END USER LICENSE AGREEMENT    

FOR MOBILE APPLICATIONS

 

Last modified November 18, 2020

STEINEL AMERICA INC.

END USER LICENSE AGREEMENT

IMPORTANT – READ CAREFULLY PRIOR TO INSTALLING, DOWNLOADING, OR USING THE APP.

This End User License Agreement (“Agreement”) is a legal agreement between Steinel America Inc. having an address of 9051 Lyndale Avenue South, Bloomington, Minnesota 55420, United States ("Steinel"), and you (a person referred to herein as "End User") for a mobile application software product made available by Steinel (the “Software”) available either by purchase or for free from the Apple, Inc. (“Apple”) “App Store” or from Google LLC (“Google”) “Google Play”, and any updates to the Software that may be made available by Steinel (“Updates,” and together with the Software, the “App”). 

This Agreement is between Steinel and End User only.  As between End User and Steinel, Steinel is solely responsible for the App.  Neither Apple nor Google is a party to this Agreement; however, Apple, Google, and their respective subsidiaries are third party beneficiaries of this Agreement.  As such, once End User accepts this Agreement, if the App is downloaded from Apple, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against End User.  If the App is downloaded from Google, Google shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against End User.

By making acceptance of this Agreement in the manner provided prior to or while installing, downloading, or using the App, End User agrees to be bound by the terms of this Agreement.  If End User does not agree to the terms of this Agreement, End User shall not install, download, or use the App.  

1. PRIVACY

In addition to the terms of this Agreement, End User’s use of the App is governed by the Steinel Privacy Policy available for review at https://www.steinel.net/privacypolicy as it may be updated from time to time.  The terms of the Steinel Privacy Policy are incorporated herein by this reference. If End User downloaded the App from Google, End User’s use of the App is also governed by Google’s Privacy Policy, available for review at https://policies.google.com/privacy, as it may be updated from time to time.  

2. OWNERSHIP

Steinel is and shall be the exclusive owner of all right, title, and interest in and to the App, including without limitation, any and all patents, copyrights, trademarks and service marks, trade secrets, and all other proprietary rights of any kind whatsoever related to or used in the App.  Use of the App does not in any respect whatsoever constitute a grant to End User of any license or other right to use or exploit any of the proprietary rights related to the App, except as expressly granted to End User in this Agreement.

End User shall not modify, remove, or obscure any proprietary notices contained in or on the App or any screen images related to the App. 

End User shall not distribute, reverse engineer, translate, decompile, or disassemble the App; and End User shall not in any other manner attempt to access or learn the source code related to the App.

3. LICENSE

Subject to the provisions of this Agreement, Steinel grants the End User a personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to: (i) install and use the App, in object code format only, for End User’s personal use only, on (a) an Apple-branded product that is operated through the use of an Apple iOS operating system (the “iOS Product”), provided however, such use may be made only on an iOS Product that the End User owns or controls, and only to the extent permitted by the “Usage Rules” set forth in the App Store “Terms of Service” or (b) a device that is operated through the use of the Google Android operating system (the “Android Product”), provided however, such use may be made only on an Android Product that the End User owns or controls, and only to the extent permitted by the Google Play Terms of Service.

End User shall not make any copies of the App.  End User shall comply with any applicable agreements or terms of service when using the App. 

The terms of this Agreement apply to all upgrades and updates to the App, unless such upgrade or update is accompanied by a separate license, in which case the terms of that license will govern.  Steinel reserves the right to add or remove features or functions of the App.  As it relates to Steinel, End User’s use of the App is voluntary and End User may uninstall the App at any time. 

The App and any underlying technology may not be exported by End User outside the United States in a manner that is prohibited by applicable export laws and regulations.  By installing or using the App, End User assumed responsibility for compliance with the foregoing. End User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.

4. DISCLAIMERS

END USER EXPRESSLY ASSUMES ANY AND ALL RISKS RELATED TO HIS/HER USE OF THE APP.

Warranty Disclaimer.

THE APP IS PROVIDED “AS IS, WITH ALL DEFECTS.”  THE APP IS PROVIDED WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.  

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STEINEL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (I) THE APP WILL OPERATE IN AN ERROR FREE OR UNINTERRUPTED MANNER; (II) THE APP WILL BE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE APP WILL SATISFY END USER’S REQUIREMENTS; (IV) THE APP IS COMPATIBLE WITH SYSTEMS, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTY PERSONS OR ORGANIZATIONS; (V) THE RESULTS OBTAINED FROM THE USE OF THE APP WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (VI) THE APP WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION; OR (VII) ANY ERRORS OR DEFECTS IN THE APP WILL BE CORRECTED.  STEINEL DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE APP WILL SATISFY, OR ENABLE END USER TO SATISFY, THE REQUIREMENTS OF ANY GOVERNMENT AGENCY, ASSOCIATION, EMPLOYER, OR OTHER ORGANIZATION. 

5. LIMITATIONS ON LIABILITY

STEINEL OR ITS SHAREHOLDERS, DIRECTORS, SUBSIDIARIES, AFFILIATES, OR AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE APP, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

END USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH STEINEL RELATED TO THIS AGREEMENT OR THE APP SHALL BE UNINSTALLING THE APP AND CEASING USE OF THE APP.  IN THE EVENT A COURT AWARDS DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGE SHALL NOT EXCEED THE LESSER OF $5.00 OR THE AMOUNT PAID BY END USER FOR THE APP.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages.  If these laws apply to End User, some or all of the disclaimers, exclusions, or limitations in this Agreement may not apply to End User, End User might have additional rights.

6. ACKNOWLEDGEMENTS AND THIRD-PARTY DISCLAIMERS

Steinel and End User acknowledge that Steinel, and not Apple or Google, is responsible for addressing any claims, to the extent permitted under this Agreement, of End User or any third party relating to the App or End User’s possession and/or use of the App, including without limitation (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) any claims arising under consumer protection or similar legislation.

Steinel and End User acknowledge that neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to the App.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER APPLE NOR GOOGLE SHALL HAVE ANY LIABILITY OF ANY KIND WHATSOEVER WITH RESPECT TO THE APP. 

7. TERM AND TERMINATION

The term of this Agreement shall commence on the date End User makes acceptance of this Agreement and, unless terminated as specified below, shall continue for so long as the End User uses the App.  End User shall have the right to terminate this Agreement at any time by uninstalling the App.

Steinel may, in its sole discretion, terminate this Agreement without cause at any time.  In addition, End User’s license to the App may, at Steinel’s discretion, expire when new versions of the App are released.

End User’s license to the App and Steinel’s obligations under this Agreement will automatically terminate if End User fails to comply with any term of this Agreement.  No notice will be required from Steinel to effectuate such termination.  End User will receive no refunds upon termination.

Upon termination of this Agreement, all of End User’s rights to use the App shall terminate immediately; End User shall remove the App from his/her iOS Product or Android Product, as applicable.

8. INDEMNIFICATION

End User and his/her heirs, executors, administrators, representatives, successors and assigns shall indemnify, defend, and hold harmless Steinel and its successors and assigns from and against in respect of any and all third party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees, that Steinel incurs or suffers, which arise from, result from, or relate to End User’s use of the App or this Agreement.

9. INFRINGEMENT CLAIMS

Steinel and End User acknowledge that, in the event of any third party claim that the App or End User’s possession and use of the App infringes that third party’s intellectual property rights, Steinel, and not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

10. GENERAL

Steinel shall not be in breach of this Agreement in the event it is unable to perform any of its obligations under this Agreement as a result of natural disaster, fire, weather, war, terrorism, emergency conditions, labor strife, the inoperability of the Internet, technical difficulties of Steinel, Apple, Google, or any third party, any updates or other changes to the iOS Product or Android Product (as applicable), the inability to obtain supplies, or other reasons or conditions beyond its reasonable control.

This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement.  Any and all notices or communications related to this Agreement must be in English.

Injunctive or other equitable relief shall be a remedy available to Steinel in the event of a breach of any provision of this Agreement by End User; but such remedy shall not be the exclusive remedy available to Steinel.

Regardless of any statute or law to the contrary, any claim or cause of action End User may have that arises out of or is related to this Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred. 

For any questions, complaints, or claims about the App, End User should contact Steinel as follows:

Steinel America Inc.

9051 Lyndale Avenue South

Bloomington, Minnesota 55420

Phone: (800) 852-4343

The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.

End User shall not, without the prior written consent of Steinel, assign his/her rights or delegate his/her duties under this Agreement.

The waiver of any provision or the breach of any provision of this Agreement by Steinel shall not be effective unless made in writing.  Any waiver by Steinel of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.

This Agreement shall be governed by the laws of the State of Minnesota (without regard to its choice of law principles or rules) in the United States and the applicable laws of the United States.  Any suit hereunder will be brought exclusively in the state or federal courts in or for Hennepin County, Minnesota.  Each party agrees to subject itself to the personal jurisdiction of such courts and shall not contest jurisdiction or the venue of such courts or the convenience of the forum. The parties specifically disclaim application of the United Nations Convention on the International Sale of Goods, 1980. 

In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement, and the portion of this Agreement held to be invalid shall be construed and given lawful effect in a manner that will best achieve the intent and objective of such portion of this Agreement.

This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement, and shall supersede any prior agreements between the parties with respect to the subject matter hereof.  Steinel may revise this Agreement at any time without prior notice, and any continued use of the App following the date on which changes to this Agreement are published on Apple’s “App Store”, on Google’s “Google Play” store, or within the App shall constitute End User’s acceptance of all such changes.

4830-1214-7410, v. 1