SMARTCONNECT MOBILE APPLICATION END-USER LICENCE AGREEMENT

 

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ITW Food Equipment Group LLC

Last updated: December 1, 2020

Thank you for choosing to download the mobile application that directed you here (the “Mobile Application”) developed by or on behalf of ITW Food Equipment Group LLC and its affiliated entities, including Baxter, Bonnet, Centerline, Foster, Hobart, Traulsen, and Vulcan (collectively referred to as “ITW FEG”, “we”, “us” or “our” in this Agreement) for use on the mobile devices specified below.  All users of the Mobile Application and related services are subject to this Mobile Application End-User License Agreement (the “Agreement”) in connection with such uses (collectively, the “Mobile Service”).

 

Please read this Agreement carefully because it will apply to your (and your company’s) access to and use of the Mobile Service and constitutes a binding agreement between you, on behalf of your company, and ITW FEG.  If you or your company do not accept this Agreement, you will not be able to use the Mobile Service.  By downloading the Mobile Application or using the Mobile Service, you agree that you have read, understand and agree to be bound and to bind your company by the terms and conditions of this Agreement, as amended from time to time.  If you or your company do not wish to agree to this Agreement, do not download the Mobile Application or use the Mobile Service.

 

We may revise and update this Agreement at any time without notice by linking to the amended terms in the Mobile Application.  At such time, we will also revise the “last updated” date at the beginning of this Agreement.  Your continued use of the Mobile Service or Mobile Application means that you and your company accept and agree to the revised Agreement.  If you or your company disagree with this Agreement (as amended from time to time) or are dissatisfied with the Mobile Service, your sole and exclusive remedy is to discontinue using the Mobile Service and the Mobile Application.   

 

1. About our Mobile Application and Mobile Service.

 

The Mobile Application is designed to provide you with access to the Mobile Service, which may include the following information and services (including the applicable software and technology) for your use in conjunction with commercial food equipment your company purchases from ITW FEG or its authorized distributors (collectively, “Devices”): up-to-date status checks on your Devices, utility consumption estimates and operating metrics, access to hygiene reports, the ability to manage certain aspects of your Devices and create and upload recipes, and access to troubleshooting information.We reserve the right to add additional capabilities or discontinue any component of the Mobile Service at any time.While ITW FEG may have access to certain diagnostic information, error messages, status indicators and other real-time information about your Devices from time to time, you and your company acknowledge and agree that you and your company are solely responsible for monitoring, maintaining and operating the Devices. This Mobile Service does not modify or enhance any product warranties, operating instructions or product manuals associated with the Devices.

 

The Mobile Application requires a smart mobile telephone device or tablet that is installed with either Android or iOS (a “Mobile Device”). The Mobile Application may include certain requirements or restrictions that may impact compatibility with your Mobile Device. Please review the requirements listed in the applicable App Store (as defined below) to learn about these requirements and restrictions. We are not responsible for any incompatibility between the Mobile Application and any Mobile Device.

 

The Mobile Application is available for download to your Mobile Device via the Apple App Store or Google Play Store (each, an “App Store”).The provision and use of the Mobile Application may also be controlled by your chosen App Store’s rules and policies.Where there are differences between those terms and this Agreement, your App Store’s terms shall apply.The Mobile Application is being offered to you through the App Store for no additional fees.

 

The Mobile Application is intended solely for business use by you on behalf of your company and must not be downloaded for personal consumer use.

 

The Mobile Application may display information about, derived from or related to your Devices (including usage data, consumption data, and other related information). Any such information displayed in or using the Mobile Application may contain discrepancies, errors and/or inaccuracies from time to time. For example, your local utility may measure utility usage differently than the measure used or relied upon within the Mobile Application. If the Mobile Application displays any estimates of future use or estimates of savings related to actual or suggested changes in behavior by you or your company, no such estimates may be relied upon by you or your company in any manner whatsoever. All such estimates are provided solely for your information and may include discrepancies, errors or inaccuracies. ITW FEG is not responsible for any discrepancies, errors or inaccuracies within, or related to information displayed in or using, the Mobile Application.

 

2. Account Registration.

 

To sign up for the Mobile Application, you must register for an account on behalf of your company (an “Account”).During the registration process, you may need to provide information regarding your Devices and information about you and your company.You agree to provide true, accurate, current and complete information during the registration process for your Account and to keep your Account information current.  You and your company are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure and confidential.  You agree that you will not share your Account password with or give it to anyone else.

 

You understand and agree that you may never use another person’s user account or registration information for the Mobile Services without permission.You must notify us immediately of any known or suspected breach of security or unauthorized use of your Account.You should never publish, distribute or post login information for your Account.

 

3. Using the Mobile Application and Mobile Services.

 

3.1. License.  Subject to the terms and conditions of this Agreement, we grant you, and your company, a limited, revocable, royalty-free, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) the Mobile Application solely for purposes of your use and access to the Mobile Service.  You understand and agree that the Mobile Application and Mobile Services are being licensed to you pursuant to this Agreement and not being sold to you.  By accepting this Agreement, you and your company agree and acknowledge that this Agreement does not grant and shall not be construed as granting you or your company any claim to ownership, title or interest in or to the any of the software, technology or content provided to you through the Mobile Application and Mobile Services.  All license rights not expressly granted to you are reserved by ITW FEG.   

 

You understand and agree that any usage of the Mobile Application or the Mobile Services not in accordance with the scope of the license provided above, or with the terms and conditions of this Agreement, constitutes a violation of ITW FEG’s intellectual property rights as well as a material breach of this Agreement.If you or your company violate any of the terms of this Agreement, the license provided in the previous paragraph will automatically and immediately terminate.

 

3.2. Updates to the Mobile Application.  From time to time, we may automatically update the Mobile Application to improve performance, enhance functionality, reflect changes to the operating system or address security issues, or modify or update the Mobile Services.  Alternatively, we may ask you to update the Mobile Application for these reasons.  If you choose not to install such updates or if you opt out of automatic updates you and your company may not be able to continue using the Mobile Application or the Mobile Services.  You understand and agree that ITW FEG is not liable for any issues, costs or damages resulting from your failure to install any updates to the Mobile Application.

 

3.3. Links to Websites.  The Mobile Application may contain links to websites which may or may not be provided or hosted by us or otherwise under our control.  You are responsible for reviewing any applicable terms use any such websites, including whether to buy any products or services offered by them.  ITW FEG disclaims any and all liabilities resulting from or arising from the content contained on such linked websites, including but not limited to, any and all viruses, bugs or other malware transmitted to your Mobile Devices from such websites.

 

In the event you are directed to ITW FEG’s corporate website, located at: https://www.itwfoodequipment.com/, the websites of any of its affiliated entities or brands, or any other websites or external resources, you understand and agree that your use of those websites and/or resources will be governed by the Terms of Use posted on those websites and/or resources and not this Agreement. 

 

4. Limitations on Your Use of the Mobile Application and Mobile Services.

 

4.1. Prohibited Actions.  ITW FEG does not permit any of the following actions, directly or indirectly, and you agree that you and your company will not carry out or facilitate the following prohibited actions:​​​

4.1.1. Use.  Except as expressly authorized pursuant to this Agreement, you shall not, and shall not permit any third party to, copy, install, access, update, upgrade or otherwise use the Mobile Application or any part of the Mobile Services.

 

4.1.2. Reverse Engineering.  You shall not reverse engineer, decompile, decode or disassemble or create derivative works of the Mobile Application or otherwise attempt to discern the source code of the underlying software or technology incorporated into the Mobile Application (except to the extent that such actions cannot be prohibited by applicable law).

 

4.1.3. Transfers.  You shall not distribute, rent, loan, lease, sell, assign, sublicense, disclose or otherwise transfer any portion of the Mobile Application or the Mobile Services to any other third party without prior written consent of ITW FEG.

 

4.1.4. Third-Party Devices or Computers.  You shall not, and shall not permit any third party to, facilitate or allow installation and use of the Mobile Application or Mobile Services on any device or computer owned or controlled by a third party.

 

4.1.5. Notices.  You shall not remove, relocate, alter or obscure any notices, labels, markings, attribution, trademark, copyright, or other proprietary or restrictive marking or legend from or on the Mobile Application or any copies thereof.

 

4.1.6. Modifications.  You shall not modify, translate, adapt, arrange, update, or create derivative works based on the underlying software and technology for the Mobile Application or the Mobile Services for any purpose.

 

4.2. Additional Use Restrictions.  You and your company will not and hereby agree that you and your company will not:

 

4.2.1. use the Mobile Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Mobile Application or any operating system;

 

4.2.2. infringe our intellectual property rights or those of any third party in relation to your use of the Mobile Application (to the extent that such use is not licensed by the terms and conditions of this Agreement);

 

4.2.3. transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Mobile Application;

 

4.2.4. use the Mobile Application in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and

 

4.4.5. collect or harvest any information or data from the Mobile Application or our systems or attempt to decipher any transmissions to or from the servers running the Mobile Application.

 

5. Intellectual Property; Ownership.  You understand and agree that the Mobile Application (including all information, text, displays, images, videos and audio and any software made available through or in connection with the Mobile Application), the Mobile Service, and the design, selection and arrangement thereof, are proprietary to ITW FEG or its affiliates and are protected by United States and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights.

 

Further, as between the parties, our name and logos, and all related names, logos, product and service names, designs and slogans contained in the Mobile Application or used in connection with the Mobile Service are trademarks of ITW FEG or its affiliates, unless otherwise clearly specified in writing.You may not use such names, logos, slogans or marks without our prior written permission.

 

6. DISCLAIMER OF WARRANTIES.  ITW FEG PROVIDES TO YOU THE MOBILE APPLICATION AND THE MOBILE SERVICE ON AN “AS IS” BASIS AND WITH ALL FAULTS; AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE.  WITHOUT LIMITING THE FOREGOING, ITW FEG AND ITS AFFILIATES DO NOT WARRANT THAT THE OPERATION OF THE MOBILE APPLICATION AND THE MOBILE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.  THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE MOBILE APPLICATION AND MOBILE SERVICE REMAINS WITH YOU.  FURTHER, we make no representations, warranties or guarantees, whether express or implied, that ANY information PROVIDED TO YOU VIA THE MOBILE APPLICATION OR THE MOBILE SERVICE is accurate, complete or up to date. FEG MAY DISCONTINUE (AND RENDER UNUSABLE) THE MOBILE SERVICE (OR ANY PORTION THEREOF) AT ANY TIME WITHOUT NOTICE, AND YOU AGREE THAT NEITHER YOU NOR YOUR COMPANY WILL HAVE ANY CLAIMS OR CAUSES OF ACTION RELATING TO OR ARISING FROM SUCH DISCONTINUATION, OBSOLESCENCE OR NON-FUNCTIONALITY.

 

7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ITW FEG OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE MOBILE APPLICATION OR THE MOBILE SERVICE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, INCLUDING IN RELATION TO ANY THIRD PARTY WEBSITES LINKED TO FROM THE MOBILE APPLICATION, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF ITW FEG, AND EVEN IF ITW FEG OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

THE ENTIRE LIABILITY OF ITW FEG AND ITS AFFILIATES UNDER ANY PROVISION OF THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE U.S. $10.00.THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

 

8. Indemnification.  You agree to indemnify and hold harmless ITW FEG and its affiliates, together with their respective shareholders, partners, directors, officers, subsidiaries, employees, agents, suppliers, third party information providers, licensors, licensees, distributors, contractors and others involved in the Mobile Application and the Mobile Service (collectively, the “Indemnified Parties”) from and against any and all liabilities, expenses, damages and costs, including reasonable attorney’s fees, arising from any violation by you or your company of this Agreement or any misuse of the Mobile Application or the Mobile Service by you or your company.

 

9. Privacy.

 

We respect your privacy, and we are committed to adhering to applicable privacy and data protection laws and applicable industry guidelines.Any information collected by us through or in connection with this Mobile Application or the Mobile Services is subject to one of our Privacy Policies, which are all available at https://www.itwfoodequipment.com/smartconnect365/privacy-policy. The Privacy Policy that applies to you will depend on your country of residence. Please review the aforementioned website landing page for additional information.  

 

By downloading, installing, using and providing information to or through the Mobile Application, you consent to all actions taken by us with respect to your information in compliance with the above-linked privacy policies, which are a part of this Agreement. 

 

10. Security.

 

We are committed to adhering to applicable industry-standard data security recommendations and guidelines.However, you understand and agree that you are solely responsible for maintaining the security of your (and your company’s) Mobile Devices and any other information systems to which the Mobile Devices are linked.

 

11. Term and Termination.

 

Your license to use the Mobile Application and access and use of the Mobile Services is effective until terminated.You may terminate the license at any time by uninstalling the Mobile Application and deleting any related data from your device(s).

 

This Agreement and your right to use the Mobile Application (and the Mobile Service) will terminate immediately without notice if you fail to comply with the terms and conditions of this Agreement.Upon termination, you agree to immediately cease using and destroy the Mobile Application, including all accompanying documentation and materials.

 

12. Miscellaneous Terms.

 

12.1. Except as expressly set forth above, this Agreement, as it may be amended from time to time, together with any additional terms referenced herein, completely and exclusively states the agreement between you and ITW FEG with respect to the Mobile Application and your access and use of the Mobile Service, and no other terms that may have been communicated to you orally or in any other manner shall have any force or effect. 

 

12.2. This Agreement shall be governed in all respects by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law principles, and exclusive jurisdiction over any cause of action arising out of this Agreement or your use of the Mobile Application (and the Mobile Services) shall be in the state or federal courts located in the State of Illinois.  You agree to submit to the jurisdiction of such courts, and you hereby waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in the State of Illinois.

 

12.3. You may not assign this Agreement or any rights hereunder, and any purported assignment by you shall be void and grounds for termination of this Agreement.

 

12.4. Any cause of action you may have with respect to this Agreement must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.

 

12.5. You agree to abide by U.S.  and other applicable laws, including export control laws, and not to transfer, by electronic transmission or otherwise, any software or other content downloaded from the Mobile Application to a destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization.  By downloading the Mobile Application, you warrant that you are not located in any country, or exporting such software to any person or place, to which the United States has embargoed goods. 

 

12.6. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not constitute a waiver of the provision.  Neither a course of dealing or conduct between you and us nor any trade practices shall be deemed to modify this Agreement.

 

12.7. If any part of this Agreement is unenforceable, the unenforceable part shall be construed to reflect, as nearly as possible, the original intentions of the parties.  The other provisions of this Agreement shall remain in full force and effect.

 

12.8. Mandatory Arbitration

 

PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

All claims arising out of or relating to this Agreement (including their formation, construction, validity, interpretation, performance and enforceability), the parties’ relationship with each other and/or your use of the Mobile Application and the Mobile Service shall be finally settled by binding arbitration administered by the American Arbitration Association on a confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.  The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.  The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.  The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  The interpretation and enforcement of this Agreement shall be governed by the Federal Arbitration Act.

 

THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.  THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAT IN COURT.

 

THE PARTIES FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.  IF ANY COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION WAIVER SET FORTH IN THIS PARAGRAPH IS VOID OR UNENFORCEABLE FOR ANY REASON OR THAT AN ARBITRATION CAN PROCEED ON A CLASS BASIS, THEN THE ARBITRATION PROVISION SET FORTH IN THIS SECTION SHALL BE DEEMED NULL AND VOID IN ITS ENTIRETY AND THE PARTIES SHALL BE DEEMED TO HAVE NOT AGREED TO ARBITRATE DISPUTES.


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