JMP Software License Agreement

Important: Please carefully read the terms and conditions of this Software License Agreement before clicking “I agree.” By clicking “I agree”, you agree to the terms and conditions of the Agreement and JMP will authorize Users to use the Software.  If a company or institution is not identified in the Order Confirmation, you are “Customer.”  If a company or institution is identified in the Order Confirmation, such company or institution is “Customer.”   JMP utilizes a “Merchant of Record” (“Reseller”) for resale of your Subscription to you.  This means that you purchase your Subscription from Reseller, but JMP will grant Customer a license to use the Software pursuant to the terms and conditions of the Agreement.  You agree that you accept the Agreement on behalf of Customer.  You represent and warrant that you are at least eighteen (18) years of age and  that you have full authority to bind Customer to the Agreement.  If you do not wish to accept the terms of the Agreement, please do not click “I agree” and contact JMP.
Glossary

1. Subscription Grant; Usage Rights and Restrictions

1.1 Subscription Grant; Subscription Period.  Effective as of the Subscription Beginning Date, JMP grants Customer a license to use the Software, and, if applicable, Documentation during the Subscription Period.

1.2 Subscription Renewal. Each Subscription Period is annual. In order to provide Customer with uninterrupted access to the Software, at the end of the Initial Subscription Period and each subsequent Renewal Subscription Period, the Software license will renew automatically for one (1) additional Renewal Subscription Period unless: (a) either party provides written notice to the other party at least one (1) day prior to the end of the then-current Subscription Period that it intends not to renew; (b) Customer cancels its Subscription as provided in the online subscription management system maintained by JMP at least one (1) day prior to the end of the then-current Subscription Period; or (c) the Agreement is terminated as otherwise allowed herein.

1.3 User; Usage Rights; Benefit. If you are Customer, then “User” means you. If a company or institution is Customer, then “User” means each individual authorized by Customer to access the Software; provided, that each such User must be an employee or contractor of Customer.  User may use the Software only for the sole benefit of Customer in the Territory.  Customer will notify JMP in writing if access for a User is ended.  No refund will be provided for termination of User’s access to the Software. Nothing in the Agreement will be construed to give a User any rights beyond those expressly provided in the Agreement.

1.4 Restrictions.

1.5 Report Access. JMP recognizes that Customer or User may create reports using the Software that Customer or User makes available to other parties who may or may not be located in the Territory (“Report Access”). Such Report Access will not be deemed to be outside the Subscription as long as: (a) the reports are static (that is, a party other than Customer or User cannot manipulate the results or customize the reports); and (b) Customer complies with the terms of the User; Usage Rights; Benefit section.

1.6 Total User; Usage Calculation; Authorized Hardware; Operating System.  Subscription Fees are based on the total number of Users (not concurrent) who access the Software during an annual Subscription Period.  Each employee or contractor authorized by Customer to access the Software during a Subscription Period is deemed to be a User.  The Software may only be installed on Authorized Hardware.  Not all Software operates on all operating systems.

1.7 Location of Authorized Hardware and Users. Customer and its Users must control the Authorized Hardware.  All Authorized Hardware must be located in the Territory and Users must use the Software in the Territory.  However, this provision is not intended to prevent Users from traveling temporarily outside the Territory with personal computers on which the Software is installed.

1.8 Activation Code.  JMP is not required to provide the Activation Code(s) if Customer (a) is in breach of the Agreement or (b) has not paid all Subscription Fees or other amounts due under the Agreement.   JMP is not liable for damages caused by the resulting Software interruption.  Only Customer or the authorized User may access the Activation Codes.  Customer agrees that the Activation Codes are JMP’s confidential and proprietary information.

2. Fees; Payment; Taxes

2.1 Fees. Subscription Fees are based on the applicable pricing metric and usage rights set forth in the Agreement.  Initial Subscription Fees and the total number of authorized Users are listed in the Order Confirmation.  Renewal Subscription Fees may differ from the Initial Subscription Fees.  JMP will use reasonable efforts to notify Customer of any changes in upcoming Renewal Subscription Fees by email sent to the email address associated with Customer’s Subscription prior to the Renewal Subscription Period when such Renewal Subscription Fees will take effect.

2.2 Payment. Customer will pay Subscription Fees to Reseller in accordance with Reseller’s policies and procedures.

2.3 Refunds. Except as expressly provided in this Software License Agreement, JMP will only honor Customer’s request for cancellation and refund if Customer ordered the Software incorrectly and is working to purchase a license for the proper JMP software via another channel.  Reseller’s terms and conditions regarding refund and cancellation also apply to each Subscription.  JMP may designate an affiliate or a third party to invoice and/or collect payment on its behalf.

2.4 Taxes. Subscription Fees do not include taxes.  JMP, in coordination with Reseller, will use reasonable efforts to include applicable taxes in the Order Confirmation.  Customer is responsible for taxes on its Subscription, except for taxes based on JMP’s income.  Customer will self-assess and pay any VAT, GST or sales tax applicable to Customer’s use of the Software outside of the US and not included on the Order Confirmation or the invoice, as applicable.

2.5 Third Party Payments. At JMP’s discretion, Customer may designate a third party to make payments on Customer’s behalf.  However, under no circumstances shall JMP access or use any payment or invoicing portal.  Payment of all Fees remains Customer’s ultimate responsibility.

3. Technical Support

3.1 General. Standard technical support for any Software is included during the Term, as documented at jmp.com/support, which may be updated from time-to-time. It may not be possible for JMP to solve all problems or correct all errors in the Software.

Technical support also includes access to all new releases, updates, bug-fixes, security patches and other corrective code that JMP makes generally available.  Customer agrees to use reasonable efforts to install such content for Software. If Customer chooses not to install the current release of the Software, the level of technical support will diminish over time. During ongoing development, JMP may rename Software or add, change or delete individual components or functionality in new releases of the Software.

3.2 Customer Contacts and Notification. Customer must establish knowledgeable technical contacts who are qualified to provide JMP with information necessary for JMP to diagnose and remedy any problems. When requesting technical support, Customer will notify JMP of any modifications to the Software not made by JMP. Failure to comply with these terms may result in longer response and resolution times.

4. Intellectual Property

The Agreement does not transfer any ownership rights. JMP and its licensors retain title to the Software and Documentation. The Software source code is a JMP trade secret. Customer and Users will not access source code or attempt to reverse engineer, reverse assemble or decompile the Software.  Customer and Users will not remove any copyright or proprietary rights notice from any Software.

The Agreement does not limit any rights Customer may have under any open-source license covering any open-source component included in the Software.  However, the Agreement does not grant Customer or any other entity any type of right or authorization to cause any part of the Software to become subject to the terms of an Excluded License.

5. Preproduction Offerings

5.1 Preproduction Offerings. During the Term, JMP may give Customer the opportunity to preview Preproduction Offerings at no cost to Customer so that Customer may provide feedback to JMP.  No additional Subscription is required for Customer to preview a Preproduction Offering, regardless of whether the Preproduction Offering is a version of production software that Customer has ordered via a Subscription or separate technology.  Customer will not use Preproduction Offerings for production purposes.

5.2 No Warranty.  JMP PROVIDES PREPRODUCTION OFFERINGS “AS IS.” JMP’s warranties and indemnification obligations set forth in the Agreement do not apply to Preproduction Offerings.  JMP does not guarantee that any Preproduction Offering or functionality will be made generally available.

5.3 Disclaimers.  NEITHER CUSTOMER, JMP, NOR JMP’S THIRD-PARTY LICENSORS ARE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR RELIANCE DAMAGES (ARISING IN TORT, CONTRACT OR OTHERWISE) RELATED TO ANY PREPRODUCTION OFFERING, EVEN IF THEY HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.  JMP AND JMP’S THIRD-PARTY LICENSORS ARE NOT LIABLE FOR ANY THIRD-PARTY CLAIMS AGAINST CUSTOMER RELATED TO A PREPRODUCTION OFFERING.  THE PARTIES MAKE THESE EXCLUSIONS IN CONSIDERATION OF THE LICENSES GRANTED UNDER THE AGREEMENT.

6. JMP Warranties and Disclaimers

6.1 JMP Warranties; Remedies.

6.2 WARRANTY DISCLAIMERS. JMP AND ITS THIRD-PARTY LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.  JMP MAKES NO WARRANTY THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.  JMP DOES NOT WARRANT OR REPRESENT THAT CUSTOMER’S USE OF THE SOFTWARE WILL RESULT IN CUSTOMER’S COMPLIANCE WITH ANY APPLICABLE LAW.

7. Exclusion of Damages; Limitation of Liability

7.1 Exclusion of Damages. Neither Customer, JMP, nor JMP’s third party licensors are liable for special, incidental, indirect, consequential, punitive, or reliance damages (arising in tort, contract or otherwise), even if they have been informed of the possibility of such damages.  Neither JMP nor JMP’s third party licensors are liable for any third-party claim against Customer.  JMP’s third-party licensors are not liable for any direct damages.

7.2 Limitation of Liability. THE TOTAL AMOUNT CUSTOMER MAY RECOVER FROM JMP FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT IS LIMITED IN THE AGGREGATE TO THE SUBSCRIPTION FEES CUSTOMER PAID FOR THE SUBSCRIPTION AT ISSUE DURING THE APPLICABLE ANNUAL SUBSCRIPTION PERIOD IN WHICH THE CLAIM AROSE.

7.3 Applicability. This Exclusions of Damages and Limitation of Liability section does not apply to the Indemnification by JMP section, the Indemnification by Customer section, or to either party’s violation of the other party’s intellectual property rights.  The limitations in this Exclusions of Damages and Limitation of Liability section will apply even if any of the remedies provided in the JMP Warranties and Disclaimers section fail of their essential purpose.  Some jurisdictions do not allow limitations of liability or exclusions of certain types of damages so certain provisions of this Exclusions of Damages and Limitation of Liability section may not apply to Customer.  However, the provisions apply to the greatest extent permitted by applicable law.

8. Indemnification

8.1 Indemnification by JMP. Provided Customer complies with the Agreement, JMP will defend and indemnify Customer for any third-party claim against Customer for: (a) any copyright, patent, trade secret or other intellectual property rights violation relating to the Software; or (b) damage to tangible property arising solely from actions for which JMP is legally responsible.  Tangible property does not include software or data.  Customer will promptly notify JMP in writing of any such claim.  Customer will allow JMP to control the litigation or settlement of any such claim and will cooperate with JMP in the investigation, defense and settlement.  JMP will indemnify Customer by paying for the costs and attorneys’ fees Customer incurs at JMP’s direction and any judgment finally awarded against Customer or settlement approved by JMP.  Customer may participate at Customer's own expense.

If any intellectual property claim is made or, in JMP’s opinion, is likely to be made, JMP may: (i) modify the Software; (ii) obtain rights for Customer to continue using the Software; or (iii) terminate Customer’s Subscription and refund any Subscription Fees paid by Customer for the Software for the then-current annual Subscription Period.  Customer will abide by JMP’s decision.

JMP’s indemnification obligation does not apply to claims based on: (1) Customer’s combination of the Software with other software or materials; (2) Customer’s modification to the Software; or (3) prior versions of the Software if Customer had not installed the latest version or updates to the Software prior to the date the claim arose as instructed by JMP.

8.2 Indemnification by Customer.  Customer will indemnify JMP for any claim made against JMP arising from or relating to Customer’s violation of its obligations in the Customer Responsibilities section or the Export and Import Restrictions section of this Software License Agreement.

9. Termination

If a party breaches the Agreement, the other party may terminate the Agreement if the breach has not been cured after thirty (30) days’ written notice; provided, however, JMP may terminate the Agreement immediately if Customer breaches the Restrictions subsection or the Export and Import Restrictions subsection.  JMP may also terminate the Agreement immediately if Customer violates JMP’s intellectual property rights or if Customer’s credit card is declined.  Customer may terminate its Subscription at any time by visiting the online subscription management system maintained by JMP, as defined in the Order Confirmation.  Once the Subscription is terminated, JMP will convey such information to Reseller and Customer’s credit card will not be charged for any upcoming Renewal Subscription Fees.   Obligations in the Agreement that by their nature are continuing will survive termination or expiration.  If the Agreement terminates or expires, Customer will stop using the Software and delete any media or Documentation provided by JMP.  Except as otherwise allowed herein, no refunds will be provided upon termination.

10. Confidential Information

Each party acknowledges that it may have access to certain Confidential Information.  The recipient will use the discloser’s Confidential Information only to perform its obligations under the Agreement.  JMP may also use Customer’s Confidential Information to provide Customer sample analysis for other JMP products, including products that are in preproduction and not generally available. Recipient will not disclose discloser’s Confidential Information received in connection with the Agreement to any third parties without discloser’s prior written approval.  This restriction does not apply to information that is: (a) generally available to the public; (b) released by discloser without restriction; (c) independently developed or acquired by recipient; (d) known to the recipient prior to receipt from discloser; or (e) revealed pursuant to court order or as required by applicable law; provided, that recipient uses reasonable efforts to promptly notify discloser of such requirement prior to compliance in order to permit discloser to seek protection against disclosure. JMP may also report the terms of the Agreement to JMP’s third-party licensors and partners solely as required by agreements between JMP and its third-party licensors and partners.  Recipient’s obligations of confidentiality for each item of discloser’s Confidential Information will continue for five (5) years from the date of initial disclosure.  However, confidentiality obligations for Personal Data or source code will not expire.  For the purpose of this Confidential Information section, JMP’s affiliates and subcontractors are not “third parties.” Neither party will disclose source code.

11. Data Protection and Personal Data

Customer will not disclose or transmit Personal Data to JMP other than in connection with Software usage validation unless: (a) specifically authorized by the Agreement; or (b) required for technical support.  The JMP Data Processing Addendum available at jmp.com/dpa will apply to JMP’s processing of Personal Data.

To the extent applicable, JMP will also comply with the SAS Privacy Statement available at jmp.com/privacy, which is subject to change at JMP’s reasonable discretion.  Changes will not result in a material reduction to the level of protection provided by JMP for any Personal Data during the Term.

12. Applicable Law

12.1 Governing Law. The laws of New York, excluding choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods, govern the Agreement.

12.2 Arbitration. All disputes arising out of or in connection with the Agreement, including any dispute as to the validity and enforceability of this arbitration clause, will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) by three (3) arbitrators.  Each party will appoint one (1) arbitrator and the third arbitrator will be appointed by the first two (2) arbitrators.  The tribunal will not award any punitive or exemplary damages or any remedies greater than those allowed by the Agreement.  Notwithstanding Article 38 of the Rules, each party will bear its own costs.  The parties will share equally in the compensation and expenses of the arbitrators and the ICC administrative fees.  The seat of the arbitration will be New York, New York, and the arbitration will be conducted in English. For clarification, the Governing Law section of this Software License Agreement establishes the substantive law applicable to the Agreement.  The terms in this Arbitration section will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act. This Arbitration section does not prevent the parties from applying to a court of competent jurisdiction for temporary or preliminary injunctive relief, without breach or waiver of this Arbitration section and without abridging the powers of the tribunal.

12.3 Export and Import Restrictions. US export laws and regulations apply to the Software and any other JMP-provided technology (“Controlled Material”).  The Controlled Material originates from the United States.  Both parties agree to comply with these and other applicable export and import laws and regulations, except as prohibited or penalized by law (“Trade Law”).  Customer warrants that Customer and its Users are not: (a) prohibited by Trade Law from accessing Controlled Material without US government approval; (b) located in or under control of any country or other territory subject to general export or trade embargo under Trade Law; or (c) engaged in any of the following end-uses: nuclear, chemical or biological weapons; nuclear facilities not under International Atomic Energy Agency safeguards; missiles or unmanned aerial vehicles capable of long-range use or weapons delivery, military training or assistance, military or intelligence end-use in Russia or in any country in Country Group D:5 of the United States Export Administration Regulations; deep water, Arctic offshore or shale oil or gas exploration involving Russia or Russian companies, or Russian energy export pipelines. United States export classification information for JMP software is available at jmp.com/export.

12.4 Additional Terms.  If Customer is an individual or entity located outside of the US, any applicable provisions of the Country Specific Terms available at jmp.com/country-specific-terms will apply.   In the event of a conflict between the Country Specific Terms and these Universal Terms, the Country Specific Terms will control.

13. General

13.1 Subcontracting. JMP may subcontract its performance under the Agreement. However, such subcontracting arrangement does not relieve JMP of its obligations to Customer under the Agreement.

13.2 Identification Number.  Customer hereby acknowledges and agrees that the Software contains the capability to generate a random, unique number for Customer’s computer (“Identification Number”) and to transmit the Identification Number and the corresponding Activation Code to JMP during activation.  JMP will use this information to limit multiple activations of the Software using the same Activation Code.   Customer’s personal information will not be sent or stored during activation.   As used in this Identification Number section, the term “JMP” may include JMP’s contractors who are performing services for the benefit of JMP.

13.3 Customer Responsibilities.  Customer will: (a) verify the accuracy of its data input and output while using the Software; (b) duplicate, document and protect all data and software Customer uses with the Software; (c) inform all Users of the relevant terms of the Agreement and be responsible for their adherence to such terms; (d) keep records of where any Software is installed and used; and (e) keep records of the extent of usage of the Software relative to the applicable pricing metrics and usage rights and provide a copy of such records to JMP upon request; and (f) use the Software consistent with the JMP Responsible Use Policy, available at www.jmp.com/responsibleuse.

13.4 Customer Feedback.  JMP may use any feedback related to any Software or Preproduction Offering in any format and any ideas, concepts, know-how, formulas, designs, improvements, inventions, techniques or processes contained in that feedback, whether or not patentable.

13.5 Severability. If a court of competent jurisdiction finds any part of the Agreement unenforceable, that part will be excluded, but the remainder remains in full force and effect.

13.6 No Waiver. Failure to require compliance with a part of the Agreement is not a waiver of that part. Nothing in the Agreement waives any remedy JMP may have under the Agreement at law, in equity, or otherwise.

13.7 Non-Assignment. Customer will not assign the Agreement or any of its rights or obligations, whether by means of merger, consolidation, sale of assets, dissolution, operation of law, or any other manner, without JMP’s written permission.  If Customer attempts to assign the Agreement in violation of this Non-Assignment section, that assignment is void and is a material breach of the Agreement.  However, JMP may assign the Agreement to any affiliate or in connection with a merger, acquisition or asset sale. JMP will use reasonable efforts to provide notice to Customer of such assignment.

13.8 Audit. Upon thirty (30) business days’ notice to Customer, JMP may conduct an audit during Customer’s normal business hours to verify Customer’s compliance with the Agreement. If the audit reveals that Customer owes additional Subscription Fees, Customer will pay the amounts owed.

13.9 Injunctive Relief. Because monetary damages are inadequate to remedy a breach of JMP’s or its third-party licensors’ intellectual property rights, JMP may protect those intellectual property rights through temporary restraining orders or injunctions without posting bond.

13.10 Updates to Terms.  JMP may change the terms of the Agreement, including, without limitation, the URLs listed in this Software License Agreement or incorporated into the Agreement from time-to-time.   However, if the change results in a material degradation of Customer’s rights under the Agreement, JMP will provide Customer with written notice of the change by posting the notice on jmp.com/contract-archive.

13.11 English Language.  The Agreement and all related notices and documents will be in the English language.  Nothing will be construed against the drafter of the Agreement based solely on the choice of language.  JMP may make the Agreement available in other languages for Customer’s convenience. However, the English version controls unless otherwise required by applicable law.  JMP does not guarantee the accuracy, reliability, or correctness of any translated information, and JMP is not responsible for any errors or omissions caused by translation.

13.12 Complete Agreement; Modifications. The Agreement is the parties’ complete statement relating to its subject matter. The Order Confirmation may contain additional terms and conditions.  In the event of a conflict between the terms and conditions of this Software License Agreement and the terms and conditions of the Order Confirmation, the terms and conditions of this Software License Agreement will control.  No modifications by Customer to the Agreement will be accepted. JMP rejects any additional or conflicting terms on purchase orders or other purchasing documents. The individual accepting the Agreement by clicking “I agree” represents that he or she has authority to enter into the Agreement. Except as set forth in the Updates to Terms section, the Agreement may not be modified by any side agreement or arrangement between JMP and Customer, written or oral, that purports to modify the Agreement and is not accepted in writing by an authorized representative of both parties.

For the avoidance of doubt, notwithstanding any clickwrap or click-through license terms that must be approved to register, download, or access a website or portal for registration as a Customer vendor or for any other purpose (collectively, “Customer Portal Terms”), the parties acknowledge and agree that: (a) Customer Portal Terms apply solely to JMP’s use of any such portal; (b) Customer Portal Terms do not form part of, and are not incorporated into, the Agreement; and (c) no provisions in any Customer Portal Terms will supersede or replace any of the terms and conditions of the Agreement.

By clicking “I agree” and/or by using the Software, you agree to abide by the terms and conditions of the Agreement and to the following:

Age Requirements for Use of the Software.  If you are under the age of eighteen (18), you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand and agree to these terms and conditions.

Glossary

These defined terms are used in the Software License Agreement and the Order Confirmation.  JMP may define additional terms in the Order Confirmation.

1. “Activation Code” means the component of the Software that enables the Software to operate for the applicable subscription period.

2. “Agreement” means the collective set of terms identified in this Software License Agreement and the Order Confirmation.

3. “Authorized Hardware” means personal computer hardware.

4. “Confidential Information” means confidential information of the other party that is either marked as confidential or should be reasonably understood to be considered confidential due to its nature. Confidential Information includes source code, Personal Data, and the Activation Code.

5. “Documentation” means the official user documentation that JMP may make available for Software either via jmp.com/support or a portal provided by JMP.

6. “Excluded License” means any software license that requires as a condition of use, modification or distribution of software subject to the license, that it or other software combined or distributed with it be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.

7. “Initial Subscription Fees” means the Subscription Fees set forth in the Order Confirmation for the Initial Subscription Period.

8. “Initial Subscription Period” means the initial Subscription Period identified in the Order Confirmation.

9. “JMP” means JMP Statistical Discovery LLC.

10. “Personal Data” means information relating to an identified or identifiable natural person.

11. “Preproduction Offering” means JMP software, including its embedded subcomponents, that is not generally available.

12. “Renewal Subscription Fees” means the Subscription Fees payable by Customer to Reseller for each Renewal Subscription Period.

13. “Renewal Subscription Period” means each subsequent annual Subscription Period following the Initial Subscription Period during which the Software license is renewed under the Agreement.

14. “SAS” means SAS Institute Inc., an affiliate of JMP.

15. “Software” means the JMP software identified in the Order Confirmation, including its embedded subcomponents.

16. “Subscription” means the license to use the Software and Documentation granted by JMP pursuant to the terms and conditions of the Agreement.

17. “Subscription Beginning Date” means the later of the date (i) you click “I agree” to the terms of the Agreement or (ii) the Subscription Fees are received by the Reseller.

18. “Subscription Fees” means the fees that Customer will pay to Reseller for the Subscription.

19. “Subscription Period” means each annual period during which Customer is authorized to use the Software under the Agreement, including the Initial Subscription Period and each Renewal Subscription Period.

20. “Term” means the Initial Subscription Period together with all Renewal Subscription Periods, if any.

21. “Territory” means the country identified in the Order Confirmation.