• License Agreement For SPM Software

    IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR SINGLE LEGAL ENTITY (“YOU”, “YOUR”) AND MINITAB, INC. (“US”, “OUR”, “WE”) GOVERNING THE USE OF THE SOFTWARE PRODUCT IDENTIFIED ABOVE (“SOFTWARE”). WE ARE WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU INSTALL, COPY, ACTIVATE OR OTHERWISE USE THE SOFTWARE, YOU AGREE TO BE BOUND BY ALL THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, ACTIVATE OR USE THE SOFTWARE.

    BY INSTALLING AND/OR USING THE SOFTWARE, YOU AGREE THAT THIS AGREEMENT APPLIES TO YOU; AND IF THE SOFTWARE IS ACQUIRED, INSTALLED AND/OR USED ON BEHALF OF ANY OTHER PERSON OR ENTITY (FOR EXAMPLE, YOUR EMPLOYER), YOU AFFIRM THAT YOU HAVE BEEN AUTHORIZED BY SUCH PERSON OR ENTITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ON THEIR BEHALF.

    YOU HAVE PURCHASED AND/OR OBTAINED ONLY A LICENSE TO USE THIS SOFTWARE IN ACCORDANCE WITH THE APPLICABLE TERMS CONTAINED IN THIS AGREEMENT. YOU DO NOT OWN THIS SOFTWARE. YOU DO NOT HAVE, ACQUIRE OR OBTAIN ANY OWNERSHIP, PROPERTY RIGHTS OR TANGIBLE INTEREST IN THIS SOFTWARE. YOU DO NOT HAVE, ACQUIRE OR OBTAIN ANY RIGHTS TO SELL OR RESELL THIS SOFTWARE.

    The terms of this License Agreement do not apply if this Software has been furnished to You pursuant to a separate, written license agreement executed by You and Us.

    The type of license You have subject to this Agreement (engines, feature sets, data capacity, and number of users and/or instances, etc.) is listed in the purchase confirmation, receipt, and/or on the invoice You received from Us.

    TERMS AND CONDITIONS APPLICABLE TO THE LICENSED SOFTWARE

    A.1 You are granted a non-exclusive, personal, limited license to use this Software, subject to the terms, fees, conditions, restrictions, and limitations contained in this Agreement.

    A.2 If you have a single license for the Software as set forth on Your invoice, then at any time You may have a single copy of the Software “in use” on a single computer.

    A.3 If You have multiple licenses for the Software as set forth on Your invoice, then at any time You may have as many copies of the Software “in use” as You have licenses.

    A.4 The Software is "in use" on a computer when it is loaded into the temporary memory or installed into the permanent memory of that computer, except that a copy of the Software installed on a network server for the sole purpose of distribution to other computers is not "in use".

    A.5 If the Software is installed into the permanent memory of a computer (other than a network server as noted herein) and one person uses that computer more than 80% of the time, that computer is “in use” for purposes of this Agreement and the allowed number of users as set forth in Your invoice.

    A.6 This Agreement authorizes You to use the Software only on a computer owned, leased, or otherwise controlled by You. Use of the Software on a computer owned by a third party who is at that time providing IT services to You is allowed, provided that You make every reasonable effort to advise Us of the identity of the third party, and provided that You agree to be responsible for that third party’s compliance with this Agreement. Use of the Software on a computer owned by a third party who is not at that time providing IT services to You is prohibited. Installation of this Software on a server that allows access to this Software or any of its functionality via a public network or the Internet without the use of a password-protected secure portal is prohibited, unless permission to do so has been granted through the establishment of a separate license agreement with Us.

    B.1 The Software is licensed for one-year terms, only, and contains a routine designed to disable the Software automatically at the end of the then current Term without notice to You, unless Your license is renewed.

    B.2 The initial Term of the license begins on the first day of the month following Your invoice date for the Software and must be renewed annually thereafter for continued use.

    B.3 Renewal terms will run for one-year periods beginning on the day after the last day of the prior Term, provided We have received Your valid purchase order, or You have paid the then-current license fee for the Software. All terms and conditions of this Agreement will apply during the renewal term(s).

    B.4 We will provide You, at no additional charge, reasonable amounts of technical support and maintenance updates to the current commercially available version of the Software, and for one (1) year thereafter.

    C.1 The Software is designed only for the exploration of data. The data mining tools provided by Us as part of the Software produces reports, graphs, models, tables and other output (“Results”) including the generation of hypotheses and questions. The Results are not intended to, and should not be used and relied upon, as a single definitive basis of or for decisions of any kind. The Results must thereafter be independently verified and substantiated by You with other tools and methods.

    C.2 Due to the unique nature, function, and capability of the Software, should You potentially develop intellectual property rights, (including but not limited to any applicable patent and copyrights) from the Results generated by the Software (“Acquired Rights”), You agree that notwithstanding any such Acquired Rights You may obtain:

    C.2.1 You will not attempt or take any action, in any manner whatsoever, including litigation, to prevent Us from licensing Our Software (or any of Our software or products of any type that possesses data mining functionality) to any person or entity based on any of Your Acquired Rights.

    C.2.2 You will not impose a license fee, royalty, or other charge of any type, whether now existing or hereafter developed or acquired, based on any of Your Acquired Rights (i) on Us in any attempt to prevent Our rights to make, use, sell, offer for sale, license, make derivative works, or use in any way whatsoever, any of Our software programs, now existing or hereafter developed that possess data mining functionality, or (ii) on Our customers or licensees from using any of Our Software programs, now existing or hereafter developed that possess data mining functionality.

    C.2.3 You will not claim or include Our Software, or any part thereof, as a component or process in any application or request You may make for a patent, copyright or other intellectual right based on Your Acquired Rights that now exist or come into existence in the future.

    D.1 This Software is protected by copyright, trademark, and other of Ours and third party intellectual property rights. Your rights to use the Software are only as specified in this Agreement, and We reserve all rights not expressly granted to You in this Agreement. Nothing in this Agreement constitutes a waiver of Our rights under U.S. or international copyright laws or any other international, federal, or state law.

    D.2 You may make a single copy of the Software for each licensed user for archival and back-up purposes only. Each copy of the Software You make shall retain the applicable copyright notice in electronic form and each physical CD-ROM containing the Software shall have a label affixed externally on the media with the following notice: " © (applicable year), Minitab, Inc. All rights reserved." showing the copyright year appropriate to each release/version of the Software that You copy. If We notify You in writing of any copyright changes, You shall make changes in such notices at the earliest practical opportunity.

    D.3 You may not disassemble, de-compile, or reverse engineer this Software or otherwise attempt to recreate this Software or any functionality or capability of this Software, except to the extent applicable laws specifically prohibit such restriction.

    D.4 You understand and agree regarding Your privacy and data content that:

    D.4.1 Your use of this Software is also governed by Our Privacy Policy, which describes how we collect and use personal and non-personal information about You and the systems on which the Software has been installed.

    D.4.2 If enabled, We can collect Feature Data relating to Your use of the Software and We shall be the sole and exclusive owner of any collected Feature Data. “Feature Data” means statistical data, trends, and usage information of the features of the Software derived from use of the Software by You. Feature Data is only used by Us for purposes of evaluating improvements and enhancements to the Software.

    D.4.3 Feature Data may be transferred to, and stored and processed in, the United States or any other country in which We or Our affiliates or subcontractors maintain facilities. You appoint Us to perform any such transfer of Feature Data to any such country and to store and process Feature Data within any such country in compliance with the terms of Our Privacy Policy.

    D.4.4 You are the controller of the data content that You enter and the files You create using the Software; and that We specifically disclaim that We are a “data controller” or “data processor” of Your data content; and that We are not acting as a “data controller” or “data processor” of any of Your data content under any data protection laws in which such definition of “data controller” or similar capacity may be found.

    D.5 We have obtained all appropriate licenses for any third-party software which may be distributed with or included in the Software.

    D.6 This Agreement and Software license may not be resold, assigned or otherwise transferred to another person or entity without Our written permission.

    D.7 If You elect to terminate Your use of the Software, You will not be entitled to a refund of any portion of the license fee.

    D.8 We may terminate this Agreement and Your Software license for any material breach of this Agreement by You. Upon such termination, You agree to immediately stop using, and to destroy all copies of, the Software licensed hereunder, and upon Our request, provide Us with written certification of such action.

    D.9 It is expressly understood that in addition to any other remedies available to Us, if this Agreement is breached in any fashion that would cause immediate irreparable harm to Us, We shall be allowed to seek immediate injunctive relief as We would have no adequate remedy at law through monetary damages. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its costs and reasonable expenses including attorney’s fees.

    D.10 You may not knowingly accept this Agreement or use this Software if doing so would be in violation of any current U.S. embargo as listed with the United States Office of Foreign Assets Control. You may not knowingly transmit or ship, directly or indirectly, this Software to any Country, entity or individual or foreign national of any country, prohibited by U.S. export law, or in violation of any then-current U.S. embargo as listed with the United States Office of Foreign Assets Control. This Software may not be exported without the appropriate export license as may be applicable.

    D.11 All license fees are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency.

    D.12 Governmental use, duplication, or disclosure of this Software is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 et seq. and DFARS 252.227-7015, and subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable, and other similar clauses as may be applicable. Manufacturer/Contractor/Licensor is: Minitab, Inc., Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania 16801, USA.

    D.13 This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, USA, expressly excluding the application of conflicts of law’s provisions. Venue shall be in the state courts, or if applicable due to subject matter the federal courts, located in the Commonwealth of Pennsylvania, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect the remainder of this Agreement, and this Agreement shall continue in force and effect to the full extent allowed by law.

    D.14 This Agreement (or a separate, written license agreement that has been entered into in lieu of this Agreement) shall control over any additional or conflicting terms contained in a purchase order for the Software You have submitted or may submit for future renewal fees or purchases, and this Agreement (or a separate, written license agreement that has been entered into in lieu of this Agreement) shall control over any additional or conflicting terms contained in any Terms and Conditions You have submitted or may submit for future renewal fees or purchases, and such additional or conflicting terms are expressly rejected unless they have been specifically accepted and agreed to in writing by Us, or Our subsidiaries.

    D.15 We reserve the right to modify the terms of this Agreement at any time when necessary to account for Software updates, improvements or material changes in functionality, as well as legal or mandatory evolutions of applicable laws and regulations and We will use reasonable efforts to notify You when We do. Your continued use of the Software after Your receipt of Our notification regarding such modifications shall constitute Your acceptance of the modified terms of this Agreement.

    INDEMNIFICATION

    We warrant that We have the right to grant You this license to use this Software and, provided You are in compliance with the terms of this Agreement, We shall defend or settle at Our expense any third party claim brought against You alleging that this Software infringes such third party’s copyright, patent or other intellectual property right; provided that You immediately notify Us of such claim, allow Us to control the litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. This indemnification does not extend to any claim of infringement resulting from Your unauthorized modification of this Software or from use or incorporation of this Software in any manner for which it is not designed or permitted.

    LIMITED WARRANTY

    We warrant that the functions contained in this Software will operate without substantial program errors, but We do not warrant that the functions contained in the Software will meet Your requirements or will operate without interruption or error, or that all defects will be corrected. Except for Our obligations regarding Indemnification, Our entire liability, and Your exclusive remedy for the breach of the foregoing limited warranty, shall at Our option either be replacement of the Software with a reasonable alternative, or the refund of the license fees paid by You for Your use of the Software during the then-current Term. This Limited Warranty does not extend to any claim resulting from Your unauthorized modification of Our Software or from use or incorporation of Our Software in any manner for which it is not designed or permitted.

    DISCLAIMER OF WARRANTIES

    EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THIS SOFTWARE IS PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND. THE LIMITED WARRANTY CONTAINED IN THIS AGREEMENT IS IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.

    NO LIABILITY

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BECOME LIABLE TO YOU, OR TO ANY OTHER PARTY, FOR ANY LOSS OR DAMAGES, WHETHER INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL OR OTHERWISE, ARISING FROM YOUR USE OF OR INABILITY TO USE THIS SOFTWARE, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF TIME, MONEY, DATA OR GOODWILL, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    [Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation may not apply to You.]

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