreement and the applicable subscription terms and conditions, and any relevant terms and conditions specified in the Service Order, use Kendo for the sole purpose of developing and using Licensee Application.
4. Grant of License.
Conditioned on your compliance with the terms and conditions of this Agreement, Progress grants you a non-exclusive, non-transferable license during the Initial and any Renewal Term of this Agreement: (i) to use the Rollbase Platform solely for the purpose of developing and using Licensee Applications in conjunction with the Rollbase Platform for your own internal use and for the use of any of your end-user clients to whom you grant access to the Rollbase Platform and (ii) to provide training and maintenance and support services for Licensee Applications.
5. License Restrictions.
5.1 You agree to use the Rollbase Platform only for the purposes permitted by this Agreement and for no other purpose. Without limiting the foregoing, except as otherwise expressly provided for herein, you agree not to:
(a) reproduce, copy, duplicate, modify, or create a derivative work of the Rollbase Platform (or any part thereof);
(b) reverse engineer, decompile, or otherwise attempt to discover the source code of the Rollbase Platform (or any part thereof) except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, in which case you agree to observe strict obligations of confidentiality and provide Progress reasonable advance written notice and the opportunity to assist with and/or conduct such activity on your behalf and at your expense;
(c) sell, resell, trade, rent, lease, distribute, sublicense, assign, grant a security interest in or otherwise transfer any right in the Rollbase Platform (or any part thereof).
5.2 You may not, and will not permit others to, combine or use the Rollbase Platform, in whole or in part, with any other software code or materials, including without limitation "free" or "open source" software, in such a way that would require the disclosure, licensing or distribution of any source code for any portion of the Rollbase Platform or the licensing or distribution of the Rollbase Platform at no charge.
5.3 You may not, and will not permit others to use the Rollbase Platform to develop applications that offer substantially similar functionality as the Rollbase Platform.
5.4 If you obtain a Developer Edition of the Service Plan for the Rollbase Platform, then your use of the Rollbase Platform is restricted to use solely for development purposes.
6. Limited Rights.
Your rights in the Rollbase Platform are limited to those expressly granted in Section 4. Progress reserves all other rights, title and interest in and to the Rollbase Platform not expressly granted to you under this Agreement.
7. Marketing Obligations; Maintenance and Support.
7.1 You agree to: (i) conduct business in a manner that reflects favorably at all times on the Rollbase Platform and the good name, goodwill and reputation of Progress; (iii) make no false or misleading representations with regard to Progress or the Rollbase Platform; and (iv) make no representations, warranties or guarantees with respect to the specifications, features or functionality of the Rollbase Platform that are inconsistent with the literature distributed by Progress.
7.2 You agree to provide all training and maintenance and support services for Licensee Applications. Progress will have no obligation to provide training, maintenance or support services in connection with Licensee Applications. You will be responsible for any and all costs and expenses that you incur in connection with your performance under this Agreement.
7.3 In all events, Progress reserves the right, from time to time, in its sole discretion and without liability to you of any kind, to: (i) change the Rollbase Platform; and (ii) change or terminate the level or type of service or support that Progress makes available for the Rollbase Platform.
7.4 As part of the Rollbase Platform, third party content and/or third party services may be made available to you. You may also have access to links (either by way of hyperlinks, icons or bookmarks) to specific third party websites. You acknowledge and agree that, notwithstanding that the Rollbase Platform may provide links to third party websites and may make available third party services and/or third party content through the Rollbase Platform, SUCH THIRD PARTY SERVICES AND THIRD PARTY CONTENT ARE NOT UNDER THE CONTROL OF PROGRESS AND ARE IN NO WAY ENDORSED BY OR THE RESPONSIBILITY OF PROGRESS. You further acknowledge and agree that Progress will not be responsible or liable, directly or indirectly, for any damages or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such services, website or resource.
7.5 The Rollbase Platform 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 Rollbase Platform (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates). Unless otherwise expressly stated in the Special Notices for any particular third party component, all third party components included in or accompanying the Rollbase Platform may be used solely in connection with the operation of the Rollbase Platform subject to and in accordance with the terms and conditions of this Agreement.
8. Export Control.
The Rollbase Platform, including technical data, is subject to the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will comply with all applicable import, re-import, export and re-export control laws and regulations, including, without limitation, the U.S. Export Administration Act and its associated regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance with such laws and regulations in relation to the manner in which you use the Rollbase Platform. Without limiting the foregoing, you agree that (i) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (ii) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which access or use of the Rollbase Platform would be prohibited by United States law. You will not use the Rollbase Platform for, and will not permit the Rollbase Platform to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
9. Government Use.
If the Rollbase Platform is being used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the Rollbase Platform will be only as set forth herein. Any portion of the Rollbase Platform that is software, and related documentation are each a "commercial item" as that term is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any portion of the Rollbase Platform that is software, and such documentation with only those rights set forth herein. Contract/Manufacturer is Progress Software Corporation, 14 Oak Park, Bedford, Massachusetts 01730.
10.1 Provided that you have paid the fees associated with an applicable Service Plan for the Rollbase Platform and have met the minimum user requirements to qualify, Progress agrees to provide you with technical support in accordance with Progress’ then-current support description located at http://www.progress.com/products/rollbase/pricing/rollbase-private-cloud or such other websites that Progress designates from time to time. Progress reserves the right to update the support description and change the manner and means by which technical support may be provided to you. Without limiting the generality of the foregoing, if you have procured the Rollbase Platform through a Progress Channel Partner, certain technical support services (including without limitation level one technical support) may be provided by the Progress Channel Partner. Contact the Progress Channel Partner for additional details regarding allocation of technical support responsibilities and for contact information for technical support.
10.2 Progress also maintains an online community forum where customers can post questions and communicate with other Rollbase Platform users. Progress may monitor this forum and respond to posts, but is under no obligation to provide a response to any forum post, and Progress does not guarantee the accuracy or completeness of any posts or responses posted by Rollbase Platform users.
10.3 Progress may, from time to time during the Term of this Agreement provide Updates to the Rollbase Platform. For purposes of this Agreement, an “Update” shall mean any update, patch, version and/or new release of or to the Rollbase Platform or any modification to the Rollbase Platform that Progress furnishes generally to its customers who are current on maintenance and support. Updates shall be subject to the terms and conditions of this Agreement.
11.1 If you procured the Rollbase Platform directly from Progress:
(a) You agree to pay the fee(s) applicable to the Service Plan identified in your Service Order, plus all applicable additional usage charges. All fees for additional Authorized Users will be billed in whole month increments, including additional Authorized Users purchased in the middle of any month during the Initial or any Renewal Term.
(b) Progress will charge you based on the payment options you select in your Service Order or as otherwise agreed to by Progress, in advance of the provision of Service, and payment of such fees will be due immediately. You will provide Progress with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information, you authorize Progress to bill such credit card: (a) at the time that you order any products or services, for all products and services set forth in the Service Order; and (b) at the time of any renewal, for the amount charged for any Renewal Term. If Progress, at its discretion, permits you to make payment using a method other than a credit card, Progress will invoice you at the time of your initial order and at the time of any Renewal Term. All amounts invoiced hereunder shall be due within thirty (30) days of the date of invoice. All payments will be in U.S. dollars. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Progress may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
11.2 If you procured the Rollbase Platform through a Progress Channel Partner:
(a) you agree to pay the fee(s) applicable to the Service Plan identified in your Service Order, plus all applicable additional usage charges.
(b) the Progress Channel Partner may be responsible for billing and/or collecting payment from you. If the Progress Channel Partner is responsible for billing and/or collection, the billing and collection terms agreed to between you and the Progress Channel Partner may differ from the terms set forth in Section 11.1 above.
11.3 If Progress must initiate a collections process to recover fees due and payable hereunder, then you will pay all costs associated with such collection efforts.
11.4 All fees and charges are exclusive of applicable taxes and duties, including VAT and sales tax. You agree to provide Progress (or if applicable, the Progress Channel Partner) any information Progress or the Progress Channel Partner may reasonably request to determine whether Progress or the Progress Channel Partner is obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Progress (or if applicable the Progress Channel Partner) with legally-sufficient tax exemption certificates for each taxing jurisdiction. Tax on charges under your account occurring after the date of receipt of a valid tax exemption certificate(s) will be excluded. If any deduction or withholding is required by law, you will notify Progress (or if applicable the Progress Channel Partner) and will pay any additional amounts necessary to ensure that the net amount that Progress receives, after any deduction and withholding, equals the amount Progress would have received if no deduction or withholding had been required. Additionally, you will provide Progress (or if applicable, the Progress Channel Partner) with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
12. Confidentiality; Privacy; Equitable Relief
12.1 You acknowledge that the Rollbase Platform is the valuable proprietary and trade secret information of Progress or its licensors (if any). In the course of using the Rollbase Platform, you may also receive information relating to Progress and/or the Rollbase Platform which is of a confidential and proprietary nature to Progress. The Rollbase Platform and any such information shall be collectively referred to in this Section 12 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) except as otherwise specifically permitted herein, 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 Rollbase Platform 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.
12.2 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.
12.4 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 Rollbase Platform, Progress may provide you with the opportunity to submit comments, suggestions, ideas, feedback, information or other disclosures regarding your use of the Rollbase Platform (collectively “Feedback”). You are not required to provide any Feedback, but if you do, then you agree that Progress is free to use without restriction (but is not obligated to use) any Feedback you provide, including without limitation, any ideas, concepts, know-how, or techniques relating to the Rollbase Platform (or any part thereof), for any purpose and without restriction and without any accounting, royalty or other obligation to you. Progress will own all right, title, and interest in and to the Feedback, even if you have designated the Feedback as confidential. You hereby irrevocably assign to Progress all right, title and interest in and to the Feedback and agree to provide Progress any assistance it may require to document, perfect and maintain Progress’ rights in the Feedback.
14. Warranties; Disclaimer of Warranties
14.1 Progress warrants that (a) Progress has validly entered into this Agreement and has the legal power to do so and (b) the Rollbase Platform will perform materially in accordance with the documentation accompanying the Rollbase Platform. For any breach of the foregoing warranty, your sole and exclusive remedy shall be to terminate this Agreement pursuant to Section 17.2(b) and obtain a pro-rata refund of the Service fee in accordance with Section 17.5.
14.2 You warrant that you have validly entered into this Agreement and have the legal power to do so. You also represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any output of the Rollbase Platform within and outside of the country in which you are located in connection with your use of the Rollbase Platform (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, and contractors).
14.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. EXCEPT AS SET FORTH IN PARAGRAPH 14.1 ABOVE, PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN PARTICULAR (BUT WITHOUT LIMITING THE FOREGOING DISCLAIMER), PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE ROLLBASE PLATFORM WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE ROLLBASE PLATFORM WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE USE OF THE ROLLBASE PLATFORM WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE ROLLBASE PLATFORM WILL BE CORRECTED.
15. Limitation of Liability
15.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH IN SECTION 15.2 BELOW MAY NOT APPLY TO YOU.
15.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, OR OTHER INTANGIBLE LOSSES (EVEN IF PROGRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE ROLLBASE PLATFORM; (II) ANY CHANGES MADE TO THE ROLLBASE PLATFORM; OR (III) OTHERWISE ARISING UNDER THIS AGREEMENT. IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL PROGRESS’ LIABILITY TO YOU EXCEED THE FEE YOU PAID FOR THE PERIOD OF THE INITIAL TERM OR RENEWAL TERM IN EFFECT AT THE TIME SUCH LIABILITY ACCRUED.
16.1 You will defend, indemnify, and hold harmless Progress, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any (I) third party claim concerning: (a) use of the Rollbase Platform by you or any end-user client to whom you have granted access to the Rollbase Platform (including any activities under your account and use by your employees and personnel or the employees and personnel of such end-user clients); (b) breach of this Agreement or violation of applicable law by you or any end-user client to whom you have granted access to the Rollbase Platform; or (c) Licensee Applications or the combination of Licensee Applications with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Licensee Applications or by the use, development, design, production, advertising or marketing of Licensee Applications; or (II) claim brought by an end-user client to whom you have granted access to the Rollbase Platform regarding such end-user client’s use of the Rollbase Platform. If Progress or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse Progress for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Progress’ then-current hourly rates.
16.2 Progress will promptly notify you of any claim subject to Section 16.1, but Progress’ failure to promptly notify you will only affect your obligations under Section 16.1 to the extent that Progress’ failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to Progress’ written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain Progress’ prior written consent before entering into any settlement. Progress may also assume control of the defense and settlement of the claim at any time if you have failed to appropriately protect Progress’ interests.
17. Term and Termination
17.1 The Initial Term for the Service Plan you purchased will commence upon acceptance of the Service Order and will continue for the period of time set forth in the Service Order, unless earlier terminated. If you procured the Rollbase Platform directly from Progress, then your Service Plan will automatically renew for successive Renewal Terms each equal in duration to the Initial 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 17.3 below. If you procured the Rollbase Platform through a Progress Channel Partner, renewal terms may differ from those set forth in the previous sentence; you should contact the Progress Channel Partner for details regarding the renewal process and the terms of successive Renewal Term(s) (if any).
17.2 Any revisions to this Agreement (other than to the Policies, which are addressed in Section 1.7 above) are not effective until the commencement date of your next Renewal Term following the date we publish the revised Agreement on the Progress Rollbase App Builder Site. If we post any revisions to this Agreement after the date on which you are required to notify us (or if applicable the Progress Channel Partner) that you do not want to renew the Service (pursuant to Section 17.3 below) and you do not agree with the terms and conditions of the revised Agreement, you may notify Progress (or if applicable the Progress Channel Partner) that you do not want to renew the Service at any time prior to the commencement of the Renewal Term. It is your responsibility to check the Progress Rollbase App Builder Site regularly for revisions to this Agreement. Progress last revised this Agreement on the date listed at the beginning of this Agreement.
17.3 This Agreement may be terminated as follows:
(a) Either party may terminate your Service Plan and this Agreement for any reason or no reason at all by providing the other party with written notice of its intention to do so within ten (10) days (if you purchased a monthly Service Plan) or thirty (30) days (if you purchased any other Service Plan) prior to the expiration of the Initial Term or Renewal Term, as applicable. Any termination of your Service Plan and this Agreement pursuant to this Section 17.3(a) will be effective upon the expiration of your Initial Term or then-current Renewal Term, as applicable.
(b) Either party may terminate your Service Plan and this Agreement immediately for cause if there is any material default or breach of this Agreement by the other party and the breaching party fails to cure such default or breach within thirty (30) days of receipt of notice of the default or breach from the non-breaching party.
(c) Notwithstanding anything in Section 17.3(b) or elsewhere in this Agreement, Progress may also terminate your Service Plan and this Agreement immediately upon notice to you if: (i) your use of the Rollbase Platform may subject Progress, its affiliates, or any third party to liability; (ii) you violate or breach the license set forth in Section 4 or any of the license restrictions set forth in Section 5 of this Agreement,; or (iii) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.(d) If you procured the Rollbase Platform through a Progress Channel Partner, your agreement with the Progress Channel Partner may have termination provisions that differ from those set forth in this Section 17.3; in the case of such difference, the termination provisions in your agreement with the Progress Channel Partner shall apply. Notwithstanding the foregoing sentence, and regardless of whether you procured the Rollbase Platform through a Progress Channel Partner, Progress shall always have the right to terminate your Service Plan and this Agreement pursuant to the terms set forth in Section 17.3(c) of this Agreement.
17.4 Upon any termination of this Agreement:
(a) all your rights under this Agreement immediately terminate;
(b) you will remain responsible for all fees and charges you have incurred through the date of termination;
(c) you will immediately return or, if instructed by Progress or the Progress Channel Partner, destroy all copies, in whole or in part, of the Rollbase Platform in your possession;
(d) you will, if applicable, require the removal from the Third Party Provider’s cloud-based infrastructure and destruction of all copies, in whole or in part, of the Rollbase Platform; and
(e) All rights of action accruing prior to termination, payment obligations any other terms and conditions of this Agreement which by their nature would naturally survive the termination of this Agreement will continue to apply.
17.5 If you procured the Rollbase Platform directly from Progress, all fees paid by you are non-refundable except that if your Service Plan and this Agreement is terminated by Progress without cause pursuant to and in accordance with subsections 17.3(a) or by you pursuant to and in accordance with Section 17.3(b), Progress will refund to you a pro-rata portion of the Service fee paid by you where such pro-rata portion is calculated based on the remainder of your then-current Initial Term or Renewal Term, as applicable. If you procured the Rollbase Platform through a Progress Channel Partner, refunds (if any) may be subject to different terms that have been agreed to by you and the Progress Channel Partner.
17.6 Upon termination of this Agreement, you will cease all use of the Rollbase Platform. The parties’ rights and obligations under Sections 1, 5, 6, 8, 9, 11-22 (inclusive), and any other obligations hereunder which by their nature would continue beyond the expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
18. Governing Law
18.1 Any litigation or other dispute resolution between you and Progress arising out of or relating to this Agreement or your use of the Service will take place in the Commonwealth of Massachusetts, and you and Progress hereby consent to the personal jurisdiction of, and exclusive venue in, the state and federal courts within Massachusetts with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts, except that body of Massachusetts law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18.2 Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
19.1 Progress may provide any notice to you under this Agreement by: (i) posting a notice on the Progress Rollbase App Builder Site; or (ii) sending a message to the email address then associated with your account. Notices Progress provides by posting on the Progress Rollbase App Builder Site will be effective upon posting and notices Progress provides by email will be effective when Progress sends the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when Progress sends the email, whether or not you actually receive the email.
19.2 To give Progress notice under this Agreement, you must contact Progress as follows: (i) by e-mail to email@example.com; or (ii) by personal delivery, overnight courier or registered or certified mail to: attention General Counsel, Progress Software Corporation, 14 Oak Park Drive, Bedford, MA 01730. Progress may update the e-mail address or address for notices to Progress by posting a notice on the Progress Rollbase App Builder Site.
20. Force Majeure.
Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure. The delayed party’s performance will be excused for the duration of the Force Majeure, but if the Force Majeure lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement, or the applicable Service Plan by giving written notice to the delayed party.
21. Audit Rights.
Progress may install, enable and utilize automated license tracking, management and/or enforcement solutions with the Rollbase Platform, which you may not disrupt or alter. You will maintain books and records in connection with this Agreement and your use of the Rollbase Platform. Such books and records shall include at a minimum the Service Plan purchased and your use of the Rollbase Platform. At its expense and with reasonable written notice to you, Progress or a third party appointed by Progress may audit these books, records, and if necessary, the systems on which the Rollbase Platform is installed for the sole purpose of ensuring compliance with the terms of this Agreement. Progress shall have the right to conduct follow-up audits as necessary. All audits shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business activities. Progress shall treat all such records and books as confidential information. If any audit reveals that you have underpaid license or support fees, you will be invoiced for all such underpaid fees based on the Progress list price in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the fees you previously paid, then you agree to also pay Progress’ reasonable costs of conducting the audit and enforcement of this Agreement.
This Agreement and the Policies constitute the entire agreement between you and Progress and govern your use of the Rollbase Platform, and supersede any other prior or contemporaneous agreement, proposal, communication or advertising, oral or written, signed or unsigned, between you and Progress with respect to the Rollbase Platform; except that if you have entered into a mutually executed written agreement with Progress in connection with your access to and use of the Rollbase Platform; 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 the Rollbase Platform. In the event of conflict between the terms and conditions of this Agreement and any Policy incorporated herein by reference, the terms and conditions of this Agreement shall govern. To the extent there are any terms and conditions contained in your purchase order or other documentation supplied by you such terms and conditions shall be deemed stricken and the terms and conditions of this Agreement shall govern. Except as otherwise expressly provided for herein, this Agreement shall not be changed, modified or altered in any manner except by an instrument in writing and signed by both parties. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Progress to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. You may not assign this Agreement or any rights hereunder and may not delegate any duties under this Agreement without Progress’ prior written consent. Any attempt to assign or delegate this Agreement without such consent will be null and void.