IMPORTANT - READ CAREFULLY PRIOR TO ACCESSING THIS SERVICE ON YOUR COMPUTER: This is a legal agreement between "You" (either an individual or single legal entity) and Minitab, Inc. (“Minitab”) governing the use of this Service, which is hosted by Minitab. By clicking the "ACCEPT" button, You agree to the terms of this Agreement. By clicking the "CANCEL" button, You do not agree to the terms of this Agreement and You are prohibited from accessing this Service; and You may contact Minitab if You are entitled to any applicable refund in accordance with Our refund policy.
Minitab Services Provider Agreement for Quality Trainer® Minitab is the developer and owner of this web-based learning service known as Quality Trainer by Minitab® (the "Service"), which Service Minitab hosts and makes available for its customers to access and use remotely over the Internet. You ("You" or "Your") desire to access and use the Service remotely over the Internet.
1. Registration and Use of Service.
1.1 Registration of Service (Subscription). Upon Your provision to Minitab of accurate and complete registration information, Minitab shall provide You access and use of the Service in accordance with the terms of this Agreement, along with a Subscription Key providing access equal to the number of Users (as defined in Section 2.1) for which You have paid the applicable Fees as set forth in Section 2.3. You shall promptly update such registration information as changes occur. Minitab reserves the right to restrict or decrease the number of Users.
1.2 Subscription Key. To use a Subscription Key, each User must have a single unique User ID and Login password. You are responsible for maintaining the confidentiality of Your Subscription Key, 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.
1.3 Unauthorized Use. You shall not permit any individual or entity that is not an authorized User to use the Service and shall be responsible for any access or use of the Service by You or any person or entity using a password provided by Minitab to You, whether or not such access or use has been authorized by You. You shall inform all Users that their use of the Service is subject to the terms and conditions set forth in this Agreement or on the web site from which the Service is accessed. Minitab shall have the right, in its sole discretion, to deactivate, change and/or delete access of Users who have violated any such terms or conditions.
1.4 Operating Environment. You are solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to access and use the Service.
1.5 Changes to Service. Minitab may upgrade, modify, change or enhance the Service and convert You to a new version thereof at any time in its sole discretion.
2. Users; Restrictions; Fees.
2.1 Number of Users - Scope of Use. Subject to the terms and conditions of this Agreement, including, without limitation, Section 2.2 hereof and Your payment of all applicable Fees, Minitab hereby grants to You a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable license , during the Term, to access and use the Service for Your internal business purposes, only for the number of Users for which the Fees have been paid.
2.2 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.
2.3 Fees. You shall pay Minitab the amounts set forth on the order page based on the number of Users for which the Service is purchased (the "Fees"). The Fees must be paid before Minitab will grant access to the Service. The Fees may be modified or increased at Minitab's election from time to time upon reasonable notice to You. You shall, in addition to the Fees required hereunder, 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 or charge your credit card 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. Proprietary and Ownership Rights.
3.1 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.
3.2 Lawful Use. You shall use the Service only for lawful purposes and in conformance with this Agreement. 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.
4. Service Data; Service Data Processing.
4.1 Service Data. Minitab collects Service Data relating to Your use of the Service. “Service Data” means user progress tracking data, page visits, scoring, and usage information of the features of the Service derived from use of the Service by You.
4.2 Service Data Processing. You acknowledge and agree that Minitab is the processor of Your Service Data. By transmitting or allowing the transmission of any of Your Service Data on the Service, or by making Your Service Data 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 Service Data to You in whole or in part through the Service.
4.3 Location of Service Data. Your Service 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 Service Data to any such country and to store and process Your Service Data in order to provide the Services.
5. Disclaimer of Warranty.
5.1 DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED WITH NO WARRANTY WHATSOEVER. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. MINITAB MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. MINITAB EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT.
6.1 Indemnification. You agree to defend, indemnify and hold harmless Minitab, its parent, subsidiaries, affiliated companies, and their directors, officers, agents and employees (collectively, the "Indemnified Parties"), with respect to any claim, demand, cause of action, debt, liability and expense (including reasonable attorneys' fees, costs and expenses) arising from breach of this Agreement by You or by any of Your agents, employees or Users, or in connection with Your or any User's use of the Service, whether or not such use was authorized by You. You also agree to defend, indemnify and hold the Indemnified Parties harmless from any claims made against them by a User. Minitab reserves the right to approve Your counsel to defend any such claims, which approval will not be unreasonably withheld, and to approve any settlement agreement. Minitab also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder.
7. Limitation of Liability
7.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL MINITAB BE LIABLE FOR
ANY LOSS OR DAMAGES, CONSEQUENTIAL, SPECIAL, INCIDENTAL, SPECULATIVE, OR OTHERWISE, OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT, OR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF INFORMATION OR DATA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO TORT (INCLUDING NEGLIGENCE) , CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR OTHERWISE. THE AGGREGATE LIABILITY OF MINTAB FOR ANY OTHER DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, OR USE OF THE SERVICE, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNTS RECEIVED BY MINITAB FROM YOU RELATING TO YOUR USE OF THE SERVICE DURING THE CALENDAR QUARTER DURING WHICH SUCH CLAIM ACCRUED.
8. Term and Termination; Deletion of Service Data
8.1 Term; Termination. The term of this Agreement (the "Term") shall commence on Your purchase of a Subscription to use the Service and shall continue for the term of Your Subscription as specified on the order page (e.g., one month), unless terminated earlier as set forth herein. Minitab may immediately terminate this Agreement and the Service in the event that You or any User breaches any obligation, warranty, representation or covenant under this Agreement. Minitab may otherwise terminate this Agreement and the Service for any reason or no reason upon thirty (30) days written notice to You. If timely payment is not received when due, Minitab reserves the right to either suspend or terminate Your or each User's access to the Service. You may terminate this Agreement for any reason or no reason upon written notice to Minitab. Upon termination or expiration of this Agreement for any reason, the License and the Service shall terminate, You will be obligated to pay any and all Fees due hereunder up through the date of such termination or expiration and Minitab shall have no further obligations to You. Sections 2.3, 3, 4, 5, 6, 7, and 8 hereof shall survive the expiration or termination of this Agreement for any reason.
8.2 Deletion of Service Data. Upon the expiration or termination of this Agreement, Your Service Data 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 Service Data); and after deletion of Your Service Data, Minitab shall have no further responsibility or liability to You or any third party with respect to Your Service Data.
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.