• SUBSCRIPTION AGREEMENT FOR COMPANION BY MINITAB®

    IMPORTANT – READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AS EITHER AN INDIVIDUAL OR SINGLE LICENSED ENTITY (“YOU”, “YOUR”, “LICENSED ENTITY”) AND MINITAB, LLC (“US”, “OUR”, “WE” OR “MINITAB”) GOVERNING THE USE OF THE SERVICE IDENTIFIED BELOW (“SERVICE”).

    MINITAB WILL PROVIDE YOU ACCESS TO THE SERVICE 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 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 SUBSCRIPTION 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 component, and upon download and local installation, the optional Companion by Minitab desktop app component.

    TRIAL PERIOD SUBSCRIPTION: 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 agreement executed by You and Minitab.

    The type of subscription You have subject to this Agreement (“Annual” or “Three Year Annual”) is listed in the purchase confirmation, receipt, and/or on the invoice You received from Us.

    1. Subscription and Restrictions

    1.1. Based on the type of subscription You have purchased subject to this Agreement, You are granted a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable subscription to access and use the Service for Your internal business purposes. All rights not expressly granted hereunder are reserved to Minitab.

    1. Along with access to the Service, You have been provided an option to download and locally install the Companion by Minitab desktop app component. You understand and agree that upon download and installation the Companion by Minitab desktop app component becomes part of the Service subject to the terms of this Agreement.

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

    2.1. The subscription fee You pay as set forth on any invoice You receive from Us regarding this Service, governs the maximum number of subscribed simultaneous Users permitted. The maximum number of subscribed simultaneous Users of the Service may be increased during the Term(s) of this subscription by paying additional User fees for the time remaining in Your then-current subscription Term.

    2.2. All subscription fees are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency.

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

    3.1. Subscription Term. Based on the type of subscription You have purchased subject to this Agreement, Your Term for the Service ends:

    1. One (1) year from the first day of the month following Your purchase of the Service, if You have an Annual Subscription.
      1. An Annual Subscription may be renewed for additional one-year terms by paying the then-current annual subscription fee for the current maximum number of subscribed simultaneous users of the Service; and
      2. You will only receive continued access to the Service upon Our receipt of Your payment of the then-current annual subscription 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 subscription fee.
    2. Three (3) years from the first day of the month following Your purchase of the Service, if You have a Three Year Annual Subscription.
      1. A Three Year Annual Subscription fee is fixed during the three (3) year term, and is paid in three (3) equal payments:
        1. At the time of Your initial purchase;
        2. One (1) year after the date of Your initial purchase; and
        3. Two (2) years after the date of Your initial purchase.
      2. You will only receive continued access upon payment of the subscription fee in accordance with section 3.1.i.b. above; and
      3. A Three Year Annual Subscription may be renewed for additional three (3) year terms by paying the then-current Three Year Annual Subscription fee for the current maximum number of subscribed simultaneous users of the Service; in accordance with section 3.1.i.b. above.

    3.2. Termination by You. You may terminate this Agreement and Your subscription for convenience at any time upon written notice to Minitab, If You elect to terminate access and use of the Service:

    1. You will not be entitled to a refund of any portion of the subscription fee You have already paid; and
    2. You remain liable to pay Us any remaining payments due in accordance with 3.1.i.b. for a Three Year Annual Subscription.

    3.3. Termination by Minitab. Minitab may immediately suspend or terminate, in Our sole discretion, this Agreement, Your subscription, and Your access to the Service in the event that You fail to pay the applicable Fees or You materially breach this Agreement.

    3.4. Consequences of Non-Renewal or Termination. Upon the expiration of your right to access or use the Service due to non-renewal, or, termination of this Agreement:

    1. All rights granted to You shall terminate;
    2. You will immediately pay Us all applicable outstanding fees due as of the date of termination or expiration;
    3. 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
    4. 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 Us for You to access and use the Service.

    4.2. Service Availability and Uptime/Downtime. We maintain 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.

    1. 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 Us, and, upon Our verification, 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 subscription fees for that month.
    2. In order for Us to consider a claim for Service Credits, You must submit a claim to Us 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. We 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.
    3. 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.
    4. 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 this section 4.3.

    4.4. Changes to Service. We may change the service provider for the Service at any time in Our 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 Us 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 Our published Support Policy.

    4.7. Error Classification. For purposes of this section an “Error” is defined below and classified as either Level 1 (High), Level 2 (Medium), or Level 3 (Low).

    1. Level 1 (High): Error that results in loss of all of the Service’s processing capability.
    2. Level 2 (Medium): Error that disables major functions from being performed and therefore affects the normal operation of the Service.
    3. Level 3 (Low): Error that disables only certain non-essential functions, does not affect normal operation of the Service, and does not have an impact on Your business operations.

    4.8. Response Times to Errors

    1. Level 1 (High): We will immediately undertake a concerted support effort in accordance with industry standard best efforts to resolve the problem, if possible, until the Service is returned to operation. Level 1 Errors will be escalated to Our delegated support manager. As needed, We will provide You with regular ongoing status reports until the Service returns to operation.
    2. Level 2 (Medium): After Our ability to duplicate the Error, We will undertake a concerted support effort to resolve the problem, if possible, in accordance with industry standard best efforts.
    3. Level 3 (Low): After Our ability to duplicate the Error, We will review and evaluate the Error for determination of appropriate resolution, if any, in accordance with industry standard best efforts.

    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”). We will not use or disclose Your Content except to the extent necessary to provide the Service. We 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. We collect Feature Data relating to Your use of the Service. We 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 Us 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 We or Our affiliates or subcontractors maintain facilities. You appoint Us 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. Data Control; Lawful Use

    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. We may in Our sole discretion, 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.

    7. Miscellaneous

    7.1. Relationship of the Parties. The relationship between You and Minitab shall at all times be non-exclusive, and nothing contained herein shall render or constitute the party’s as 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.

    7.2. Assignment. This Agreement and access to the Service may not be resold, assigned or otherwise transferred to another person or entity without Our written consent, which consent shall not be unreasonably withheld.

    7.3. 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.

    7.4. 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 Our control or exercise of Our rights under this Agreement.

    7.5. 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 law’s 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.

    7.6. 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.

    7.7. 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, LLC, Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania 16801, USA.

    7.8. Injunctive Relief. You acknowledge that the Service comprises unique, confidential and valuable assets and trade secrets of Minitab, and We 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 Our rights in the Service, including, without limitation, injunctive relief.

    7.9. In the absence of a separate, written agreement, this Agreement shall control 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.

    7.10. Entire Agreement; Amendments. This Agreement supersedes all prior agreements, proposals, representations and communications between You and Minitab, pertaining to the matters addressed herein, and this Agreement comprises the entire understanding between You and Minitab. 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.

    7.11. Updated Terms. Notwithstanding section 7.10, 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 in advanced 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.

    INDEMNIFICATION

    Minitab warrants that We have the right to grant You this subscription to use this Service and, provided You are in compliance with the terms of this Agreement, Minitab shall defend or settle at Our expense any third party claim brought against You alleging that Our Service infringes such third-party’s copyright, patent or other intellectual property right; 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, 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 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 the Indemnification in this section states Your exclusive remedy and Minitab’s sole liability in connection with any claim of infringement.

    LIMITED WARRANTY

    We warrant to deliver the Service in a good and workmanlike manner consistent with the prevailing standards in the application service provider industry, and in substantial compliance with published documentation for the Service. We do 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 Our obligation regarding Indemnification, Your sole and exclusive remedy for any breach of this Limited Warranty by Us shall be commercially reasonable efforts by Us to cure the breach, and failing such a cure, a pro-rata refund of any prepaid fees paid within the last twelve months. This Limited Warranty does not extend to any claim resulting from Your unauthorized modification of the Service or from use 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.

    DISCLAIMER OF WARRANTIES

    EXCEPT FOR OUR OBLIGATIONS OF INDEMNIFICATION AND THE LIMITED WARRANTY SET FORTH ABOVE, 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 AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.

    NO LIABILITY

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BECOME LIABLE TO THE OTHER, OR TO ANY OTHER PARTY, FOR ANY LOSS OR DAMAGES, WHETHER INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THIS SERVICE, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF TIME, MONEY, DATA OR GOODWILL, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    LAV: 02.15.20

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