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Progress Education Community License

IMPORTANT: PLEASE READ THIS PROGRESS EDUCATION COMMUNITY LICENSE (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO ACCESS ANY MATERIALS MADE AVAILABLE UNDER THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND PROGRESS SOFTWARE CORPORATION OR ITS AFFILIATED COMPANIES OR SUBSIDIARIES (collectively, “Progress”). BY CHOOSING THE "Accept" BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CHOOSE THE "Decline" BUTTON AND DO NOT PROCEED WITH ACCESS TO THE PRODUCT.  

User shall mean the individually named user who is licensed to use the Progress Education Community associated with this Agreement (the “Community”).  Unless otherwise stated, another User may not be substituted for an original identified User, without prior written approval from Progress. 

1. License Grant.

Subject to the terms and conditions contained in this Agreement, Progress grants to the User a non-exclusive, non-transferable, revocable, limited single user license to use the Community accompanying this Agreement (the "Product").   

2. Scope of License.

2.1 Each User who accesses the Community via Progress’ Education website will receive a password and user name.  Users may not share their passwords and user names with others, whether or not those individuals are part of the same organization as User. Use of the Product by anyone other than User is not permitted. 
2.2 During the applicable subscription term, User shall have access to the selected course offering in the Community. Progress may, at its sole discretion, update or change the course content of the Community.  
2.3 The Product may not be transferred, sold, assigned, leased, rented, licensed, sublicensed, or otherwise conveyed, in whole or part, by User to another party without Progress' prior written consent. This Agreement automatically terminates if User transfers possession of the Product or a copy thereof to another party. User shall have no right to use the Product to provide time sharing services or operate a service bureau for others.

3. Progress Software's Rights.

3.1 The Product is a proprietary product of Progress, or its licensors (if any), and is protected by copyright law. Pursuant to this Agreement, User acquires only the non-exclusive right to use the Product and does not acquire any rights of ownership in the Product. Progress, or its licensors (if any), shall at all times retain all right, title, and interest in the Product. User acquires no rights of any kind in or to any trade name, logo, or trademark of Progress, or of Progress' subsidiaries, affiliates, or licensors, or to any product designation under which the Product is marketed and shall not make use of the same for any reason except as expressly authorized by this Agreement or otherwise authorized in writing by Progress. 

4. Non-Disclosure; Copies; Alterations.

4.1 User acknowledges that the Product is the valuable proprietary and trade secret information of Progress or its licensors (if any). Except as otherwise provided herein, User expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to it pursuant to this Agreement, and expressly undertakes to make no use of such information and know-how except under the terms of this Agreement.  To the fullest extent permitted by applicable law, User agrees not to cause or permit the reverse engineering, modification, decryption, extraction, or copying of the Product.  User may not copy nor allow others to copy the Product, or any portion thereof, for any other purpose.

5. Exclusion of Warranty.

5.1 THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, AND PROGRESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCT, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROGRESS DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. For example, Progress does not warrant that errors cannot arise during the use of the Product. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, AND DO NOT ALLOW A LIMITATION ON HOW LONG ANY IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY. No Progress employee, supplier, or agent is authorized to make any modification or addition to this warranty.

6. Limitation of Liability.

6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF PROGRESS, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCT SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY USER FOR SUCH PRODUCT. PROGRESS' LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO USER FOR ANY DAMAGES SUFFERED BY USER OR ANY THIRD PARTY AS A RESULT OF USING THE PRODUCT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL PROGRESS, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF PROGRESS, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.

7. Intellectual Property, Trademarks.

7.1 Intellectual Property. All materials, including without limitation, videos, documents and technical information provided or made accessible to User in connection with the Product shall remain the sole and exclusive property of Progress, its affiliates, licensors and suppliers.
7.2 Certification Badges. Upon satisfactory completion of certain educational modules, Progress may (in Progress’ sole discretion) provide User notification of certification and authorization to utilize the applicable certification badge(s) (if any) accompanying such certification. Certifications are valid for a limited period of time as indicated at the time such certification is issued and will automatically expire at the end of the period unless User recertifies in accordance with the then applicable procedures. Upon expiry of any certification, User must cease use of all certification badges and credentials, including all representations and references related to them, and must destroy or return all certification badges, certificates, or similar credentials. The use of any/all certification badges must be in strict conformance with: (i) all guidelines provided at the time of certification (as updated from time to time in Progress’ sole discretion; and (ii) the usage guidelines currently located at https://www.progress.com/trademarks and https://www.progress.com/trademarks/trademarks-use-policy (or successor urls thereto), each as amended by Progress and/or its affiliates from time to time in their sole discretion. In addition, in no event will User: (i) make any representation or warranty on behalf of Progress to any third party; or (ii) indicate or represent to any third party that Progress has endorsed, approved, or certified the quality or suitability of User’s services or product(s), whether alone or in conjunction with Progress’ product(s) or service(s). User will be responsible for all customer satisfaction with regard to any of User’s product(s) or service(s) and will indemnify, defend, and hold Progress harmless from any third party claim resulting from User’s product(s) or service(s) and/or any assertion that User is acting as an agent, servant, employee, partner of Progress or is engaged in any manner in a joint undertaking with Progress, whether as a result of User’s use of the certification badge(s) or otherwise. Progress or its applicable affiliate may revoke User’s license to the certification badges at any time in its sole discretion. Other than as set forth in this Agreement, User shall make no use of the certification badges or any other trademarks, certification marks, badges, and awards owned by Progress or its affiliates (collectively “Progress Marks”) or of any designation confusingly similar to any of the Progress Marks without Progress’ prior written consent.

8. Warranties.

User hereby represents and warrants that it shall not hold itself out as an agent or partner (in a legal sense) of Progress or any of its affiliates, or attempt to bind Progress to any third party agreement; and that User has no capacity to make any representation, warranty, or promise to any third party on behalf of Progress.

9. Export Regulations.

9.1 The Product, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User shall not directly or indirectly export or re-export the Product, or the direct product thereof, without first obtaining Progress's written approval. User agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Product. The Product may not be downloaded, or otherwise exported or re-exported 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 Product 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.

10. U.S. Government Restricted Rights.

10.1 The Product is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1 (a) and 227.7202-3 (a) (1995), DFARS 252.227-7013 (c) (1) (ii) (Oct 1988) and 252.227-7014, FAR 12.212 (a) (1995), FAR 52.227-19 (June 1987), or FAR 52.227-14 (ALT III) (June 1987), as applicable. Contractor/manufacturer is Progress Software Corporation, 14 Oak Park, Bedford, MA 01730. Unpublished-all rights reserved under the copyright laws of the United States. 

11. Records Inspection.

11.1 User shall maintain accurate books and records in connection with User's use of the Product under this Agreement. Progress may, at its expense, audit the records of User to ensure compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at User's offices and shall not interfere unreasonably with User's activities. If any audit reveals that User has underpaid license fees to Progress, User shall be invoiced for such underpaid fees based on Progress' list price in effect at the time the audit is conducted. If the underpaid fees are in excess of five percent (5%) of the Product fees paid by User over the prior twelve (12) month period, then User shall pay Progress's costs of conducting the audit. Audits shall be made no more than twice per calendar year.

12. Miscellaneous.

12.1 This Agreement constitutes the complete agreement between the parties with respect to the Product and supersedes any other communication or advertising, whether written or oral, with respect to the Product. This Agreement is governed by the laws of the Commonwealth of Massachusetts, United States of America, excluding conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. Progress' failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision.
12.2 No Partnership or Other Legal Organization. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise or agency relationship.

 

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