Stylus Studio


Company Progress Software Corporation
Product Stylus Studio
integrated development environment of XML tools and Java & .NET components
Date 22 June 2011

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The EULA

End User License Agreement

CAUTION: YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF

THIS END USER LICENSE AGREEMENT BEFORE INSTALLING OR USING THE PRODUCT AND

DOCUMENTATION TO WHICH THIS AGREEMENT RELATES. BY ACCEPTING THIS

AGREEMENT YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS

CONTAINED HEREIN AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF

YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE WITH THESE TERMS AND

CONDITIONS, DO NOT PROCEED WITH THE INSTALLATION OF THE PRODUCT(S) AND

PROMPTLY RETURN THE PRODUCT(S), DOCUMENTATION, AND ALL COPIES THEREOF TO

THE SUPPLIER FORM WHICH IT WAS ACQUIRED FOR A FULL REFUND OF THE LICENSE FEES,

IF ANY, PAID FOR THE PRODUCT(S). THE TERM “PROMPTLY” AS USED HEREIN SHALL MEAN

NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DELIVERY OF THE PRODUCT TO YOU.

1.  License Grant.

 

1.1  For purposes of this Agreement, “Progress” refers to Progress Software

Corporation and “you” or “Licensee” refers to the individual installing or

using the Product(s), if you are acting as an individual on your own behalf;

otherwise, “you” or “Licensee” means the business or other entity for which

you are obtaining the Product(s) and that will exercise the rights granted

under this Agreement.  Subject to the terms and conditions contained in this

End User License Agreement, including all exhibits, Orders (as defined below)

and License Addenda (as defined below)(collectively, this “Agreement”),

Progress grants to you a non-exclusive, non-transferable, limited, personal

license (without the right to sublicense) to use the software product(s)

(each individually, a “Product”), for which valid control codes have been

issued by Progress, identified in (i) the written or electronic order

document, form or invoice provided or accepted by Progress (each an “Order”)

or (ii) the installation procedure. Any update, patch, solution pack, service

pack, value-add pack, hotfix, workaround, prepackaged module and/or new

release, version or enhancement issued to Licensee by Progress relating

to the Product (each an “Update”) replaces part or all of a Product or Update

previously licensed to Licensee and shall terminate such previously licensed

Product or Update to the extent replaced by the Update.  Each Update shall be

subject to the terms and conditions of the license agreement accompanying the

Update.  In addition and subject to the terms and conditions contained herein,

Progress grants Licensee a non-exclusive, non-transferable, limited, personal

license (without the right to sublicense) to use the written technical

materials and end user instructions including all updates and versions thereof

released by Progress and associated with the Product, if any, distributed with

the Product (the “Documentation”).

 

1.2  By virtue of this Agreement, Licensee acquires only the non-exclusive

right to use the Product and does not acquire any rights of ownership to

(i) the Product, (ii) any Documentation provided therewith or (iii) the media,

if any, upon which the Product and Documentation are embodied. Progress and/or

its licensors shall at all times retain all right, title, and interest in the

Product, the Documentation, and any media provided therewith.  Except for the

license rights expressly granted herein, this Agreement grants no additional

express or implied license, right or interest in the Product or in any

copyright, patent, trade secret, trademark, invention or other intellectual

property rights of Progress, its affiliates or their licensors.  Progress

reserves all rights not expressly granted to Licensee in this Agreement.

 

1.3  The term of the license is set forth in Exhibit A or the applicable Order,

unless otherwise terminated in accordance with the terms of this Agreement.

 

1.4  Licensee agrees to pay the applicable fees as set forth in the Order.

Licensee further agrees to pay any applicable transportation charges,

value-added taxes or other applicable taxes, tariffs or withholding taxes

which the relevant authorities require to pay. All fees are exclusive of any

such taxes or tariffs unless expressly stated in the Order.

 

1.5  Shipping terms for Product(s) shipped on physical media is FOB shipping

point.  For Product(s) shipped via electronic delivery, delivery is deemed

complete, FOB shipping point, when the Product(s) is/are made available at the

electronic software download (“ESD”) site specified by Progress and Licensee

is e-mailed or otherwise issued a password to access and download the

Product(s).

 

2.  License Restrictions.

 

2.1  Licensee’s use of the Product and Documentation is limited to internal

use within Licensee’s organization. The Product and Documentation may not be

used by affiliated parties of Licensee unless specifically authorized in

Exhibit A.  Use shall be in accordance with the provisions of and limitations

set forth in this Agreement, including Exhibit A hereto, and the additional

terms, if any, set forth in any Order or additional agreement executed by

Progress and Licensee in connection with this Agreement which specifically

states the terms thereof shall be in addition to or in lieu of any of the

terms set forth herein (each a “License Addendum” and collectively, the

“License Addenda”).

 

2.2  The license model for the Product is set forth in the Order and

described in Exhibit A. Third party rights and any additional licensing

restrictions are set forth or referenced in Exhibit A.

 

2.3  If Licensee receives the Product in conjunction with a software

application provided by a third party, the Product may only be used with or

as part of such software application.

 

2.4  Licensee shall not copy (except as provided in Section 5.2 hereof),

disassemble, reverse engineer, decompile, modify or create derivative works

of the Product and the Documentation to the extent that such restriction is

not prohibited by applicable mandatory law.

 

2.5  Licensee may not sublicense, sell, rent, encumber, outsource, lease or

grant any other rights in the Product and/or the Documentation to others or

otherwise allow the Product to be accessed, used or possessed by another party.

For these purposes, the term “use” shall include, without limitation, direct

or indirect use via thin-client or web-based remote access software which but

for the use thereof would have required a copy of the Product to be installed

or used locally by that user.

 

2.6  Licensee shall have no right to use the Product to provide time sharing,

outsourced services, or facility management services or to act as or operate

a service bureau or provide information, data processing, subscription or

hosting services for another party.

 

2.7  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. Licensee shall not directly or indirectly export or

re-export the Product, or any direct product thereof, without first obtaining

Progress’s written approval. Licensee 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 (i) into, or to a national or resident

of any country to which the U.S. has embargoed goods; or (ii) to anyone on the

U.S. Treasury Department’s list of Specially Designated Nationals, or 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 distribution of the Product would be

prohibited by United States law.

 

2.8  Licensee shall be solely responsible for identifying and complying with

all laws of any jurisdiction outside of the United States regarding the use

of the Product and any technical data supplied by Progress.  Licensee agrees

to obtain all licenses, permits or approvals required by any government at

Licensee’s sole cost and expense.  Licensee’s obligations under this

Section 2.8 shall survive termination for any reason whatsoever.

 

2.9  If the Product is being acquired 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 Product will be only as set forth

herein.  The Product and related Documentation is 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 the Product and such Documentation with only those rights set forth

herein. Contract/Manufacturer is Progress Software Corporation, 14 Oak Park,

Bedford, MA 01730.

 

2.10  This Agreement is personal to Licensee and Licensee may not transfer,

assign or otherwise convey, novate or encumber this Agreement or the Product,

in whole or in part, by operation of law, merger or otherwise, to any other

party, including any parent, subsidiary or affiliated entity.  A Change of

Control of Licensee shall constitute an assignment hereunder.   A “Change of

Control” shall include, but not be limited to, any merger, consolidation,

amalgamation, reorganization or sale, transfer or exchange of the capital stock

or equity interests of Licensee in a transaction or series of transactions

which results in the holders of Licensee’s capital stock or equity interests

holding less than 50% of the outstanding capital stock or equity interests

immediately following such transaction(s).

 

3.  Limited Warranty.

 

3.1  Progress warrants that, for a period of ninety (90) days from either the

date of the initial shipment or availability for download from a Progress

website of the Product whichever occurs first (the “Warranty Period”),

(i) the Product will conform in all material respects to the Documentation and

(ii) the media, if any, on which the Product is recorded will be free from

defects in materials and that the Product is properly recorded on the media.

As the sole and exclusive remedy for physically defective media (such as the

diskettes, cartridges, CD-ROMs, DVDs or magnetic tapes), Progress will replace

it free of charge if claimed during the Warranty Period.  As the sole and

exclusive remedy for any failure of the Product to materially conform to the

Documentation, Progress shall repair or replace the Product if such failure is

reported during the Warranty Period or, if Progress, at its discretion,

reasonably determines that such remedy is not economically or technically

feasible, this Agreement and the licenses granted hereunder will terminate

and Progress or its supplier (as applicable) shall provide a full refund of

the license fee paid with respect to the particular Product. The above

warranties do not cover Updates, generic non-configured solution packs, any

Product provided on an evaluation basis, or defects to the Product due to

accident, abuse, service, alteration, modification or improper installation

or configuration by Licensee, its personnel or any third party.

 

3.2  Progress does not warrant that the functions of the Product will meet

Licensee’s requirements or that operation of the Product will be uninterrupted

or error free. Licensee assumes responsibility for selecting the Product to

achieve its intended results and for the use and results obtained from the

Product.

 

3.3  THE LIMITED WARRANTY SPECIFIED IN SECTION 3.1 SETS FORTH ALL WARRANTIES

AND REPRESENTATIONS PROVIDED TO LICENSEE WITH RESPECT TO THE PRODUCT AND

ANY SERVICES AND UPDATES PROVIDED HEREUNDER, AND SUCH LIMITED WARRANTY IS

PROVIDED SOLELY BY PROGRESS AND NOT ITS LICENSORS. EXCEPT AS EXPRESSLY SET

FORTH IN THIS AGREEMENT, PROGRESS, ITS LICENSORS AND THEIR RESPECTIVE

SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,

RELATING TO THE PRODUCT, OR ANY SERVICES OR UPDATES PROVIDED UNDER THIS

AGREEMENT.  ANY UPDATES OR SERVICES DELIVERED HEREUNDER ARE DELIVERED “AS

IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR

OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER

IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY

IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE

AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT, OR ANY SERVICES AND

UPDATES PROVIDED UNDER THIS AGREEMENT ARE DISCLAIMED. Further, the Product is

not fault tolerant and is not designed, manufactured or intended for use in

hazardous environments requiring fail-safe performance (including, without

limitation, the design, construction, operation or maintenance of any nuclear

facility; direct life support machines; weapon systems; or control of aircraft,

air traffic, aircraft navigation or aircraft communications), in which the

failure of the Product could lead directly or indirectly to death, personal

injury or severe physical or environmental damage. Without limiting the scope

of the disclaimers set forth herein, Progress for itself and on behalf of its

licensors and their respective suppliers, disclaims any express or implied

warranty of fitness for any such high risk uses.

 

4.  Indemnity

 

4.1  Progress will defend, indemnify and hold Licensee harmless against any

and all costs and reasonable expenses finally awarded by a court or agreed to

in settlement which directly result from any third party claim based on an

allegation that a Product infringes either a valid (a) United States patent

or (b) copyright of a country that is a party to the Agreement for Trade

Related Aspects of Intellectual Property Rights (“TRIPS”) but only if

Progress is notified promptly in writing of such claim and given sole control

of the defense of any such claim and all negotiations for its settlement or

compromise. Licensee agrees to reasonably cooperate with Progress in the

defense, settlement or compromise of any such claim. In the event that a final

injunction is obtained against Licensee’s use of the Product,  if Progress

reasonably believes that Licensee’s use of the Products could be so enjoined,

or if in Progress’s opinion the Product is likely to become the subject of a

successful claim of such infringement, Progress shall, at its option and

expense, (i) procure  for Licensee the right to continue using the Product

as provided in this Agreement, (ii) modify or require replacement of the

Product that Licensee is then currently using so that the Product becomes

non-infringing (so long as the functionality of the Products is substantially

similar) or, in the event neither of the previous two options are commercially

reasonable for Progress, (iii) terminate this Agreement and the rights granted

hereunder and refund to Licensee the amount paid to Progress for the Product

less an amount for depreciation determined on a straight-line five-year

depreciation basis with a commencement date as of the respective shipment

date of the applicable copies of the Product.  Notwithstanding the foregoing,

Progress shall have no liability for a claim to the extent based on (A) the

use by Licensee of the Product more than thirty (30) days after Progress has

notified Licensee of (i), (ii) or (iii), above or (B) the version of the

Product used by Licensee is not the current release version of the Product.

 

4.2  Notwithstanding the foregoing, Progress shall have no liability to

Licensee under this Section 4 to the extent that any infringement or claim

thereof is based upon (i) the combination, operation or use of a Product in

combination with equipment or software not supplied by Progress hereunder

where the Product would itself not be infringing, (ii) Licensee’s

non-compliance with designs, specifications or instructions provided by

Progress to Licensee, (iii) use of a Product in an application or environment

for which it was not designed or not contemplated under this Agreement,

(iv) modifications of a Product by anyone other than Progress where the

unmodified version of the Product would not be infringing, or (v) use by

users or affiliated parties of Licensee not permitted by this Agreement.

 

4.3  THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF

PROGRESS AND THE SOLE AND EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY

INFRINGEMENT OR ALLEGED INFRINGEMENT BY PROGRESS OF ANY INTELLECTUAL

PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE PRODUCT OR ITS USE.

 

4.4  If any affiliated  party of Licensee is specifically authorized in writing

and as a term of this Agreement to use the Product pursuant to Section 2.1 hereof

and Exhibit A, Licensee shall defend, indemnify and hold Progress harmless for

all acts and omissions of such affiliated party.

 

5.  Confidentiality; Notices

 

5.1  Licensee acknowledges that the Products, including all source and/or object

code and all parts and aspects thereof, and any Updates, modifications,

translations, localizations, or other derivative works thereof, in whatever

form, whether or not marked as confidential, the Documentation and any other

documentation or materials provided with or related to the Product

(collectively, the “Confidential Information”), are the valuable proprietary

and trade secret information of Progress and/or its licensors and suppliers.

Licensee shall (i) limit use and disclosure of the Confidential Information to

its employees and its consultants who are authorized pursuant to this Agreement

to use the Products and who agree to be bound by the terms of this Agreement or

are otherwise bound to a confidentiality agreement containing substantially

similar terms; (ii) not provide or disclose any of the Confidential Information

to another party; and (iii) treat the Confidential Information with the same

degree of care to avoid disclosure to any third party as is used with respect

to Licensee’s information of like importance which is to be kept secret, but

with no less than reasonable care.  The foregoing obligations shall be in

addition to any obligations set forth in any separate confidentiality agreement

between Progress and Licensee.

 

5.2  Licensee agrees, under penalty of license termination but not exclusive of

any other remedies, not to cause or permit the copying of the Product for any

purpose other than expressly set forth herein.  Licensee may copy the Product

only for archival and off-line backup purposes, but not for disaster recovery

purposes unless Licensee has purchased the appropriate disaster recovery or

replication license.  Licensee may copy the Documentation solely for the

purpose of facilitating Licensee’s use of the Product in accordance with, and

subject to, the terms and conditions of this Agreement. Licensee agrees not

to remove any product identification, copyright notices, or other notices or

proprietary restrictions from the Product.

 

5.3  Benchmark results for the Product may not be disclosed or published

without the written consent of Progress.

 

5.4  Licensee acknowledges that in the event of a breach or threat of breach of

this Section 5, money damages will not be adequate.  Therefore, in addition to

any other legal or equitable remedies, Progress shall be entitled to seek

injunctive or similar equitable relief against such breach or threat of breach.

 

5.5  All notices and requests in connection with this Agreement to be sent to

Progress shall be given in writing and shall be sent by hand delivery,

overnight courier or certified mail with proof of delivery to the following

address:  14 Oak Park Drive, Bedford, MA 01730, Attention: General Counsel.

All notices and requests in connection with this Agreement to be sent to

Licensee shall be given in writing and shall be sent by hand delivery,

overnight courier or certified mail with proof of delivery to the address

first set forth in the Order.  Either party may change its address for receipt

of notices upon written notice to the other party, and notices shall be deemed

given on the day of receipt or the date evidenced on the proof of delivery,

whichever is earlier.

 

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, UPDATE AND/OR

SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY LICENSEE FOR SUCH

PRODUCT, UPDATE AND/OR SERVICES. PROGRESS’S LICENSORS AND THEIR SUPPLIERS

SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY DAMAGES SUFFERED BY LICENSEE OR

ANY THIRD PARTY AS A RESULT OF USING THE PRODUCT, ANY UPDATE, OR ANY PORTION

THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO. 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, ANY UPDATE, OR ANY PORTION

THEREOF, OR ANY SERVICES, EVEN IF PROGRESS, ITS LICENSORS AND/OR ANY OF THEIR

RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND THEREFORE

SEVERABLE EXCLUSION.

 

7.  Audit Rights.  Progress may install, enable and utilize automated license

tracking, management and/or enforcement solutions with the Products, which

Licensee may not disrupt or alter.  Licensee shall maintain books and records

in connection with this Agreement and the use of the Products and any Updates

and/or services provided hereunder.  Such books and records shall include at a

minimum the number of licenses purchased and being used by Licensee.  At its

expense and with reasonable written notice to Licensee, Progress or a third

party appointed by Progress may audit the books, records, and if necessary,

the systems on which the Product or any Update 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 Licensee’s offices and

shall not interfere unreasonably with Licensee’s activities.  Progress shall

treat all such records and books as confidential information. If any audit

reveals that Licensee has underpaid license or maintenance and support fees,

Licensee shall be invoiced for all such underpaid fees based on 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 previously paid by Licensee, then

Licensee shall also pay Progress’s reasonable costs of conducting the audit

and enforcement of this Agreement.

 

8.  Termination.

 

8.1  Progress may terminate this Agreement by written notice at any time if

Licensee defaults in the performance of any provision of this Agreement and

fails to cure such default to the satisfaction of Progress within thirty (30)

days after such notice. This remedy shall not be exclusive and shall be in

addition to any other remedies which Progress may have under this Agreement

or otherwise.

 

8.2  Any purported transfer or assignment of this Agreement or the licenses

granted hereunder by Licensee or other action by Licensee in contravention of

Section 2.10 above or any purported transfer or assignment of this Agreement

or the licenses granted hereunder as a result of Licensee’s bankruptcy,

insolvency, or liquidation or as a result of an assignment of Licensee’s assets

for the benefit of creditors shall be void and this Agreement and the licenses

granted hereunder shall thereupon automatically terminate without further

notice or action by Progress.

 

8.3  Within ten (10) days of the date of expiration or termination of this

Agreement and/or any of the licenses granted hereunder, Licensee shall return

all copies of the Products, including all Updates, and related Documentation to

Progress or, if requested by Progress, destroy such Products, Updates and

Documentation and certify in writing to such return or destruction.

 

9.  Miscellaneous.

 

9.1  If Progress offers maintenance and support for the Product, and if

Licensee orders and pays for such maintenance and support, such maintenance

and support shall be provided in accordance with Progress’ then current and

applicable maintenance and support policies.

 

9.2  THIS AGREEMENT, INCLUDING ANY EXHIBITS AND ANY LICENSE ADDENDUM(S),

CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE

PRODUCT AND SUPERCEDES ANY OTHER AGREEMENT, PROPOSAL, COMMUNICATION OR

ADVERTISING, ORAL OR WRITTEN, SIGNED OR UNSIGNED, WITH RESPECT TO THE

PRODUCT.  To the extent there are any terms and conditions contained in

Licensee’s purchase order or other documentation supplied by Licensee such

terms and conditions shall be deemed to be stricken and the terms and

conditions of this Agreement shall govern. In the event any provision of

this Agreement is held to be invalid or unenforceable, the remaining

provisions of this Agreement will remain in full force and effect.

 

9.3  For administrative convenience, Progress invoices may be issued by a

local affiliate of Progress.

 

9.4  This Agreement has been drawn up in English at the express wish of

the parties.  Le present contrat a ete redige en anglais a la demande

expresse des parties.

 

9.5  Except as otherwise expressly set forth herein, this Agreement is

governed by the laws of the Commonwealth of Massachusetts, without regard

to its choice of law principles, and without regard to the provisions of

any state Uniform Computer Information Transactions Act or similar federal,

state, local or foreign laws, regulations or conventions.

 

9.6  This Agreement may not be modified or amended except in a writing

executed by both Progress and Licensee.

 

9.7  Failure or delay on the part of Progress to exercise any right, power,

privilege or remedy hereunder shall not constitute a waiver thereof.  A

waiver of default shall not operate as a waiver of any other default or of

the same type of default on future occasions.

 

9.8  The parties expressly disclaim the application of the United Nations

Convention on Contracts for the International Sale of Goods.

 

9.9  If the Product is acquired outside the United States local law may

apply.

 

 

EULA Revised 08/06/10

 

 

EXHIBIT A

 

TERM OF LICENSE:

 

Perpetual.

 

APPLICABLE FEES:

 

Any applicable license fees or maintenance and support fees will be set

forth in the Order.

 

AFFILIATE USE, IF ANY:

 

See Order.

 

ADDITIONAL TERMS, IF ANY:

 

Runtime License Checker:

The Products may include code to verify that Licensee has not exceeded the

license keys issued by Progress (the “Runtime License Checker”) and in the

event that the Runtime License Checker determines that Licensee has exceeded

its license the Products may cease to operate.

 

Bulk Loading Features:

If the Product is licensed with Bulk Loading Features (hereinafter defined)

Licensee is not limited to a certain number of rows.  If the Product is not

licensed with Bulk Loading Features and Licensee exceeds 10,000 rows the

Product shall cease to operate.  For the purposes hereof, “Bulk Loading

Features” shall mean anything in the Documentation that refers to “Bulk Load”,

“Progress DataDirect Bulk Load” or “Bulk Loading Features.”

 

(a)  For Progress DataDirect Connect for ADO.NET (release 3.2 or higher only):

There are two (2) methods of using Bulk Loading Features as follows:

(1) setting the “Bulk Load Protocol” connection option to “Automatic” or

“Bulk”  in the connection string; or (2) calling the methods WriteToToServer

in the DbBulkCopy, DB2BulkCopy, OracleBulkCopy, SybaseBulkCopy or

SQLServerBulkCopy classes.

 

(b)  For Progress DataDirect Connect for ODBC and Progress DataDirect

Connect64 for ODBC (release 6.0 or higher only):  There are four (4) methods

of using Bulk Loading Features as follows: (1) setting the “EnableBulkLoad”

connection option to 1 in the connection string or datasource, (2) calling

the functions LoadTableFromFile, LoadTableFromFileW, ExportTableToFile,

ExportTableToFileW, ValidateTableFromFile, or ValidateTableFromFileW,

(3) using any of the Bulk Load options and functionality that are available

on the “Bulk Load” Tab of the drivers’ setup dialogs, or (4) setting the

SQL_BULK_EXPORT statement attribute by calling SQLSetStatementAttr.

 

(c)  Bulk Loading Features for Progress DataDirect Connect for JDBC

(release 4.0 service pack 2 or higher only): There are two (2) methods of

using Bulk Loading Features as follows:  (1) set the EnableBulkLoad option

to true in the connection string or datasource, or (2) create any instance

of a DDBulkLoad object (directly or by calling the getDDBulkLoad() method)

or use any methods or properties on that object.

 

Use Restrictions:

 

1.  Application Specific.  If the Order lists a specific application

authorized for use with the Product, or if Licensee obtained a Product in

conjunction with a software application provided by a third party, the

Product is licensed for use only with such application.  Use with any

other application/product is strictly prohibited.

 

2.  Term License.  If the Order specifies that Licensee’s license to the

Products is for a term (“Term”), then the term of this Agreement and

Licensee’s license to the Products hereunder shall expire on the expiration

date stated in the Order unless sooner terminated in accordance with

Section 8 of the Agreement.  Upon completion of the Term, Licensee shall

return all Products licensed under the Order and associated documentation

and related information (including all copies) to Progress, or certify its

destruction in a writing delivered to Progress.  All license rights in and

to the Products under the terms of the Agreement shall terminate at the end

of the Term.

 

3.  Operating Systems or Platforms.  If the Order specifies that Licensee’s

license to the Products is limited to a specific Operating System (“OS”) or

Platform, then the Product is licensed with the additional restriction that

it be used solely in conjunction with the specified OS or Platform.  Use

with any other OS or Platform is strictly prohibited.

 

4.  Competitive Use. License may not use the Products to develop, test,

support or market products that are competitive with and/or provide similar

functionality to the Products.

 

5.  Evaluation License Only. License acknowledges and agrees that the

evaluation period may not be extended by uninstalling and re-installing

the Product or by any other means other than Progress’ written consent.

 

Other:

 

1.  Progress DataDirect Connect for ODBC, Progress DataDirect SequeLink

for ODBC, Progress DataDirect OpenAccess for ODBC for Salesforce Data

Source, Progress DataDirect OpenAccess for ODBC for Wonderware Data

Source, and Progress DataDirect OpenAccess for ODBC for Intellution

FIX and Dynamics Data Sources.  If the Product licensed to Licensee is

Progress DataDirect Connect for ODBC, Progress DataDirect SequeLink for

ODBC, Progress DataDirect OpenAccess for ODBC for Salesforce Data Source,

Progress DataDirect OpenAccess for ODBC for Wonderware Data Source, or

Progress DataDirect OpenAccess for ODBC for Intellution FIX and Dynamics

Data Sources (each the “Licensed Product”), the following additional

requirements shall apply: Progress has licensed, and has rights to

sub-license certain third party software that is part of the ODBC SDK

components and which is usable for certain non-Windows platforms —

Mac OS, OS/2, HP-UX, AIX, Linux, Solaris, and other non-Windows operating

systems.  This section sets forth the conditions that govern Licensee’s

permitted use of the various non-windows SDK components:  Licensee is not

licensed to use the ODBC Core Components (hereinafter defined) other than

with the Licensed Product.  Use of the ODBC Core Components with any ODBC

drivers other than the Licensed Product is expressly prohibited.  Licensee

may not embed in any products, or otherwise sub-license the ODBC Core

Components, without a separate license agreement.  For the purposes hereof,

the term “ODBC Core Components” shall mean the ODBC Driver Manager and

support files for non-Windows operating systems.  A separate license must

be obtained from Progress if Licensee wants to embed and sub-license the

ODBC Header Files (hereinafter defined) with any software product.  For

the purposes hereof, the term “ODBC Header Files” shall mean the text files

for compilation and development of software.

 

2.  Stylus Studio Products. If the Product licensed to Licensee is a Stylus

Studio product the following requirements shall apply:

 

(i)  If the Product is Stylus Studio, Stylus Studio XML Enterprise Suite,

or Stylus Studio XML Professional Suite then the Product is licensed on a

named user basis meaning specific individuals are authorized to access the

Product and the total number of named users may not exceed the total number

licensed by Licensee.  Stylus Studio, Stylus Studio XML Enterprise Suite

and Stylus Studio XML Professional Suite are subject to the additional

restriction that it may be used by Licensee solely for development and

testing of software applications, and not in conjunction with the

deployment of such software applications.

 

(ii)  If the Product is Stylus Studio XML Home Edition, then the Product

is licensed on a single named user basis for personal use only.  The

Stylus Studio XML Home Edition is subject to the additional restriction

that it not be used in conjunction with any commercial or for-profit

transactions.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 3 OF

THE AGREEMENT, AND EXCEPT AS PROHIBITED BY APPLICABLE LAW, STYLUS STUDIO

XML HOME EDITION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

PROGRESS MAKES NO WARRANTIES WITH RESPECT TO THE STYLUS STUDIO XML HOME

EDITION, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND

SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY

PARTICULAR PURPOSE OR NONINFRINGEMENT.  Licensee shall have the sole

responsibility for adequate protection and back-up of all data use in

connection with the product.

 

(iii)  Notwithstanding anything to the contrary in Evaluation License

Model set forth below, if the Product is an evaluation version of

Stylus Studio, then the Product is licensed on a single named user

basis and is subject to the additional restriction that it be used by

Licensee solely for evaluation of software applications, and not in

conjunction with the development or deployment of such software

applications. Licensee must purchase a license for Stylus Studio for

the development and testing of software applications.  Evaluation

includes the use of Products in performance benchmarking.  Progress

updates the Product regularly and benchmarking data for the Product

is subject to change.  Benchmark tests on prior versions of the Product

may yield results that are not reflective of the performance of the

current version of the Product.  The most current version of the

Product is available at http://www.stylusstudio.com.  LICENSEE UNDERSTANDS

AND ACKNOWLEDGES THAT THE EVALUATION VERSION OF STYLUS STUDIO

CONTAINS A DISABLING DEVICE THAT WILL AUTOMATICALLY DISABLE THE

PRODUCT FIFTEEN (15) DAYS FROM INSTALLATION.  NOTWITHSTANDING ANYTHING

TO THE CONTRARY IN SECTION 3 OF THE AGREEMENT, EVALUATION VERSION OF

STYLUS STUDIO IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

PROGRESS MAKES NO WARRANTIES WITH RESPECT TO THE EVALUATION VERSION OF

STYLUS STUDIO, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE,

AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS

FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT.

 

(iv)  If Licensee ordered or obtained the Product license from a

third party authorized by Progress to resell the Product in

conjunction with such third party’s software product(s) (“Third Party

Reseller”), then, in addition to the terms and conditions of this

Agreement, Licensee’s use of the Product may be subject to additional

scope of license terms and conditions (if any) specified by the Third

Party Reseller, including, without limitation, a restriction that

Licensee limit its use of the Product to use solely in conjunction

with the Third Party Reseller’s software product(s) licensed by the

Third Party Reseller to Licensee.  To the extent that any additional

scope of license terms and conditions communicated by the Third Party

Reseller to Licensee are in direct conflict with the scope of license

specified herein, then the scope of license terms and conditions

specified by the Third Party Reseller shall apply.  Otherwise the terms

and conditions of this Agreement shall govern.  In no event does

Progress make any representations or warranties, express, implied or

arising by custom or trade usage, regarding the Third Party Reseller’s

software products and assumes no liability or responsibility with

regard to said software products.

 

(v)  The Product may contain programs that perform automated collection

of system data and transmit said data to equipment owned or under the

control of Progress in order to (i) register the Licensee’s activation

of the Product, (ii) perform automated updating services for the

Product, and/or (iii) validate whether Licensee is entitled to use the

Product.  System data collected through such programs may be used by

Progress for the purpose of providing Licensee with remote system

services and/or for the purpose of enforcing the terms and conditions

of this Agreement.

 

(vi)  Notwithstanding anything to the contrary in Section 9.1 of the

Agreement, maintenance and support for Stylus Studio products is only

available online via the Stylus Studio Developer Network (SSDN).

 

 

LICENSE MODELS AND DEFINITIONS:

The license model for the Product(s) purchased is set forth in the Order.

The description of each Progress license model is set forth below.

 

For purposes of this Exhibit A, the following terms shall have the

following definitions:

 

“Client Device”:  A Client Device is any input technology that allows

the Licensee to access the Product, including but not limited to a

workstation, a personal computer, a PDA device, a cellular phone, a

laptop or other device that is operated by an individual.

 

“Non-Human Operated Device”:  A Non-Human Operated Device is a device

that is not operated by an individual including, but not limited to,

a temperature device, a production line bar code scanner, or a

tracking device.

 

“Platform”:   A Platform is the specific combination of the hardware

and the operating system, a change to either would constitute a

platform change.

 

“Process”: A Process is any automated process that is not initiated

by a Client Device or a Non-Human Operated Device and includes,

without limitation, automated controls and background jobs.

 

“Server”: a logical computer with one or more CPUs on which the

Product resides, along with the applications utilizing the Product,

and which can be accessed by other computers.  The term “Server”

includes, but is not limited to, web servers, batch servers and

application servers.

 

Connection Basis License (for DataDirect Connect for ODBC only):

If the Product is licensed on a Connection basis, then a license fee

must be paid for both the maximum number of simultaneous Connections

utilized by the Server and the maximum number of processors (“CPUs”)

utilized by the Server whether or not such access is simultaneous or

consecutive. For the purposes of this provision only a “Connection”

shall be defined as the driver state after a successful call to

SQLConnect, SQLDriverConnect, or SQLBrowseConnect and before

termination of this state, normally through a successful call to

SQLDisconnect.  Servers utilizing dual core processing (or multiple

core processing) or other multi-processor technology shall have

each core processor count as one (1) CPU. The Product may only be

used by Server-based applications running on that Server accessed

by other computers and may not be installed via file sharing on a

local area network file system.

 

Connection Basis (for DataDirect Connect for JDBC only):

If the Product is licensed on a Connection basis, then a license

fee must be paid for both the maximum number of simultaneous

Connections utilized by the Server and the maximum number of

processors (“CPUs”) utilized by the Server whether or not such

access is simultaneous or consecutive. For the purposes of this

provision only a “Connection” shall be defined as the driver state

after a successful call to the DriverManager.getConnection method

or the driver’s Driver.connect, DataSource.getConnection,

ConnectionPoolDataSource.getPooledConnection,

XADataSource.getXAConnection, or

ManagedConnectionFactory.createManagedConnection methods and

before termination of this state, normally through a successful

call to the driver’s Connection.close, PooledConnection.close or

ManagedConnection.destroy methods.  Servers utilizing dual core

processing (or multiple core processing) or other multi-processor

technology shall have each core processor count as one (1) CPU.

The Product may only be used by Server-based applications running

on that Server accessed by other computers and may not be installed

via file sharing on a local area network file system.

 

Connection Basis (for DataDirect Connect for ADO.NET only):

If the Product is licensed on a Connection basis, then a license

fee must be paid for both the maximum number of simultaneous

Connections utilized by the Server and the maximum number of

processors (“CPUs”) utilized by the Server whether or not such

access is simultaneous or consecutive. For the purposes of this

provision only a “Connection” shall be defined as the provider state

after a successful call to the Open method in the

System.Data.Common.DbConnection class or the

DDTek.DB2.DB2Connection class or the

DDTek.Oracle.OracleConnection class or the

DDTek.SQLServer.SQLServerConnection class or the

DDTek.Sybase.SybaseConnection class and before termination of this

state, normally through a successful call to the Close method in the

System.Data.Common.DbConnection class or the

DDTek.DB2.DB2Connection class or the

DDTek.Oracle.OracleConnection class or the

DDTek.SQLServer.SQLServerConnection class or the

DDTek.Sybase.SybaseConnection class.  Servers

utilizing dual core processing (or multiple core processing) or

other multi-processor technology shall have each core processor count

as one (1) CPU. The Product may only be used by Server-based

applications running on that Server accessed by other computers and

may not be installed via file sharing on a local area network file

system.

 

Core Licenses:  A Product licensed on a “Core” basis grants Licensee

the right to run the Product on a single Core on a single server.

The total number of Cores on the machine may not exceed the total

number licensed to Licensee. Additional Core License(s) are required

for each Core of the server on which the Product runs, including,

without limitation, servers configured for disaster recovery, load

balancing, clustering, development, testing and reporting.

 

For purposes of the “Core” license model:

 

“Core” means a core of a CPU as allocated by Licensee made up of

an independent processor combined onto a single integrated circuit

or silicon chip, in both virtualized and/or non-virtualized

environment, and regardless of whether used in a production or

non-production (e.g. test, development) environment.

 

“CPU” means a computer processing unit, also known as a processor

or microprocessor. It can contain multiple cores in both virtualized

and/or non-virtualized environment.

 

CPU:  A CPU License grants Licensee the right to run the Product, or

an application which can access the Product, on a single core

processing unit (“CPU”) on a single server and on a single Platform.

Each processor core of a multiple core processor in a server shall

count as one (1) CPU.  Additional CPU License(s) are required for each

CPU that runs the Product, including, without limitation, servers

configured for disaster recovery, load balancing, clustering,

development, testing and reporting. A CPU License may not be

transferred from one CPU or one Platform to another.

 

Developer:   A Developer License limits Licensee’s access and use of

the Product to internal application development and support purposes

only.  If the license is for components of the Product only, then

such right is limited to such components.   Licensee shall be

further subject to the license terms of the appropriate license

model for the Product set forth in this Exhibit A.  A Developer

License may not be transferred.

 

Disaster Recovery:  A Disaster Recovery License shall only be used

by Licensee for the sole purpose of application recovery in the

event a system fails or crashes or the Product or database files

become corrupt.  Licensee shall be further subject to the license

terms of the appropriate license model for the Product set forth

in this Exhibit A. A Disaster Recovery License may be transferred

from one server or CPU to another with prior notice to Progress so

long as such change is permitted by the underlying license model.

No Disaster Recovery license is required for a switch from a

primary server to secondary server so long as the primary server

is permanently disabled.  However a Disaster Recovery license is

required for any other temporary reassignment between the primary

server and any other server.  The foregoing transfer right shall

not affect the assignment prohibition set forth in Section 2.10

of this Agreement.

 

Evaluation:  If a Product is licensed on an evaluation basis,

the Product may be used by Licensee solely for evaluation and

testing purposes and not for deployment or production purposes

for a period of fifteen (15) days from download or receipt

(as the case may be) unless a different term is listed in an Order.

THE WARRANTIES SET FORTH IN SECTION 3 OF THE AGREEMENT DO NOT APPLY.

PROGRESS MAKES NO WARRANTIES WITH RESPECT TO A PRODUCT LICENSED ON

AN EVALUATION BASIS, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR

TRADE USAGE, AND SPECIFICALLY MAKES NO WARRANTY OF INFRINGEMENT,

MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.  Licensee

shall be further subject to the license terms of the appropriate

license model for the Product set forth in this Exhibit A.

 

z/OS Operating System Image Basis:  If the Product is licensed to

Licensee on an z/OS Operating System Image basis, then a license

fee must be paid for the number of z/OS Operating System Images

where the Product is installed.  Licensee shall identify the number

of z/OS Operating System Images where the Product is installed and

provide the information to Progress.

 

Testing and Staging License:  A Testing and Staging License grants

Licensee the right to use the Product for internal quality assurance

testing purposes only and Licensee may not deploy the Product in a

production environment.  Licensee shall be further subject to the

license terms of the appropriate license model for the Product set

forth in this Exhibit A.  A Testing and Staging License may not be

transferred.

 

Workstation Basis:  If the Product is licensed on a Workstation basis,

each Workstation using or accessing the Product must be licensed.

A license must be purchased for each Workstation using or accessing

the Product.  A “Workstation” shall be defined as a computer that is

operated, either attended or via remote access, by one person at a

time, and cannot be used by more than one person, directly or

indirectly, simultaneously.  In no event shall the number of

workstations utilizing or accessing the Product exceed the number of

Workstations identified in the Order Letter.

 

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 either the “[readme].txt”

file or the [notices.txt] 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

non-proprietary third party component(s) to which the Special Notice

relates).

 

PROGRESS MAINTENANCE AND SUPPORT PLAN (IF ANY):

 

As indicated in the applicable Order.

 

 

EULA — Connect Products (revised 08/06/10)

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