End user license agreement for Uponor Smatrix Pulse App (“EULA”)
This end user license agreement (“EULA”) constitutes an agreement between user of the Application (the“User”) and Uponor GmbH (“Uponor”) and has been concluded exclusively between the User and Uponor (and not with any other party, e.g. the App Store Provider, as defined below). To use the Application, the User must be at least 13 years old. If User is between the ages of 13 and 17, the User represents that the User´s legal guardian has reviewed and agreed to these terms.
For the purposes of this EULA, “Application” means an application through which the Users may access the Uponor Smatrix Pulse indoor climate system for the purposes of controlling and monitoring indoor climate (the “Service”). The Service is subject to a separate agreement between Uponor and the User. The use of Uponor Smatrix Pulse App requires a specific Uponor Smatrix device for utilizing the Service. The Application is provided as a mobile application, made available by Uponor through one or more third-party app store service(s) and in the territories as determined by Uponor from time to time.
By downloading the Application via, e.g., an application store provided by Apple, Google or Microsoft (the “App Store Provider”, respectively) or installing or using the Application, the User agrees to the terms of this EULA and to Uponor’s privacy policy (available in the Application’s menu) and Uponor’s Smatrix Pulse App terms of service applied to the Service. If the User does not agree to any of these terms, the User may not download, install or use the Application.
The application is licensed, not sold. User’s use of the application is subject to the terms and conditions set forth in this EULA. By downloading, installing or using the application, the user hereby accepts the terms of this EULA.
Who we are
The Application is provided by Uponor GmbH, incorporated and existing under the laws of Germany under VAT number DE 133 899 039 and having its registered address at Industriestrasse 56, 97437 Hassfurt, Germany. Uponor may be reached by using the contact details provided here.
Application
The Application can be downloaded to the User’s mobile device from an app store provided by the App Store Provider as available from time to time. Separate terms and conditions may apply to such app store and the User must comply with the applicable terms of the App Store Provider.
The use of the Application requires Internet connection and that the User’s equipment meets the technical requirements specified in the description of the Application in the related app store. Uponor does not guarantee that the Application can be accessed on all mobile devices or is available in all geographic locations.
The user is solely responsible for any costs User may incur in order to access the application from the user’s device.
License, Intellectual Property Rights
Uponor, and its affiliates and its third-party licensors, as applicable, fully own the Application and any software used to provide it. All copyrights and other intellectual property rights to all information and materials on Application belong to Uponor, its affiliates or third-party licensors. “Uponor” and/or “Smatrix” are trademarks or registered trademarks of Uponor Corporation or its group companies.
Subject to this EULA, Uponor hereby grants to the User a non-exclusive, non-transferable, non-sublicensable, limited and personal license to install, perform, display and use the Application for personal, non-commercial use on mobile devices in accordance with this EULA. Any commercial use is prohibited. The User agrees to not sub-license, sell, distribute, copy, reproduce, rent, lease, transfer, assign, modify, post, reverse engineer or otherwise commercially exploit the Application or any part of it.
Any rights not expressly granted to the User in this EULA are exclusively reserved by Uponor. Uponor may freely use and exploit any ideas or comments provided by the Users of the Application free of charge as deemed appropriate by Uponor.
Third-party Content
Content produced by third parties may be made available to you via Application. Such content may include, but are not limited to calculations made by third parties. For the avoidance of doubt, such third-party content is the sole responsibility of the third party who has produced and/or has rights to such content, and Uponor accepts no responsibility for the accuracy, quality, nature, ownership or reliability of the third-party content.
Subcontractors
Uponor reserves the right to use subcontractors for providing the Application.
No Warranties
Notwithstanding anything contrary and to the fullest extent permissible under applicable law, the application is provided “as is,” with all faults and as available” without warranty of any kind, without performance assurances or guarantees of any kind, and its use is at the user’s sole risk. The entire risk of satisfactory quality and performance resides with the user. Uponor does not make, and hereby disclaims, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, accuracy of data (including but not limited to location data), merchantability, satisfactory quality, fitness for a particular purpose and non-infringement of third party rights. Uponor does not warrant against interference with the user’s enjoyment of the application; that the application will meet the user’s requirements; that operation of the application will be uninterrupted or error-free, or that the application will interoperate or be compatible with any other services or that any errors in the application will be corrected. No oral or written advice provided by Uponor or any authorized representative shall create a warranty. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations apply only to the fullest extent permitted by law in the applicable jurisdiction. For the avoidance of any doubt, the app store provider shall have not warranty obligations whatsoever.
Limitation of liability
In no event shall Uponor have any liability for any indirect, incidental, special, punitive, exemplary or consequential damages (including without limitation any loss of profits, revenue or data, business interruption, loss resulting from substitute purchase of goods, or other similar loss) arising out of the use or inability to use the application or the service, even if Uponor has been advised of the possibility of such damages. In no event shall the aggregate liability of Uponor for direct damages arising out of the use of inability to use the Application exceed the amount the user has paid for the application of 50 EUR, whichever is greater. The user will not, and waives any right to, seek to recover any other damages, including consequential, lost profits, special, indirect or incidental damages from Uponor. For the avoidance of any doubt, liability of the app store provider is disclaimed to the fullest extent permitted under the applicable law.
Nothing in this EULA shall restrict Uponor’s liability for any damage or loss caused by its gross negligence or willful misconduct or for death of personal injury or other damages that may not be excluded under the applicable law.
User’s Indemnity
User agrees to indemnify, defend and hold Uponor, its partners, affiliates, contractors, officers, directors, employees, agents and the App Store Provider harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) the User’s acts and omissions to act in using the Application; or (ii) the User’s breach of this EULA and/or privacy policy.
Term and Termination
The User’s license under this EULA shall commence on the date that the User accepts this EULA and downloads, installs or otherwise uses the Application and terminates on the earlier date of either the User’s disposal of the Application or Uponor’s termination of this EULA. User’s license terminates immediately if the User attempts to circumvent any technical protection measures used in connection with the Application or the User otherwise uses the Application in breach of the terms of this EULA. In such event, the User must destroy all copies of the Application and cease from accessing the Application.
Information Collection and Use, Privacy Policy
Uponor recognizes the importance of protecting any information collected about the Users of the Application and any third party. Uponor’s privacy policy as amended from time to time is available in the Application’s menu and applicable to this EULA. The Privacy Policy defines how, why and to which extent Uponor collects and uses personal information about the Users and any third party. By downloading, installing or using the Application the User explicitly agrees with the terms and conditions of the Privacy Policy and to any terms and conditions included therein by reference.
Supplemental Terms regarding App Store Providers
App Store Provider shall not be responsible for any claims by the User or any third party relating to User’s possession and/or use of the Application, including without limitation, product liability claims, any claim that the Application fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection laws or similar legislation and claims by any third party that the Application or the User’s possession and use of the Application infringes on the intellectual property rights of the third party.
Without limiting any other disclaimers in this EULA, the responsibility of the App Store Provider, manufacturer, network operator, device manufacturer or network operator or any other third party for any support or maintenance services is expressly excluded.
The User represents and warrants that the User 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 that the User is not listed on any U.S. Government list of prohibited or restricted parties.
The User agrees that the App Store Provider and its subsidiaries are third party beneficiaries of this EULA and that upon the User’s acceptance of the terms and conditions of this EULA, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA against the User as a third party beneficiary.
Without limiting the disclaimers of Uponor in this EULA, in the event the Application fails to conform to applicable warranties, if any, the User may notify the App Store Provider in which case the latter may refund the purchase price for the Application to the User according to the applicable policy of the App Store Provider.
To the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the User’s sole responsibility.
Miscellaneous
This EULA represents the complete agreement concerning the use of Application between the User and Uponor and supersedes all prior agreements and representations between them.
Uponor reserves the right, at its discretion, to change, modify, add or remove portions of this EULA by posting the updated EULA on Uponor’s website. The User will be deemed to have accepted such changes by continuing to use the Application. The User is always entitled to terminate its license under this EULA upon the amended EULA coming into effect.
If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall not be affected.
Any failure by Uponor to enforce the terms of this EULA or anu provision thereof shall not waive Uponor’s rigths to do so.
Uponor may at any time and at its sole discretion stop offering the Application with our without Users’ consent. Uponor strives to, however, notify the Users of the Application in advance.
Uponor may assign or delegate this EULA in whole or in part, to any person or entity with or without prior notice. The Users of the Application may not assign any rights or obligations under the EULA without Uponor’s prior written consent and any unauthorized assignment and delegation by any User is ineffective.
Governing Law and Dispute Resolution
Unless otherwise stated by any mandatory applicable law, the laws of Germany shall apply to all matters arising from or relating to the Application (without reference to its choice of law provisions) and all disputes related thereto are dealt exclusively by the District Court of Frankfurt, Germany.
As a limited exception to the aforesaid, for the Users who use the Application as consumers and who are resident in the European Union, the laws of the member state in which the User is resident shall apply to the Application and the EULA and any disputes potentially arising in connection thereto. The courts of the consumer User’s place of residence shall have non-exclusive jurisdiction over any such dispute. Consumer Users in the European Union may also bring any such dispute before a local consumer dispute resolution body.
If you have any questions concerning this EULA, please contact us.
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