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pursuant to which SPSS Inc., a Delaware corporation (“SPSS”), is offering you (hereinafter, “you” or the “user”) the right to use the Software Package (defined in Section 1). This Agreement is a binding legal contract that imposes obligations on the user with regard to the Software Package. By using the Software Package, you agree to be bound by the terms of this Agreement. If you do not accept these terms, you should stop using the Software Package.
1.Software Package. The term “Software Package” means the SPSS software, both the source
code and/or object code and documentation, you are downloading or installing. 2.Freeware License (a) Subject to the terms of this Agreement, SPSS hereby grants to you a non-exclusive, worldwide, transferable license to use, copy, modify and/or distribute the Software Package, free of charge (the “Freeware License”). (b) Pursuant to the Freeware License, you may: (i) use the Software Package on any computer in your possession, (ii) modify, adapt or translate the Software Package so as to create or prepare a derivative work (a “Derivative Work”), (iii) make copies of the Software Package; and (iv) distribute the Software Package to any third party if such third party expressly agrees to be bound by the terms of this Agreement and the Freeware License set forth herein. (c) The Freeware License is subject to the following restrictions: (i)SPSS shall have no obligation to provide maintenance, support, upgrades or new releases with regard to the Software Package to you or any third party. (ii)Prior to distribution to any third party of the Software Package such third party must agree to be bound by the terms of this Agreement and the Freeware License set forth herein and a copy of this Agreement must be included with such distribution together with the same copyright and other proprietary notices pertaining to the Software Package that appear in the Software Package. If you distribute the Software Package from the Internet or a similar on-line source, you must include the ©SPSS Inc. copyright notice for the Software Package with any on-line distribution thereof and on any media you distribute that includes the Software Package. (iii)You may not use the Software Package to engage in, or allow others to engage in, any illegal activity or any other activity that violates the rights of any third party. (iv)Nothing in this Agreement or the Freeware License set forth herein shall authorize anyone to modify any portion of this Agreement or the Freeware License set forth herein; nor is any one authorized to modify the Software Package in a manner that would have the effect of modifying this Agreement or the Freeware License set forth herein. Any such modification shall be null and void and of no force or effect and shall cause immediate termination of this Agreement and the Freeware License set forth herein.
(v)You may not claim any sponsorship by, endorsement by, or affiliation with SPSS. (vi)You may use SPSS’s trademarks only to the extent that you are required to do so in order to comply with this Agreement and to identity SPSS as the owner of the Software Package in accordance with accepted trademark practice. Your use of any SPSS trademark does not give you any rights of ownership in that trademark. (vii)You may not use any SPSS trademark in connection with any Derivative Work.
3.Intellectual Property Rights. All rights relating to the Software Package that are not expressly
licensed pursuant to the Freeware License, whether now existing or hereinafter arising, are reserved for SPSS. Except where otherwise noted, all documentation and software included in the Software Package is copyrighted by SPSS. SPSS owns all rights, title and interest in and to the Software Package and each copy thereof, including without limitation, any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law and any and all other propriety rights, and any and all applications, renewals, extensions and restorations thereof, now or hereinafter in force and effect worldwide. You shall own all rights, title and interest in any Derivative Works created or prepared by you.
4.Release and Indemnification. You agree to release, defend, indemnify and hold harmless SPSS,
its officers, directors, employees, agents, independent contractors, attorneys, subsidiary corporations, affiliates, successors, assigns and any other affiliated persons or entities, from and against any and all liability, claims, actions or demands asserted by yourself or any other party resulting from or relating to your use or misuse of the Software Package. You hereby waive all laws that may limit the efficacy of such a release or indemnity.
5.Disclaimer of Warranties and Limitation of Liability.
(d) THE SOFTWARE PACKAGE IS LICENSED FREE OF CHARGE, AND THERE IS NO EXPRESS OR IMPLIED WARRANTY FOR THE SOFTWARE PACKAGE. SPSS PROVIDES THE SOFTWARE PACKAGE "AS IS," AND SPSS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH REGARD TO THE SOFTWARE PACKAGE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SOFTWARE PACKAGE IS WITH YOU AND ANY OF YOUR THIRD PARTY DISTRIBUTEES. SHOULD THE SOFTWARE PACKAGE PROVE DEFECTIVE, YOU AND YOUR THIRD PARTY DISTRIBUTEES ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU WILL DOWNLOAD AND/OR USE THE SOFTWARE PACKAGE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF THE SOFTWARE PACKAGE. SOME JURISDICTIONS DO NOT PERMIT DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY
FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. (e) UNDER NO CIRCUMSTANCES SHALL SPSS BE LIABLE TO ANY USER ON ACCOUNT OF SUCH USER’S USE OR MISUSE OF THE SOFTWARE PACKAGE. THIS LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY (EVEN IF SPSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE PACKAGE, FROM THE INABILITY TO USE THE SOFTWARE PACKAGE OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE PACKAGE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PROVIDED BY LAW. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. (f) THE WARRANTY DISCLAIMER AND LIMITS ON LIABILITY ARE FUNDAMENTAL REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPSS AND YOU. SPSS WOULD NOT BE ABLE TO PROVIDE THE PROGRAM WITHOUT SUCH LIMITATIONS.
6.Choice of Law, Jurisdiction and Venue. The parties hereby agree that the application hereto and
to the Base License Agreement of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to the conflict of laws provisions of Illinois or your actual state or country of residence. The state and federal courts in Illinois shall be the exclusive jurisdiction, forum, and venue to resolve any and all disputes arising out of or relating to this Agreement or the Freeware License set forth herein. You consent to personal jurisdiction and venue in state or federal court in Illinois.
7.Term and Termination.
The Freeware License granted hereunder is effective until this Agreement is terminated. You may terminate this Agreement at any time, with or without cause, by ceasing to use the Software Package, removing the Software Package from your computer, and discarding all copies of the Software Package. SPSS may terminate this Agreement at any time, with or without cause, in SPSS’s sole discretion. If you fail to comply with any of the terms of this Agreement, this Agreement shall automatically and immediately terminate. Upon termination of this Agreement, you agree to cease using the Software Package, remove the Software Package from your computer, and discard all copies of the Software Package. All provisions of this Agreement which, by their nature, extend beyond termination of this Agreement shall remain in effect until fulfilled and shall apply to respective successors and assigns. The termination of this Agreement shall not result in the termination of the Freeware Licenses held by any of your third party distributees who have agreed to be bound by the terms of this Agreement and the Freeware License set forth herein and who received rights to the Software Package pursuant to the terms hereof, so long as such third party distributees are in compliance with the terms of this Agreement.
8.Export Restrictions. You agree that you will not export or re-export the Software Package or
any of its underlying information or technology, whether by downloading or otherwise distributing the Software Package to any country, person, entity or end user subject to U.S.A. export restrictions, whether by reason of embargo or by designation on the U.S. Treasury Department’s list of specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By continuing to install or download the Software Package you are informing SPSS that you understand that SPSS is making the Software Package available to you in reliance on the information that you are not located in, under the control of, or a national or resident of any such country or designated on any such list or table and also that neither the U.S.A. Bureau of Export Administration nor any other Federal agency has suspended, revoked or denied your export privileges.
9.Miscellaneous. This Agreement represents the entire agreement between the parties with
respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, with regard to such subject matter. Any waiver of any provisions of this Agreement will be effective only if in writing and signed by SPSS. If for any reason a court of competent jurisdiction finds any provision or portion or this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.