Progress Customer Validation
Progress Customer Validation Program (“Program”) is a form of collaboration with the purpose of improving and advancing development of Progress products. This Agreement governs the access to and use of the Progress products, including commercially released versions and/or pre-release versions, and related documentation or product information provided by PROGRESS, in its sole discretion, to you under the Program (together the “Product"), as well as the participation in the Program.
By accepting this Agreement by clicking the box indicating “Acceptance”, and accessing the Product, you and your company (collectively “you" and “your") are entering into a binding contract with Progress Software Corporation (“PROGRESS”). You represent that you have the power and authority to enter into this Agreement with PROGRESS on behalf of your company.
As part of this Program you may get the opportunity to participate in online forums and sessions, and receive access to non-public content such as documents, specifications, presentations, recordings, prototypes, reviews, user experience sessions and pre-release software;
There may be other forms of collaboration as part of this Program, all to be communicated to you and additional terms regarding those forms may apply.
1. Program Terms
License. The Product made available to you under this Agreement will be specified in the Program Announcement(s) by PROGRESS. If the Product is made available to you for installation, PROGRESS grants you a revocable, non-sublicenseable, non-exclusive, non-transferable, royalty-free, limited internal, non-production use license to use the Product during the time announced by PROGRESS to Program participants (“Testing Period") for testing purposes only. PROGRESS may also provide you access to the Product and/or related information remotely (e.g., web session, teleconference, etc.).
Restrictions. You are expressly prohibited from using the Product for development or for other commercial purposes. Any testing shall also be “AS IS", without warranty of any kind and at your sole risk. PROGRESS will not provide any maintenance or support for the Product. You may not (a) copy, in whole or in part, the Product (except for reasonable archival purposes), (b) modify, reverse compile, reverse engineer, reverse assemble, benchmark or perform competitive analysis on the Product except solely to the extent permitted under applicable law without the possibility of contractual waiver, or (c) sell, resell, sublicense, assign, distribute, disclose, market, rent, or lease the Product to third parties, without the prior written consent of PROGRESS.
Ownership. All legal right, title, interest in and ownership of the Product and any other materials provided by PROGRESS under the Program will at all times remain with PROGRESS and/or its licensors. This Agreement does not grant you any license or rights relating to the Product except as expressly stated herein.
Feedback. You agree that PROGRESS may use any feedback provided by you related to a Product for any business purposes, including but not limited to, reproduction and preparation of derivative works based upon such feedback and distribution of such derivative works), without any accounting, royalty or other obligation to you. You may be invited to evaluate more than one Product from time to time via multiple Program Announcements that will be governed by this Agreement.
2. Term & Termination
This Agreement shall be effective from the date on which you accept it and shall remain in effect until either party terminate this Agreement with a fifteen (15) days prior written notice. No matter what is the term defined for a Testing Period for a specific Product, such Testing Period will earlier terminate (a) upon the termination of this Agreement, or (b) when PROGRESS makes the Product commercially available.
Within seven (7) days after the termination of the Testing Period you must cease all use of the Product and either return to PROGRESS or destroy the Product and all related materials. You may, however, retain a copy of the Product in archival format for a reasonable period should it be archived in accordance with your standard archival procedures. If requested by PROGRESS, you agree to certify such return or destruction in writing.
3. Confidential Information
In performance of this Agreement, you may have access to know-how, trade secrets and other confidential information of PROGRESS, including the Product (“Confidential Information"). You agree to keep all Confidential Information confidential and not permit anyone to have access to such Confidential Information other than your company's authorized employees on a need to know basis as for the purpose of this Agreement. You agree not to copy, disclose, publish, display or otherwise make available the Confidential Information, or any information gained from your use of the Confidential Information to any third party, except as expressly allowed hereunder, without PROGRESS's prior written consent. You agree to protect the Confidential Information and any copies thereof in a manner consistent with your obligations herein, which in any event is not less than reasonable care.
During the Testing Period, if you provide PROGRESS certain materials relating to your computing environment, PROGRESS agrees to maintain the confidentiality of such materials. You warrant and represent that you have all the necessary rights to provide these materials to PROGRESS. Notwithstanding the above, you shall not provide PROGRESS access to any personally-identifiable information.
4. Warranty & Limitation of Liability
PROGRESS DOES NOT GUARANTEE THE PRODUCT. YOU AGREE THAT PROGRESS MAKES NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE WITH RESPECT TO THE MATERIALS PROVIDED HEREUNDER AND THAT IN NO EVENT WILL PROGRESS BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY DAMAGES, LOSS OR LIABILITY, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGE, LOSS OR LIABILITY, TIME, MONEY OR GOODWILL WHICH MAY ARISE DIRECTLY OR INDIRECTLY FROM OR RELATED TO YOUR OR ANY OTHER PERSON'S USE OF SUCH MATERIALS WHETHER IN CONTRACT, TORT, OR BREACH OF STATUTORY DUTY OR OTHERWISE TO THE EXTENT PERMITTED BY LAW. ALL MATERIALS PROVIDED BY PROGRESS HEREUNDER ARE “AS IS" AND WITHOUT WARRANTY OF ANY NATURE.
You acknowledge that the Product is subject to control under U.S. law, including the Export Administration Regulations (15 CFR 730-774) and agree to comply with all applicable import and export laws and regulations and further agree that the Product will not be exported, re-exported or transferred in violation of U.S. law or used for any purpose connected with chemical, biological or nuclear weapons or missile applications.
Assignment. This Agreement may not be assigned to any third party without PROGRESS's prior written consent.
Governing Law and Jurisdiction. Any litigation or other dispute resolution between you and Progress arising out of or relating to these Terms or your use of the Product 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. These Terms 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.
Audit: You agree to provide records reasonably requested by PROGRESS including certified copies of statements or records sufficient to provide auditable verification of your compliance with the terms of this Agreement. PROGRESS, or an independent third party engaged by PROGRESS and bound by a non-disclosure agreement, shall have the right, on reasonable notice to you, to conduct an audit remotely or onsite at your company and/or its affiliates' facilities during regular business hours to verify your compliance with this Agreement.
Third Party Terms and Restrictions. The Product may contain or be accompanied by certain third party components which are subject to additional restrictions. These components, if any, are identified in, and subject to, special license terms and conditions set forth in the “readme.txt” file, the “notices.txt” file, or the “Third Party Software” file accompanying the Product (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third party component(s) to which the Special Notice relates).