Last Modified: March 17, 2023
This Bosch RefinemySite End User License Agreement for the United States and Canada (“EULA”) forms a binding contract between Bosch (as defined below) and you (“User”, “you”, or “your”). This EULA governs your access to and use of the cloud based lean management software RefinemySite (the “Software”). If Licensee (as defined below) is based in the United States, “Bosch” means Robert Bosch Tool Corporation, a Delaware corporation; if Licensee is based in Canada, “Bosch” means Robert Bosch Corporation, a Canada corporation. Each of User and Bosch may be referred to herein as a “Party” and collectively as the “Parties”.
THIS EULA CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IT INCLUDES: VARIOUS LIMITATIONS ON AND EXCLUSIONS OF OUR LIABILITY TO YOU; YOUR INDEMNITY OF US; AND DISPUTE RESOLUTION PROVISIONS THAT GOVERN HOW DISPUTES WILL BE RESOLVED, INCLUDING ARBITRATION AND A CLASS ACTION WAIVER.
BY CLICKING OR SIGNING BELOW OR BY ACCESSING OR USING THE SOFTWARE YOU ARE ACCEPTING THIS EULA. BY SIGNING THIS EULA OR BY ACCESSING OR USING THE SOFTWARE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA; (B) REPRESENT AND WARRANT THAT (1) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ACCEPT THIS EULA (2) YOU ARE AN EMPLOYEE, AGENT OR OTHER AUTHORIZED REPRESENTATIVE OF THE LICENSEE (defined below), (3) YOU ARE USING THE SOFTWARE IN YOUR REPRESENTATIVE CAPACITY, (4) YOU ARE AUTHORIZED TO USE THE SOFTWARE, AND (5) YOU HAVE THE LEGAL AUTHORITY TO BIND LICENSEE; AND (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THIS EULA, DO NOT CLICK TO ACCEPT OR SIGN THIS EULA OR ACCESS OR OTHERWISE USE THE SOFTWARE.
1.1. This EULA is subject to the RefinemySite Terms and Conditions for the United States and Canada (the “RefinemySite Terms”) between Bosch and the entity or individual who has submitted an accepted Order Form (as defined in the RefinemySite Terms) and thereby accepted the RefinemySite Terms (“Licensee”), which takes precedence over this EULA in the event of a conflict. Subject to and conditioned upon your strict compliance with all term and conditions set forth in this EULA and the RefinemySite Terms, Bosch hereby grants to you a non-exclusive, non-transferable, non-sublicensable, limited license during the term of the RefinemySite Terms to use the Software, solely as set forth in this Section 1 and subject to any other conditions or limitations set forth in this EULA.
1.2. If Licensee is based in Canada, there are separate supplemental terms relating to your access to and use of the Software, as set forth in Section 18 below (Supplemental Terms – Canada-Specific), in which case you also hereby agree to the terms of Section 18 below. In the event Licensee is based in Canada and there is a conflict between the provisions of Section 18 and the rest of this EULA, the terms of Section 18 will supersede and control.
2.1. Eligibility. The use and access of the Software is restricted to any individual authorized by a Licensee to access and use the Software (“Authorized User”), who is 18 years or older. By using the Software, you represent and warrant that you are an Authorized User and at least 18 years old and otherwise have the capacity to contract. Bosch reserves the right to modify the Software, make new functions available within the Software free of charge or on a fee basis, and to continue the provision of free functions at any time in its sole discretion.
2.2. Updates. From time to time Bosch or third parties providing the Software may develop upgrades, updates, patches, bug fixes and other modifications to improve the performance or compatibility of the Software (“Updates”). You acknowledge and agree that Updates will either be manually installed with notification or automatically installed without providing any additional notice to you or receiving any additional consent from you. You acknowledge that you may be required to install Updates to use the Software and you agree to promptly install any Updates if so required. You acknowledge that you shall be liable for any damages that occur as a result of your failure to install Updates as recommended by Bosch. These Terms shall apply to any Updates that are made available to you by Bosch at any time, unless such Updates are governed by a separate license agreement.
You shall not use the Software or any software component of the Software, for any purposes beyond the scope of the access granted in this EULA. You shall not at any time, directly or indirectly, and shall not permit any other user to: (i) copy, modify, or create derivative works of the Software, or any software component of the Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, except as expressly permitted under this EULA; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; (v) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter, interfere with or disrupt a computer or communication network, computer, handheld device, mobile device, data, the Software, or any other system, device or property; (vi) access (or attempt to access) any of the Software by means other than through the interface that is provided by Bosch; (viii) access or use the Software in a way intended to avoid incurring fees (if any); (ix) remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices); (x) infringe or violate the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (xi) violate any law, statute, ordinance or regulation; (xii) post any content that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (xiii) impersonate any person or entity, including without limitation any employee or representative of Bosch; (xiv) jeopardize the security of the Licensee’s account; (xv) attempt, in any manner, to obtain the password, account, or other security information from any other user; or (xvi) access the Software in order to build a similar or competitive service.
4.1. Account Use. You are responsible and liable for all uses of the Software resulting from access provided by you, directly or indirectly (“Additional Users”), whether such access or use is permitted by or in violation of this EULA.
4.2. Passwords and Access Credentials. You are entirely responsible for maintaining the confidentiality of your account login information and for all activities that occur under your account. You agree to use “strong” passwords that use a combination of upper and lower case letters, numbers and symbols with your account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Bosch of any unauthorized use, or suspected unauthorized use, of your account or any other breach of security. Bosch is not liable for any loss or damage arising from your failure to comply with the above requirements.
5.1. Your Personal Data. By using the Software, you acknowledge that you have read and consent to the collection and use of personal information as described in the terms of our Privacy Policy available at https://www.bosch-pt.com/ptlegalpages/ca/rbca/en/refinemysiteweb/privacy/. We will collect, use and disclose your personal information in accordance with that Privacy Policy, and you hereby consent to us doing so.
5.2. You acknowledge that the Software collects and processes personal information of third-parties and that you may have access to such personal information through the Software. You agree that you will (i) comply in with all applicable data privacy and security laws and regulations, (ii) not use, copy, transfer or otherwise process the personal information, except as necessary for the purposes of this EULA or the RefinemySite Terms, and (iii) will provide such help and cooperation as is reasonably necessary or requested by Bosch to comply with the same.
6.1. General. The Software relies on or interoperates with third party products and services (“Third Party Technology”). The Third Party Technology may include data storage, synchronization, and communication through third-party providers.
6.2. Release Regarding Third Parties. Bosch is not responsible for the Third Party Technology, including Third Party Technology app sites, third party sites and referred vendors, if any (collectively, “Third Party Products and Services”). Bosch hereby disclaims and you hereby forever discharge, waive and release Bosch and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and Third Party Products and Services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
6.3. Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT: (I) THE USE AND AVAILABILITY OF THE SOFTWARE IS DEPENDENT ON THIRD PARTY PRODUCTS AND SERVICES; (II) THE THIRD PARTY PRODUCTS AND SERVICES MAY NOT OPERATE IN A RELIABLE MANNER AND THEY MAY IMPACT THE WAY THAT THE SOFTWARE OPERATES; (III) BOSCH MAKES NO REPRESENTATION OR WARRANTY ABOUT THE OPERATION, USE, SAFETY OR RELIABILITY OF ANY THIRD PARTY PRODUCTS AND SERVICES; AND (IV) BOSCH IS NOT RESPONSIBLE FOR DAMAGES AND LOSSES DUE TO THE OPERATION OF THE THIRD PARTY PRODUCTS AND SERVICES OR THE SOFTWARE, INCLUDING ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE (INCLUDING TO YOUR HOME OR FACILITY), INTERRUPTION OF SOFTWARE, DOWNTIME, DATA LOSS, OR ANY OTHER HARM OR LOSSES ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE OR THIRD PARTY PRODUCTS AND SERVICES.
7.1. Each Party receiving Confidential Information hereunder (“Recipient”) agrees that:
7.1.1. it will treat all Confidential Information of the other Party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and
7.1.2. it will not use, disseminate, or disclose to third parties any Confidential Information of the disclosing Party (“Discloser”), except for the purpose of providing the Software, and for any other purpose Discloser may authorize.
7.2. For purposes of this EULA, “Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either Party, including, without limitation, any personal information, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either Party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other Party or any of its employees or agents.
7.3. Recipient will have no obligation with respect to any portion of the Confidential Information which:
7.3.1. is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public;
7.3.2. was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure;
7.3.3. is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure;
7.3.4. is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or
7.3.5. is disclosed with the prior written consent of Discloser.
7.4. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.
8.1. Bosch Property. You acknowledge and agree that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets in the Software (“Bosch IP”), are owned by Bosch or its affiliates or licensors. Your possession, access, and use of the Software does not transfer to you or any third party any rights, title, or interest in or to such Bosch IP. Bosch and its affiliates, licensors and suppliers reserve all rights not granted in this EULA. The Software is licensed to you on behalf of your employer, not sold, under this EULA and the RefinemySite Terms. You may not use the content of the Software in any other public or commercial way nor may you copy or incorporate any of the content of the Software into any other work, without the prior written consent of Bosch.
8.2. Feedback. You may choose to, or Bosch may invite you to submit comments, suggestions, or ideas about the Software or any Bosch products used in connection with the Software, including how to improve it (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Bosch under any fiduciary or other obligation. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for Bosch. You hereby waive any intellectual property rights in the Feedback including without limitation any and all moral rights you may have in the Feedback. Furthermore, Bosch may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you or reference to you as a source of any such Feedback. You also agree that Bosch does not waive any rights to use similar or related ideas previously known to Bosch, developed by its employees, or obtained from other sources.
The Software may include open source software and third party software under royalty free licenses (“FOSS”).
The FOSS in the Software is subject to FOSS license agreements (“FOSS-Licenses”) which are located at the following website: https://app.bosch-refinemysite.com/3rdpartylicenses.txt. Pursuant to these FOSS-Licenses, Bosch has to pass on to you their terms and conditions and you have to comply with these terms and conditions and fulfill respective obligations when using the FOSS in any way other than merely installing and running it internally on your machines, e.g. through further disposal of the product, as by distribution, selling, or otherwise passing it on to a third party. The rights under the FOSS-Licenses are being granted to you, and in the event of you passing on a copy of the product to another party, the terms and conditions of the respective FOSS-Licenses apply to the distribution of any included FOSS (in some cases, the FOSS-License provides a direct license from the author/licensor of the FOSS to the third party). For many FOSS-Licenses, Bosch itself can neither grant nor obtain these rights for you. The applicable FOSS-Licenses are available on the internet address of the provider of the FOSS or will be made available by Bosch at the noted webpage.
The FOSS itself does not contribute to the sales price of the services accessible via the Software and thus is provided without royalty or monetary compensation.
You agree to take responsibility for Your compliance with the applicable FOSS-Licenses. Further, you agree that updates or new versions of the Software may contain different or additional FOSS or changes in the FOSS-Licenses and you agree to be bound by all such different or additional FOSS or changes in the FOSS-Licenses. If you do not agree to be bound by such FOSS-Licenses, then you are not permitted to use the Software and will immediately cease any such use.
If any terms or restriction of this Agreement conflict with the license conditions of FOSS included in this product, the terms and conditions of these FOSS-Licenses shall prevail.
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS BOSCH AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF THE FOLLOWING USE OF THE SOFTWARE BY YOU AND/OR ANY OF YOUR ADDITIONAL USERS (I) MISUSE OF THE SERVICE; (II) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY COPYRIGHT, PATENT TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM MISUSE OF THE SOFTWARE; (III) BREACH OF ANY PROVISION OF THIS EULA OR THE REFINEMYSITE TERMS OR RELATED POLICIES BY YOU OR ANY OTHER AUTHORIZED USER; (IV) ACCOUNT ACCESS OR ACTIVITY DUE TO FAILURE TO PROTECT LOG-ON CREDENTIALS; (V) ANY VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY BY YOU; (VII) ANY USE OR PROCESSING OF ANY PERSONAL INFORMATION EXCEPT AS NECESSARY FOR THE PURPOSES OF THIS EULA OR THE REFINEMYSITE TERMS; AND/OR (V) ANY CAUSE OF ACTION BY ANY OF YOUR ADDITIONAL USERS, INCLUDING ANY AND ALL ALLEGATIONS, SUITS, CLAIMS AND PROCEEDINGS (INCLUDING REASONABLE ATTORNEYS’ AND PROFESSIONAL FEES) (COLLECTIVELY, “CLAIMS”) AND ALL RELATED DAMAGES INCURRED BY YOU OR BOSCH AS A RESULT OF OR ARISING FROM YOUR ADDITIONAL USER’S BREACH OR ALLEGED BREACH. IT IS UNDERSTOOD AND AGREED THAT YOU THE YOU ASSUME FULL LIABILITY FOR A BREACH BY ANY OF YOUR ADDITIONAL USERS OF THIS EULA. IT IS UNDERSTOOD AND AGREED THAT YOU ASSUME FULL LIABILITY FOR A BREACH BY ANY OF YOUR AUTHORIZED USERS OF THIS AGREEMENT AND BOSCH SHALL HAVE NO LIABILITY FOR ANY MISUSE OR ACTION BY ANY AUTHORIZED USER OR ANY OF YOUR AFFILIATES, SUPPLIERS OR AGENTS.
11.1. Disclaimers of Warranties.
THE SOFTWARE AND ALL INFORMATION, CONTENT, MATERIALS AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SOFTWARE ARE PROVIDED BY BOSCH ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BOSCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SOFTWARE, OR THE INFORMATION, CONTENT, MATERIALS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SOFTWARE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW AND EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET OUT HEREIN, BOSCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BOSCH DOES NOT WARRANT THAT THE SOFTWARE, OR ANY INFORMATION, CONTENT, MATERIALS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SOFTWARE, BOSCH'S OR ITS THIRD PARTY PROVIDERS’ SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.2. Limitations on Liability.
BOSCH WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SOFTWARE, OR FROM ANY INFORMATION, CONTENT, MATERIALS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
UNLESS PROHIBITED BY APPLICABLE LAW, BOSCH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS EULA, THE SERVICES, THE REFINEMYSITE TERMS AND CONDITIONS FOR THE UNITED STATES AND CANADA AND THE REFINEMYSITE MOBILE APP END USER LICENSE AGREEMENT FOR THE UNITED STATES AND CANADA WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING A CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A USER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH USER, AND SUCH USER MIGHT HAVE ADDITIONAL RIGHTS.
11.3. The limitations of this Section 11 shall apply regardless of whether any remedy set forth herein fails in its essential purpose or otherwise.
This EULA and all disputes between the Parties arising out of or related thereto shall be governed by the laws of the State of Michigan except for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply. The Parties acknowledge that this EULA evidences a transaction involving interstate commerce. Any and all disputes, controversies, differences, or claims arising out of or relating to this EULA (including the formation, existence, validity, interpretation (including of this Arbitration clause), breach or termination thereof) shall be resolved exclusively through binding arbitration, except that either Party shall have the right, at its option, to seek interim injunctive relief at any time, under seal to maintain confidentiality to the extent permitted by law, (i) in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan, or (ii) pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules. A request by a Party to a court of competent jurisdiction for such interim measures shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate. The Parties agree that any ruling by the arbitration tribunal on interim measures shall be deemed to be a final award for purposes of enforcement. The arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA as amended from time to time, except as modified by this clause or by mutual agreement of the Parties, and shall be governed by the United States Federal Arbitration Act. Within 14 days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The arbitration shall be conducted in Detroit, Michigan, USA, and the language of the arbitration shall be English. The arbitrators’ award shall be final and binding. The arbitrators shall issue a written opinion setting forth the basis for the arbitrators’ decision. The written opinion may be issued separately from the award, in the arbitrators’ discretion. Each Party shall bear its own attorney fees and costs, and each Party shall bear one half the cost of the arbitration hearing fees and the cost of the arbitrator, unless the arbitrators find the claims or defenses to have been frivolous or harassing, in which case fees and costs may be assessed in the arbitrators’ discretion. Either Party may apply to have the arbitration award confirmed and a court judgment entered upon it. Venue for confirmation of or any challenge to the Arbitration Award shall be in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan and shall be done under seal to maintain confidentiality to the maximum extent permitted by law. The arbitrators shall have no authority to award punitive damages or any other damages excluded herein, to the maximum extent permitted by law. Except as may be required by law, neither a Party, its counsel, nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
THE PARTIES AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If you seek to represent a class and this waiver provision is deemed unenforceable, the Parties agree that the entirety of this agreement to arbitrate will be null and void and any claims must be brought in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern District of Michigan.
This EULA, and all rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by Bosch without restriction. Any attempted assignment by you will be null and void.
Access to the Software is subject to local and international export and re-export control laws and sanctions regulations. You agree to comply with all applicable export and re-export control laws and sanctions regulations, of the United States of America and the United Nations or any other applicable jurisdiction.
You acknowledge that the Software may be accessed from any geographic location. You shall not - directly or indirectly – provide access to the Software to any destination, entity, or person prohibited or sanctioned by the laws and regulations of the United States of America, the United Nations or any other applicable jurisdiction.
You shall not use the Software, or data resulting from the Software, directly or indirectly, for nuclear, chemical, or biological weapons proliferation, development of missile technology or any other military purpose.
You shall indemnify, to the fullest extent permitted by law, Bosch, its affiliates, and their respective officers, directors, employees and agents from and against any and all fines, penalties or other cost arising from or in connection with your violation of any applicable export and re-export control law, sanction or regulation.
This Export Control section shall survive termination or cancellation of the contractual relationship between you and Bosch.
Any delay in the availability of the Software or non-performance of any related services shall not be deemed a breach of this EULA if such delay or non-performance is caused by a fire, earthquake, flood, war, terrorist act, government act, failure of common carriers (including Internet service providers), labor strike or walk-out, act of God, or any other event beyond the reasonable control of Bosch or its service providers.
You agree that we may provide notices to you of changes to this EULA and/or our Privacy Policy, in one or more of the following ways: (a) a pop-up notice, web banner, push notification or other notification on or through the portal or Software, (b) an email or mail sent to an address you provided, or (c) by mobile number.
This EULA, together with our Privacy Policy and the RefinemySite Terms, Bosch RefinemySite Mobile App End User License Agreement for the United States and Canada (if applicable), and any and all other policies or legal notices published by Bosch regarding the Software (“Agreement”), constitute the entire agreement between you and Bosch concerning your use of the Software.
If any provision of this Agreement is deemed invalid, unenforceable or void by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Bosch’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
The terms of this Section 18 apply only if Licensee is based in Canada.
20.1. Arbitration; Applicable Law. If Licensee is based in Canada, Section 12 above is replaced with the following:
This EULA is governed and construed in accordance with the laws of Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without regard to principles of conflict or choice of laws. The Parties agree that any controversy or claim arising out of or relating to this EULA or the alleged breach or interpretation thereof which cannot be satisfactorily resolved through consultation and negotiation between them, shall be settled by binding arbitration administered by the International Centre for Dispute Resolution Canada (“ICDR Canada”) in accordance with its Canadian Arbitration Rules, provided that the foregoing shall not prevent any Party from seeking interim injunctive relief in a court of competent jurisdiction. Claims shall be heard by a panel of three arbitrators. Within thirty (30) days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by ICDR Canada. The legal seat of arbitration and venue of hearings will be held in Toronto, Ontario. The language of the arbitration shall be English. The arbitration award shall be by a written decision containing findings of fact and conclusions of law, shall be final and binding and may be enforced by any court of competent jurisdiction. Each Party shall bear its own legal costs and shall bear half the costs of arbitration subject to the arbitrators’ jurisdiction to award legal and arbitration costs in the event of a finding that a Party advanced a claim or defense that was frivolous or vexatious. In no case shall the arbitrator be authorized to award costs and damages otherwise prohibited herein. The Parties undertake to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a state court or other legal authority (in which case the Party bringing such proceedings shall seek to do so under seal to the extent permitted by law). The Parties shall seek the same undertaking of confidentiality from all those that it involves in the arbitration, including but not limited to any authorized representative, witness of fact, expert, or service provider.