• LICENSE AGREEMENT FOR COMPANION BY MINITAB®

    IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSED ENTITY (“YOU”, “YOUR”, “LICENSED ENTITY”) AND MINITAB, INC. (“US”, “OUR”, OR “MINITAB”) GOVERNING THE USE OF THE SERVICE IDENTIFIED BELOW (“SERVICE”). MINITAB IS WILLING TO PROVIDE YOU ACCESS TO THE SERVICE ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU ACTIVATE OR OTHERWISE USE THE SERVICE, YOU AGREE TO BE BOUND BY ALL THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT ACTIVATE OR USE THE SERVICE.

    THE INDIVIDUAL ACCEPTING THIS AGREEMENT FOR THE LICENSED ENTITY AFFIRMS THAT HE OR SHE HAS BEEN AUTHORIZED BY THE LICENSED ENTITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON ITS BEHALF.

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

    SERVICE” is the Companion by Minitab platform, which operates using the Companion web app and Companion desktop app.

    TRIAL PERIOD LICENSE: If accepting this Agreement for a trial period of the Service, the terms of this Agreement apply, provided, however, that the Service will cease to function at the expiration of You trial period, and all of Your content will be deleted.

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

    1. Grant of License and Restrictions;

    1.1. Subject to the terms and conditions of this Agreement, Minitab hereby grants to You a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable license to access and use the Service for Your internal business purposes. All rights not expressly granted hereunder are reserved to Minitab.

    1.2. Authorized Use. Licensed Entity may permit any individual that is an authorized employee or independent contractor of Licensed Entity (each a “User” and collectively, “Users”) to access or use the Service and shall be responsible for any access or use of the Service by any User.

    1.3. Restrictions. You shall not: (a) knowingly or intentionally permit access to the Service by anyone other than Users; (b) copy the Service or any portion thereof; (c) translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Service; (d) modify, adapt, translate or create a derivative work from the Service; (e) remove any proprietary notices, labels, or marks on the Service; or (f) assign, sublicense, rent, transfer, publish, make available to third parties on a time-sharing or service bureau basis or otherwise make available for the benefit of third parties all or any part of the Service.

    2. Fees;

    2.1. The license fee You pay according to Our then-current Price List, or as set forth on any invoice You receive from Us regarding this Service, governs the maximum number of Users permitted to use the Service. The maximum number of Users of the Service may be increased during the Term(s) by paying additional fees for the time remaining in Your then-current Term.

    2.2. You shall, in addition to the fees required for the Service, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction(s) contemplated hereby, and You authorize Minitab to, at its option, invoice You for any such taxes that are due or may become due, excluding, however, income taxes on net profits which may be levied against Minitab.

    3. Initial Term; Renewal; Termination; Consequences of Termination;

    3.1. Initial Term. Your Initial Term ends one (1) year from the first day of the month following Your access to the Service, unless otherwise agreed upon, or unless earlier terminated by either party as provided under this Agreement.

    3.2. Renewal. This Agreement and Your access to the Service will automatically renew for additional one (1) year terms by paying the then-current annual license fee for the current maximum number of Users of the Service. The Service will cease to function after a period of one (1) year and You will only receive continued access to the Service upon Our receipt of Your payment of the then-current annual 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 annual license fee for the Service. All terms and conditions of this License Agreement will apply during the renewal term(s).

    3.3. Termination by Minitab. Minitab may immediately suspend or terminate, in Minitab’s sole discretion, this Agreement and Your access to the Service in the event that You fail to pay the applicable Fees or You materially breach this Agreement, which failure or breach is not cured by You within ten (10) days of receipt of written notice thereof.

    3.4. Termination by You. You may terminate this Agreement for convenience at any time upon written notice to Minitab, in which event You shall not be entitled to any refund of fees.

    3.5. Consequences of Expiration or Termination. Upon the expiration or termination of this Agreement, (i) all rights granted to You shall terminate; (ii) You will immediately pay Minitab all outstanding fees due as of the date of termination or expiration; (iii) Your Content will be deleted after sixty (60) days unless You have notified Us in writing to arrange for its retrieval (Minitab does not provide an archiving service for Your Content); and (iv) after deletion of Your Content, Minitab shall have no further responsibility or liability to You or any third party with respect to Your Content.

    4. Operating Environment; Service Availability/Credits; Security; Technical Support;

    4.1. You are solely responsible for acquiring, installing, operating, and maintaining the hardware and software environment necessary as defined by the system requirements provided by Minitab for You to access and use the Service.

    4.2. Service Availability and Uptime/Downtime. Minitab maintains applicable Service Level Agreements with the current host of the Service which, among other terms, guarantees Internet facing external connectivity at least 99.5% of the time and detection of role instances and successful processing of correctly formatted requests to add, update, read, and delete data 99.9% of the time outside of scheduled maintenance.

    4.3 Service Credits.
    (i) If the Service fails to meet any service level set forth in Section 4.2 above in any month due to unscheduled downtime, then You may submit a claim to Minitab, and, upon verification by Minitab, You may be entitled to a credit (“Service Credit”). The amount of Service Credit to which You shall be entitled shall be equal to the fees for the Service prorated for such month multiplied by the number of percentage points by which the Service failed to meet the service levels. By way of example, if the Service were available (external connectivity) only 99% of the time during a given month, then You would be entitled to a Service Credit of 0.5% of the license fees for that month.
    (ii) In order for Minitab to consider a claim for Service Credits, You must submit a claim to Minitab within thirty (30) days following the date of unscheduled downtime (“Incident”). The claim must include all reasonable details regarding the Incident, including but not limited to, detailed descriptions of the Incident, the duration of the Incident, and any attempts made by You to resolve the Incident. Minitab will use all information reasonably available to validate the claim and make a good faith judgment on whether the Service Credit should be awarded to You.
    (iii) All Service Credits awarded in accordance with this section shall either be (a) applied as a credit towards the fees due from You for Your next renewal Term, or (b) refunded to You within sixty (60) days after expiration of the then-current Term if You do not renew.
    (iv) For purposes of clarity, the sole remedy available to You for any interruption in the Service which is the responsibility of the host of the Service is a Service Credit as provided for in section 4.3 of this Agreement.

    4.4. Changes to Service. Minitab may change the service provider for the Service at any time in its sole discretion, so long as such new service provider can host the Service in a manner equal to or better than the previous service provider.

    4.5. User ID and Login Security. Each User must have a single unique User ID and Login password. You are responsible for maintaining the confidentiality of Your User ID and Login password, and shall be fully responsible for all activities that occur during use of such User ID and Login password. You agree to immediately notify Minitab of any unauthorized use of such User ID and Login password or any other breach of security pertaining to Your access to the Service.

    4.6. Technical Support. Minitab will provide You, at no additional charge, reasonable amounts of technical support in accordance with the then-current policies of Minitab.

    5. Proprietary and Ownership Rights; Data Rights; Data Privacy

    5.1. Ownership. The Service is and shall remain the sole and exclusive property of Minitab, regardless of the form or media in or on which the original or other copies may subsequently exist, including, without limitation, all copyright, trademark, patent, trade secret, database, and other intellectual property and proprietary rights inherent therein or appurtenant thereto. This Agreement shall not constitute a sale of the Service and no title or proprietary rights to the Service are transferred to You hereby. Minitab is the exclusive owner of all rights in any copy, translation, modification, adaptation, or derivation of the Service, including any improvement or developments thereof suggested by You.

    5.2. Your Content. You warrant that You are the owner of, or have obtained applicable permission to have and use, all the data and content that You enter or upload using the Service (collectively, “Your Content”). Minitab shall not use or disclose Your Content except to the extent necessary to provide the Service. Minitab will not access Your Content except as may be specifically requested by You when necessary to comply with the terms and conditions of this Agreement.

    5.3. Your Content – Health Information. Notwithstanding Your compliance with section 5.2 above, You will not submit to the Service any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledge that Minitab is not a Business Associate and that the Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability Act, as amended and supplemented. Minitab shall have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.

    5.4. Disclaimer of Responsibility for Your Content. You acknowledge that Minitab is not responsible for and does not give any assurances to You or any other entity or person with respect to the accuracy, quality, integrity, legality, reliability, appropriateness, validity, value, usefulness, or copyright of Your Content.

    5.5. Feature Data. Minitab collects Feature Data relating to Your use of the Service. Minitab 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 Service derived from use of the Service by You. Feature Data is only used by Minitab for purposes of evaluating improvements and enhancements to the Service.

    5.6. Location of Content and Data Processing. Your Content and Feature Data may be transferred to, and stored and processed in, the United States or any other country in which Minitab or its affiliates or subcontractors maintain facilities. You appoint Minitab to perform any such transfer of Your Content to any such country and to store and process Your Content in order to provide the Services in compliance with the terms of Our Privacy Policy.

    5.7. Privacy. You understand and agree that your use of this Service 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 Service is accessed.

    6. Warranties and Disclaimers;

    6.1. Data. You agree that You will not use the Service in any manner that violates the rights of any third party. By transmitting or allowing the transmission of any of Your Content on the Service, or by making Your Content available on the Service, You are deemed to grant Minitab and its hosting service provider a royalty free, irrevocable, non-exclusive, worldwide right to store, transmit, reproduce, distribute, display, and make available Your Content to You in whole or in part through the Service.

    6.2. Data Control and Processing. You acknowledge and agree that You are the controller of Your Content, including any personally identifiable information therein, and Minitab is the processor of Your Content. You acknowledge that Minitab specifically disclaims that it is a “data controller” and agree that Minitab is not acting as a “data controller” of any of Your Content under any data protection laws in which such definition of “data controller” or similar capacity may be found.

    6.3. Lawful Use. You shall use the Service only for lawful purposes and in conformance with this Agreement. You shall be solely responsible for compliance with all applicable laws, including, without limitation, all applicable export, import, and data protection laws and regulations relating to Your Content. Minitab, in its sole discretion, may, but has no obligation to, monitor any and all areas of the Service to oversee compliance with this Agreement, and You will inform Your Users that their use of the Service will constitute consent to such monitoring.

    6.4. Limited Warranty. Minitab represents and warrants to You that it will deliver the Service in a good and workmanlike manner consistent with the prevailing standards in the application service provider industry, and in substantial conformance with any Service documentation provided by Minitab. Minitab does not warrant that the Service will meet all of Your requirements or that its operation will be uninterrupted or error free, or that any or all defects in the Service will be corrected. Except for Minitab’s obligation regarding Indemnification in Section 7, Your sole and exclusive remedy for any breach of the foregoing Limited Warranty by Minitab shall be commercially reasonable efforts by Minitab to cure the breach, and failing such a cure, a pro-rata refund of any prepaid fees for the remaining then-current Term. This Limited Warranty does not extend to any claim to the extent resulting from (i) Your unauthorized modification of the Service; or (ii) use, combination, or incorporation of the Service in any manner for which it is not designed or permitted.

    For purposes of clarity, this Limited Warranty and the remedy available to You for breach thereof is directly related to interruption, errors, or defects in the Service, only; and the remedy available for You for any interruption in the Service which is the responsibility of the host of the Service is a Service Credit as provided for in section 4.3 of this Agreement.

    6.5. DISCLAIMER OF WARRANTTIES. THE LIMITED WARRANTIES CONTAINED IN THIS AGREEMENT ARE 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, USAGE IN THE TRADE, OR BY COURSE OF DEALING. THE SERVICE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, EXCEPT AS SET FORTH IN SECTIONS 6.3 AND 7.

    7. Indemnification;

    7.1. Minitab warrants that Minitab has the right to grant You this license to use this Service and Minitab shall defend, indemnify and hold You harmless from and against any and all loss, cost, expense and liability incurred in connection with any third party demands, assertions, claims, suits, action or other proceedings alleging that the Service infringes any third party’s intellectual property rights. If any infringement or misappropriation claim with respect to Your access to, or use of, the Service may be or has been asserted, Minitab shall, at its option and expense, (a) procure the right to continue accessing and using the Service, (b) replace or modify the Service to eliminate the infringement or misappropriation while providing functionally equivalent performance, or (c) if neither of options (a) and (b) are reasonably available, terminate this Agreement and provide a pro-rata refund of any prepaid fees for the remaining then-current Term. Minitab will have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (a) a correction or modification to the Service not provided by Minitab directly or through its authorized agents or subcontractors, (b) materials provided by You in connection with requested customizations or modifications of the Service, (c) Your Content, or (d) use, combination, or incorporation of the Service in any manner for which it is not designed or permitted. You acknowledge that this Section 7 states Your exclusive remedy and Minitab’s sole liability in connection with any claim of infringement or misappropriation.

    8. Limitation of Liability;

    8.1. EXCEPT FOR THE LIMITED WARRANTY PROVIDED FOR IN SECTION 6.3 (“Limited Warranty”) AND THE INDEMNIFICATION OBLIGATIONS PROVIDED FOR IN SECTION 7 (“Indemnification”), YOU AGREE THAT MINITAB SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES, CONSEQUENTIAL, SPECIAL, INCIDENTAL, SPECULATIVE, OR OTHERWISE, ARISING FROM USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, INTERUPPTION OF SERVICE, LOSS OF DATA, TIME, MONEY, OR GOODWILL, EVEN IF MINITAB WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    9. Miscellaneous;

    9.1. Relationship of the Parties. The relationship between Minitab and You hereunder shall at all times be non-exclusive, and nothing contained herein shall render or constitute the parties joint ventures, partners, or agents of each other. No person or entity not a party to this Agreement shall have any right of action hereunder.

    9.2. Assignment. You may not assign this Agreement to any third party without the prior written consent of Minitab, which consent shall not be unreasonably withheld.

    9.3. 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.

    9.4. Force Majeure. If either party cannot comply with this Agreement because of an event beyond its reasonable control, then its performance under this Agreement (to the extent affected) will be suspended while the event occurs. In addition, Minitab shall not be liable for failure to perform hereunder due to the inability of You, Minitab, or any other person to connect to the Internet, or any other failure or unavailability of the Service or Internet connectivity due to fiber optic cable cuts, interruption or failure of digital transmission links, hacker attacks, acts of God or nature, or any other cause beyond the control of Minitab or Minitab's exercise of its rights under this Agreement.

    9.5. Governing Law. 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 laws 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.

    9.6. Partial Invalidity. If any provision of this Agreement shall be 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 shall then appear. The total invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

    9.7. Governmental use, duplication, or disclosure of this Service 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.

    9.8. Injunctive Relief. You acknowledge that the Service comprises unique, confidential and valuable assets and trade secrets of Minitab, and Minitab shall have the right to obtain all equitable and legal redress which may be available to it for the breach or threatened breach of this Agreement or Minitab’s rights in the Service, including, without limitation, injunctive relief.

    9.9. 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 any Terms and Conditions You have submitted, or are contained in a purchase order for the Service You have submitted or may submit for future renewal fees or purchases. Any such additional or conflicting Terms and Conditions or terms are expressly rejected unless they have been specifically accepted and agreed to in writing by Minitab.

    9.10. Entire Agreement; Amendments. This Agreement supersedes all prior agreements, proposals, representations and communications between Minitab and You, pertaining to the matters addressed herein, and this Agreement comprises the entire understanding between Minitab and You. Any variation in the terms and conditions of this Agreement, in any document not signed by You and Minitab, shall be of no force or effect.

    9.11. Updated Terms. Notwithstanding section 9.10, We reserve the right to modify the terms of this Agreement at any time when necessary to account for Service 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 Service and/or renewal of the Service after Your receipt of Our notification regarding such modifications shall constitute Your acceptance of the modified terms of this Agreement.

    9.12. Survival. Sections 2, 3, 4, 5, 6, 7, 8, and 9 hereof shall survive the expiration or termination of this Agreement for any reason.

    BY CLICKING “ACCEPT” BELOW, THE INDIVIDUAL ACCEPTING THIS AGREEMENT FOR THE LICENSED ENTITY AFFIRMS THAT HE OR SHE HAS BEEN AUTHORIZED BY THE LICENSED ENTITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON ITS BEHALF.

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