1 Terms of Service

This document, Terms of Service (“Terms”), is incorporated into the Product EULA (indexed at: https://www.progress.com/legal) and governs the delivery of support services ("Support") by Progress Software Corporation, ("Progress") to any entity (“Customer”) that has an active Support Subscription or Support Contract for one or more of the following products or services (each a “Product”) provided by Progress: Kemp 360 Central®, Kemp 360 Vision®, ECS Connection Manager, Virtual ECS Connection Manager, LoadMaster®, LoadMaster® MT, LoadMaster® GEO, LoadMaster® for Bare Metal, Virtual LoadMaster®.

2 Terms

Progress agrees to support, maintain, repair or replace the purchased Products and provide agreed services. The Customer agrees to pay for such Support services subject to the terms herein.

3 Scope of Service

The Terms provide various levels of Support services for Customers worldwide as detailed in Appendix A: Support Subscription Offerings. A description of the Support services, including what is and what is not included, can be found at: LoadMaster Scope of Support.

Progress reserves the right to modify the LoadMaster Scope of Support at its discretion and without notification.

4 Contacting Progress

Progress operates multiple Technical Support Centers (TSCs). The Support service purchased defines when Support services may be obtained. Progress recommends that Customers contact their regional TSC during business hours to obtain Support. Progress' business hours vary by country and region. Progress reserves the right to change their business hours at any time. Progress TSC business hours are defined in the Standard Business Hours section.

4.1 Technical Support Centers (TSCs) Contact Information

Contact information for Progress' TSC’s are available at the following location.

https://support.kemptechnologies.com/hc/en-us/articles/201870787

4.2 Standard Business Hours

The following table outlines Progress' standard business hours:

Region	Hours of Operation
America’s	8AM - 9PM EST, Monday to Friday
EMEA	7:30AM – 5:30PM GMT, Monday to Friday
APAC	8AM - 6PM SST, Monday to Friday

4.3 Recording Calls

In carrying out its obligations, Progress may, at its discretion, record part or all of the calls between the Customer and Progress. Primarily call recording is for the purposes of monitoring Progress' service quality, however in some circumstances Progress may use call recording to determine if a Customer has been offensive towards Progress representatives, which could lead to grounds for termination of Support. By utilizing these Support services, you consent to have your calls with Progress monitored and/or recorded.

5 Progress' Obligations

The following Progress obligations require the Customer to have active and paid Support:

• Progress will provide Support for any Product(s) covered by these Terms. Such support will consist of responding to incidents as reasonably required to make the Product(s) perform as described in the current Product(s) specifications. The Customer will receive Support services as purchased, subject to the Support service offerings shown in Appendix A: Support Subscription Offerings.
• During the term of Support the Customer is entitled, at no additional charge, to updated versions of covered software such as bug fixes, and incremental enhancements as designated by minor software update increases. The Customer may receive special pricing on upgraded versions of covered Products such as major feature enhancements.
• Support for Free LoadMaster is limited to Community Support via https://support.kemptechnologies.com, unless a Support Subscription has been purchased for the Products.
• The Customer must return the failed Products or components to Progress under the Return Material Authorization (RMA) number issued by Progress. Progress may invoice the Customer for any failed Products or components that are further damaged by the Customer. The title to any returned Products or components will transfer to Progress upon receipt. For Premium, Premium Plus, Enterprise, Enterprise Plus, ECS, and Mission Critical Support Subscription Plans, Progress will be responsible for all freight charges for returned Products or components provided the Customer uses a Progress-designated carrier. For the Basic and Standard Support Subscription Plans, the Customer will be responsible for the freight charges associated with returning the defective unit to Progress and Progress will be responsible for the freight charges to provide the Customer with a replacement for the defective unit.

Progress will, at its option, repair or replace any product or component that fails with Progress certified reconditioned Product(s) during the term of Support at no additional cost to the Customer, provided that the Customer contacts Progress Customer Support during the term of Support to report the failure and complies with Progress' repair policies. Hardware Products returned to Progress must be pre-authorized by Progress with an RMA number marked on the outside of the package and sent prepaid and insured (by Progress) and packaged appropriately for safe shipment. Only packages with RMA numbers written on the outside of the shipping carton and/or the packing slips and shipping paperwork will be accepted by Progress' receiving department. Products that fail within the first 30 days are considered as Dead on Arrival (DOA). Progress will replace these Products with new Products.

6 Customer Responsibilities

In order to receive Progress Technical Support, the Customer agrees to:

• Ensure there is an active Support Subscription agreement with Progress prior to requesting any type of service or support. Expired support will be referred to Progress Sales.
• Ensure that all LoadMasters or ECS Connection Managers configured in a High Availability (HA) pair or Clustered environment have the same level of Support service plan.

• Provide Progress with the contact information of up to five (5) qualified and authorized representatives who have access to the Progress products or components used to deliver services and make at least one (1) of those representatives available when resolving a service-related incident.

• Cooperate with and follow instructions provided by Progress Support.
• Provide accurate and detailed information regarding the incident being reported, with a clear definition of the symptoms.
• Respond in a timely manner to requests for information regarding the incident
• Backup all existing data and removal of confidential or proprietary data.

Progress WILL HAVE NO LIABILITY FOR:

• Any confidential or proprietary information
• Loss of corrupted data
• Loss of use of a system or network
• And/or for any acts or omissions, including negligence, by a third-party service provider

• Ensure that Progress' performance of Support services will not affect any other manufacturer’s warranties or if it does, that the effect will be acceptable to the Customer. Progress does not take responsibility for third party warranties, or for any effect that the Support services performed by Progress may have on those warranties.

7 Restrictions

Support services provided by Progress under these terms are limited to the Product and are contingent upon the Customer’s proper use of the Product in the application for which it was designed. Product specifications and datasheets may be found on the following Progress website (www.kemptechnologies.com). Progress will not be obligated to provide any Support or to correct any malfunction, damage or any other problem if the Product;

• Has been altered, except by Progress
• Has not been installed, operated, repaired, or maintained in accordance with Progress instructions
• Has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident
• Has been operated outside of the environmental specifications for the Product
• Is deployed in a Customer network configuration outside the technical scope and intended use of the Product

Progress reserves the right to limit support, including error correction services, of any Product version prior to the most recently-released Generally Available (GA) software versions or for our Long Term Support (LTS) version of that same Product.

The LTS version is defined as a stable software version that will not include new features or feature enhancements, however Progress will back port relevant security fixes and major bugs.

8 Prices and Payment

• Fees for the initial or any subsequent term of this Support will be due and payable net 30 days from date of invoice and all payments will be made in Euro in EMEA and US dollars for all other regions. Progress may accept payment in any amount without prejudice to its right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction. Overdue payments may be charged interest at the lesser of 1.5% per month or the maximum interest allowed by law. If Progress is required to retain a collection agency or attorney to collect overdue payment, all reasonable collection costs, including attorney fees, will be payable by the Customer.
• If a Customer wishes to purchase Support for a Product where the Support has lapsed on the Product, the Customer will be charged the then-current standard Support fee for the forthcoming year and may be required to pay a pro-rated fee for the time period during which no Support agreement was in effect.

9 Taxes and Other Charges

All charges are exclusive of all taxes or fees levied by outside parties, such but not limited to, foreign, federal, state, municipal, or other government excise, duty, sales, use or occupational taxes or charges now in force or enacted in the future. In such an event, Progress may be required to collect for such payments upon the Support services performed or materials provided hereunder whether during the Support service coverage period or otherwise.

10 No Warranty, Limitation of Liability

PROGRESS' RESPONSIBILITY FOR DEFECTS IN MATERIALS OR WORKMANSHIP IS LIMITED TO THE DELIVERY OF SUPPORT SERVICES AS DESCRIBED HEREIN. ALL PRODUCTS ARE PROVIDED "AS IS", WITH ALL FAULTS, AND PROGRESS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT PROGRESS 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.

Notwithstanding anything to the contrary in the Product EULA, Progress' sole obligation and liability hereunder is for the service and repair of the Products covered under these Terms. Progress will have no further obligation or liability beyond such service and repair. IN NO EVENT WILL Progress BE LIABLE FOR ANY DAMAGE RESULTING FROM LOSS OF USE, DATA, PROFIT, OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY. Progress LIABILITY FOR DAMAGES FOR ANY CAUSE, WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT) WILL BE LIMITED TO THE ANNUAL SUPPORT FEE ACTUALLY PAID UNDER THESE TERMS FOR THE ANNUAL SUPPORT PERIOD DURING WHICH THE CLAIM AROSE.

11 Non-Assignment

No assignment by the Customer of these Terms will be binding on Progress without Progress' prior written consent.

12 Force Majeure

Progress will exercise every reasonable effort to meet its obligations hereunder, but will not be liable or in default under these Terms due to the delays in delivering materials or furnishing services resulting from events that could not be foreseen or circumvented that may include, but not be limited to, acts of God, civil riots, terrorism, etc. Progress will make best efforts to ensure the obligations are met as soon as is reasonable after the event has cleared.

13 Commercially Reasonable Limits to Scope of Service

• Support service extends only to uses for which the supported Progress Product was designed. Progress Technicians may refrain from providing any Support on the basis that the minimum system requirements are not met or the technical needs or other requirements are unusual or extensive as reasonably determined by Progress.
• In some cases, Progress technicians may not be able to diagnose or resolve a problem because of complications relating to the Customer’s network infrastructure or its configuration. In this situation, Progress will provide the Customer with detailed information as to why it is not possible for Progress to resolve the issue.
• All Progress Technical Support services are offered on a "commercially reasonable efforts" basis and without warranty except as specifically set forth in this Agreement.

14 Geographic Limitations and Relocation

Support service will be delivered to the site(s) indicated by the Customer at time of purchase. Support service is not available at all locations. Support service options, including service levels, technical support hours, and on-site response times will vary by geographic location and certain options may not be available for purchase in the Customer’s location, please contact your Progress sales representative for further details.

If relocation of the Progress Product(s) is required, please ensure that Progress is informed no less than one month prior to the relocation. Progress' obligation to supply the Support services to relocated Supported Products is subject to various factors, including without limitations, local service availability, and possible additional fees.

15 Recertification

Progress is under no obligation to accept any request for Support Subscription renewal or requests for Support on Hardware Products purchased from sources other than an authorized Progress Reseller or directly from Progress (e.g. for Products purchased at an online auction). In this case the Product will first be subject to an evaluation by Progress, or an authorized representative of Progress, who will inspect the Product and determine if it is in a condition eligible for Support. This service carries a Recertification fee at the current rate. Shipping charges and insurance will be the responsibility of the party requesting Recertification of the product. The Recertification fee is payable in advance of recertification and is in addition to the then current rates for support.

16 Appendix A: Support Subscription Offerings

Progress offers the following support subscription plans. The Support service plan purchased will govern access to Progress' Technical Support Team, warranty of the Product(s) and terms related to hardware replacement policy. Basic, Premium and Premium Plus have been replaced by Standard, Enterprise and Enterprise Plus.

 

The following table details Progress' Support service Plans:

 

Service Plan	Hardware (RMA)	Web Support	Phone Support
Standard	Replacement within two (2) weeks of receipt of failed unit.	Standard Business Hours	Standard Business Hours
Enterprise	In advance replacement. From time of confirmed diagnosis, replacement unit ships next business day. Enterprise Support Subscription at an additional charge. See the Geographic Limitations and Relocation section.	Standard Business Hours	24 x 7
Enterprise Plus	In advance replacement. From time of confirmed diagnosis, replacement unit ships next business day. Add-on purchase of a Progress Cold Spare appliance. Enterprise Support Subscription at an additional charge. See the Geographic Limitations and Relocation section.	Standard Business Hours	24 x 7
ECS	In advance replacement. From time of confirmed diagnosis, replacement unit ships next business day. Add-on purchase of a Progress Cold Spare appliance. Enterprise Support Subscription at an additional charge. See the Geographic Limitations and Relocation section.	Standard Business Hours	24 x 7
Mission Critical	In advance replacement From time of confirmed diagnosis, replacement unit ships next business day. Add-on purchase of a Progress Cold Spare appliance. Customer ability to self-identify severity levels 1, 2 and 3. Escalation management for Severity 1 critical situation with scheduled updates every step of the way. See the Geographic Limitations and Relocation section.	Standard Business Hours	24 x 7
Basic	Replacement within two (2) weeks of receipt of failed unit	Standard Business Hours	Standard Business Hours
Premium	In advance replacement. From time of confirmed diagnosis, replacement unit ships next business day.	Standard Business Hours	24 x 7
Premium Plus	In advance replacement. From time of confirmed diagnosis, replacement unit ships next business day. Add-on purchase of a Progress Cold Spare appliance. See the Geographic Limitations and Relocation section.	Standard Business Hours	24 x 7

 

Exclusions: The only exclusions to the above information relates to components and consumables such as pluggable transceivers purchased through Progress. All of these components have a 12 month warranty associated from time of purchase.

17 Appendix B: Incident Severity

All Incidents will be assigned a severity rating using industry standard definitions. The severity is assessed by Progress based on Customer-provided information.

Over the course of the investigation, severity may need to be changed. For example, if it is determined that the issue affects more users than initially estimated, the severity may be increased and more resources applied to finding a solution. Conversely, if it is determined that a work around is available, the severity may be lowered. The Progress support engineers working on the problem will be responsible for changing the severity level as appropriate.

 

The following table outlines how each severity rating is defined:

Severity	Characteristics
1 (Critical)	The LoadMaster, ECS Connection Manager, or Kemp 360 Product(s) is hard down and completely unable to service the users and no workaround is available
2 (Major)	A large group of users are impacted and no workaround is available
3 (Escalated)	The impact is on a small group of users or the impact on a large group of users but a workaround is available
4 (Normal)	Setup, and non-production troubleshooting, Firmware Requests and General Questions. No immediate operational impact on users.

18 Appendix C: Incident Handling

Any interruption to the normal functioning of a service or system is considered an incident.

• Incident severity handling:
  • Inbound incidents will be handled based on the assigned severity rating. Incidents with the highest severity will be addressed first.
  • In-process incidents, regardless of assigned Severity, will continue to be worked on and the next problem to be actioned will be the next queued Severity 1 incident on a first-come first-served basis.
  • Any incident categorized as a Severity 1 or Severity 2 should be reported to Progress via phone.

19 Appendix D: Incident Response Times

Progress provides web and phone access according to the Support service Level purchased. Incident response times outlined below are targets to which Progress will make commercially reasonable efforts to adhere, however certain conditions could arise that may necessarily change the target update times.

Initial response is defined as severity assignment and acknowledgement of new incident.

Update is defined as the relay of information related to the status of an incident and may consist of requests for additional information or troubleshooting, application of a workaround, or other action/information related to the incident.

The following table details the response times for incidents during standard business hours:

Incident Severity	Initial Response Time Target	Update Time Target
1	Within one (1) business hour	Update within one (1) business hour of an inbound Customer request
2		Update within two (2) business hours of an inbound Customer request
3		Update within four (4) business hours of an inbound Customer request
4		Update within one (1) business day of an inbound Customer request

Customers who have purchased Premium, Premium Plus, Enterprise, Enterprise Plus, ECS or Mission Critical Support Subscriptions will receive the Responses and Updates for incidents opened via phone outside of business hours.

The following table details the response times for incidents opened via phone outside of standard business hours.

Incident Severity	Initial Response Time Target	Update Time Target
1	Within one (1) hour	Update within one (1) hour of an inbound Customer request
2		Update within two (2) hours of an inbound Customer request
3		Update within four (4) hours of an inbound Customer request
4		Update within one (1) business day of an inbound Customer request

Customers who have purchased Kemp 360 Vision™ will receive the following Responses and Updates for incidents opened via our proactive alerting feature.

The following table details the response times for incidents opened via Kemp 360 Vision alerts.

Incident Severity	Initial Response Time Target	Update Time Target
1	Within 30 minutes	Update within 30 minutes of inbound Customer request
2		Update within one (1) hour of an inbound Customer request
3		Update within two (2) hours of an inbound Customer request
4		Update within four (4) hours of an inbound Customer request

20 Appendix E: Defect Work - Around and Correction

Progress will exercise commercially reasonable efforts to provide Work-Around and Correction Timeframes as outlined in the table below in accordance with the following definitions. The Work-Around and Correction Timeframes are targets only and not guaranteed.

Correction: Means any bug fix, patch, workaround or Maintenance Release to the Software, Firmware or Documentation that fixes a Defect.

Correction Time: Means the time between when Progress accepts a trouble ticket from a Customer as a Defect in accordance with this Agreement and when Progress delivers a Correction to the Customer.

Defect: Means a failure or function impairment in the Product that is reproducible, that causes the Product, when used in accordance with the Product specifications and Progress' instructions, to not function in conformance with the Documentation, and that is reported to Progress as set forth in this Agreement.

Documentation: Means the Product Documentation and Datasheets, in either written or electronic form, made available by Progress to Customer.

Work-Around: Means any operational process, additional Software or Hardware or Documentation that limits or circumvents the impact of a Defect, commonly referred to as a temporary fix for Defect.

Work-Around Time: Means the time between when Progress accepts a trouble ticket from a Customer as a Defect in accordance with this Agreement and when Progress delivers a Work-Around to the Customer.

The table below shows the Support service levels of Workarounds and Corrections for Defects reported to Progress.

Defect Priority	Definition	Work-Around Time Target	Correction Time Target
Priority 1	A Defect that causes the Product to fail to function and/or crash the system and render the operation of the Product impossible or impracticable.	2 days	15 business days
Priority 2	A Defect that causes the Product to fail to operate in a material manner but does not render the system inoperable.	6 business days	30 business days
Priority 3	A Defect that produces an inconvenient situation in which the Product operates substantially in accordance with the Documentation and Specifications but nevertheless causes or results in substandard or erratic performance. Such Defect is often minor or cosmetic in nature and does not necessarily result in reduced Performance.	20 business days	180 business days

21 Appendix F: Incident Resolution

Progress Support will use all reasonable efforts to provide resolution as quickly as possible; however, as Customer topologies and configurations may be unique, Progress may not guarantee time to resolution.

Resolution will be determined by the Progress support staff working on the problem in conjunction with the Customer and the resolution information will be updated in the Incident Management System.

22 Appendix G: Cold Spare Replacement

Progress' Cold Spare Replacement option provides Customers with an onsite unlicensed hardware appliance to provide additional resilience in the event of a critical hardware failure on their production deployment. The Cold Spare unit is co-located on the Customer’s premises and in the event of a failure, Progress Support will assist with license transition from the failed production unit as well as provide remote support on installation and configuration. In this scenario, the failed unit is then shipped back to Progress. Progress will then provide a replacement Cold Spare unit for the Customer’s premises. A minimum of two licensed LoadMaster or ECS Connection Manager instances of the same corresponding model, covered by Enterprise Plus (or ECS) Support is required to purchase Cold Spare units. Cold Spare units may be provided from refurbished stock at Progress' discretion.