(Last updated March 25, 2019)
IMPORTANT – PLEASE READ THIS PROGRESS UNITE UX PRE-RELEASE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS MADE AVAILABLE THROUGH THIS WEB SITE OR REPOSITORY (“WEBSITE”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee”, “You” or “Your”) AND PROGRESS SOFTWARE CORPORATION (“Progress” or “Licensor”). PLEASE CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AT THE BOTTOM OF THIS AGREEMENT IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CHECKING THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY PROGRESS THROUGH THIS WEBSITE, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY. IF YOU CANNOT TRUTHFULLY MAKE THESE REPRESENTATIONS, DO NOT CHECK THE “I HAVE READ AND AGREE TO THE LICENSE AGREEMENT” BOX OR DOWNLOAD, INSTALL, OR OTHERWISE USE THE SOFTWARE.
BY AGREEING TO THIS AGREEMENT YOU ARE BECOMING A PARTICIPANT IN THE PROGRESS UNITE UX PRE-RELEASE PROGRAM (“PROGRAM”). THE SOFTWARE PROVIDED TO YOU AS PART OF THE PROGRAM IS BELIEVED TO CONTAIN DEFECTS. A PRIMARY PURPOSE IN PROVIDING THE SOFTWARE, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM YOU, IS TO OBTAIN YOUR FEEDBACK ON THE SOFTWARE’S PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
SOFTWARE PRODUCT LICENSE
This is a license agreement and not an agreement for sale.
You acknowledge, understand and agree that the Software is in “alpha”, “beta” or other pre-release form, which means that (i) it is a test version of unreleased software that may contain bugs, defects and errors, (ii) it is not expected to contain the functionality or functions of the version of such software that Progress may make available for commercial distribution, and (iii) any feedback with respect to Your use of the Software is subject to the ownership provisions of Section 4, and may be used and incorporated into the software product commercially released by Progress.
The “Software”, as used herein, includes: (i) any pre-release version of the Progress Unite UX product or portion thereof that Progress makes available to you as a participant in the Program and (ii) any new products, updates, components, features or functionality that Progress provides to you with respect to (i); as well as, any accompanying documentation with respect to (i) and/or (ii). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and contains confidential information and trade secrets. Progress retains all rights not expressly granted to you in this Agreement.
No Use By .NET Component Vendors
Individuals and companies that are Content Management System and/or .NET component vendors are not allowed to use the Software without the express permission of Progress. 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 the Software unless you contact Progress directly and obtain permission.
1. PRE-RELEASE LICENSE
1.1 Grant. Progress hereby grants to you, and you accept, a personal, non–exclusive, non–transferable license to install and use the Software in object code form, solely as authorized below (“Pre-Release License”). You acknowledge that you receive no right under this Agreement to receive a license to any future commercial product which may be similar to, based upon or identical to the Software.
1.2 Scope of Use. Under the Pre-Release License granted to you pursuant to this Section 1, you may use the Software during the Term for the sole purpose of testing the Software’s functionality. You are not allowed to integrate the Software into end products or use it for any commercial or productive purposes. You expressly acknowledge and understand that such use is at your own risk and is subject to the assumption of risk, disclaimers and warranties set forth in this Agreement.
1.3 Assumption of Risk. Use of the Software is at Your sole discretion and risk. You should take adequate precautionary measures to back up and protect Your data. As set forth in this Agreement, the Software is in a pre-release phase and is subject to changes following Your initial download of the Software.
1.4 No Redistribution. You may NOT redistribute the Software.
1.5 Changes to the Software. Progress reserves the right to modify, suspend or terminate Your access to the Software (or any part thereof) at any time or from time to time, with or without prior notice to You. You agree that Progress shall not be liable to You or any third party for any modification to or of the Software, or for any damages that may result or arise out of termination or suspension of Your access to the Software. You acknowledge that Progress has no express or implied obligation to provide, or continue to provide, the Software, or any part thereof, now or in the future. Without limiting the foregoing, You further acknowledge that Progress shall have sole authority and discretion to determine the period of time for its testing and evaluation of the Software, whether or not such testing has been successfully completed, and whether or not to offer the Software as a commercial product.
2.1 Progress shall have no obligation to support the Software. However, during the Term of this Agreement and subject to the limitations and restrictions described in the Fair Usage Policy set forth in Section 2.2, Progress may, in its sole discretion, make certain support services available to you. You are encouraged to share feedback related to the Software and submit any product inquiries to the following email address: UXBeta@progress.com.
2.2 Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under this Agreement if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
3. LICENSE LIMITATIONS
3.1 Except as required by law or expressly required by third party licenses applicable herein, You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Software.
3.2 You are not allowed to resell, transfer, rent, lease, or sublicense the Software and Your associated rights.
3.3 You are not allowed to copy, modify, merge, or distribute copies of the Software or any accompanying documents.
As a participant in the Program, Your feedback is valuable to Progress. You license to Progress without charge all intellectual property or other rights necessary for Progress to use, share, and commercialize in any way or for any purpose any feedback about the Software you provide. You also license to all third parties without charge all intellectual property or other rights necessary for their products, technologies and services to use or interface with any specific parts of Progress software or services that includes the feedback. You will not give feedback that is subject to any license that requires Progress to license its software or documentation or provide its services to third parties. The rights granted in this paragraph are perpetual and world-wide and survive the termination or expiration of this Agreement.
Progress shall make the Software available to Licensee for downloading in electronic format only.
6. INTELLECTUAL PROPERTY
6.1 The Software is licensed, not sold. All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Progress that are used in connection with the Software are and shall at all times remain exclusively owned by Progress and its licensors. Any and all rights in the Software not expressly granted to you hereunder are reserved in all respects by Progress.
6.2 The Software 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 the “readme.txt” file, the “notices.txt” file, or the “Third Party Software” file accompanying the Software (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of a conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates). Unless otherwise addressed in the Special Notices, any open source software that may be delivered by Progress embedded in or in association with Progress products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license.
7. PRE-RELEASE CODE; NO WARRANTY
THE SOFTWARE CONTAINS PRE-RELEASE CODE THAT IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING AND MAY NOT OPERATE CORRECTLY. YOUR EXERCISE OF ANY RIGHTS UNDER THIS PRE-RELEASE LICENSE IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM OR IN CONNECTION WITH THE EXERCISE OF SUCH RIGHTS, INCLUDING WITHOUT LIMITATION THE LOSS OF ANY DATA OR OTHER CONTENT.
THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. PROGRESS GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, PROGRESS EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROGRESS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, PROGRESS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED $5, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. PROGRESS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED IN THE SOFTWARE UPON SHIPMENT FROM PROGRESS IS FOR TESTING USE ONLY AND PROGRESS HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
9. TERM AND TERMINATION
Unless terminated earlier, this Agreement shall remain in effect until any generally available release by Progress of a commercial version of any portion of the Software (“Term”). Progress may terminate this Agreement at any time upon written notice to You. This Agreement shall terminate immediately and automatically if You breach the terms and conditions of this Agreement. Upon expiration or termination of this Agreement for any reason, all licenses granted to You under this Agreement shall terminate.
You agree to indemnify, hold harmless, and defend Progress, its affiliates, and their respective resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from Your use of the Software in violation of this Agreement.
Except as otherwise provided herein, each party expressly undertakes 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 that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. The Program and the Software are Confidential Information. You will not disclose the existence of or your participation in the Program, the Software or any comments regarding the Software to any third party without the prior written approval of Progress. You will maintain the confidentiality of the Program and the Software with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. However, neither party shall have an obligation to maintain the confidentiality of information that: (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) 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 and complies with any protective order (or equivalent) imposed on such disclosure. Each party’s obligations under this Section 11 shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that trade secrets shall be maintained as such until they fall into the public domain.
12. COLLECTION AND USE OF DATA
13. GOVERNING LAW, NO WAIVER
This Agreement will be governed by the law 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 shall be submitted for resolution to a state or Federal court or competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
14. ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties. The terms and conditions contained in this Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Licensee. In cases where this license is being obtained through an approved party, these terms shall supersede any third party license or purchase agreement.
15. NO ASSIGNMENT
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Progress’ prior written consent.
Any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
17. FORCE MAJEURE
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
18. REPORTS AND AUDIT RIGHTS.
Licensee shall grant Progress audit rights against Licensee twice within a calendar three hundred and sixty five (365) day period upon two weeks written notice, to verify Licensee’s compliance with this Agreement. Licensee shall keep adequate records to verify Licensee’s compliance with this Agreement.
19. EXPORT RESTRICTIONS
You expressly agree not to use, deploy, export or re-export the Software in or to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, including without limitation any country listed in U.S.A. Export Administration Regulation Country Group E-1, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Industry and Security, U.S. Department of Commerce, nor any other federal agency has suspended, revoked or denied your export privileges.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE, BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN PROGRESS AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.