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SUBSCRIPTION AGREEMENT FOR QUALITY TRAINER®
IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AS EITHER AN INDIVIDUAL OR ACTING ON BEHALF OF A BUSINESS ENTITY (“YOU” OR “YOUR”) AND MINITAB, LLC (“US”, “OUR”, “WE” OR “MINITAB”) GOVERNING YOUR SUBSCRIPTION TO THE SERVICE IDENTIFIED BELOW (“SERVICE”).
MINITAB WILL PROVIDE YOU ACCESS TO THE SERVICE ON A SUBSCRIPTION BASIS ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SUBSCRIPTION 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 A BUSINESS ENTITY AFFIRMS THAT HE OR SHE HAS BEEN AUTHORIZED BY THE BUSINESS ENTITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON ITS BEHALF.
SERVICE: web-based learning service known as Quality Trainer by Minitab and support.
TRIAL PERIOD SUBSCRIPTION: If accepting this Agreement for a trial subscription to the Service, the terms of this Agreement apply, provided, however, that the Service will cease to function at the expiration of Your trial period.
The terms of this Agreement do not apply if You and Minitab have entered into a separate, written agreement for the Service.
The term of Your subscription (“Subscription Term”) is listed in the purchase confirmation, receipt, and/or on the invoice You receive from Us. Any purchase order submitted by You is for Your convenience only and subject to section 11.9 herein.
1. Subscription and Restrictions
1.1. Services. During Your Subscription Term, We will provide You with access and use of the Service for Your internal business purposes.
1.2. Authorized Use. If You are a business entity, You may permit Your authorized employees and independent contractors (“Authorized Users”) to access or use the Service for Your internal business purposes only. You are responsible for any access or use of the Service by any Authorized User.
1.3. Restrictions. You shall not and shall not permit any third party to: (a) knowingly or intentionally permit access to or use of the Service by anyone other than Authorized 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 or non-public APIs 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. Subscription Fees
2.1. Fees and Payment. The subscription fee You pay as set forth on any invoice You receive from Us regarding the Service governs the maximum number of Authorized Users permitted for the applicable Subscription Term. The maximum number of Authorized Users of the Service may be increased during any Subscription Term by paying additional user fees for the time remaining in Your then-current Subscription Term. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and fees are non-refundable.
2.2. Payment Terms. Payment of Your subscription fee for the applicable Subscription Term is due upon commencement of the Service.
2.3. Taxes. Subscription fees are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency, including any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction (“Taxes”). You are responsible for paying all Taxes associated with Your purchase of a subscription under this Agreement. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Agreement, You shall pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Subscription Term; Renewal; Termination; Effect of Non-Renewal or Termination
3.1 Subscription Term; Renewal. Based on the type of subscription You have purchased subject to this Agreement, Your Subscription Term for the Service is:
- For a period of months, according to the length of the term You have purchased for a Term Subscription;
- One (1) year from the first day of the month following Your purchase of the Service for a One-Year Subscription; or
- For a period of three (3) years from the first day of the month following Your purchase of the Service for a Three-Year Subscription.
- A Three-Year Subscription fee is fixed during the three (3) year Subscription Term, and is paid in three (3) equal payments:
- At the time of Your initial purchase;
- One (1) year after the date of Your initial purchase; and
- Two (2) years after the date of Your initial purchase.
- You will only receive continued access to the Service upon payment of the subscription fee in accordance with section 3.1.iii.a above.
- You will only receive continued access to the Service if prior to expiration of a Subscription Term:
- We receive Your payment of the then-current subscription fee in accordance with the invoice We send You; or
- We receive a purchase order or other written or electronic confirmation, acceptable to Us, of Your intent to pay the then-current subscription fee in accordance with the invoice We send You.
- A late renewal of a subscription after expiration of a Subscription Term will be assessed a reactivation fee of 2% of the then-current subscription fee for the renewed Subscription Term or $750.00 USD, whichever is higher, and added into the renewal invoice We send You.
- A subscription has the option to renew for a One-Year or Three-Year Subscription by paying the applicable then-current subscription fee.
3.2. Termination by You. You may terminate the Service for convenience at any time upon written notice to Us. If You elect to terminate use of the Service for convenience:
- You will not be entitled to a refund of any portion of the subscription fee You have already paid; and
- You remain liable to pay Us any remaining payments due for a Three-Year Subscription in accordance with section 3.1.iii.
3.3. Termination by Us. We may immediately suspend or terminate the Service, in Our sole discretion, for failure to pay subscription fees or Your material breach of this Agreement.
3.4. Effect of Non-Renewal or Termination. Upon non-renewal of Your subscription or termination of this Agreement:
- All rights granted to You will terminate and You shall immediately cease access to and use of the Service;
- You will not be entitled to a refund of any portion of the subscription fee You have already paid;
- You remain liable to pay Us all applicable outstanding fees due as of the date of non-renewal or termination, including any remaining payments due for a Three-Year Subscription in accordance with section 3.1.iii.
4. Use of Service
4.1. Your Responsibilities. You are solely responsible for providing the necessary hardware and software environment as defined by the System Requirements to access and use the Service.
4.2. User ID and Login Security. Each named Authorized User must have a single unique User ID and Login password (“User Credentials”) and keep their User Credential information strictly confidential and not share such information with any unauthorized person. You are responsible for all activities that occur from use of such User Credentials. You must immediately notify Us of any unauthorized use of User Credentials or any other breach of security pertaining to Your access to the Service.
4.3. Service Availability and Uptime. Our service level commitment to You is set forth in the Service Level Agreement Terms.
4.4. Service Support. Minitab provides You, at no additional charge, reasonable amounts of technical support in accordance with Our published Support Policy.
4.5. Updated Terms. The Minitab Support Policy, Acceptable Use Policy and DPA may be updated from time to time upon reasonable notice to You (which may be provided through the Service) to reflect process improvements or changing practices. If You object to any update, then upon Your written objection, the previous version of such policy will govern through the end of Your then-current Subscription Term, and thereafter, any renewal will be governed by the then-current policy. You must object by emailing firstname.lastname@example.org within 10 days of being provided notice of the updated policy or You waive the right to object.
5. Proprietary and Ownership Rights; Your Content; Data Rights; Data Privacy
5.1. Ownership. The Service is the sole and exclusive property of Minitab, including, without limitation, all copyright, trademark, patent, trade secret, database, and other intellectual property and proprietary rights inherent therein or belonging thereto. This Agreement does not constitute a sale of the Service and no title or proprietary rights to the Service are transferred to You under this Agreement. 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”). You are responsible for entering or uploading all of Your Content in a format consistent with the Service documentation (or as otherwise specified by Us). Errors in loading Your Content into the Service due to defective media, erroneous data or failure to meet format requirements may cause Your Content to be rejected by the Service and We have no responsibility for any related impact on Your ability to access or use the Service. You acknowledge that Minitab is not responsible for and does not give any assurances to You or any other entity or person regarding the accuracy, quality, integrity, legality, reliability, appropriateness, validity, value, usefulness, or copyright of Your Content.
5.3. Your Content – Health Information. If You are a Covered Entity under the Health Insurance Portability and Accountability Act (as amended and supplemented, “HIPAA”), You shall not upload to the Service any patient, medical or other protected health information regulated by HIPAA or any similar federal, national or state laws, rules or regulations (“HIPAA Data”). Minitab has no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal, national, state laws, rules or regulations.
6. Data Processing; Acceptable Use
6.1. Processing of Your Content. You hereby grant Minitab and its subcontractors 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 solely to the extent necessary to provide You the Service, or as may be required by law. Minitab shall not use Your Content in any other manner except as expressly described in this Agreement.
6.2. Control of Your Content. 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. Location of Data Processing. Your Content may be transferred to, and processed in, the United States or any other country in which We or Our affiliates or subcontractors maintain facilities. You appoint Us to perform any such transfer of Your Content to any such country and process Your Content in order to provide the Services in compliance with the terms of this Agreement.
6.4. Data Processing of Personal Information in Your Content. Our Data Processing Agreement (“DPA”) or the Standard Contractual Clauses (“SCC”) applies to and governs all activities concerning the processing of personal data (as defined in the DPA or SCC) included in Your Content. By accepting this Agreement, each party is deemed to have signed the DPA or SCC, as “Controller” in the case of You, and as “Processor” in the case of Us.
6.5. Acceptable Use. Your use of this Service is governed by Our Acceptable Use Policy. In addition, You are also solely responsible for compliance with all applicable laws, including, without limitation, all applicable export, import, and data protection laws and regulations applicable to You and Your Content.
7.1. Indemnification by Us. We shall defend or settle at Our expense any third party claim brought against You alleging that the Service, 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. If any infringement claim with respect to Your access to, or use of, the Service may be or has been asserted, We shall, at Our option and expense, (a) procure the right to continue accessing and using the Service or (b) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance. If neither of (a) and (b) above are commercially feasible as determined in Our sole discretion, We may terminate this Agreement and Your subscription and refund to You the pro-rata amount of any prepaid fees for Your remaining then-current Subscription Term. We have no indemnity obligation to You to the extent any infringement or misappropriation claim results from (i) a correction or modification to the Service not provided by or on behalf of Us, (ii) materials provided by You in connection with requested customizations or modifications of the Service, (iii) Your Content, or (iv) use, combination, or incorporation of the Service, 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.
7.2. 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 the Service (except to the extent such use is included in Our indemnification obligation in section 7.1); (b) any product or service offered by You in connection with or related to Your use of the Service; (c) Your use, combination, or incorporation of the Service 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.
8. LIMITED WARRANTY
We warrant the Service will operate in substantial conformity with the applicable Service documentation. We will use commercially reasonable efforts to correct a reported non-conformity, at no charge to You, or if We determine that remedy to be impracticable or commercially unreasonable, either party may terminate the subscription and Minitab will refund any fees for prepaid but unused Service. The preceding sentence is Your sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (a) unless You make a claim within 30 days of the date on which You first noticed the non-conformity, or (b) when the non-conformity was caused by Your misuse, unauthorized modifications, or third-party hardware, software, or services.
9. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SERVICE 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. MINITAB DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OR ALL ERRORS OR REPORTED NON-CONFORMITIES IN THE SERVICE WILL BE CORRECTED. MINITAB SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO ANY THIRD PARTIES WITH WHOM YOU SEPARATELY CONTRACT. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. LIMITATION OF LIABILITY
10.1. Consequential Damages Waiver. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTIONS 1.3.C, 1.3.D, AND 1.3.F (RESTRICTIONS) AND SECTION 7 (INDEMNIFICATION), NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, 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.
10.2. Liability Cap. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTIONS 1.3.C, 1.3.D, AND 1.3.F (RESTRICTIONS) AND SECTION 7 (INDEMNIFICATION), EACH PARTY 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 (OR WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY YOU TO MINITAB UNDER THIS AGREEMENT ATTRIBUTABLE TO THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3. Failure of Essential Purpose. The limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1. Relationship of the Parties. The relationship between You and Minitab remains at all times non-exclusive, and nothing contained herein shall render or constitute the parties as joint ventures, partners, or agents of each other. No person or entity not a party to this Agreement has any right of action hereunder.
11.2. Assignment. This Agreement and access to the Service may not be resold, assigned or otherwise transferred by You to another person or entity without Our written consent, which consent shall not be unreasonably withheld.
11.3. Force Majeure. If a party cannot comply with this Agreement because of an event beyond its reasonable control (except for a failure to pay fees), then its performance under this Agreement (to the extent affected) will be suspended while the event occurs. In addition, We shall not be liable for failure to perform hereunder due to the inability of You, Us, 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 Our control or exercise of Our rights under this Agreement.
11.4. Government Use. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). Manufacturer/Contractor/Licensor is: Minitab, LLC, Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania 16801, USA.
11.5. 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 laws provisions. Venue will be exclusively in the state or federal 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.
11.6. 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.
11.7. Injunctive Relief. You acknowledge that the Service comprises unique, confidential and valuable assets and trade secrets of Minitab, and We have the right to obtain all equitable and legal redress that may be available for the breach or threatened breach of this Agreement or Our rights in the Service, including, without limitation, injunctive relief.
11.8. 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.
11.9. Priority. In the absence of a separate, written 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 Service 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.
11.11. 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 second 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.
11.12. Survival. All provisions that should survive, including Sections 2 (to the extent fees are due and owing), 3.4, 5, 7, 9, 10 and 11 survive the termination of this Agreement.