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LICENSE AGREEMENT FOR SPM® SOFTWARE
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 this Software has been furnished to You pursuant to a separate, written license agreement executed by You and Minitab.
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.
B. Terms and Conditions Applicable to the Software
B.1 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:
- For a period of one (1) year from the first day of the month following Your purchase.
- The license may be renewed for additional one-year terms by paying the then-current license fee for the current number of users of the Software; and
- You will only receive continued access to the Software upon Our receipt of Your payment of the then-current license fee, or, if acceptable to Us, upon Our receipt of a written purchase order or other written or electronic confirmation of Your intent to renew and to pay the then-current license fee; and
- The license receives, at no additional charge, new releases of the Software as they become available during the term(s) of the license so long as You are in full compliance with this Agreement.
B.2 The license fee You pay as set forth on any invoice You receive from Us regarding this Software, governs the maximum number of simultaneous users permitted to use this Software. The maximum number of simultaneous users of the Software may be increased during the term(s) of this license by paying additional user fees for the time remaining in Your then-current license term.
B.3 The Software is designed for use with the operating system selected upon download subject to the applicable System Requirements. Licenses may be capable of being used in some virtualized environments, but not all virtualization methods may be supported. The use of licenses with virtualized environments will be at the Licensee’s own risk.
B.4 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.
B.5 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, 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, or use Your Acquired Rights in a manner in which to limit Our sale of products and service and the use of our products and serves by third-parties.
- 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.
- 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.
- 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, or use Your Acquired Rights in a manner in which to limit Our sale of products and service and the use of our products and serves by third-parties.
C. Terms and Conditions Applicable to Both Single-User and Multi-User Licenses
C.1 This Software is protected by copyright, trademark, and other Minitab 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.
C.2 This Agreement authorizes You to use the Software only on a computer owned, leased, or otherwise controlled by You.
- If You are a Licensed Entity, the Software may be used by Your current divisions, subsidiaries or affiliates, domestic or international, controlling, or controlled by or under common control with You. For purposes of clarity, the definition of “control” as used herein means either:
- the direct or indirect ownership of not less than fifty percent (50%), or the maximum allowed by local law if less, of the voting equity of Your division, subsidiary or affiliate; or
- the right and authority to manage and enforce the terms of this Agreement within the respective division, subsidiary or affiliate.
- 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 You 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.
- Except as set forth in this section C.2, You may not provide or otherwise make the Software, or any functionality of the Software, accessible or available in any form to any third-party without prior written approval from Us.
C.3 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. This includes software maintenance updates as they become available, and if applicable, product activation requests.
C.4 You may make a copy of the Software for archival and back-up purposes only. The copy of the Software You make must include the following Minitab copyright notice: " © (applicable year), Minitab, LLC. All rights reserved." showing the copyright year appropriate to the version of the Software You copy.
C.5 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.
C.7 The Software contains a routine designed to disable the Software automatically at the end of the license term unless the Agreement is renewed.
C.8 Based on the operating system selected upon download You have an option to use the Software Update Manager. By choosing not to use the Software Update Manager on Your computer or those of Your end-users, You understand and agree that You take full legal 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. We recommend that if You do not accept this service for Your end users, You install the Software Update Manager on at least one regularly monitored computer, so that You can continue to receive such notices.
C.9 We have obtained all appropriate licenses for any third-party software which may be distributed with or included in the Software.
C.10 This Agreement and Software license may not be resold, assigned or otherwise transferred to another person or entity without Our written permission.
C.11 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.
C.12 Either You or We may terminate this Agreement and Your use of the 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:
- You agree to immediately stop using and to destroy all copies of the Software licensed hereunder, and upon request from Minitab, provide Us with written certification of such action; and
- You will not be entitled to a refund of any portion of the license fee You have already paid regardless of the type of license You have purchased, unless We are the breaching party.
C.13 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.
C.14 You agree to comply with all applicable laws and regulations with regards to: economic sanctions; export controls; import regulations; and trade embargoes ("Sanctions"), including those of the Canada, European Union and United States (specifically the Export Administration Regulations (EAR)). You represent and warrants that You are not targeted by Sanctions nor otherwise owned or controlled by or acting on behalf of any person or entity targeted by Sanctions. Further, You acknowledge that You will not download or otherwise export or re-export the Software directly or indirectly to any person or entity targeted by Sanctions or download or otherwise use the Software for any end-use prohibited or restricted by Sanctions or export control policies issued by competent authority.
C.15 All license fees are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency.
C.16 You agree to keep accurate written 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.
C.17 Governmental use, duplication, or disclosure of this Software is subject to restrictions as set forth inFAR 52.227-19 (Commercial Computer Software License), as applicable, and other similar clauses as may be applicable. Manufacturer/Contractor/Licensor is: Minitab, LLC, Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania 16801, USA.
C.18 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 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.
C.19 In the absence of a separate, written license agreement, this Agreement shall control 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.
C.20 We reserve the right to modify 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 modifications shall constitute Your acceptance of the modified terms of this Agreement.
Minitab shall defend or settle at Our expense any third party claim brought against You alleging that Our 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 attorney’s 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. This Indemnification does not extend to any claim of infringement 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.
We warrant that the functions contained in Our Software will operate in accordance with its published documentation and without substantial program errors, but We do not warrant that the functions contained in Our 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 this Limited Warranty, shall at Our option either be (i) replacement of Our Software with a reasonable alternative, or (ii) the refund of the license fees paid by You for Your use of Our Software within the last twelve months. 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 OUR OBLIGATION OF INDEMNIFICATION AND 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, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR OUR OBLIGATION OF INDEMNIFICATION SET FORTH ABOVE, IN NO EVENT SHALL EITHER PARTY BECOME LIABLE TO THE OTHER, OR TO ANY OTHER PARTY, FOR ANY LOSS OR DAMAGES, WHETHER INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THIS SOFTWARE, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF TIME, MONEY, DATA OR GOODWILL, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.