The Progress Sitefinity Digital Experience Cloud (“Sitefinity DEC”, as further defined below) is being made available by Telerik AD (“Telerik,” “we,” “us,” or “our”) to You on the condition that You agree to these terms and conditions (the “Agreement”). “Licensee,” “You,” or “Your” refers to the person accessing or using the Sitefinity DEC, or, if the Sitefinity DEC is being used on behalf of an organization, such as an employer, “License,” "You," or “Your” means such organization. In the latter case, the person accessing or using the Sitefinity DEC represents and warrants that he or she has the authority to do so and to bind such organization to this Agreement. Violation of any of the terms below will result in the termination of this Agreement and Your access to the Sitefinity DEC. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SITEFINITY DEC, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SITEFINITY DEC.
This is a license agreement and not an agreement for sale.
Sitefinity DEC is a marketing and big data analytics solution that gathers and analyzes customer touch points to provide actionable insights, predictions and recommendations for optimizing customer experiences across channels and better engaging with customers to ultimately drive business growth.
Different Subscription levels allow access to different features and services within the Sitefinity DEC and may allow access to additional Telerik products. Such Telerik products, features and services if provided or accessible through the Sitefinity DEC (“Telerik Products”) may each be subject to additional terms (the “Additional Terms”). The Additional Terms are made a part of and are subject to this Agreement and by agreeing to the terms of this Agreement You also agree to the Additional Terms. Telerik reserves the right to add, modify or discontinue any Telerik Product, product, service or feature made available through the Sitefinity DEC.
If there is any conflict between the terms of the Agreement and the Additional Terms, then the Additional Terms take precedence in relation to that Telerik Product. Hereinafter, all references to this Agreement shall mean the terms of this Agreement and any applicable Additional Terms and all other documents incorporated by reference in this Agreement.
Telerik may change the terms of this Agreement at its sole discretion. If we change the terms, then we will make a new copy of the Agreement available at http://www.sitefinity.com/purchase/cloud-services-agreement. Your use of Sitefinity DEC is subject to the most current version of the Agreement at the time of such use.
1. Certain Definitions.
“Account” means the account specific to You through which You and/or Your Licensed Users access Sitefinity DEC for Your benefit or on Your behalf.
“Applicable Laws” means national, federal, state, and local laws, rules, and regulations including, without limitation, those laws and regulations relating to data privacy, security, and bulk and commercial email in each applicable jurisdiction.
“Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential." However, Confidential Information will not include any information which: (i) is or becomes known to the general public other than through a breach of the receiving party’s obligations hereunder; (ii) is already in the receiving party's possession prior to disclosure by the disclosing party; (iii) is received rightfully from a third party without an obligation to maintain such information in confidence; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
“Content” means all data and content, such as data files, written text, keys, computer software, music, audio files or other sounds, photographs, videos or other images that You upload to or that is processed using the Sitefinity DEC, including those used in the development or support of Your Property.
"Customer Data" means the data concerning the characteristics and activities of End-users that is collected through use of the Tracking Code and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying documentation made available to You (electronically or otherwise) by Telerik for use with the Sitefinity DEC, expressly excluding any user blogs, reviews, or forums.
“Downloadable Programs” means SDK’s, connectors, and any other software that Telerik makes available to You for download through, or for use with, the Sitefinity DEC.
"End-users" means users of Your Properties or Third-Party Properties.
“Sitefinity DEC” means the Progress Sitefinity DEC portal, including the Software and Documentation, as well as the various Telerik Products, services, technology, and information made accessible to You or Your Licensed Users by Telerik through, or for use with, the Progress Sitefinity DEC portal.
“Intellectual Property” or “Intellectual Property Rights” means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions, and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions, and renewals of any such grant, registration, and/or right.
“Licensed User” means an individual person (You, Your employee or third-party consultant) authorized to use the Sitefinity DEC for You in accordance with this Agreement and for whom You, to the extent permitted by applicable law, hereby agree to assume all liability and responsibility for hereunder.
"Processing Software" means the Sitefinity DEC server-side software and any upgrades, which analyzes the Customer Data and generates the Reports.
"Profile" means the settings configured by You/Your Licensed User(s) that together determine the information to be collected from the a Property and included in, or excluded from, the Sitefinity DEC or one of its particular Reports.
"Property" means one or more data sources such as websites, third-party systems and data repositories that are linked to an Account and use the same Tracking Code.
"Report" means the resulting contact segmentation and analysis with predictions or/and recommendations that are accessed through the Sitefinity DEC.
"Report" means the resulting contact segmentation and analysis with predictions or/and recommendations that are accessed through the Sitefinity DEC.
“Software” means (i) any Telerik proprietary software products, applications, SDKs, code, files, or other software including Tracking Code, the Processing Software, and Downloadable Programs made available to You by Telerik either through, or for use with, the Sitefinity DEC in accordance with Your Subscription, together with any fixes, updates, and upgrades provided to You.
“Subscription” means Your subscription to the Sitefinity DEC pursuant to the terms of this Agreement. Subscription is further limited to the specific level of service to which You have subscribed.
"Third Party" means any third party (i) to which You provide access to Your Account; or (ii) for which You use Sitefinity DEC to collect Customer Data on the third party's behalf.
"Tracking Code" means one or more API keys provided to you by Telerik that allow you to configure data collection preferences.
The words "include" and "including" mean "including but not limited to."
2. Nonexclusive Licenses.
2.1. Licenses. Subject to the terms and conditions of this Agreement, Telerik grants You to the extent which You have obtained a Subscription, and solely during the period of Your Subscription, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to, and to permit Your Licensed Users to: (a) generate, copy, use, and distribute the Tracking Code for the sole purpose of collecting Customer Data; (b) to access and use the Sitefinity DEC solely in order to access, customize, view, analyze, and/or download Your Customer Data and Reports; and (c) download and use any Downloadable Programs for the sole purpose of collecting Customer Data. The Tracking Code may not be used or distributed except as solely necessary for You to use the Sitefinity DEC in connection with Your Properties or Third-Party Properties.
2.2. Use of Sitefinity DEC. You and Your Licensed Users must all be using the Sitefinity DEC at the same Subscription level and may not exceed the number of seats You have purchased from Telerik hereunder. You are solely responsible for obtaining and maintaining all computer hardware, internet access and internet services necessary to access and use the Sitefinity DEC.
2.3. Usage on Behalf of Third Party. If You use the Sitefinity DEC on behalf of a Third Party, or a Third Party otherwise uses the Sitefinity DEC through Your Account, whether or not You are authorized by Telerik to do so, then You represent and warrant that: (i) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement; (ii) Telerik may share with the Third Party any Customer Data that is specific to the Third Party’s Properties; and (iii) You will not disclose Customer Data owned by the Third-Party to any other party without the Third Party’s consent.
2.4. Compliance with Terms and Applicable Laws. You shall be solely and exclusively responsible for: (i) compliance with these Terms of Service by You, Your Licensed User(s), and any Third Party; (ii) the accuracy and quality of the Customer Data; (iii) preventing unauthorized access to or use of the Sitefinity DEC and the Telerik Intellectual Property and notifying us promptly of any such unauthorized access or use thereof; (iv) using the Sitefinity DEC and the Telerik Intellectual Property strictly in accordance with Applicable Laws; (v) as required by Applicable Laws, notifying End-users, obtaining and maintaining informed consents from End-users, processing opt-out requests, and otherwise complying with all Applicable Laws in each relevant jurisdiction to permit Your collection, disclosure, storage, and use of the Customer Data in accordance with these Terms of Service, including, but not limited to, licensing the Customer Data to Telerik for purposes of storage, processing, and delivery of Reports; and (vi) obtaining and maintaining all computer hardware, Internet access, and Internet services needed to access and use the Sitefinity DEC.
2.5. License from Customer. You license to Telerik (and its affiliates and necessary sublicensees), all Intellectual Property or other rights required to allow Telerik to use or process Your and/or Your Third Parties’, Customer Data, Reports, or other information through the Sitefinity DEC. Other than as necessary to provide the Sitefinity DEC, Telerik has no right of ownership or control over Customer Data, Reports, or other information provided by You/Your Licensed User(s) or Third Parties in connection with the use of the Sitefinity DEC. You are solely responsible for protecting any rights You or Your Third Parties have, or may have, in Your or their Customer Data, Reports, or other information. Telerik and its affiliates may retain, aggregate, use, and resell, both during and after the subscription period: (i) any analytical information collected in connection with any use of the Sitefinity DEC under Your Account and any subaccounts created under Your Account; and (ii) any anonymized Customer Data.
2.6. Limitations. Except as specifically permitted in the terms of this Agreement You may not (and You may not allow any of Your Licensed Users to):
(i) copy, modify, adapt, translate, or otherwise create derivative works of the Sitefinity DEC or Telerik Intellectual Property, including the Software;
(ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Sitefinity DEC or Telerik Intellectual Property, except as expressly permitted by the law in effect in the jurisdiction in which You are located;
(iii) rent, lease, sell, resell, assign, sublicense, or otherwise transfer rights in or to the Sitefinity DEC or Telerik Intellectual Property, or make the Sitefinity DEC or Telerik Intellectual Property available on a “service bureau” basis or (except as otherwise provided for in this Agreement) otherwise allow any third party to use or access any of the foregoing;
(iv) use the Sitefinity DEC or Telerik Intellectual Property to create, develop, support, analyze, or otherwise in connection with any products software or services which are commercial alternatives for, or competitive in the marketplace with the Sitefinity DEC or Software, any components of the Sitefinity DEC or Software, or any other Telerik products or services.
(v) remove or modify any proprietary notices, legends, or labels on the Sitefinity DEC or Telerik Intellectual Property;
(vi) use, post, transmit, or introduce into the Sitefinity DEC or Telerik Intellectual Property any device, software, virus, worm, back door, Trojan Horse, similar harmful code, or routine which interferes or attempts to interfere with the operation of the Sitefinity DEC or Telerik Intellectual Property or any third party service, data, account or network;
(vii) use or access the Sitefinity DEC or Telerik Intellectual Property or the infrastructure, hardware, software, networking, storage, and related technology of Telerik’s third-party vendors and hosting partners to try to gain unauthorized access to or disrupt any service, data, account or network by any means; to falsify any protocol or email header information (e.g., “spoofing”); to spam or distribute malware;
(viii) use or access the Sitefinity DEC or Telerik Intellectual Property in a manner that: (a) violates any Applicable Laws; (b) violates the rights of any third party; (c) purports to subject Telerik to any other obligations; or (d) for any purpose not specifically permitted in this Agreement;
(ix) access the Sitefinity DEC for the purpose of bringing an intellectual property infringement claim against Telerik;
(x) use the Sitefinity DEC in any situation where failure or fault of the Sitefinity DEC could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, the Sitefinity DEC in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.
3. Account, Password, and Security.
To access the Sitefinity DEC, You and each of Your Licensed Users must login using their own unique credentials associated with a valid e-mail address. You and Your Licensed Users are responsible for safeguarding Your and their login credentials and may not authorize other individuals to access the Sitefinity DEC under such login credentials. You will notify Telerik immediately if You believe an unauthorized third party may be using Your, or Your Licensed Users’, login credentials or otherwise accessing Your Account. Telerik will not be liable for any loss resulting from an unauthorized person accessing or using Your Account or Your Licensed Users login credentials.
4. Term and Termination.
4.1. You must maintain an active Subscription to continue using the Sitefinity DEC. This Agreement and the License granted hereunder may be renewed for successive Subscription periods pursuant to the applicable Subscription purchased, until terminated in accordance with this Section. If You do not maintain an active Subscription, this Agreement, including any Additional Terms and the Licenses granted hereunder and thereunder, along with Your and Your Licensed User’s use of and access to the Sitefinity DEC, will terminate.
If You have obtained a free Subscription, Telerik reserves the right at any time to modify or discontinue, temporarily or permanently, such free Subscription and Your access to the Sitefinity DEC thereunder with or without notice. Unless modified or discontinued by Telerik in its sole discretion, Your free Subscription shall automatically terminate if You cancel or upgrade to a paid Subscription for any of the Sitefinity DEC, its features, or the Telerik Products.
If You have obtained a paid Subscription, payment is non-refundable, even if You and/or any/all of Your Licensed Users stop using the Sitefinity DEC. If You upgrade Your Subscription, the upgrade will take effect immediately, You will be charged and must pay the applicable fee, and the term of Your Subscription period may be extended, as described at the time You upgrade. You generally may not downgrade a Subscription and there is no automated mechanism available to You by which to downgrade. Downgrades require Telerik’s approval and assistance and may result in the loss of Your Customer Data, Reports, and/or Content. Please contact Telerik at firstname.lastname@example.org if You wish to request a downgrade. If You downgrade Your Subscription, unless otherwise specified, the downgrade will take effect at the end of the term of Your existing Subscription period.
4.2. Automatic Renewal of Paid Subscription. UNLESS YOU provide Telerik 30 days’ written notice PRIOR TO THE END OF YOUR EXISTING SUBSCRIPTION PERIOD, YOUR PAID SUBSCRIPTION WITH RESPECT TO THE ACCOUNT WILL AUTOMATICALLY RENEW, AND YOU AUTHORIZE TELERIK (WITHOUT NOTICE) TO INVOICE YOU, AND YOU AGREE TO PAY, THE THEN-APPLICABLE FEE AND ANY TAXES FOR THE RENEWAL SUBSCRIPTION PERIOD. Subscription fees and features may change over time. Your Subscription will be renewed at the level Telerik, in its sole discretion, identifies as being closest to Your previous Subscription.
4.3. Promotional and Trial Offers. Telerik may offer trial or promotional Subscriptions ("Promotional Subscriptions") for Telerik Products. Unless otherwise specified, a Promotional Subscription will remain active only for the shorter of: (i) the period specified by Telerik at the time the Promotional Subscription is provided to You; or, (ii) while You maintain an active, paid Subscription to the Telerik Product, or other software or service which formed the basis of Your eligibility for the Promotional Subscription. Telerik reserves the right to, and may, any time modify or discontinue, temporarily or permanently, any Promotional Subscription and Your access to the Telerik Product thereunder with or without notice.
4.4. Unless otherwise prohibited by law, and without prejudice to Telerik’s other rights or remedies, Telerik shall have the right to terminate this Agreement and the Licenses granted hereunder immediately if You breach any of the terms of this Agreement.
4.5. Unless otherwise specified in the Additional Terms, upon cancellation, suspension or termination, all Licenses granted to You hereunder shall terminate automatically, Your right to use the Sitefinity DEC and the Telerik Products including the Downloadable Programs, Tracking Code and any/all other downloaded/locally installed Software, shall cease. You must also destroy all copies of the Downloadable Programs in Your possession. Telerik will then hold Your Content, Customer Data and Reports for a period of 30 days, during which You will be provided with a reasonable opportunity to collect Your Content, Customer Data and Reports. After the end of the 30 days period Your Content, Customer Data and Reports will be deleted. You are solely responsible for backing up Your Content, Customer Data and Reports. Except in the case of termination by Telerik for Your breach of the terms of this Agreement, You may create a new Account and obtain a new Subscription following the expiration or termination of Your Subscription.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent, except for the purpose of: (i) performing its obligations under this Agreement; (ii) as permitted under this Agreement; or (iii) if required by law, regulation, or court order, in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
6. Use of Third-Party Vendors; Transmission of Data.
6.1. Telerik may use third-party vendors and hosting partners to provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide the Sitefinity DEC, and such third parties may be granted access to Your Customer Data, Reports, and/or Content in connection with providing such services to Telerik. Telerik is not responsible for the services provided by such third party vendors. In addition, You understand that the technical processing and transmission of the Sitefinity DEC, including Your Customer Data, Reports, and/or Content, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
6.2. You agree to abide by such third party vendors’ acceptable use policies which are provided or otherwise noticed to You and shall have no rights against any such third party vendors in connection with the Sitefinity DEC.
7.3. Your Privacy Obligations.
Your/Your Licensed User(s)’ creation or configuration of Profiles for each Property and use of the Sitefinity DEC will determine the nature and scope of Customer Data collected, stored and processed by the Software (including, by way of example and not limitation, the involvement of End-users and their consent to such collection practices), and the content of Your Reports. Your/Your Licensed User(s)’ selection/specification of specific settings in each Profile may direct collection of Customer Data that is anonymous, limit the data collection to a given Property or data source within the Property, and/or add additional Properties/data sources and fields that include selected data elements, which may include sensitive information such as purchase histories or social security numbers. Telerik reserves the right to modify available settings and Profiles from time to time at its discretion. You are solely and exclusively responsible for Your/Your Licensed User(s)’ Profiles, selected settings, data collection practices, and compliance with Applicable Laws. The Sitefinity DEC provided by Telerik merely enables You to collect, store, and analyze Customer Data. Telerik makes no representation or warranty that Your use of the Sitefinity DEC conforms to Applicable Laws in any jurisdiction, and provides no legal advice. You are solely and exclusively responsible for Your, Your Licensed User(s), and any Third Party’s usage of the Sitefinity DEC, and all decisions regarding the Sitefinity DEC, Profiles, and settings. You are the data controller, and Telerik will process the Customer Data only in accordance with Your directions.
You represent and warrant to Telerik that Your collection and provision of the Customer Data to Telerik complies with Applicable Laws, and that You have an unqualified right to grant Telerik a non-exclusive license in and to the Customer Data for the same purposes. You acknowledge and agree that You are solely responsible for complying with all Applicable Laws regarding the collection and use of Customer Data.
To the extent permitted by Applicable Law, You will indemnify, hold harmless, and defend Telerik and its affiliates, and its and their respective officers, directors, employees, and agents from and against any and all claims, lawsuits, and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages, settlements, penalties, fines, and other liabilities resulting from such Claims, that arise or result from: (i) Your/Your Licensed Users’ breach of this Agreement; (ii) Your/Your Licensed Users’ use of the Sitefinity DEC and/or Telerik Products; (iii) Your/Your Licensed Users’ violations of Applicable Laws or obligations of privacy to any third party; (iv) any representations and warranties made by You/Your Licensed Users’ concerning any aspect of the Sitefinity DEC or Telerik Products to any third party; and/or (v) any claims with respect to acts or omissions of any third party in connection with the Sitefinity DEC or Telerik Products
Telerik will provide You with written notice of any Claim. You shall have the right to control and direct the defense of such Claim. You shall not agree to any settlement or consent to judgment that requires any admission of liability or payment of monies by Telerik without Telerik’s prior written consent. Telerik shall have the right, at its expense, to retain counsel and participate in defense of the Claim strictly on a monitoring basis.
Notwithstanding the foregoing, if You fail to respond in writing within ten (10) days after receiving notice of a Claim from Telerik, stating that You will fulfill Your obligations pursuant to this Section, then Telerik shall have the right to assume the exclusive defense of the Claim (including, without limitation, the investigation, trial, settlement, appeal, and payment of any Losses) solely at Your expense. You will fully cooperate in the defense of any Claim.
9. Modifications to Terms of This Agreement and Other Policies.
Telerik may modify the terms of this Agreement, including any Additional Terms or any other terms that apply to the Sitefinity DEC or Telerik Products to, for example, reflect changes to the law or changes to the Sitefinity DEC. You should look at the terms of this Agreement regularly. Telerik will post notice of modifications to the terms of this Agreement at http://www.sitefinity.com/purchase/cloud-services-agreement or policies referenced herein at the applicable URL for such policies. If You use the Sitefinity DEC after changes are posted, You will be deemed to have accepted them. If You do not agree to the modified terms of the Agreement or changes to other policies, You should discontinue Your use of the Sitefinity DEC, which termination is Your sole and exclusive remedy.
10. WARRANTY DISCLAIMER.
YOUR USE OF THE SITEFINITY DEC IS AT YOUR SOLE RISK. THE SITEFINITY DEC IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AVAILABILITY OF CUSTOMER DATA, REPORTS, AND CONTENT FROM THE SITEFINITY DEC. TELERIK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITEFINITY DEC OR SUPPORT SERVICES (IF ANY). YOU UNDERSTAND THAT TELERIK USES AFFILIATES, THIRD-PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, AND RELATED TECHNOLOGY REQUIRED TO RUN THE SITEFINITY DEC. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, TELERIK DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT TELERIK MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TELERIK BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITEFINITY DEC, OR OTHERWISE ARISING UNDER THE TERMS 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, TELERIK’S ENTIRE LIABILITY UNDER ANY PROVISION OF THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL TERMS, SHALL NOT EXCEED, IN THE AGGREGATE, THE SUM OF THE FEES PAID BY YOU TO TELERIK OVER THE PROCEEDING TWELVE MONTH PERIOD UNDER THIS AGREEMENT, 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 TO YOU. TELERIK IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CUSTOMER DATA, REPORTS, CONTENT OR ANY OTHER data OR content PROVIDED BY YOU, YOUR LICENSED USERS, OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SITEFINITY DEC. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN TELERIK AND LICENSEE, AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO LICENSEE IN THIS AGREEMENT ARE EXCLUSIVE.
12. Links to Third-Party Sites.
The Sitefinity DEC may include links to third-party sites. Telerik does not control such sites and is not responsible for the content of any linked site, any links contained in a linked site, or any changes or updates to such sites. Telerik is not responsible for any form of transmission received from any linked site. You acknowledge and agree that Telerik is not liable for any loss or damage which may be incurred by You as a result of the availability of third-party vendor resources or external sites.
13. Intellectual Property.
All title and ownership rights in and to the Sitefinity DEC, which includes the Software, and all Intellectual Property rights therein, and any trademarks or service marks of Telerik that are used in connection with the Sitefinity DEC are and shall at all times remain exclusively owned by Telerik and its affiliates and licensors. Licensee shall not (and shall ensure that Third Parties do not) challenge, or assist any person or entity in challenging, Telerik’s right, title, and interest in the Telerik Intellectual Property. 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 Release Notes. The Release Notes include important licensing and warranty information and disclaimers. In the event of a conflict between the Release Notes and the other portions of this Agreement, the Release Notes will take precedence (but solely with respect to the third party component(s) to which the Release Notes relate). The Release Notes are available at sitefinity.com/editions/cloud-services-agreement/release-notes.
Telerik may, in its sole discretion, publicize Your use of the Sitefinity DEC, and You license to Telerik (and its affiliates and necessary sublicensees), all Intellectual Property or other rights required to allow Telerik to use Your name, trade name(s), trademark(s), service mark(s), logo(s), and domain name(s) in connection therewith.
15. Commercial Items Notice.
Where Licensee is the U.S. Government or an agency thereof, any/all software and documentation licensed hereunder are/is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. Governing Law.
This Agreement is 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 in Boston, Massachusetts, USA, and the parties hereby irrevocably and unconditionally agree to submit to the exclusive 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.
17. 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 Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. The terms and conditions contained in this Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Licensee.
18. No Assignment.
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Telerik’s prior written consent.
Any provisions of this Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability, and/or indemnity terms, and any term of the Agreement which, by its nature, is intended to survive termination or expiration, shall remain in effect following any termination or expiration of this Agreement.
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
21. Force Majeure.
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.
22. Export Classifications.
You expressly agree not to utilize the Sitefinity DEC in, or export or re-export any portion of the Sitefinity DEC, including the Software, to any country, person, entity, or End-user subject to U.S. export restrictions. You specifically agree not to deploy, export, re-export, or transfer any portion(s) of the Software in or to, or use the Sitefinity DEC in, 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 products 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. You warrant and represent that neither the United States Bureau of Industry and Security, U.S. Department of Commerce, nor any other federal agency has suspended, revoked, or denied Your export privileges.
You consent and agree that Your clicking of the “I Accept” button constitutes Your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by You in writing. Further, You agree that no certification authority or other third-party verification is necessary to the enforceability of Your signature. At our request, any electronically signed document must be re-executed in original form by You. No party hereto may raise the use of an electronic signature as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Agreement.