Progress Services Credits Agreement

Last Updated June 6, 2019

IMPORTANT – PLEASE READ THIS PROGRESS SERVICES CREDITS AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING ANY PROGRESS SERVICES CREDITS MADE AVAILABLE FOR PURCHASE BY PROGRESS SOFTWARE CORPORATION OR ITS AFFILIATES. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (“CUSTOMER” or “You”), AND PROGRESS SOFTWARE CORPORATION (“PROGRESS”). BY PURCHASING THE PROGRESS SERVICES CREDITS, 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.

BACKGROUND

CUSTOMER has licensed certain proprietary software product(s) from Progress Software Corporation (the “Software”) pursuant to the applicable end-user license agreement accompanying the Software, or, if applicable, a mutually-executed license agreement between CUSTOMER and PROGRESS that governs CUSTOMER’s license to the Software (“Software Terms”).

CUSTOMER wishes to receive certain services related to CUSTOMER’S use of the Software pursuant to the terms and conditions set forth in this Agreement.

SECTION 1 – SERVICES

1.1 Scope of Services

1.1.1 PROGRESS shall provide to CUSTOMER services directly related to the Software and consisting of only one or more of the following (the “Services”):

• General consulting and training– Consulting services for CUSTOMER’s personnel licensed to use the Software on working with the Software. Sharing best practices and providing tips specific to CUSTOMER’s project;
• Architecture, Planning and Design– Consulting services and recommended architecture proposal related to CUSTOMER’s Software project;
• Building prototypes– Consulting and/or prototyping services related to the CUSTOMER’s Software project criteria;
• Development Assistance – Limited to consulting services, sharing of best practices and sharing of code snippets intended to implement certain features and functionality in CUSTOMER’s Software project;
• Project Assessment –Profiling of CUSTOMER’s Software project and/or analysis of the project’s code for deviations from best practices;
• Upgrade, Migration consulting –Consulting and/or implementation services with respect to CUSTOMER’s migration or upgrade of the Software.

In the course of performing the Services, PROGRESS may also provide certain deliverables specific to certain Services (the “Deliverables”) which shall be limited to one or more of the following:

• General consulting and training– documentation, code snippets, links to resources and videos;
• Architecture, Planning and Design– documentation on proposed software architecture (in the form of UML, or other diagrams detailing (sub-)system decomposition and/or plain-text documentation), code and configuration samples;
• Building prototypes– a Software project with documentation, code snippets and online meetings to clarify requirements and present the completed proof of concept;
• Development Assistance –code snippets, documentation, code specific advice, entire projects and complete functionalities;
• Project Assessment –a report of PROGRESS’ findings, including any technical issues discovered during the review, and recommendations related to possible resolutions and/or potential workarounds. Deliverables may also include software artifacts, such as configuration files or code intended to fix technical issues, and if appropriate, an online presentation of its findings to CUSTOMER and CUSTOMER’s stakeholders;
• Upgrade, Migration consulting –may include configuration samples, documentation, links to resources and videos, and/or full implementation.

References herein to the Services shall mean collectively the Services and the Deliverables. The Deliverables hereunder do not include any software or materials included as part of the Software. The parties’ rights and obligations relating to the Software shall be as set forth in the Software Terms. Nothing in this Agreement shall change or supersede the terms of the Software Terms. In the event that CUSTOMER requests additional services outside the scope of the Services, the parties may agree to the provision of such services pursuant to a separate document executed by both parties. Access to the Services shall be purchased by CUSTOMER in indivisible, nontransferable one (1) hour increments (each single increment a “Progress Services Credit”).

Each purchase of Progress Services Credits will be set out in an Order. An “Order” is a quotation, estimate or other ordering document issued by PROGRESS or its Affiliate (as defined in Section 3.1 below) and signed by CUSTOMER that specifies the quantity of Progress Services Credits purchased, the Progress Designated Resource type, the Progress Services Credits fee, payment terms, the particular Software for which CUSTOMER may request Services under this Agreement, and any other information related to the purchase. CUSTOMER will pay, or reimburse PROGRESS for all taxes, other than taxes based on PROGRESS’ net income, that are due in connection with the Services, including sales and use taxes, GST, and/or VAT, if applicable. A “Progress Designated Resource” is an employee or contractor of PROGRESS or its Affiliate with the role description (e.g., Senior Principal Consultant, Principal Consultant, etc.) specified in the Order.

All Services shall be provided by Progress Designated Resource(s). Services shall be provided remotely from PROGRESS’ premises via remote sessions (unless otherwise agreed by CUSTOMER and PROGRESS at the time CUSTOMER requests Services in accordance with the procedure specified in section 1.1.2). If Services are provided other than remotely from PROGRESS’ premises, then PROGRESS will invoice CUSTOMER separately, and CUSTOMER will reimburse PROGRESS, for all actual travel and living expenses incurred in the delivery of the Services. Services will be performed based on a daily calculation of hours for each Progress Designated Resource providing Services that equals the greater of: (i) the actual number of hours the Progress Designated Resource works during the day or (ii) eight (8) hours. It is CUSTOMER’s responsibility to purchase a sufficient number of Progress Services Credits to cover the total number of hours for each Progress Designated Resource for all days Services are performed by PROGRESS for CUSTOMER. Notwithstanding the foregoing, or anything to the contrary in this Agreement, PROGRESS may invoice CUSTOMER for any shortfall in Progress Services Credits for Services performed by PROGRESS at the then-current Progress Services Credits rate applicable for the Progress Designated Resource(s) who performed the Services. Payment on all amounts invoiced by PROGRESS to CUSTOMER pursuant to this Agreement is due net 30 days from the invoice date. Progress Services Credits may only be redeemed for the Services described above in this Section, may only be redeemed for Services related to the Software identified in the Order, and cannot be used for Services related to another type of software.

1.1.2 CUSTOMER shall initially request the Services by submitting a written request (email will suffice) to the PROGRESS account manager assigned to CUSTOMER describing the requested Services. CUSTOMER and PROGRESS will then agree upon the scope of Services to be provided, a reasonable estimate of the number of Progress Services Credits which may be necessary to perform/deliver such Services, and a reasonable estimate of the time(s) at which such Services shall be provided. All Services will be provided by PROGRESS on a time and materials basis and PROGRESS will use reasonable efforts to provide the Services at the times agreed, however PROGRESS offers no assurances or guarantees of any particular outcome or success nor that all Services will be provided as anticipated nor that the amount of Progress Services Credits which CUSTOMER purchases nor that the Services themselves will be sufficient to address CUSTOMER’s specific requirements. Progress Designated Resources may remotely access CUSTOMER’s machine, Progress account, including any related accounts and anything stored in, supported by, or associated with such accounts, using desktop or other applicable credentials provided by CUSTOMER. CUSTOMER agrees to cooperate with PROGRESS' reasonable requests with respect to the scheduling and performance of the Services. CUSTOMER agrees to provide remote access to any code, configuration, database and other application files necessary to facilitate PROGRESS’ providing the Services. If CUSTOMER wishes to change the scope of the Services or wishes to obtain additional services not initially covered by this Agreement, CUSTOMER shall so advise PROGRESS and shall submit specifications to PROGRESS. After receipt of the specifications, PROGRESS shall provide CUSTOMER with a cost estimate for performing the changed or additional services. Such changed or additional services shall be provided pursuant to a separate written agreement the terms of which shall be mutually agreed upon and executed by the parties.

1.1.3 It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, CUSTOMER.

1.2 Exclusions and Limitations on Services. Services are not available or provided hereunder for or related to:

1.2.1 any services other than those described above in Section 1.1.1;

1.2.2 any software other than the Software;

1.2.3 any services provided by anyone other than a Progress Designated Resource;

1.2.4 CUSTOMER’s unlicensed use of the Software and/or use of the Software that is not in accordance with the Software Terms and/or any applicable documentation or operating instructions;

1.2.5 CUSTOMER’s negligence or improper use of the Software;

1.2.6 Any installation, deployment, or use of the Software: (i) in any country or by any individual or entity subject to U.S. Export restrictions; (ii) for any purpose(s) which PROGRESS determines in its sole discretion is/are unlawful, immoral, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or in violation of any party’s privacy or intellectual property rights; (iii) in any situation where failure or fault of the Software could lead to death or serious bodily injury of any person, or to physical or environmental damage.

SECTION 2 – PERSONNEL

2.1 PROGRESS' Services shall be rendered by those of its or its Affiliates’ employees and/or independent contractors with the Progress Designated Resource type identified in the Order. PROGRESS shall ensure that all employees are familiar with and comply in all respects with the provisions of Section 3 (Confidentiality) of this Agreement, and that all independent contractors have agreed to terms no less protective of CUSTOMER’s confidential information than this Agreement.

2.2 CUSTOMER will not, at any time during the term of this Agreement and for a period of one (1) year following the expiration or termination hereof, directly or indirectly, employ, offer to employ or otherwise engage or solicit for employment or a contractor relationship any person who is now or at any time during the term of this Agreement has been, an employee of PROGRESS or any of its Affiliates, without PROGRESS’ written consent.

SECTION 3 – CONFIDENTIALITY

3.1 For purposes of this Agreement, "Confidential Information" means all information disclosed, directly or indirectly, through any means of communication (whether electronic, written, graphic, oral, aural or visual), by or on behalf of one party (the “Discloser”) to or for the benefit of the other party (the “Recipient”) or any of its personnel, that relates to:

• Discloser’s products, services, projects, productions and work product, and all business and technical information pertaining thereto (including, without limitation, reports, analyses, budgets, and technology (including prototypes, designs, specifications and implementations));
• Discloser’s research and development, asset management, production pipelines and technologies, development strategies, techniques, processes and plans, intellectual properties, trade secrets and technical know-how;
• Discloser’s administrative, financial, purchasing, information systems, telecommunications technology, distribution, marketing, labor and other business operations, policies and practices; and
• Any other matter disclosed in written or other tangible form, that is clearly marked as being confidential or if disclosed orally, within ten (10) days of such oral disclosure is reduced by Discloser to a writing and marked as confidential and supplied to the other party.

The terms “Discloser” and “Recipient” shall include a party’s Affiliates, provided that each party is responsible for the acts and/or omissions of its Affiliates with respect to the Confidential Information as if such acts or omissions were those of such party hereunder. “Affiliate” means a corporation or entity that (i) is controlled, either directly or indirectly, by a party hereto; (ii) is under common control, either directly or indirectly, by a party hereto; or (iii) controls a party hereto. “Control” means the ability to vote greater than fifty percent (50%) of the outstanding voting securities in or otherwise direct the management of a corporation or entity.

3.2 Recipient agrees that during the term of this Agreement and for a period of two (2) years thereafter it will:

• ·not use, or authorize the use of, any Confidential Information for any purpose other than solely for the performance of its obligations under this Agreement (the "Purpose");
• protect all Confidential Information with the same degree of care (but no less than a reasonable degree of care) normally used to protect its own confidential information; and
• take reasonable steps to prevent any Confidential Information or any information derived therefrom from being revealed to any person or entity other than to (i) those of its personnel (such term to include independent contractors) who have a legitimate need to know the Confidential Information to perform the Purpose and who are bound by confidentiality obligations prohibiting the further use and disclosure thereof, and (ii) those to whom Discloser has authorized in writing the disclosure of the Confidential Information. CUSTOMER shall ensure that all employees are familiar with and comply in all respects with the provisions of this Section 3, and that all independent contractors have agreed to terms no less protective of PROGRESS’ confidential information than those contained herein.

Recipient further agrees that in the event that it receives a request from any third party for any Confidential Information, or is directed to disclose any portion of any Confidential Information by operation of law or in connection with a judicial or governmental proceeding or arbitration, Recipient will promptly notify Discloser prior to such disclosure and will consult with Discloser in seeking a suitable protective order or assurance of confidential treatment and in any other steps deemed reasonably necessary by Discloser to preserve the confidentiality of any such Confidential Information.

3.3 The foregoing obligations shall not apply to an item of Confidential Information which Recipient can establish:

• was known to Recipient prior to its receipt from Discloser;
• is or lawfully becomes generally known to the public;
• is lawfully acquired from third parties who have a right to disclose such information;
• by mutual agreement is released from a confidential status; or
• Recipient is required by law to release, provided that Discloser is given advance written notice of such requirement pursuant to Section 3.2.

3.4 All rights in and title to all Confidential Information will remain with Discloser. Neither the execution and delivery of this Agreement, nor the performance of the Services, nor the furnishing of any Confidential Information, will be construed as granting or conferring to Recipient either expressly, by implication, or otherwise, any license or any right to use Discloser’s Confidential Information. All materials representing or embodying Confidential Information that are furnished to Recipient remain the property of Discloser and, upon termination or expiration of this Agreement or promptly following Discloser's written request therefore, all such materials, together with all copies thereof made by or for Recipient, will be returned to Discloser or, at Discloser's sole discretion, destroyed by Recipient.

3.5 Recipient acknowledges that the unauthorized use or disclosure of Confidential Information may cause Discloser irreparable harm and that money damages may be inadequate to compensate Discloser for such harm. Accordingly, Recipient agrees that, in addition to any other available remedies at law or in equity, Discloser will be entitled to seek equitable relief, including injunctive relief and/or specific performance, the granting of which shall not be subject to or conditioned upon any requirement of posting a bond or other security.

SECTION 4 - EXPIRATION OF AGREEMENT AND TERMINATION

4.1 CUSTOMER acknowledges that, unless otherwise specified in the Order, Progress Services Credits expire two (2) months from the effective date of purchase of such Progress Services Credit(s), unused Progress Services Credits are non-refundable, and that CUSTOMER must utilize the Services available pursuant to this Agreement prior to the expiration of the Progress Services Credits, unless otherwise agreed in writing. Thereafter, this Agreement and all rights and obligations hereunder (except as otherwise set forth herein) shall terminate and be of no further force or effect.

4.2 Either party may terminate this Agreement for material breach upon thirty (30) days written notice specifying the nature of the breach, if such breach has not been cured within the thirty (30) day period.

SECTION 5 – RELATIONSHIP OF PARTIES

Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. Neither party has any authority to act on behalf of or to enter into any contract, incur any liability or make any representation on behalf of the other party.

SECTION 6 – LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROGRESS BE LIABLE FOR ANY

CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, OR THE SERVICES PERFORMED HEREUNDER. PROGRESS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE SUM OF THE FEE’S CUSTOMER PAID TO PROGRESS FOR THE SERVICES GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

SECTION 7 - PUBLICITY

PROGRESS may publicize that CUSTOMER is a customer of PROGRESS and use CUSTOMER’s name and logo in connection therewith.

SECTION 8 - INDEMNIFICATION

CUSTOMER agrees to indemnify, hold harmless, and defend PROGRESS and its 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 use or misuse of the Deliverables.

SECTION 9 - FORCE MAJEURE

Neither CUSTOMER nor PROGRESS shall be liable for delays in performing or any failure to perform any of the terms of this Agreement, except failure to pay amounts properly due, caused by the effects of fire, flood, strike, war (declared or undeclared), acts of terrorism, insurrection, government restriction or prohibition, curtailment of travel, force majeure or other causes reasonably beyond its control and without its fault, but the party failing to perform shall use commercially reasonable efforts to resume performance of this Agreement as soon as feasible.

SECTION 10 – INTELLECTUAL PROPERTY RIGHTS

10.1 Except as otherwise expressly set forth to the contrary in a written agreement executed by both parties, neither this Agreement, nor the provision of Services hereunder, shall give either PROGRESS or CUSTOMER any ownership interest in or rights to the intellectual property rights of the other party, and all intellectual property rights that are owned by a party prior to the commencement of the Services or independently developed by a party shall remain the property of such party.

10.2 Each party retains all right, title and interest, including, without limitation, all intellectual property rights, in and to its Confidential Information. All title and intellectual property rights in and to the content that may be accessed through use of the Deliverables is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants CUSTOMER no rights to use such content.

10.3 PROGRESS retains all right, title and interest, including, without limitation, all intellectual property rights, in and to all intellectual property created in the course of performing the Services, including all rights in anything delivered in the course of providing the Services, including but not limited to the Deliverables, all works of authorship, information, data, ideas, designs, inventions, know-how, analytical methodologies, software, and any other materials authored, invented, discovered, conceived, reduced to practice, designed, developed, possessed, owned and/or used under third party license by PROGRESS as well as any derivative works.

10.4 PROGRESS hereby grants to CUSTOMER a limited, non-transferable, worldwide, royalty-free, non-exclusive license to use the Deliverables solely in conjunction with the Software and subject to the license terms (including all license restrictions) set forth in the Software Terms. The license granted to CUSTOMER pursuant to this Section 10.4 shall last as long as CUSTOMER possesses a valid license to use the Software.

10.5 CUSTOMER hereby grants to PROGRESS a perpetual, royalty-free, irrevocable, world-wide, non-exclusive right and license, under CUSTOMER’s applicable intellectual property rights, to use in the performance of Services and in future PROGRESS products, services and business, any data, ideas, concepts or know-how related to or arising out of the material furnished to PROGRESS in connection with the Services, subject to the condition that PROGRESS may not use or re-use any portions of the foregoing in its future products and services to the extent that such use or re-use would disclose any Confidential Information belonging to CUSTOMER to any third parties. CUSTOMER may provide suggestions, comments or other feedback about the Deliverables, Services or PROGRESS products (“Feedback”) to PROGRESS. Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by CUSTOMER, shall not, absent a separate written agreement, create any confidentiality obligation for PROGRESS. PROGRESS shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

SECTION 11 – REPRESENTATIONS AND WARRANTIES

11.1 Each party represents and warrants that it has the legal right and power to enter into this Agreement.

11.2 THE SERVICES ARE PROVIDED TO YOU “AS IS” AND YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PROGRESS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

SECTION 12 - COMPLIANCE WITH LAW

Each party will comply with all statutes, ordinances, and regulations of all Federal, state, county and municipal or local governments during its performance of its obligations under this Agreement.

SECTION 13 - MISCELLANEOUS

13.1 The waiver by either party of a breach or violation of any provision of this Agreement shall not be construed to be a waiver of any subsequent breach. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

13.2 Neither party shall have the right to assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other party, except that PROGRESS may assign this Agreement to an Affiliate or a subsidiary or a successor to that area of its business to which this Agreement is related.

13.3 This Agreement constitutes the entire agreement between the parties with respect to the subject matter herein, and
supersedes all prior contracts, agreements and understandings relating to the same subject matter between the parties.

13.4 Section 2.2 and all provisions of this Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, feedback obligations, limitations of liability and/or indemnity terms, and any provision of this Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of this Agreement.

13.5 The Agreement may not be amended, nor any provision thereof waived, except by a written amendment executed by duly authorized representatives of the respective parties (“Amendment”). In the event of a conflict between the specific terms and provisions contained in an Amendment and this Agreement, the terms and provisions of the Amendment shall govern.

13.6 This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to its conflict of laws rules. If any dispute, controversy, or claim cannot be resolved by such good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY PURCHASING THE PROGRESS SERVICES CREDITS, 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.