Last amended: March 17, 2023
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. These RefinemySite Terms and Conditions for the United States and Canada (“Terms”) describe the terms and conditions under which Provider (as defined below) offers each individual or entity which submits an accepted Order Form (as defined below) (hereinafter, the “Customer” or “you”) access to the Bosch Power Tools RefinemySite-Portal (the “RefinemySite-Portal”) and its Services (defined below). If Customer is based in the United States, “Provider” means Robert Bosch Tool Corporation, a Delaware corporation; if Customer is based in Canada, “Provider” means Robert Bosch Corporation, a Canada corporation. Each of Customer and Provider may be referred to herein as a “Party” and collectively as the “Parties”.
By accessing the RefinemySite-Portal or any content found on the RefinemySite-Portal, Customer agrees to comply with and to be bound by the Terms, including the policies and guidelines linked to (by way of the provided URLs) from these Terms. If Customer executing the Order Form is based in Canada, there are separate supplemental terms relating to such Customer’s access to the RefinemySite-Portal and the Services, as outlined in Section 20 below (Supplemental Terms – Canada-Specific), in which case such Customer also hereby agrees to the terms of Section 20 below. As it relates to such Canada-based Customers, in the event of a conflict between the provisions of Section 20 and the rest of these Terms, the terms of Section 20 will supersede and control. If you do not understand or agree with these Terms, do not access or use the RefinemySite-Portal or the Services.
1.1. The RefinemySite-Portal gives Customer the ability to engage in the digital planning, control and coordination of Customer’s construction projects and processes, by, without limitation: (i) creating individual projects and dividing each project into construction phases, with status overview for the entire project and each construction phase; (ii) creating specific tasks, with deadlines and other specifications; (iii) assigning such tasks to subcontractors; and (iv) allowing Customer and its authorized subcontractor(s) to schedule and/or update each such task independently and on a daily basis (collectively, the “Services”).
1.2. Additionally, the Services include (i) classification of scheduling adjustments to help with the planning of each construction project, and (ii) progress reports that show the level of completion and reasons for the progress of each task.
1.3. A user may access user’s tasks by login into the RefinemySite-Portal via the Internet or the RefinemySite mobile application (the “Mobile App”), allowing such user to comment on his/her assigned task(s), add additional information, and provide status reports. Customer and its authorized users will receive notifications of any changes or comments to any assigned task.
2.1. Customer may select the scope of the offered Services. Customer’s selection of the Services is set forth in Customer’s Services ordering document as accepted by Bosch (the “Order Form”), the form of which is available from Bosch upon request. No Order Form shall be of any force or effect unless it has been fully executed by an authorized representative of Customer and accepted by Bosch, which acceptance Bosch may withhold in its sole and absolute discretion.
2.2. Provider provides the Services to Customer solely based on and in accordance with the terms and conditions set forth in these Terms and any exhibits or appendices referred herein, which are hereby incorporated into and made part of these Terms.
2.3. Terms and conditions of Customer or of any third party will not apply and are hereby expressly rejected with respect to the Services or Refinemysite-Portal, and each Party acknowledges and agrees that such terms and conditions will not apply. Provider’s reference to a document containing or referring to Customer’s or a third party’s terms and conditions, does not constitute an acceptance of such terms and conditions by Provider.
2.4. Any legally relevant statements or notices (such as setting of time limits, notification of defects, and declaration of rescission or price reduction) must be confirmed in writing to be binding.
3.1. In providing the Services to Customer, Provider will use commercially reasonable efforts to make the Services available, whether via the RefinemySite Portal or the Mobile App, with an average yearly uptime percentage of 95%, twenty-four hours per day, seven days per week, but always subject to section 3.2 below.
3.2. No period of Services unavailability or inoperability will be included in calculating availability of the Services to the extent such unavailability or inoperability is due to any of the following: (i) daily planned maintenance work between 8 pm and 6 am (MET); (ii) other planned interruptions in operations; (iii) emergency software, site and/or software updates and maintenance; (iv) voluntary actions or inactions of Customer or any third party; (v) any unavailability or inoperability that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology outside of Provider’s control; (vi) any unforeseen cause beyond Service Provider’s reasonable control, including but not limited to Internet service provider or communications network failures, denial of service or similar attacks, or any force majeure events; (vii) any unavailability or inoperability arising from Provider’s suspension and/or termination of Customer’s right to use Service in accordance with these Terms; (viii) any unavailability or inoperability that result from Customer not following the basic operational guidelines and/or security practices; or (ix) Customer’s failure to meet minimum hardware or software requirements set forth in the Order Form.
3.3. Provider will try to notify Customer per email of any planned Service interruptions that will last more than twelve (12) hours. In case of a reported Service interruption, Customer will use commercially reasonable efforts to cure such interruption within three (3) business days.
3.4. Customer acknowledges that Provider is not responsible for Customer’s Internet connection and/or connectivity. Customer is responsible for all problems arising from its own Internet connectivity.
3.5. Customer acknowledges that Provider may disable Customer’s access to the Services and/or Customer data for (a) continued nonpayment of Services and/or (b) termination of these Terms for any reason.
3.6. In order to access the Services via the Mobile App, Customer must install the RefinemySite Mobile App from the applicable iOS or Android app store. Use of the Mobile App is subject to the Mobile App End User License Agreement, which is available on the applicable app store.
4.1. In order to access the RefinemySite-Portal and use the Services, you must use an authentication service (e.g., Bosch ID or SingleKey ID) provided by a third party affiliate of Provider. The terms of use for such authentication service are outside the scope of these Terms and Provider is not responsible for such authentication service. As a courtesty, such terms are provided here for your reference: Bosch ID terms of use: https://identity-myprofile.bosch.com/ui/web/termsofuse; SingleKey ID terms of use: https://stage.singlekey-id.com/en-us/terms-of-use/.
4.2. The RefinemySite-Portal and the Services may be used for business purposes only, specifically excluding personal use. By accessing the RefinemySite-Portal and/or using the Services, Customer represents and warrants that Customer (i) is 18 years old or older and otherwise lawfully able and has the capacity to enter into this agreement, (ii) will use the Services for business purposes only. If you enter into this agreement as a representative for an entity, you warrant to Provider that you have legal authority to bind that entity.
4.3. Customer agrees that Customer will not share Customer’s account or account information, including, but not limited to the password, with any unauthorized third party. Customer is responsible for taking reasonable steps to maintain the confidentiality of Customer’s username and password. In the event Provider provides an account password, Customer shall immediately change such password into a password only known to Customer.
4.4. Customer shall use reasonable efforts to ensure that Customer’s RefinemySite-Portal account and the Services are only used by Customer and its authorized users. Customer shall ensure that Customer and its authorized users comply with the terms and conditions of these Terms, and any terms and conditions referenced herein or otherwise provided by Provider. Customer shall immediately notify Provider of any unauthorized use of Customer’s username, password, or other account information, or of any other breach of security that Customer becomes aware of, involving Customer’s account or the Services.
5.1. Customer warrants that
5.1.1. Customer and/or its licensors hold all rights to all data (including, but not limited to personal data), information, content or material provided by Customer or on behalf of Customer in connection with Customer’s access to the RefinemySite-Portal and use of the Services (the “Customer Data”) required for the use rights to the Services granted under these Terms and to grant the rights to the Customer Data as set forth in Section 5.2 below; and
5.1.2. The Customer Data does not violate these Terms or any applicable laws and does not infringe the intellectual property rights of any third party.
5.2. Customer hereby grants to Provider the right to use the Customer Data, for the purpose of providing the Services, in particular the right to reproduce such Customer Data for this purpose (e.g., for data back-up), to modify it and to provide such Customer Data for the purpose of accessing it.
5.3. Customer shall regularly back up the Customer Data. Each data back-up by Customer shall be performed so that the recovery of the Customer Data by Customer is possible at all times.
5.4. Provider is entitled to immediately suspend Customer’s use of and access to the Service and the storage space if there is reasonable belief that the stored Customer Data is unlawful and/or infringes any third party rights, including without limitation intellectual property rights. For example, Provider has the right to suspend Customer’s use of and access to the Services if a court, other authority and/or any third party notifies Provider of Customer’s unlawful or potential unlawful use of the Services, or of an infringement of any third-party rights, including without limitation intellectual property rights. Provider shall notify Customer of the suspension, stating the reason for such suspension. The suspension shall be removed as soon as practicable after the reasons for the suspension are no longer present.
6.1. The Parties shall comply with all applicable state, provincial and federal data protection laws and regulations, and ensure their employees and agents comply with such laws and regulations.
6.2. Data protection and information security are part of Provider’s corporate policy. Any personal data provided by Customer to Provider through or in connection with Services, including, but not limited to account information, shall be processed by Provider in accordance with all applicable laws, regulations, and Provider’s Privacy Policy https://www.bosch-pt.com/ptlegalpages/ca/rbca/en/refinemysiteweb/privacy/, and solely to the extent necessary for the provision of the Services.
6.3. Customer represents and warrants that all personal data that Customer provides to Provider, or that Provider is provided on behalf of Customer, hereunder is owned by Customer or Customer has the right to provide such data to Provider for use by Provider in connection with the RefinemySite-Portal or the Services; and (b) Provider’s authorized processing of such data does not and will not violate or infringe any applicable data privacy and security laws or regulations.
7.1. The fee(s) due and payable for the Services are set forth in the Order Form (the “Fee(s)”), and is dependent upon certain responses provided by Customer about its business, projects and use of the Services in Section 6 (Order) and Section 8 (Service Description) of the the Order Form. Upon Provider’s request, Customer shall furnish sufficient evidence, with documentary support, to enable Provider to verify the correctness and accuracy of such responses.
7.2. Customer shall notify Provider in writing within 30 days upon becoming aware of any changes in its business, projects or usage of the Services that would differ from the responses provided in Sections 6 and 8 of the Order Form. Provider may increase the Fee accordingly starting on the date it received notice from Customer of such changes.
7.3. Except as otherwise agreed in the Order Form, payment shall be made through bank transfer (ACH). Provider may, in its sole discretion, offer alternative payment methods. All payments are due within 30 days of Customer’s receipt of the invoice.
7.4. All Fees are in US (United States) dollars plus any tax in the applicable jurisdiction at the applicable amount levied in accordance with applicable law.
7.5. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under these Terms.
7.6. All payments by Customer to Provider under these Terms must be made in full without set-off or counterclaim, and not subject to any condition, and free and clear of, and without deduction or withholding for or on account of any taxes or any other purpose. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required by law, then Customer shall promptly pay to Provider any additional amounts equal to the amount required to procure that the aggregate net amount received by Provider will equal the full amount which would have been received by it if no such deduction or withholding had been made. Provider shall provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made hereunder.
7.7. Provider may increase the Fees effective Customer’s next billing cycle by written notice to Customer; provided that such notice shall be given no less than 3 months before the end of Customer’s then-current billing cycle. Customer shall be deemed to have accepted such increase, unless Customer notifies Provider otherwise and terminates this contractual relationship within a period of six weeks upon receipt of a Fee increase notice from Provider. Such termination is effective on the effective date of the Fee adjustment. Notwithstanding the foregoing, Provider may not increase the Fees for a Customer for the first 12 months after Provider’s acceptance of Customer’s first Order Form unless and to the extent Customer requests any additions, changes, or modifications to such Order Form, in which case all such additions, changes or modifications shall be at the then-current rates.
7.8. If Customer fails to make payment of any Fees on a timely basis in accordance with this Section 7, Provider may, after giving Customer advance written notice, suspend Customer’s access to the Service. The suspension shall be removed as soon as full payment is made. If Customer continues to fail to make payment of any Fees on a timely basis in accordance with this Section 7, or does so repeatedly despite a warning in writing from Provider, Provider may terminate the Contract for cause without notice unless Customer was not responsible for such breach. Provider’s right to claim damages shall remain unaffected.
8.1. Provider hereby grants to Customer a limited, non-exclusive, revocable, personal, non-sub-licensable and non-transferable license to use the Service internally for the construction project(s) listed in the Order Form or any other purpose set forth in the Order Form (“Purpose”) for the duration of the construction project set forth in the Order Form, subject to Customer’s compliance with the terms and conditions set forth in these Terms, and any other documentation provided by Provider during the term of this agreement. Customer is permitted to store and print the documentation provided by Provider, provided Customer (i) does not modify or delete any existing copyright notices, (ii) uses such documentation(s) and copies thereof only for the Purpose, and (iii) reproduces only such number of copies which are necessary for such Purpose. To the extent agreed to in writing by the Parties, Customer may also permit subcontractors to access the Services, to the extent such access is necessary and related to the Purpose. Customer shall be responsible and liable for all of Customer’s subcontractors.
8.2. To the extent required, any free and open source software components (“FOSS”) including the applicable FOSS license conditions used in Provider’s Service are set forth at the following URL: https://app.bosch-refinemysite.com/3rdpartylicenses.txt. Any additional FOSS applicable to the Mobile App are set forth at the following URL: https://mobile-info.bosch-refinemysite.com/3rdpartylicenses.html.
8.3. Provider shall make the Services available as SaaS (Software as a Service) via remote access. Customer is not permitted to: (a) use the Services Customer’s own permanent storage, or (b) store or use the Services in a data center environment; or (c) make the Services available to any third parties, except as set forth in this Section 8.
8.4. This Section 8 applies to any new versions, updates, upgrades, modifications, or extensions of the Services made available to Customer by Provider or any other changes made by Provider to the Service, even if such new versions, updates modifications or extensions were ordered by Customer and paid for separately.
8.5. Unless expressly provided herein, nothing in these Terms shall be construed as granting by implication, estoppel, equity or otherwise, any further licenses or rights to the Service. In particular, except as expressly permitted under these Terms, Customer has no right or license to:
8.5.1. allow third-parties to use the Service and/or the Customer account;
8.5.2. make the Service and/or the Customer account available to third parties;
8.5.3. copy, reproduce or duplicate the Service, the documentation, or any third-party content;
8.5.4. to provide it for use for a limited period, in particular not to lease it or loan it; or
8.5.5. to modify, create derivative works of, sell, offer to sell, publicly display, or publicly perform the Services.
8.6. Customer shall ensure that its employees, agents, any other representatives, or subcontractors who are authorized by Customer to use the Services comply with the provisions of these Terms.
8.7. If Customer breaches the provisions of this Section 8, Provider may, after giving Customer advance written notice, suspend Customer’s access to the Service. The suspension shall be removed as soon as the reason for the suspension ceases to exist. If Customer continues to violate the provisions of Section 8 or does so repeatedly despite a warning in writing from Provider, Provider may terminate the Contract for cause without notice unless Customer was not responsible for such breach. Provider’s right to claim damages shall remain unaffected.
9.1. Except for Customer Data, all right, title, and interest to all intellectual property with respect to the Service, including which may be or become protectable by patent, copyright, trademark, trade secret, or similar laws, shall remain exclusively with Provider. Customer shall not use Provider’s copyrights, trademarks, trade names, or other intellectual property in any way, unless otherwise expressly provided in these Terms. Provider may terminate Customer’s access to the Service and/or remove any content Customer provides if Provider has any reason to believe that Customer’s actions using the Service, including any content uploaded by Customer, infringe the copyright, trademark, or other intellectual property rights of Provider or any other party.
9.2. Customer shall not alter, decompile, disassemble, copy, modify, or reverse engineer the Services, or attempt to create a substitute or similar technology through use of or access to the Services. Any alterations made to or suggested for the Services by Customer shall be the exclusive property of Provider, together with all rights therein including without limitation all intellectual property rights.
10.1. Following a Service malfunction or error notification by Customer in writing, Provider will use commercially reasonable efforts to cure such defect within three (3) business days of receipt of such notification by Customer. Any potential damage claims arising from or in connection with the Services shall be governed by this Section 10.
10.2. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PROVIDER MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES, OR ANY MATTER WHATSOEVER. PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT AND MAKES NO WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
10.3. TO THE EXTENT APPLICABLE, FREE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND AND PROVIDER MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE FREE SERVICES. PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. ADDITIONALLY, PROVIDER DOES NOT WARRANT THAT THE FREE SERVICES WILL MEET ANY CUSTOMER REQUIREMENTS OR THAT THE FREE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED. PROVIDER DOES NOT WARRANT THAT THE USE OF FREE SERVICES WILL NOT BE IMPAIRED BY DOWNTIME, MAINTENANCE ACTIVITIES, FURTHER DEVELOPMENTS, UPDATES AND UPGRADES OR MALFUNCTIONS.
11.1. PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR ANY OTHER CONTENT, LOST PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER LOSSES), ARISING OUT OF ANY USE OF THE SERVICE(S) OR ANY PERFORMANCE OF THESE TERMS (INCLUDING, WITHOUT LIMITATION, USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICE(S), OR SECURITY BREACHES RELATED TO THE SERVICE(S)).
11.2. UNLESS PROHIBITED BY APPLICABLE LAW, PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES, THE BOSCH REFINEMYSITE MOBILE APP END USER LICENSE AGREEMENT FOR THE UNITED STATES AND CANADA AND THE BOSCH REFINEMYSITE 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.
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.
Customer shall not and is not authorized to:
12.1. obtain access to non-public areas of the Service or to the technical systems on which the Service is based;
12.2. utilize robots, spiders, scrapers or other similar data collection or extraction tools, to utilize programs, algorithms, or methods to search, access, acquire, copy, or monitor the Service;
12.3. knowingly send Customer Data with viruses, worms, trojans or other infected or harmful components, or to otherwise interfere in the proper functioning of the Service;
12.4. decrypt, decompile, disassemble, reconstruct or to otherwise attempt to discover the source code, any software or proprietary algorithms used, except as permitted under mandatory applicable laws;
12.5. test, scan, or examine the vulnerability of the Service, or
12.6. intentionally utilize devices, software or routines which have a disruptive effect on the Service, functions or usability of the Service or willfully destroy other data, systems, or communications, generate excessive load, or harmfully interfere, fraudulently intercept, or capture.
13.1. Provider reserves the right to modify Services provided free of charge, to make new Services available free of charge or on a fee basis, and to discontinue the provision of free Services at any time in its sole discretion.
13.2. Provider may change these Terms in its sole discretion at any time. Provider shall notify Customer of any such change by email no later than 30 calendar days prior to the planned effective date of such change insofar as the changes concern a material restriction in the usability or functionality of the Services or any material change to these Terms, or the Order Form. If Customer does not object within thirty (30) days of receipt of such notification and continues to use the Service after expiration of such thirty (30) day period, then the changes shall be deemed accepted by Customer. In the event of an objection by Customer, the contractual relationship shall be continued subject to the conditions applying herein, and Provider may terminate the contractual relationship subject to a one (1) month’ notice to Customer. Provider will advise Customer of its right to object and of the consequences such objection in the change notification.
14.1. In performing under these Terms, either Party, its Affiliates (as defined below), or their agents (where applicable, collectively referred to as the “Disclosing Party”) (may provide Confidential Information to the other Party (a “Recipient”). For purposes of these Terms, “Confidential Information” means all nonpublic information that is disclosed during performance under these Terms by the Disclosing Party, directly or indirectly, in writing, orally or by inspection of premises or tangible objects to the Recipient that is: (a) marked confidential or proprietary, or (b) given the nature of the information or the circumstances surrounding its disclosure, reasonably should be deemed confidential. Confidential Information includes, but is not limited to documents, drawings, models, apparatus, sketches, designs, schedules, product plans, marketing plans, technical procedures, manufacturing processes, software, prototypes, samples, methodologies, formulations, trade secrets, patent applications, know-how, experimental results, specifications, and other business information. The term “Affiliate”, as used herein, means an entity that directly or indirectly controls, is controlled by or is under common control with a Party; and as used in this Section 14 ”control”, “controls” or ”controlled” means: (a) fifty-one percent (51%) or more ownership or beneficial interest of income or capital of such entity; (b) ownership of at least fifty-one percent (51%) of the voting power or voting equity; or (c) the ability to otherwise direct or share management policies of such entity
14.2. The Recipient will use Confidential Information only in connection with its performance under these Terms. Recipient shall use the same degree of care to avoid disclosure or use of the Disclosing Party’s Confidential Information as it uses for its own confidential, proprietary, and trade secret information, but in no case may Recipient use less than a reasonable degree of care. Recipient agrees to limit disclosure of Confidential Information to employees and employees of Affiliates having a specific need to know such Confidential Information in furtherance of its performance under the Contract. Recipient will not disclose or permit access to Confidential Information to contract workers, consultants or contractors of Recipient or its Affiliates unless such persons are bound by obligations of confidentiality comparable to these Terms. Recipient shall not, without Disclosing Party’s prior written consent, reverse engineer, disassemble, or decompile any prototypes, software, or other objects that embody the Disclosing Party’s Confidential Information to obtain access to Disclosing Party’s trade secrets and, to the extent such consent is granted, Recipient shall receive and hold such Confidential Information subject to the terms of this Section 14 Recipient shall provide written notice to Disclosing Party without undue delay of any misuse or misappropriation of Confidential Information, which may come to the attention of Recipient. The Recipient shall cooperate with and aid the Disclosing Party in mitigating and preventing the unauthorized use and disclosure and any furtherance thereof.
14.3. The Recipient is not obligated under Section 14.2 to hold in confidence any Confidential Information that (a) is generally known, or readily ascertainable by proper means, by the public other than through a breach of these Terms by the Recipient; (b) was known by or in the possession the Recipient or its Affiliate at the time of disclosure as shown by the Recipient’s and/or its Affiliates´ files and records prior to the time of disclosure, unless such knowledge or possession was obtained a result of any improper act or omission of Recipient or its Affiliate; (c) is rightly received by the Recipient from a third party not subject to any nondisclosure obligations with respect to the Confidential Information; or (d) is independently developed by an employee, agent, or consultant of Recipient without reference to the Confidential Information.
14.4. If Recipient is requested, ordered, or required by a regulatory agency or any other government authority or a court to disclose any Confidential Information, Recipient shall promptly notify Disclosing Party of such request, order, or requirement so that Disclosing Party may have the opportunity to contest the disclosure, including seeking a protective order, or waive Recipient’s compliance with these Terms. If Recipient is (in the opinion of its counsel) compelled to disclose any Confidential Information, or else be liable for contempt or other penalty or be subject to claims from a third party, Recipient may disclose such Confidential Information without liability under these Terms.
14.5. The Confidential Information provided by the Disclosing Party shall not be copied or reproduced without the Disclosing Party’s prior written permission, except for such copies as may reasonably be required for its performance under obligations under these Terms. Disclosing Party may serve written request on Recipient for return or destruction of its Confidential Information at any time up to six (6) months after the termination or expiry of the contractual relationship of the Parties, and Recipient shall, within thirty (30) days of such request or termination, return to the Disclosing Party (or its designees) or certify as destroyed all Confidential Information, in whatever form, including written or electronically recorded information and all copies thereof (other than copies retained in automatic back-up and archive systems), provided however that Recipient shall be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate corporate representative to evidence the exchange of information hereunder and in connection with legal or statutory requirements. All such retained copies shall remain subject to the use and disclosure restrictions in these Terms.
15.1. Unless terminated pursuant to these Terms or otherwise provided in the Order Form, the term of the license rights to the Service shall continue so long as Customer continues to maintain at least one active project for which it is paying Fees under an Order Form.
15.2. Unless otherwise agreed to between the Parties, the contractual relationship of the Parties may be terminated by either Party at any time by giving three (3) month’s written notice. Termination automatically results in a termination of Customer account and all user IDs provided to Customer. Termination, however, has no effect on the Bosch-ID or SingleKey ID.
15.3. Each Party may terminate the contractual relationship for cause immediately upon written notice to the other Party. Cause is deemed to exist if one Party materially breaches its obligations under these Terms or the Order Form, and in particular if:
15.3.1. the other Party ceases to conduct business,
15.3.2. the other Party becomes insolvent,
15.3.3. the other Party makes a general assignment for the benefit of creditors,
15.3.4. a receiver is appointed for the other Party’s business or assets, or
15.3.5. the other Party becomes subject of voluntary or involuntary bankruptcy proceedings.
15.4. Further, Provider may terminate for cause without notice if Customer is in default of payment required under Section 7 for two successive months or if, in a period covering more than two months, Customer is in default of payment in an amount equal to two months prior to notification of termination. In the event of termination by Provider for cause, Provider can immediately claim lump-sum damages amounting to 50% of the residual monthly basic charges due up to expiry of the regular term of the contract. Termination under this Section 15.4 by Provider is not an exclusive remedy, and all other remedies will be available to Provider in equity and in law.
16.1. Provider shall delete Customer Data from the RefinemySite-Portal thirty (30) days after termination of the contractual relationship between the Parties, unless prohibited by applicable laws. It is Customer’s sole responsibility to export and save the Customer Data before termination of the contractual relationship or expiration of such thirty (30) day period. On request of Customer and for a fee to be agreed upon separately, Provider will provide reasonable support to Customer for the export of Customer Data.
16.2. In the event of termination of the contractual relationship, Provider shall provide reasonable transition support to Customer, on written request and for a fee to be agreed upon separately, to support transition to another service provider. The Parties shall negotiate in good faith regarding the terms and conditions related to transitioning support.
16.3. For project licenses purchased on a defined runtime basis that are terminated prior to the expiration of the defined runtime for such project, Provider shall provide Customer a pro-rata credit for future Services for each full month remaining in the defined runtime.
16.4. For subscriptions on a project pricing basis that are terminated prior to the completion of the then-current billing cycle, Provider shall provide Customer a pro-rata credit for future Services for each full month remaining in the then-current billing cycle.
16.5. The credits described in Sections 16.3 and 16.4 have no cash value, are valid for future Services only and cannot be redeemed for cash or other goods or services.
16.6. The rights and obligations described in Sections 16.3 and 16.4 are subject to any damages owed or payable to Provider under Section 15.4.
Customer shall indemnify, hold harmless, and defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, but not limited to reasonable attorneys’ fees, incurred by Provider resulting from any third-party claim, suit, action, or proceeding arising from or in connection with (i) the Customer Data, or Provider’s use of the Customer Data in accordance with this these Terms or (ii) based on Customer’s or any authorized user’s use of the Services in a manner not authorized by these Terms.
18.1. Access to Service is subject to local and international export and re-export control laws and sanctions regulations. Customer agrees 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.
18.2. Customer acknowledges that the Service may be accessed from any geographic location. Customer shall not - directly or indirectly – provide access to Service 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.
18.3. Customer shall not use the Service or any data resulting from Service, directly or indirectly, for nuclear, chemical, or biological weapons proliferation, development of missile technology or any other military purpose.
18.4. Customer shall indemnify, to the fullest extent permitted by law, Provider, 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 Customer’s violation of any applicable export and re-export control law, sanction, or regulation.
18.5. This Export Control clause shall survive termination or cancellation of the contractual relationship between Provider and Customer.
19.1. These Terms, any Order Forms executed hereunder 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 these Terms and any Order Forms executed hereunder evidence a transaction involving interstate commerce. Any and all disputes, controversies, differences, or claims arising out of or relating to these Terms or any Order Form executed hereunder (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.
19.2. Notices delivered to Provider by Customer (e.g., setting of time limits, notification of defects, termination, or price reduction) must be made in writing to be effective. The same applies to waiving this written form requirement.
19.3. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.
19.4. This is an agreement between the Parties and confers no rights upon either of the Parties’ employees, agents, contractors, or customers, or upon any other person or entity.
19.5. Customer may not assign or transfer, by merger, operation of law, or otherwise, these Terms or any right or duty hereunder to a third party without Provider’s prior written consent. Provider in its sole discretion may assign or transfer these Terms and its obligations hereunder to any of its Affiliates. Any purported assignment in violation of this Section is invalid. These Terms may not be modified or amended except in a writing signed by a duly authorized representative of each Party that expressly states the sections of these Terms to be modified; no other act, usage, or custom will be deemed to amend or modify these Terms. Each Party hereby waives any right it may have to claim that these Terms were subsequently modified other than in accordance with this Section.
The terms of this Section 20 apply only if Customer is based in Canada.
20.1. Currency. If Customer is based in Canada, all references in Section 7.1 to “USD” are replaced with “CAD”, and in Section 7.4 the phrase “US (United States) dollars” is replaced with “Canadian dollars”.
20.2. Applicable Law; Arbitration. If Customer is based in Canada, Section 19.1 is replaced with the following:
“19.1 These Terms and any Order Forms executed hereunder are 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 these Terms or any Order Form executed hereunder 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.”