Mobile App Terms of Use Agreement
Effective Date: April 7, 2021
Last Reviewed: December 22, 2020
IMPORTANT – PLEASE READ THIS MOBILE APP TERMS OF USE AGREEMENT CAREFULLY BEFORE USING THIS MOBILE APPLICATION OR ANY PORTION THEREOF. THIS AGREEMENT BINDS YOU FOR YOUR CONDUCT AND ALSO FOR THE CONDUCT OF YOUR EMPLOYEES AND USERS. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. By using Our Licensed Materials and/or Services, you accept and are bound to the terms and conditions of this Agreement.
OVERVIEW. This Mobile App Terms of Use Agreement (“Agreement”) is a binding agreement between dormakaba USA Inc., (“We”, “Us”, or “Our”) and You relative to Your access and use of Licensed Materials and Services as enabled by the Account Owner with certain access rights selected for You. It is effective on the date You download and install the Mobile App, set up Your account and click “I Accept” to access and/or use Our Licensed Materials or Services.
“You” or “Your” means, (i) a legal entity contracting with Us, its affiliates, its employees and its contractors; (ii) an individual or entity, including but not limited to, an installer, who has certain assigned access rights to manage and/or program an installed Digital Core, (an “Administrator”); (iii) an authorized end user of an Account Owner, who downloads the Mobile App on a Device or is issued a BLE Fob (an “End User”), who enters into this Agreement with Us upon accessing and using the Mobile App, Registration Key(s) and/or Services that We provide under this Agreement. “Mobile App” means the application software including all related documentation that We developed, and which is installed on Your network connected , BLE enabled smart phone or portable device (the “Device”) for access to and use of the Services. “BLE Fob” is a physical device used to access devices via BLE communication. “Registration Key(s)” are digital access identifier(s) licensed to You and Account Owner under this Agreement to allow You and Account Owner to use the Services. The Mobile App including all related documentation and the Registration Key(s) for which licenses are granted under this Agreement, are collectively the “Licensed Materials”. “Services” means: if you are an End User: the services provided under this Agreement allow You to store, manage and use a Registration Key on Your Device to gain access to doors and electronic equipment; or if you are an Administrator: to store, manage and use a Registration Key on Your Device and manage the Administrator Services on behalf of an Account Owner. “Digital Core” is the small format interchangeable core that replaces a mechanical core equivalent in the size to a 7-pin, small format interchangeable core or any derivatives, new release, new version, or new model, or updates or upgrades thereof, if applicable.
By downloading and installing the Mobile App, setting up Your account and clicking “I Accept” to access and use Our Licensed Materials or Services, You: (a) acknowledge that You have read and understand this Agreement; (b) represent that You are of legal age to enter into a binding agreement or otherwise are permitted to enter into this Agreement; (c) You are authorized to accept the terms of this Agreement and to download, install, access and use the Licensed Materials and Services; (d) You have explained the terms of use contained to any End User and Administrator you allow to use the Licensed Materials and/or Services; (e) You accept the terms and conditions on the part of your employees, contractors and anyone working on your behalf (including End Users and Administrators); and (f) You accept this Agreement and agree that you are legally bound by its terms. If You are entering this Agreement on behalf of a company or other legal entity, You represent and warrant that You are authorized to enter into this Agreement on behalf of the entity and its affiliates You purport to represent.
If You do not agree to the terms set forth in this Agreement, do not download, install, or use the Licensed Materials or Services, and remove the Mobile App from Your Device.
1- License Grant – Subject to the terms of this Agreement, We grant You a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license to download, install, and use the Licensed Materials only for access to and use of the Services in combination with the Switch Tech Solution (an access control system consisting of hardware components, such as a bridge, Digital Core(s), readers, BLE Fobs, related software, which may be accessed through the Licensed Materials). You may use the Licensed Materials on Your Device for as long as the Account Owner subscribes to the Services. “Account Owner” means a Person who has purchased the Switch Tech Solution from Us or from Our subsidiaries, affiliates, vendors, resellers, or Our or their respective subsidiaries, affiliates, vendors, partners, shareholders, officers, directors, employees, agents, licensors, service providers and representatives (collectively “dormakaba Parties” or a “dormakaba Party”), thereby enabling You to use Licensed Materials and Services.
We may, in Our sole discretion, make any updates, upgrades, bug fixes, patches, and/or other modifications to the Licensed Materials or Services (“Modifications”) from time to time. The terms of this Agreement govern any Modifications (and accordingly, such Modifications will be part of the Licensed Materials and Services, as applicable).
2 – Restrictions – The license provided in this Agreement is limited to what is expressly set out herein and specifically restricts certain actions. You shall not, directly or indirectly:
i. use the Licensed Materials or Services beyond the scope of the license granted under this Agreement;
ii. use the Licensed Materials or Services on any device that You or the Account Owner do not own or have a legal right to control;
iii. rent, lease, lend, resell, distribute, assign or sublicense the Licensed Material or Services; or a Device on which the Licensed Materials are installed without properly and completely removing the Licensed Materials from the Device;
iv. copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Materials or Services, Modifications, or any part thereof;
v. download any software to the Device which may impact the functionality and compromise the security of such Device, the Licensed Materials, for example, through a process known as “rooting” or “jailbreaking”;
vi. tamper or let anyone tamper with the Device in a way that may impact the functionality and security of the Licensed Materials and/or Switch Tech Solution;
vii. engage in any act that interferes with the Licensed Materials, Switch Tech Solution or Services, violates the license, or infringes Our intellectual property rights;
viii. use Your Device, the Licensed Material, or Services for any unlawful, illegal or improper purposes, or in order to obtain unauthorized use or access of any kind; and
ix. encourage or enable any other Person to do any of the above.
Any attempt to do any of the above by You or someone to whom You have given access to Your Device, is a violation by You of the responsibilities You assumed under this Agreement and is a material breach of this Agreement, and We or the Account Owner as applicable, may terminate Your use of the Licensed Materials and Services and may seek any other recourse for damages or otherwise.
3 – Reservation of Rights – You acknowledge and agree that the Licensed Material is licensed, and not sold, to You and/or Account Owner as applicable. You do not acquire any ownership interest in the Licensed Material under this Agreement, or any other rights thereto other than to use the Licensed Material in accordance with the license granted and subject to all terms, conditions, and restrictions of this Agreement. We, and dormakaba Parties, if applicable reserve and shall retain Our and their respective entire right, title, and interest in and to the Licensed Material as applicable, including all copyrights, trademarks, trade secrets, and other intellectual property rights therein or relating thereto, except as expressly granted to You and/or to the extent applicable, to the Account Owner, under this Agreement. All rights not expressly granted pursuant to this Agreement to You and/or Account Owner, as applicable, are expressly reserved by Us.
4 –Your Responsibilities
(1) You must have a compatible Device and be connected to the Internet in order to download and install the Mobile App, receive a Registration Key, access the Licensed Materials and use the Services, or to issue or delete a Registration Key.Registration Key(s) can only be issued to or deleted from Your Device when the Device has network connectivity (for example 3G, 4G, WiFi). If Your Device is not connected to the Internet or is in “airplane mode”, You can only use the Registration Key that is already installed on Your Device. Each Registration Key is licensed to You and can only be used on the original Device it was registered with. If Your Device is lost or stolen, or if You transfer, sell, or change Your Device, or if You delete the Registration Key(s) and/or the Mobile App, You will have to obtain another license to access and use the Mobile App, Registration Key, and the Services from Your new Device. You are responsible for and agree to use the Licensed Materials exclusively with the Services in order to gain access to certain areas, offices and locations, and/or use the equipment which You are authorized to access.
You are further responsible for and agree to:
i. manage, protect and keep Your Device secure against unauthorized access;
ii. keep Your Device and Licensed Material current by downloading Modifications as and when they become available;
iii. make sure that all settings, required network connection, and changes necessary to operate the Licensed Material or Services on or from Your Device are up to date and correct; and
iv. immediately delete, or request deletion, of Registration Key(s) from Your Device if the Device is lost, to be sold, transferred or assigned to someone else, or when You cease to use the Licensed Material or Services.
(2) Keep Your Access Secure.You are responsible for maintaining the confidentiality and protecting the security of Your password and/or PIN (collectively the “Secure ID) for access to Your Device, including choosing a Secure ID that is secure and take all necessary precautions to protect Your Secure ID and to prevent any and all non-authorized use or access of Your Secure ID. You will provide true and accurate information when signing up for access to your account or modifying Your access to the Licensed Materials and Service. You will not (i) share Your Secure ID with anyone; (ii) allow anyone else the use of Your Registration Key or the right to access the Licensed Materials or Services; or (iii) copy or reproduce a Registration Key.
If You become aware that Your Secure ID has been compromised or hacked, misappropriated or used without authorization, You must notify the Account Owner immediately. We are not responsible for any loss, damage, or any other claims that may arise from Your failure to keep Your Secure ID confidential and secure, protect it from unauthorized access, and/or to notify the Account Owner in the event of such an incident.
(3) In connection with Your obtaining agreement from the End User to Your terms of use and privacy policy, You are responsible to inform, advise, and obtain consent from End User to the terms of this Agreement and Our Privacy Policy prior to granting access to such End User to the Licensed Materials, Switch Tech Solution, or any part thereof. To the extent that you do not have any such agreement with End User, you agree to inform, advise and obtain consent to this Agreement and Our Privacy Policy prior to granting access to such End User to the Licensed Materials, Switch Tech Solution, or any part thereof.
5 – Compliance with Law and this Agreement – You represent and warrant that You shall comply with any and all applicable international, federal, state and provincial laws as well as the terms and conditions of this Agreement, including Your responsibilities set forth in section 4. of this Agreement, when accessing and using the Licensed Materials and/or Services.
If Your use of the Licensed Materials and/or Services is prohibited by applicable law, or You do not have the legal capacity as required by applicable law, then You are not authorized to use the Licensed Materials or Services.
6 – Third Party Materials – The Licensed Materials or Services may require access to another Person’s products or services, or provide links to websites or resources outside Your or Your Account Owner’s network, (collectively and individually the “Third Party Materials”). “Person” means an individual, corporation, partnership, limited liability company, association, trust, joint venture, organization, including a government organization, governmental subdivision or agency, institution, or any other legal entity. We do not control, nor endorse, warrant, guarantee or assume responsibility for, and will not be liable, for the services or products offered by any of these third parties nor for the content or quality of linked websites or the Third Party Materials provided therefrom. We are not responsible for the operation nor proper functionality, nor examining or evaluating of such Third Party Materials, including their accuracy, completeness, timeliness, validity, compliance, legality, decency, quality, or any other aspect thereof. Third Party Materials and links thereto are provided solely as a convenience to You, and You access and use of the Third Party Materials is entirely at Your own risk and subject to such third parties’ terms and conditions. You will not use the Third Party Materials in any manner that is inconsistent with the terms of this Agreement or that infringes Our intellectual property rights or intellectual property rights of any other Person. You agree not to use the Third Party Materials to harass, abuse, stalk, threaten or defame any person or entity, and that We are not responsible for any such use. If you decide to use any Third Party Materials, You are solely responsible to ensure You do so in compliance with such third parties’ terms and conditions and any applicable laws.
7 – Services
(1) Services and service levels, if any, are set forth in the agreements between Us and our reseller(s). Reseller has a contract with the Account Owner, and Account Owner is responsible for setting up Your access to and use of the Services. The Services provided under the terms of this Agreement may be terminated, suspended or interrupted pursuant to the terms of the services agreement between the reseller and the Account Owner as applicable, which may prevent Your access to and use of the Services. In the event that You cannot access or use the Services, You must inform Your Account Owner.
(2) Notice – We will notify the reseller or Account Owner, as applicable, in the event of a substantial change in the content, method of use, or periods of use of the Services, or if the Services are interrupted, suspended or ceased.
8 – Additional Terms For An Administrator – In addition to the general terms and conditions set forth in this Agreement, the following terms apply to the services You as an Administrator may provide when using the Licensed Material in accordance with this Agreement to allow You to store, manage and use the Registration Key on Your Device, to control access to doors and electronic equipment of Persons and End Users in accordance with the list of Administrator commands provided to an Administrator on the Mobile App, said list of commands is subject to change at Our sole discretion from time-to-time (“Administrator Services”):
(1) You are responsible for all access and use of the Licensed Materials in relation to the Administrator Services. You agree to use the Licensed Materials for the Administrator Services solely in order to manage access to certain areas, offices, locations and/or use the equipment which You are authorized to access and use.
(2) Account Owner Deactivation. If You have an agreement with an Account Owner or another Person for the use of the Licensed Materials and Services, Your right to use the Licensed Materials and Services may be subject to the terms and conditions of such agreement with the Account Owner or other Person. In addition, the Account Owner or other Person may have the ability to terminate your access to the Licensed Materials and Services via the software used to set-up Your account by removing or de-authorizing Your account or deactivating Your Registration Key. In the event your Account Owner or another Person removes access or de-authorizes Your account or deactivates Your Registration Key, We are not responsible and shall have no liability to You for any damages as a result of, or arising out of, such de-authorization or removal.
9- Termination
(1) You may terminate this Agreement and Your right to access and use the Licensed Materials at any time by deleting the Licensed Materials from Your Device. If the Account Owner terminates this Agreement, Your right to use the Licensed Materials shall terminate at the same time. We may terminate this Agreement at any time, for the reasons set out in Section 2 of this Agreement, or if You breach any term of this Agreement or as agreed with the Account Owner. This Agreement shall terminate in the event Account Owner terminates its agreement with the Reseller or Us pursuant to the agreement between Account Owner and any reseller or Us, as applicable. If you violate any of the material terms and conditions of this Agreement, We may terminate this Agreement immediately and without notice to You.
(2) In the event this Agreement is terminated:
i. All rights and license(s) granted to You under this Agreement will also terminate;
ii. We will not accept further requests for, and will stop issuing, additional Registration Key(s); and We will no longer provide technical or customer support;
iii. You must immediately cease all use of the Licensed Material or Services, and You shall delete the Mobile App from Your Device; and
iv. We may delete Your personal data (to the extent applicable) subject to the terms set forth in Our general privacy policy at https://timeforaswitch.com/app-privacy-policy/access and use of the Switch Tech Solution, Licensed Materials, or Our website, as well as any of our jurisdiction-specific privacy policies and notices as may be applicable (for example, Our privacy notice for California residents at https://timeforaswitch.com/ccpa-privacy-notice/), which describes the information We collect about You and how such information is treated and for what purposes We may use and share such information; and how You can exercise your privacy rights (“Privacy Policy”).
10 -WARRANTY DISCLAIMER – THE LICENSED MATERIALS AND SERVICES, AND INFORMATION PROVIDED WITH RESPECT TO THE LICENSED MATERIALS AND SERVICES, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED MATERIALS AND SERVICES ARE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND THE DORMAKABA PARTIES, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, COURSE OF PERFORMANCE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, NEITHER WE, NOR THE DORMAKABA PARTIES MAKE ANY WARRANTY OF ANY KIND THAT THE LICENSED MATERIALS OR SERVICES, OR ANY RESULTS OF THE ACCESS TO OR USE THEREOF, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, SERVICES OR NETWORKS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE AND RELIABILITY STANDARDS, BE ERROR-FREE, TIMELY, FREE OF VIRUSES, WORMS, DISABLING CODE OR OTHER HARMFUL CODE. NEITHER WE, NOR THE DORMAKABA PARTIES WARRANT THAT THE LICENSED MATERIALS AND SERVICES WILL BE COMPATIBLE WITH ALL HARDWARE AND SOFTWARE WHICH YOU MAY USE. NEITHER WE, NOR THE DORMAKABA PARTIES SHALL BE LIABLE FOR VIRUSES OR OTHER CODE THAT MAY AFFECT OR DAMAGE, ANY EQUIPMENT (INCLUDING BUT NOT LIMITED TO YOUR DEVICE), HARDWARE, SYSTEM, SOFTWARE, DATA, INFORMATION OR OTHER PROPERTY AS A RESULT OF YOUR DOWNLOADING, INSTALLATION OF THE LICENSED MATERIALS, ACCESS TO OR USE OF THE LICENSED MATERIALS AND SERVICES OR YOUR OBTAINING ANY INFORMATION FROM THE LICENSED MATERIALS AND SERVICES. NEITHER WE, NOR THE DORMAKABA PARTIES SHALL BE LIABLE FOR THE ACTS AND OMISSIONS OF THIRD PARTIES. NEITHER WE, NOR THE DORMAKABA PARTIES SHALL BE RESPONSIBLE FOR LOSS OF ANY PERSONAL OR NON-PERSONAL DATA EXCEPT AS REQUIRED UNDER OUR PRIVACY POLICY, ANY APPLICABLE PRIVACY POLICIES OF OUR LICENSORS, RESELLERS OR SERVICE PROVIDERS, AND ANY APPLICABLE PRIVACY AND DATA PROTECTION LAWS. YOU ARE RESPONSIBLE FOR BACKING UP YOUR PERSONAL AND NON-PERSONAL DATA THAT YOU PROVIDE OR RECEIVE FOR ACCESS AND USE OF THE LICENSED MATERIAL OR SERVICES. YOU AGREE TO ASSUME ALL RISK OF ANY DAMAGES AND LOSS FROM USE OF, OR INABILITY TO USE, THE LICENSED MATERIALS OR SERVICES.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH CASE, THE EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM IT CAN UNDER THE LAW.
11 – LIMITATION OF LIABILITY
(1) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE NOR THE DORMAKABA PARTIES BE LIABLE FOR ANY CLAIMS, DISPUTES OR CONTROVERSIES (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS), DAMAGES, LOSSES, LIABILITIES, PENALTIES, OR FINES OF ANY NATURE, AND ASSOCIATED COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) (THE “CLAIMS”) WHICH (I) MAY ARISE OR HAVE ARISEN FROM OR ARE RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED MATERIALS OR SERVICES; (II) MAY ARISE OR HAVE ARISEN FROM OR ARE RELATED TO FALSE, MISLEADING, DECEPTIVE OR INACCURATE INFORMATION OR DATA PROVIDED BY YOU; (III) MAY ARISE OR HAVE ARISEN DUE TO A VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT BY YOU, INCLUDING YOUR FAILURE TO PERFORM YOUR OBLIGATIONS AS SET FORTH IN THIS AGREEMENT; (IV) MAY ARISE OR HAVE ARISEN DUE TO YOUR NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS, INCLUDING BUT NOT LIMITED TO YOUR FAILURE AS AN ADMINISTRATOR TO PERFORM YOUR ADMINISTRATOR SERVICES ACCORDING TO THIS AGREEMENT OR ANY SPECIFICATIONS AS APPLICABLE, YOUR NEGLIGENCE IN THE INSTALLATION, OPERATION, OR USE OF THE LICENSED MATERIALS AND/OR SWITCH TECH SOLUTION, AND/OR ANY OTHER ACT OR OMISSION RELATED TO OR ARISING OUT OF YOU AGREEMENT WITH US; (V) THE MISAPPLICATION, IMPROPER INSTALLATION OR SET UP OF THE DIGITAL CORE BY YOU, AN ADMINISTRATOR), OR ANY OTHER PERSON; (VI) IS RELATED TO OR RESULTS FROM THE UNAUTHORIZED ACCESS TO OR USE OF YOUR DEVICE, THE LICENSED MATERIAL OR SERVICES BY ANOTHER PERSON DUE TO YOUR NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS; AND/OR (VII) ARE IN RELATION TO OR ARISE FROM INTERRUPTION OR SUSPENSION OF TRANSMISSIONS OR CONNECTIVITY TO OR FROM A COMPUTER SERVER DESPITE OUR REASONABLE EFFORTS TO PREVENT SUCH INTERRUPTION OR SUSPENSION OF TRANSMISSIONS OR CONNECTIVITY.
(2) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE NOR THE DORMAKABA PARTIES BE LIABLE FOR CLAIMS OF ANY NATURE ARISING FROM OR RELATED TO PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, DAMAGES FOR LOSS OF USE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF ACTUAL OR ANTICIPATED PROFITS OR SAVINGS, LOSS OF OPPORTUNITY, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED MATERIALS OR SERVICES, WHATSOEVER THE CAUSE, REGARDLESS OF THE THEORY OF LIABILITY IN CONTRACT, AND TORT, (INCLUDING NEGLIGENCE OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(3) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF SERVICES FEES ACTUALLY PAID TO A DORMAKABA PARTY (AS DEFINED HEREIN) IN RELATION TO THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DECLARED INVALID OR INAPPLICABLE.
(4) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR THE DORMAKABA PARTIES HAVE ANY LIABILITY ARISING FROM OR RELATED TO THE ACTIONS OR OMISSIONS OF YOU AS EMPLOYER FOR ANY INTERACTIONS WITH ANY EMPLOYEE.
(5) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR THE DORMAKABA PARTIES HAVE ANY LIABILITY ARISING FROM OR RELATED TO ACTIONS TAKEN BY YOU, ANY END USER AND/OR ADMINISTRATOR THAT VIOLATE THE LICENSE GRANT, THE ACCOUNT OWNER’S TERMS OF USE, THE TERMS OF USE CONTAINED IN THIS AGREEMENT, OR THE EMPLOYER’S CODE OF CONDUCT.
(6) SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH CASE, THE EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM IT CAN UNDER THE LAW.
12 – INDEMNIFICATION – YOU WILL INDEMNIFY, DEFEND AND HOLD US AND THE DORMAKABA PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, WHICH WE AND/OR THE DORMAKABA PARTIES ARE REQUIRED TO PAY OR INCUR, ARISING OUT OF OR RELATED TO YOUR USE OF THE LICENSED MATERIALS AND/OR SERVICES, OR ANY ACT OR OMISSION (WHETHER NEGLIGENT, RECKLESS OR WILFUL) ON YOUR PART OR ON THE PART OF YOUR EMPLOYEES, AGENTS OR ASSIGNS, ADMINISTRATORS AND/OR END USERS IN CONNECTION WITH THE PERFORMANCE OF YOUR OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING ANY ACT OR OMISSION OF YOU AS AN ADMINISTRATOR IN THE PERFORMANCE OF ADMINISTRATOR SERVICES IN RELATION TO THIS AGREEMENT.
13 – Export Control –The Licensed Materials may be subject toU.S. and foreign export laws.Unless authorized by applicable law, You shall not, directly or indirectly, use or otherwise export or re-export the Licensed Materials or Services (i) into any country subject to United States government embargo; (ii) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department’s Denied Party or Entity List; and (iii) to any prohibited country, Person, or End User specified by US export laws or any other applicable laws, rules or regulations. When using the Licensed Materials or Services, You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making Licensed Materials or Services available outside the US.
You also agree that You will not use the Licensed Materials or Services for any purposes prohibited by law and agree that in no event will the Licensed Materials or Services be used for the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
14 – U.S. Government Rights – The Licensed Materials are “commercial items”, as that term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Licensed Materials are being licensed to U.S. Government End Users or Administrators as applicable, only as commercial items and with only those rights as are granted to all other End Users or Administrators as applicable, pursuant to the terms and conditions herein.
15 – Data Privacy Consent – In relation to Your access and use of the Licensed Material and Services, You have certain rights with respect to Your personal information You provide to Us which are covered in our Privacy Policy available at: https://timeforaswitch.com/app-privacy-policy/. If you have any questions please contact Us as set out in section 26 below.
16- Disputes.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY IMPACT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIM. In order to expedite and control the cost of litigation, You agree that any legal or equitable dispute arising out of or relating in any way to Your use of any products and services subject to this Agreement will be resolved by binding arbitration.
Any dispute or claim relating in any way to the use, sale or distribution of Our Licensed Material or Services, will be resolved by binding arbitration rather than in a Court of Law, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. Arbitration shall take place in Indianapolis, IN, and under the Commercial Rules of the American Arbitration Association (“AAA”) and using a single arbitrator from AAA roster.
Any dispute or claim against Us arising out of the Switch Tech Solution, Licensed Material, Services or the terms of this Agreement must be brought within one (1) year from the date of accrual or it will be deemed waived. This provision may shorten the statute of limitations in your jurisdiction, so please take notice.
You waive any right to assert any claims against Us as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent You are permitted by law or court of law to proceed with a class or representative action against the other, You agree that: (i) You shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (notwithstanding any other provision in this Agreement); and (ii) You will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
17 – Changes to this Agreement – You agree thatWe may make changes to the terms of this Agreement from time-to-time. If We consider the changes to be material, You will be notified of such changes through the Services or Your Account Owner or by posting a notice or new version of this Agreement to the website or such other manner as we reasonably deem to be likely to reach You. Your continued use of the Licensed Materials or Services following the posting of the updated Agreement or notice of the changes constitutes your acceptance of the updated Agreement or such changes. If you do not agree with the changes or the updated Agreement, You should stop using the Licensed Materials and Services.
18 – Severability. If any term or provision of this Agreement shall, in part or in whole, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity or unenforceability and the remainder of this Agreement shall not be affected thereby, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable Law.
20- Survival. Provisions of this Agreement, which by their nature should apply beyond their term, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Restrictions, Reservation of Rights, Compliance With Law and This Agreement, Termination, Warranty Disclaimer, Limitation of Liability, Indemnification, Data Privacy Consent, Disputes, Severability, Survival, Waiver, No Third-Party Beneficiaries, Your Responsibility for Disabled Employees or Other Persons, and Governing Law.
21- No Third-Party Beneficiaries. This Agreement is for the sole benefit of Us and You, and our respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
22- Assignment – You shall not assign any of Your rights or delegate any of Your obligations under this Agreement without Our prior written consent. Any purported assignment or delegation will result in the Agreement being voidable and/or voided at Our sole discretion. We may assign all or part of the rights and obligations under this Agreement to any company or companies which are part of the dormakaba group.
23- Waiver – Ourfailure to enforce any of the terms and conditions under this Agreement or to insist upon strict compliance with any of Your obligations hereunder shall not mean We have waived Our rights to demand full and exact compliance with the terms of this Agreement. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
24- Your Responsibility for Disabled Employees or Other Persons. You acknowledge that there may be certain employees or other Persons who cannot utilize the Services without additional accommodations being made. You shall be solely responsible for ensuring that any accommodations that are needed or required under the Americans with Disabilities Act, and similar state statute or other rule or regulation, are provided to the impacted employee(s) and/or other Persons. We shall have no responsibility in making any such modifications unless separately contracted for by you. 25- Governing Law – This Agreement is governed by the laws of Indiana, without regard to choice or conflict of law principles of any State. Any dispute arising under the terms of this Agreement shall be governed by the laws of the State of Indiana and any litigation or other cause of action pertaining to any claim or dispute arising from or related to the terms of this Agreement shall be brought in the state or federal court in Marion County, Indianapolis, IN.
26- Contact Details:
By Mail
Attention: Technical Support;
dormakaba USA Inc.
6161 E 7th Street,
Indianapolis, IN 46250
or
By Phone, call Toll Free:
1 800 313-5784
or
By Email:
[email protected].