(Last updated July 12, 2024)
IMPORTANT – PLEASE READ THIS EARLY ACCESS AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD, INSTALL OR USE ANY SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS THIS AGREEMENT RELATES TO. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “You” or “Your”) AND PROGRESS SOFTWARE CORPORATION (“Progress”). BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE MADE AVAILABLE BY PROGRESS HEREUNDER, 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 DOWNLOAD, INSTALL, OR OTHERWISE USE THE SOFTWARE.
1.1 Grant. Progress grants You 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. For purposes of this Agreement, the term “Software” means: (i) any pre-release version of a product or portion thereof that Progress, at its sole discretion, makes available to You 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 or other materials with respect to (i) and/or (ii).
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 the evaluation of the features, functionality and performance of the Software (the “Proof of Concept”). You are not allowed to integrate the Software into end products or use it for any purposes other than the Proof of Concept, including but not limited to commercial or productive purposes.
1.2.1 Third Party Use. You may allow Your contractors (each a “Permitted Third Party”) to use the Software solely for Your benefit in accordance with the terms of this Agreement and You are responsible for any such Permitted Third Party’s compliance with this Agreement in such use. Any breach by any Permitted Third Party of the terms of this Agreement will be considered Your breach.
1.2.2 Cloud Environment. You may upload the Software onto a private cloud (i.e., a single-tenant computing infrastructure and environment in Your on-premises data center or supplied by a third party cloud vendor dedicated to You and under Your control), provided that the operation of the Software in the private cloud environment complies with the usage limitations set forth in this Agreement.
1.3 Assumption of Risk. 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. 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 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 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 has 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.
You will ensure that your employees and Permitted Third Parties using the Software are made aware of the terms of this Agreement, including, without limitation, the limitations set forth in this section 2.
3.1 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 3.2, Progress may, in its sole discretion, make certain support services available to You. You are encouraged to share feedback related to the Software via designated channels that Progress will advise you of from time to time during the Term.
3.2 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.
Your feedback is valuable to Progress. You license to Progress (with the right to sublicense through one or multiple tiers) 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, suggestions or comments You provide about the Software, including, without limitation any feedback, suggestions or comments concerning Your experience using the Software, web sites, documentation, and promotional materials provided to You by Progress as well as any log files, crash reports, or other supporting information pertaining to Your use of the Software (“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 You for downloading in electronic format only.
6.1 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. 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, the “Third Party Software” file, or the “Bill of Materials” 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.
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.
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 YOU 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. PROGRESS’ Affiliates and licensors, and the suppliers to Progress, its 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 Agreement, including, without limitation, damages in connection with the performance or operation of the Software.
Unless terminated earlier, this Agreement shall remain in effect for 90 days from the date of download of the Software (“Term”). The Software licensed under this Agreement may automatically “time out” (that is to say, cease to function) at the end of the 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 must immediately cease use of the Software and destroy all copies of the Software in Your possession or control (and require any Permitted Third Parties to do the same). At Progress’ request, You will sign (or if applicable, cause an authorized representative of Your company to sign) a written instrument certifying that such actions have been taken.
You agree to indemnify, hold harmless, and defend Progress, its affiliates, and their respective licensors 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 (“Confidential Information”), and expressly undertakes to make no use of such Confidential Information except under the terms and during the existence of this Agreement. The Software is Progress’ Confidential Information. You will not disclose the Software, any portion thereof, or any comments regarding the Software to any third party without the prior written approval of Progress. Each party will maintain the confidentiality of the other party’s Confidential Information with at least the same degree of care that such party uses to protect its 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, unless prohibited by law, 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. Nothing in this section 11 shall be construed to limit Progress’ rights to any Feedback You provide about the Software pursuant to section 4 above, and such Feedback will not be subject to the confidentiality terms set forth in this section 11.
Progress may use tools to deliver certain Software features and extensions, identify trends and bugs, collect and report to Progress activation information, usage statistics (including, without limitation, the number and type of cores and operating environments dedicated to running the Software, the version of the Software and operating system(s) used by You) and track other data related to Your use of the Software as further described in the most current version of Progress’ privacy policy located at https://www.progress.com/legal/privacy-policy. By Your acceptance of the terms of this Agreement and/or use of the Software, You authorize the collection, use and disclosure of this data for the purposes provided for in this Agreement and/or Progress’ privacy policy.
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 document submitted by You 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 You.
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, indemnity terms and/or audit rights, 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.
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.
You will grant Progress audit rights twice within a calendar three hundred and sixty five (365) day period upon two weeks written notice, to verify Your compliance with this Agreement. You shall keep adequate records to verify Your compliance with this Agreement.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Software. 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 Software (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 Software (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.
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