Endbenutzer-Lizenzvertrag für die Klauke Link® Anwendungssoftware für Mobilgeräte
Last updated: June 2021
This Klauke Link® End User Licence Agreement ("EULA") is an agreement between you and Gustav Klauke GmbH, a German limited liability company (referred to as "Klauke" or "we" or "us" or "our"), for the use of the Klauke Link® mobile device application software ("Software") in connection with certain Klauke branded wireless connectivity products ("Klauke Connected Tool"), and at the same time for any use by your authorised representatives, employees or users whom you have permitted to use the Klauke Connected Tool or the Klauke application software for mobile devices (the "Other Users").
In addition to this EULA, use of the software is subject to our Terms of Use, which are available athttp://www.emerson.com/en-us/terms-of-use. For the collection, processing and use of personal data by Klauke, please consult our privacy policy, which can be found at https://www.emerson.com/en-us/privacy-notice. By accepting this EULA, you agree to the terms of the Terms of Use as well as the Privacy Policy. You may not modify this EULA typewritten or handwritten modification or modification of any other kind for any purpose. You endorse this EULA on behalf of all persons using the software, including your other users, and are responsible for ensuring that all other users understand and comply with the terms of this EULA and any applicable Klauke code of conduct, including but not limited to acceptable use and privacy policies.
This EULA is between you and Klauke and no third party (including, but not limited to, Apple®, Google® or any wireless service provider) and Klauke alone shall be liable for the software, except in situations where you have authorised third parties to handle your Klauke Product.
THIS EULA CONTAINS IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IT CONTAINS: VARIOUS LIMITATIONS OR EXCLUSIONS OF OUR LIABILITY TO YOU; YOUR AGREEMENT TO INDEMNIFY US; AND DISPUTE RESOLUTION PROVISIONS SETTING OUT HOW DISPUTES ARE TO BE RESOLVED, INCLUDING ARBITRATION AND CLASS ACTION WAIVERS.
BY CLICKING THE ACCEPT BUTTON OR USING THIS SOFTWARE, YOU AGREE THAT THIS EULA IS BINDING TO YOU. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF ANY AUTHORISED USER, ADDITIONAL USER, ENTITY OR OTHER ENTITY, YOU MUST HAVE THE AUTHORITY TO COMMIT THAT PERSON OR ENTITY AND ITS AFFILIATES TO THIS EULA. IN SUCH CASES, THE TERMS "YOU" AND "YOUR" IN THIS EULA WILL REFER TO THAT PERSON OR ENTITY OR ITS SUBSIDIARIES. IF YOU DO NOT HAVE THIS KIND OF AUTHORITY OR DISAGREE WITH ANY PART OF THIS EULA, YOU MAY NOT ENDORSE THIS EULA OR USE THE SOFTWARE. THIS EULA CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND KLAUKE.
- LICENSE SCOPE
The licence granted to you by Klauke for this software is a non-transferable and non-exclusive licence to use the software on a device in your possession to which you have access or which you operate in accordance with the Acceptable Use Policy for your device (for example, the applicable Apple App Store or Google Play Terms of Use). Klauke hereby reserves all rights not expressly granted to you by this EULA.
- RIGHT OF USE
You must be at least 18 years old to use the software. You may use the software only in a manner consistent with this EULA
- LIMITED USE
You may not rent, lease, loan, sell, distribute, sublicense, decompile, reproduce based on structural analysis, disassemble, attempt to obtain source code for, modify or create derivative works of this software. Any attempt to do so, including any modification of the proprietary notices, is a violation of the rights of Klauke and its licensors. Violation of this restriction may result in criminal penalties and claims for damages against you. This information is for informational purposes only. The use of this software for different purposes should not replace appropriate user expertise, as users know best the context in which the software is used.
- UPDATES
This software can sometimes automatically download and install updates from Klauke. These updates serve to improve, expand and further develop the software and can take the form of bug fixes, new or expanded functions and complete new versions. If you do not want automatic updates of this software, you may be able to change your device settings to exclude automatic updates.
- INTELLECTUAL PROPERTY RIGHTS
This software and all information, documentation and materials available with or through the software are protected by the provisions of international treaties and laws governing trademarks, copyright or other intellectual property rights. All websites, company names, service marks, trademarks, trade names, logos and domain names (collectively "Trademarks") of Klauke or its affiliates are and shall remain the exclusive property of Klauke or its affiliates. Nothing in this EULA gives you any right or licence to use any of these trademarks.
If any third party claims that the software or your possession or use of the software infringes that third party's intellectual property rights, neither Klauke nor Apple (if you downloaded the software on an Apple iOS device) or Google (if you downloaded the software on an Android operating system device) will be responsible for investigating or defending against, or settling and providing relief from, any such claim of intellectual property infringement.
- DISCLAIMER; LIMITATION OF LIABILITY
YOU USE THIS SOFTWARE AT YOUR RISK AND THE ENTIRE RISK OF SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND LABOUR IS YOURS. THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KLAUKE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, BOTH EXPRESS AND IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, UNDISTURBED POSSESSION AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. KLAUKE DOES NOT WARRANT THAT YOUR POSSESSION OF THE SOFTWARE WILL BE UNINTERRUPTED, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE ACCEPTABLE OR RELIABLE, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO INFORMATION OR ADVICE GIVEN ORALLY OR IN WRITING BY KLAUKE OR ITS AUTHORISED REPRESENTATIVES SHALL CONSTITUTE A WARRANTY. IF THE SOFTWARE IS FOUND TO BE DEFECTIVE, YOU WILL BE RESPONSIBLE FOR THE COST OF ANY SERVICE, REPAIR OR CORRECTION REQUIRED.
If you're using the software with an Apple iOS device and it turns out that the software is not working error-free and this is covered by any valid warranty, you may notify Apple and they will refund you the purchase price of the software. However, Apple has no other warranty obligations of any kind with respect to the software and Klauke shall be solely liable for all other claims, losses, liabilities, damages, costs and expenses arising from any defect covered by any warranty.
KLAUKE AND ITS THIRD PARTY LICENSORS AND PROVIDERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOSS OF DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KLAUKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES) ARISING OUT OF: (I) THE USE OR INELIGIBLE USE OF THE SOFTWARE; (II) THE USE OR INELIGIBLE USE OF YOUR MOBILE DEVICE DUE TO THE SOFTWARE; (III) UNAUTHORISED ACCESS TO AND/OR MANIPULATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) IN ANY OTHER RESPECT RELATING TO THE SOFTWARE. KLAUKE SHALL BE LIABLE ONLY FOR WILFUL MISCONDUCT AND GROSS NEGLIGENCE, AND IN NO EVENT SHALL KLAUKE'S AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS PROVIDED BY APPLICABLE LAW FOR PERSONAL INJURY CASES) EXCEED EXCEED THE AMOUNT OF ONE HUNDRED ($100) DOLLARS. THE FOREGOING LIMITATIONS SHALL ALSO APPLY IF THE FOREGOING REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion or limitation of certain damages. If their laws apply to you, some or all of these exclusions or limitations of this EULA may not apply to you and you may have additional rights.
- COMPENSATION
YOU AGREE THAT YOU WILL BE LIABLE AND INDEMNIFY AND HOLD KLAUKE AND ITS EMPLOYEES, SUBSIDIARIES, SUPPLIERS, AGENTS AND SUBCONTRACTORS HARMLESS AND INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES AND EXPENSES (INCLUDING REASONABLE SOLICITOR'S FEES AND COSTS OF UNLIMITED AMOUNTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, PROCEEDINGS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF THE FOLLOWING USE OF THE SOFTWARE. E BY YOU AND/OR ANY OF YOUR OTHER USERS: (I) MISUSE OF THE SERVICE; (II) BREACH OF CONTRACT RIGHTS, PRIVACY, CONFIDENTIALITY OBLIGATIONS, COPYRIGHTS, PATENT RIGHTS, TRADEMARK RIGHTS, TRADE SECRETS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS AND PROPRIETARY RIGHTS, OR INFRINGEMENT THEREOF DUE TO MISUSE OF THE SERVICE OR ANY UNAUTHORISED DEVICE OR SYSTEM; (III) VIOLATE ANY OF THE PROVISIONS OF THIS EULA OR ANY APPLICABLE KLAUKE TERMS OR RULES OF CONDUCT BY YOU OR ANY OTHER USER OR AUTHORISED USER; (IV) ACCESS TO OR USE OF THE ACCOUNT DUE TO NON-CONFIDENTIALITY OF YOUR ACCESS DATA; AND (V) ANY CAUSE OF ACTION ARISING OUT OF ANY OF YOUR OTHER USERS, INCLUDING ANY AND ALL CLAIMS, SUITS, DEMANDS AND PROCEEDINGS (INCLUDING ALL REASONABLE ATTORNEYS' FEES AND FEES) (COLLECTIVELY, "CLAIMS") AND ANY RELATED DAMAGES INCURRED BY OR ATTRIBUTABLE TO YOU OR KLAUKE AS A RESULT OF THE BREACH OR ALLEGED BREACH BY YOUR ADDITIONAL USER. IT IS UNDERSTOOD AND AGREED THAT YOU, THE CUSTOMER, SHALL BE FULLY LIABLE FOR ANY BREACH OF THIS EULA BY ANY OF YOUR OTHER USERS. IT IS UNDERSTOOD AND AGREED THAT YOU SHALL BE FULLY LIABLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF YOUR AUTHORISED USERS AND THAT KLAUKE SHALL NOT BE LIABLE FOR ANY MISUSE OR ACTION OF ANY AUTHORISED USER OR ANY OF ITS SUBSIDIARIES OR ANY OF ITS SUPPLIERS OR AGENTS.
- PRODUCT ENTITLEMENT
Klauke, and not Apple (if you downloaded the software on an Apple iOS device) or Google (if you downloaded the software on an Android operating system device), is responsible for responding to any claim by you or any third party relating to the software or your possession and/or use of this kind of software, including but not limited to: (i) product liability claims; (ii) any claims that the software does not comply with any applicable legal or regulatory requirements; and (iii) claims under consumer protection or similar legislation. You are obliged to notify Klauke if you have any of these kinds of claims or you become aware that any third party has any such claims. Apple and Google are in no way responsible for responding to any of these kinds of requests.
- LEGAL COMPLIANCE
You may only use or re-execute the software as permitted under the laws of the United States and under the laws of the jurisdiction in which the software was acquired. In particular, but without limitation, the Software may not be exported or re-exported (a) to any country to which the U.S. has embargoed goods or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons or Denied Entity List. If you are in any of these countries or on any of these lists, you must not use the software. You may not use the software for any purpose prohibited by U.S. law, including, without limitation, the development, design, manufacture or production of nuclear, missile, chemical or biological weapons.
- PRIVACY POLICY
Any information we collect through or in connection with the software and the use of the Klauke Connected Tool is subject to our Privacy Policy, which can be found at: https://www.emerson.com/en-us/privacy-notice. Please note that the Privacy Policy guidelines apply in accordance with the requirements of local laws. If the Privacy Policy conflicts with applicable data protection laws, the stricter requirements will apply.
- TERMS OF USE
The use of the software and the Klauke Connected Tool is also subject to our terms of use, which can be found at: http://www.emerson.com/en-us/terms-of-use. Any breach of these Terms of Use shall also be deemed a breach of this Agreement.
The software may also give you access to the Klauke website at www.Klauke.com (the "Website") and to products and services available there. Certain features, functionality and content that you access with or through the software may be hosted on the Website (collectively, "Content and Services"). Your access to and use of this content and services is also subject to our Terms of Use and Privacy Policy. Your access to and use of such content and services may require you to accept these Terms of Use and/or register on the website. If you fail to do so, you may not be able to use or access certain features and functionalities of the software.
- NOTICE
This licence is valid until terminated by you, the owner, purchaser and/or controller of the software or by Klauke. You may terminate the licence at any time by permanently deleting all copies of the software. Your rights under this license will terminate automatically without notice from Klauke if you fail to comply with any term of the EULA or the Terms and Conditions. Upon termination of the licence, you must cease all use of the software and permanently delete all complete copies or partial copies of the software.
This licence is valid until terminated by you, the owner, purchaser and/or controller of the Klauke product or by Klauke. You may terminate the licence at any time by permanently deleting all copies of the software. Your rights under this license will terminate automatically without notice from Klauke if you fail to comply with any term of the EULA or the Terms and Conditions. Upon termination of the licence, you must cease all use of the software and permanently delete all complete copies or partial copies of the software.
- THIRD PARTY TERMS AND CONDITIONS AND THIRD PARTY BENEFICIARIES
You must comply with all third party terms of this Agreement when using this software. If you are using the software on an Apple iOS Device or a Google Android Device, Apple and Apple's Affiliates and Google and Google's Affiliates are third party beneficiaries of this EULA and, upon your consent to the terms of this EULA, Apple and Google will have the right (and will be deemed to have consented to the right) to enforce this EULA as third party beneficiaries thereof against you. Klauke's Affiliates are third party beneficiaries of this EULA and, upon your consent to the terms of this EULA, Klauke's Affiliates will have the right (and will be deemed to have consented to the right) to enforce this EULA as third party beneficiaries thereof against you.
- MISCELLANEOUS
You may not assign your rights or obligations under this EULA. Klauke may, in its sole and absolute discretion, assign our rights and obligations under this EULA without notice to you. This EULA shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Both parties shall act as independent contractors with respect to the activities under this Agreement.
This software will transmit information by using the wireless functions of your device. DEPENDING ON THE TARIFF WITH YOUR INTERNET AND/OR MOBILE PHONE PROVIDER, REGULAR CHARGES FOR DATA TRAFFIC AND SENDING TEXT MESSAGES MAY APPLY.
This EULA and any other documents referred to and forming part of it constitute the entire agreement and understanding between the parties with respect to the subject matter of this EULA and supersede any prior written or oral agreements. If any part of this EULA is held to be unenforceable, the unenforceable part of this Agreement shall be construed in accordance with applicable law as nearly as possible to reflect the original intent of the parties, and the enforceability and validity of the remaining provisions shall not be affected. If Klauke does not insist on or enforce strict compliance with any provision of this EULA, it does not thereby waive any provision or right. No provision of this EULA may be modified either by the business conduct or the business practice of the parties.
- DISPUTE SETTLEMENT
The terms of this section entitled "Dispute Resolution" shall apply to all disputes that may arise out of, be related to, or relate to this EULA or the software, subject to the following exceptions: (1) If Klauke reasonably believes that you or any of your other users have in any way acted wrongly or omitted to act so as to cause damage to Klauke or any third party, Klauke may seek injunctive and equitable relief or any other equitable relief in any court of competent jurisdiction; or (2) any claiming party may, at its option, have all disputes heard by a justice of the peace, provided that all claims of all parties in the dispute fall within the jurisdiction of the justice of the peace, subject, however, to informal settlement as described below. The validity, interpretation and performance of this EULA shall be governed by and construed in accordance with Missouri law. In no event shall the terms of this section affect Klauke's ability to investigate complaints or reported violations of this EULA or to take any action Klauke deems necessary and appropriate to prevent action against Klauke, including reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties.
- Informal settlement. If there is any dispute with Klauke or any involved third party arising out of, related to or connected with the software, you agree to contact Klauke at the address below, provide a brief written description of the dispute and your contact information (including your username if the dispute relates to a user account) and allow Klauke thirty (30) days to resolve the issue to your satisfaction. If Klauke does not resolve the dispute through good faith negotiations under this informal procedure, you may pursue the dispute in accordance with the arbitration agreement below or in a justice of the peace as described above.
- Waiver of class action. YOU HEREBY IRREVOCABLY WAIVE ANY RIGHTS YOU MAY HAVE IN COURT OR TO BE REPRESENTED BY AN AGENT OR PRIVATE ATTORNEY GENERAL AND ALL OTHER FORMS OF REPRESENTATION AND TO PARTICIPATE AS A MEMBER OF A CLASS ACTION IN ANY LEGAL, ARBITRATION OR OTHER PROCEEDING AGAINST US OR ANY THIRD PARTY RELATED TO US ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS EULA, AND ANY ARBITRATION WILL BE LIMITED TO YOUR INDIVIDUAL CLAIMS. THE ARBITRATOR SHALL NOT INCLUDE CLAIMS OF OTHER PERSONS OR PARTIES WHICH MAY BE SIMILAR.
- Arbitration Agreement. Any claim by Klauke or you that cannot be resolved by informal settlement or in a court of peace as described above and that arises out of, relates to, or is connected with the software or this EULA, must be asserted individually through binding arbitration by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and its Supplemental Rules of Procedure for Consumer-Related Disputes (including use of on-site, telephone or video conferencing in the proceedings where convenient and permissible to minimise travel costs). This EULA and all of its parts constitute a transaction in interstate commerce and the Federal Arbitration Act (United States Code Section 9, Section 1 et seq.) shall apply in all cases and govern the interpretation of the arbitration rules and the conduct of arbitration proceedings. The arbitration will take place at a location determined by the AAA in accordance with the Rules and Procedures (provided that the location is reasonably convenient to you) or at another location mutually agreed upon by Klauke and you. The compensation ordered by the conciliator may be challenged before any court of competent jurisdiction. In addition, notwithstanding the foregoing: (1) the arbitrator and no federal, state, provincial or local court or agency shall have exclusive jurisdiction to resolve any dispute regarding the interpretation, application, enforceability or construction of this EULA, including any claim of invalidity of this EULA in whole or in part or any claim of invalidation of this EULA in whole or in part; (2) the arbitrator shall not engage in any group or collective arbitration of any kind and shall not participate in aggregated claims by or for individuals; (3) the arbitrator's decision is subject to the terms of this EULA and any other agreements referred to therein that you may have entered into in connection with the Services; (4) the arbitrator shall apply Illinois law in accordance with the AAA and applicable statutes of limitations and shall consider legally recognized preferential claims; (5) To the extent permitted by law, the arbitrator shall not be entitled to order aggravated damages, damages for expenses incurred in performance of the contract or damages for consequential damages against you or Klauke; (6) if the administrative fees and deposits due to initiate arbitration proceedings against Klauke exceed €125 for claims under €10,000 or €375 for claims over $10,000 but less than €75,000 and you are unable (or not obliged under applicable rules and procedures) to pay any fees and deposits exceeding that amount, Klauke agrees to pay and/or forward them on your behalf, subject to final determination by the arbitrator. If, in addition, you can prove that the arbitration costs are unsustainable compared to the costs of disputes, Klauke will pay the proportion of the registry fees and negotiation costs in connection with the arbitration that the arbitrator deems necessary to prevent the arbitration from being too costly; and (7) if any part of these arbitration provisions, other than the preceding subsicience (3), is found to be invalid, unenforceable or unlawful or in any other way conflicting with the rules and procedures established by the AAA, the remaining arbitration provisions shall remain in effect and shall be construed in accordance with the provisions as if the invalid, unenforceable or unlawful or conflicting provision herein is not would be included. However, if sub-division (3) is deemed to be ineffective, unenforceable or unlawful, the entire arbitration provision shall be void and neither you nor Klauke shall be entitled to arbitration of the dispute. For more information about the AAA and/or AAA rules and procedures, participants can visit the AAA website at: http://www.adr.org.
- MAINTENANCE AND SUPPORT
Please contact Customer Care using the contact details below. Only Klauke is responsible for providing maintenance and support for the software. Third party operating system providers, such as Apple and Google, are not obliged to provide maintenance and support for the software.
CONTACT DETAILS
For questions, complaints or claims regarding the software, you can contact Klauke at:
Telephone: +49 (0)2191 / 907-0 or +1 800-435-0786
Email: [email protected]
By post:
For the attention of: For the attention of Klauke Data Protection Coordinator
Gustav Klauke GmbH
Auf dem Knapp 46, 42855 Remscheid, Germany