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IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AS EITHER AN INDIVIDUAL OR SINGLE LICENSED ENTITY (“YOU”, “YOUR”) AND MINITAB, LLC (“US”, “OUR”, “WE” OR “MINITAB”) GOVERNING THE USE OF THE SOFTWARE PRODUCT IDENTIFIED ABOVE (“SOFTWARE”).
MINITAB WILL 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 A LICENSED ENTITY (FOR EXAMPLE, YOUR EMPLOYER), YOU AFFIRM THAT YOU HAVE BEEN AUTHORIZED BY SUCH PERSON OR LICENSED 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 (i) this Software has been furnished to You pursuant to a separate, written license agreement executed by You and Minitab, or (ii) You are only installing a renewal, update, upgrade, or new release, of this Software in full compliance with a prior existing License Agreement.
The type of license You have subject to this Agreement is listed in the purchase confirmation, receipt, and/or on the invoice You received from Us. Any purchase order submitted by You is for Your convenience only and subject to section 6.10 herein.
1. Terms and Conditions
1.1 Software License Term; Renewal. Based on the type of license You have purchased subject to this Agreement, You are granted a non-exclusive, personal, limited license to use this Software subject to the terms, payment of fees, conditions, restrictions and limitations contained herein:
1.2 License Fee; Adding Authorized Users. The license fee You pay as set forth on any invoice You receive from Us regarding this Software governs the number of Authorized Users permitted. You may increase the number of Authorized Users of the Software during the term(s) of the license by paying additional user fees for the time remaining in Your then-current license term.
1.3 Taxes. All license fees are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency.
1.4 Operating System. The Software is designed for use with the operating system selected upon download subject to the applicable System Requirements.
1.5 Virtualized Environments. The Software may be capable of being used in some virtualized environments, but not all virtualization methods may be supported. The use of the Software with virtualized environments will be at the Licensee’s own risk.
1.6 Minitab Technology. You acknowledge that We retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software, all documentation, and any and all related and underlying technology and documentation; and any derivative and transformative works, modifications, or improvements of any of the foregoing including as may incorporate Feedback (collectively, “Minitab Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Minitab Technology is granted to You. We may freely use and incorporate into Minitab Technology any suggestions, enhancement requests, recommendations, requirements, corrections, and feedback provided by You or by any Authorized Users (“Feedback”).
1.7 Authorized Use. This Agreement permits You, or Your authorized employees and independent contractors (“Authorized Users”) to use the Software only on a computer owned, leased, or otherwise controlled by You.
1.8 Support. Minitab provides You, at no additional charge, reasonable amounts of technical support in accordance with Our published Support Policy for so long as this current Software release is widely distributed as determined by Minitab, and for one (1) year thereafter.
1.9 General Restriction. You shall not, and shall not permit any Authorized User or third party to: (a) modify, copy, duplicate, create derivative works from, frame, mirror, scrape, sell, rent, lease, loan, license, distribute, provide access to, sublicense, or otherwise make available the Software to a third party (except as expressly permitted in accordance with this Agreement) or in a service bureau or outsourcing offering; (b) use the Software to provide, or incorporate any portion of the Software into, any service for the benefit of a third party; (c) access all or any part of the Software in order to build a product or service which competes with the Software; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Us); (e) remove or obscure any government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded by Us; or (f) circumvent the Authorized User authentication or security of the Software or any host, network or account related to the Software.
1.10 Privacy Policy. Our Privacy Policy describes how We collect and use information about You and the systems on which the Software has been installed.
1.11 Disabling Routine. This Software contains a routine designed to disable this Software automatically for:
1.12 Software Update Manager. Along with this Software, You have been provided an option to use the Software Update Manager. If You choose not to use the Software Update Manager on Your computer or those of Your Authorized Users, You understand and take responsibility and waive any recourse against Us for the non-delivery of information, which could include critical updates, bug fixes, and/or notifications of problems or errors. If You choose not to use this service for Your Authorized Users, We recommend that You install the Software Update Manager on at least one regularly monitored computer so that You can continue to receive such notices.
1.13 Third Party Software. We have obtained all appropriate licenses for any third-party software distributed with or included in this Software. Third party software is licensed to You under the terms of this Agreement. (Publicly Available Software is defined in Indemnification section 2.1 and is not “third party software” as used in this Agreement.)
1.14 Termination by You. If You elect to terminate Your use of this Software:
1.15 Termination for Cause. Either You or We may terminate this Agreement and Your use of this Software for any material breach of this Agreement if such breach is not cured within thirty (30) days following notice to the breaching party. Upon such termination:
2. INDEMNIFICATION
2.1 Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that this Software, when used as authorized under this Agreement, infringes such third-party’s copyright, patent or trademark and We shall indemnify and hold You harmless from and against any damages and costs awarded against You or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such claim, provided that You immediately notify Us of such claim, allow Us to control the defense, litigation or settlement of such claim, and cooperate with Us in the investigation, defense, and/or settlement of such claim. The foregoing indemnification obligation excludes any obligation with respect to any component of this Software that is Publicly Available Software, as defined below. If any infringement claim with respect to Your use of this Software may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue using this Software, or (b) replace or modify this Software to eliminate the infringement while providing functionally equivalent performance. If neither (a) or (b) above are reasonably feasible as determined in Our sole discretion, We may terminate Your license for this Software and refund to You the pro-rata amount of any prepaid fees for the remaining then-current term for this Software. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to this Software not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of this Software, or (iii) use, combination, or incorporation of this Software, or improvements thereto, with products or services not provided by Us. You acknowledge that the indemnification in this section states Your exclusive remedy and Our sole liability in connection with any claim of infringement.
“Publicly Available Software” means (a) any software that contains, or is derived in any manner (in whole or in part) from any software that is distributed as free software, open source software or similar licensing or distribution models; and (b) any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (i) be disclosed or distributed in source code form, (ii) be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge.
2.2 Indemnification by You. You shall indemnify and hold harmless Us from and against any damages and costs awarded against Us or agreed in settlement by You (including reasonable attorneys’ fees) from and against any claim by a third party arising from or relating to (a) Your use of this Software (except to the extent such use is included in Our indemnification obligation in section 1); (b) any product or service offered by You in connection with or related to Your use of this Software; (c) Your use, combination, or incorporation of this Software, or improvements thereto, with products or services not provided by Us; or (d) Your violation of any applicable law or regulation or in violation of legal rights of others, including intellectual property rights or data protection regulation, rules, or laws.
3. LIMITED WARRANTY
We warrant that the functions contained in this Software will operate in substantial conformity with its documentation and without substantial program errors, but We do not warrant that all defects will be corrected. Our entire liability, and Your exclusive remedy for a breach of this Limited Warranty shall at Our option either be (a) replacement of the Software with a reasonable alternative, or (b) termination of this Agreement and a refund to You of the pro-rata amount of any prepaid fees for the remaining then-current term for this Software. This Limited Warranty does not extend to any claim 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. Publicly Available Software is provided without warranty.
4. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3, THE SOFTWARE AND ALL PUBLICLY AVAILABLE SOFTWARE INCLUDED IN THE SOFTWARE ARE PROVIDED “AS IS” AND WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
5. LIMITATION OF REMEDIES AND DAMAGES
5.1 Consequential Damages Waiver. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 1.7.V (AUTHORIZED USE), SECTION 1.9 (GENERAL RESTRICTION), AND SECTION 2 (INDEMNIFICATION), NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME STATES AND JURISDICTIONS, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE FOREGOING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
5.2 Liability Cap. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 1.7.V (AUTHORIZED USE), SECTION 1.9 (GENERAL RESTRICTION), AND SECTION 2 (INDEMNIFICATION), EACH PARTY’S AND ITS AFFILIATES’ ENTIRE LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
6. Miscellaneous
6.1 Relationship. The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party shall have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
6.2 Assignment. This Agreement and Software license may not be resold, assigned or otherwise transferred to another person or entity without Our written permission, which permission shall not be unreasonably withheld.
6.3 Export Controls. You agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) You represent and warrant that neither You nor Your owners, officers, directors, member company(ies) and those of Your Affiliates are listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (b) You shall not and shall not permit any third parties to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
6.4 Verification of Use. You agree to keep accurate records sufficient to provide auditable verification that Your use of Our Software is in compliance with the terms and conditions of this Agreement. We, or Our specifically designated representatives, have the right to verify Your compliance with this Agreement, at Our expense, during the term of this Agreement and for a period of one (1) year thereafter. Verification will take place upon reasonable notice during normal business hours and in a manner that does not interfere unreasonably with Your operations. If verification reveals unlicensed use of Our Software, You must promptly order sufficient licenses at Our then-current pricing to permit the usage disclosed. If material unlicensed use is found (license shortage of 5% or more), You must reimburse Us for the costs We have incurred in verification and acquire the necessary additional licenses within thirty (30) days. If We undertake such verification and do not find material unlicensed use of Our Software, We will not undertake another verification of the same Licensed Entity for at least one (1) year. We will use the information obtained in compliance verification only to enforce Our rights and to determine whether You are in compliance with the applicable terms of this Agreement.
6.5 Government Use. The Software constitutes restricted computer software and is provided to the U.S. government subject to restricted rights as described in FAR 52.227-14. Any additional technical data provided to the U.S. government pursuant to this Agreement constitutes limited rights data and is subject to limited rights as described in FAR 52.227-14 and DFARS 252.227-7015. If a government agency has a need for rights not granted under this Agreement, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be attached to this Agreement.
6.6 Governing Law. This Agreement is 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 will be in the state courts located in the Commonwealth of Pennsylvania, USA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
6.7 Partial Invalidity. If any provision of this Agreement is held invalid or unenforceable by competent authority, such provision shall be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it then appears. The total invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
6.8 Injunctive Relief. 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.
6.9 Waivers. No failure by either party to enforce a provision of this Agreement, and no waiver by either party of its rights under any provision thereof, will be deemed a waiver of subsequent breaches.
6.10 Priority. In the absence of a separate, written license agreement, or alternative terms set forth on the invoice You receive from Us, this Agreement controls over any additional or conflicting terms contained in a purchase order for the Software submitted by You or contained in any terms and conditions submitted by You, and such additional or conflicting terms are expressly rejected unless they have been specifically accepted and agreed to in writing by Minitab or its subsidiaries.
6.11 Entire Agreement; Amendments. This Agreement and any terms located at a URL referenced herein, including without limitation, the Support Policy, System Requirements, and the Privacy Policy, and any purchase and/or renewal confirmation or invoice You receive from Us, constitute the entire agreement between the parties respecting Your use of this Software, and supersede any prior written or oral agreements between the parties. Any variation in the terms and conditions of this Agreement, in any document not signed by You and Minitab, will be of no force or effect.
6.12 Updated Terms; Evolution of Law. We reserve the right to update the terms of this Agreement at any time when necessary to comply with legal or mandatory changes to applicable laws and regulations and We will use reasonable efforts to notify You in advance when We do. Your continued use of the Software after Your receipt of Our notification regarding such updates shall constitute Your acceptance of the updated terms of this Agreement.
6.13. Notice. Except as otherwise provided in this Agreement, all notices must be in writing and will deemed given upon: (a) personal delivery; (b) when received by the addressee if sent by a recognized overnight courier (receipt requested); or (c) the fourth business day after mailing. All notices must be directed to Minitab at Minitab, LLC, Attention: Legal Department, Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania 16801, USA or to You at the e-mail address You have provided to Minitab or to such other address either party may, from time to time, provide to the other party in accordance with this notice provision.
6.14 Survival. All provisions that should survive, including sections 1.1 (to the extent fees are due and owing), 1.2, 1.3, 1.10, 1.14, 1.15, 2, 4, 5 and 6 survive the termination of this Agreement.
LAV: 27Sept2021