Last Modified: February 28, 2020
This Bosch RefinemySite End User License Agreement (“EULA”) forms a binding contract between Robert Bosch Tool Corporation, located at 1800 W Central Rd., Mount Prospect, IL 60056 (“Bosch”, “we”, “our” or “us”) and you (“User”, “you”, or “your”). This EULA governs your access to and use of the cloud based lean management software RefinemySite (the “Software”).
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 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 EULA, DO NOT CLICK TO ACCEPT OR SIGN THIS EULA OR ACCESS OR OTHERWISE USE THE SOFTWARE.
1. License Grant and Scope of License. This EULA is subject to the RefinemySite Terms and Conditions (the “RefinemySite Terms”) between Bosch and the entity or individual who has 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.
2. 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.
3. Use Restrictions. 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) jeopardizes 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. Accounts.
(a) 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.
(b) 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. Privacy.
(a) Your Personal Data. By using the Software, you agree that you have read, agree with and accept the terms of our Privacy Policy, which is incorporated into this EULA. We will collect, use and disclose your personal information in that Privacy Policy, and you hereby consent to us doing so.
(b) 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. Third-Party Products and Services.
(a) 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.
(b) 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 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.
(c) 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; (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. Confidential Information. Each party receiving Confidential Information hereunder (“Recipient”) agrees that:
(a) 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
(b) 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 Services, and for any other purpose Discloser may authorize.
(c) 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.
(d) Recipient will have no obligation with respect to any portion of the Confidential Information which:
(i) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public;
(ii) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure;
(iii) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure;
(iv) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or
(v) is disclosed with the prior written consent of Discloser.
(e) 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. Ownership and Intellectual Property.
(a) Bosch Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets in the Software (“Bosch IP”), is owned by Bosch or its affiliates or our 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 (your employer), not sold, under this EULA/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 written consent of Bosch.
(b) 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. 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.
9. Indemnification. 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.
10. Disclaimers of Warranties and Limitations of Liability.
(a) Disclaimers of Warranties.
(i) 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.
(ii) TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, BOSCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, 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.
(b) 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.
(c) 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. Applicable Law; Arbitration.
(d) 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.
12. Waiver of Class Action. 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.
13. No Assignment. 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.
14. Force Majeure. 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.
15. Notices. 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 Services, (b) an email or mail sent to an address you provided, or (c) by mobile number.
16. Entire Agreement. This EULA, together with our Privacy Policy and the RefinemySite Terms, 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.
17. Severability; No Waiver. 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.