2. Services. The Services include mobile applications, content, hardware, software and related services (the “Services”) which enable users to perform the following functions on Graco® Reactor® 2 plural component proportioning systems (“Reactor 2 Systems”) remotely via certain mobile devices: turn system on and off; turn pump on and off; adjust pump setting; turn primary heaters and hose heaters on and off; adjust temperature of primary heaters and hose heaters; report and adjust pump pressure; view and reset pump cycle count; view system errors; monitor material usage; calculate material yield; control system access; and such other functions as Graco may offer from time to time.
IMPORTANT SAFTEY NOTICE: READ ALL WARNINGS AND INSTRUCTIONS IN THE APPLICABLE REACTOR 2® SYSTEMS OPERATION MANUAL BEFORE USING THE SERVICES TO PERFORM ANY FUNCTIONS ON ANY REACTOR 2® SYSTEMS.
3. License Grant. Subject to the terms and conditions of this Agreement, Graco grants to you, and you accept from Graco, a non-exclusive, non-assignable, non- sublicensable, non-transferable and revocable limited right and license to use the Services, including any corrections, updates and upgrades thereto and associated documentation provided to you by or on behalf of Graco. For purposes of this Agreement, “use” means accessing, storing, downloading, installing, executing, utilizing or displaying the Services. You may not modify the Services or disable any licensing or control features of the Services. You agree to use the Services only in conjunction with Graco products.
4. Ownership. The Services are owned and copyrighted by Graco or its third party suppliers. The license granted to you under this Agreement confers no title or ownership in the Services to you and is not a sale of any rights in the Services. Graco’s third party suppliers may protect their rights in the event of any violation of this Agreement.
5.Copyright. The Services are protected by United States copyright law and international treaty provisions. You may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Services without the prior written consent of Graco. You acknowledge that the Services contain proprietary trade secrets of Graco and its suppliers. You agree not to decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying user interface techniques, underlying ideas, or algorithms of the Services by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law. Upon request, you will provide Graco with reasonably detailed information regarding any disassembly or decompilation.
6. Consent. By using the Services, you hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal information and other data as described in this Agreement. You understand that Graco and certain third party service providers, third party distributors and/or third party material suppliers may hold certain personal information and other data about you. Personal information and other data includes, but is not limited to, your name, company, address, telephone number, email address, and Graco equipment information, including but not limited to system type, actual and target temperatures, actual and target pressures, cycle counts, material usage, material yield, error and event codes, date and time readings, and other machine diagnostic information (the “Data”), which may be used for the purpose of providing trouble-shooting assistance and analysis, conducting equipment use analyses, product development, and other legitimate business purposes (“Purpose”). Graco will not sell any Data. You understand and agree that Data may be transferred between Graco affiliate companies worldwide and to third party service providers, third party distributors of Graco equipment and third party material suppliers of material used with Graco equipment worldwide. You understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that if you reside outside the United States, you may request a list with the names and addresses of any potential recipients of the Data by contacting Graco. You authorize Graco and any other possible recipients which may assist Graco (presently or in the future) with the Purpose to receive, possess, use, retain and transfer the Data, in electronic or other form, solely for the Purpose. You understand that Data will be held only as long as is necessary to accomplish the Purpose, and that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw your consent, in any case without cost, by contacting Graco in writing. Further, you understand that you are providing your consent on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, you understand that refusing or withdrawing your consent may affect the ability of Graco to deliver the Services to you.
7. Additional Terms for Users of Apple Mobile Devices: If you are using the Services on an Apple mobile device, you acknowledge and agree: (i) this Agreement is between you and Graco (not Apple), and Graco (not Apple) is solely responsible for the Services; (ii) Apple has no obligation to furnish any maintenance or support services with respect to the Services; (iii) in the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) paid for the Services, and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Graco’s sole responsibility (subject to the terms and conditions of this Agreement); (iv) Graco (not Apple) is responsible for addressing any claims you or any third party may have relating to the Services or your use of the Services; (v) in the event of any third party claim that the Services or your use of the Services infringes that third party’s intellectual property rights, Graco (not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; (vi) you will comply with all applicable third party terms of agreement when using the Services; and (vii) Apple and its subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Submissions. All comments, suggestions, remarks, ideas or other information related to the Services, Reactor 2® Systems or any other Graco product of service communicated to Graco through a website, the Services or otherwise (a “Submission”), will forever be the property of Graco. Graco will not be required to treat any Submission as confidential, and will not be liable for any ideas for its business (including, without limitation, product or service ideas) and will not incur any liability as a result of any similarities that may appear in future Graco operations. Without limitation, Graco will have the exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. Graco will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation or attribution to you or any other person sending a Submission. You are prohibited from submitting any unlawful, threatening, libelous, defamatory, obscene, pornographic or other material that would violate any law. You acknowledge that you are responsible for whatever material you submit, and you, not Graco, have full responsibility for the message, including its legality, reliability, appropriateness, originality and copyright.
9. Term and Termination. The term of this Agreement will continue until terminated. Your rights under this Agreement will terminate automatically or otherwise cease to be effective without notice from Graco if you fail to comply with any term(s) of this Agreement. Upon termination of this Agreement for any reason, the limited license granted in this Agreement will immediately terminate and you will immediately cease all uses of the Services. The terms of this Agreement which by their nature are to survive this Agreement will survive its termination, including without limitation Sections 4 (Ownership), 5 (Copyright), 6 (Consent), 7 (Additional Terms for Users of Apple Mobile Devices), 8 (Submissions), 11 (Disclaimer of Warranties), 12 (Limitations of Liability), 14 (Indemnity), and 15 (Miscellaneous).
10. Export. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the generality of the foregoing, you will not make the Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
11. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER GRACO NOR ANY OF ITS LICENSORS WARRANTS THAT THE SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY WEB SITE OR SERVER OR OTHER HARDWARE OR SOFTWARE USED TO MAKE THE SERVICES AVAILABLE TO YOU WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GRACO AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE APPLICATION OR USE THEREOF, AND ANY WEBSITE OR SERVER OR OTHER HARDWARE OR SOFTWARE USED TO PROVIDE THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GRACO, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES REMAINS SOLELY WITH YOU.
12. Limitations of Liability. GRACO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, LOSS OF DATA OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF GRACO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GRACO’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE GREATER OF $100 OR THE FEES (IF ANY) PAID BY YOU TO GRACO FOR THE SERVICES THAT CAUSED SUCH DAMAGES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD, EVEN IF SUCH REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Basis of Bargain. The disclaimer of warranties and limitations of liability set forth above are fundamental elements of the basis of the bargain between Graco and you. You understand and agree Graco would not be able to provide the Services on an economic basis without such limitations.
14. Indemnity. You agree to indemnify and hold harmless Graco and its affiliates and their respective officers, directors, employees, licensors, agents and representatives from and against any and all claims, damages, losses, liabilities, expenses, costs (including attorneys’ fees), demands and judgments arising out of or relating to: (i) your use of the Services (including any use of the Services by a third party using your account, regardless of whether such use was authorized by you); (ii) your breach or violation of any of the terms of this Agreement; (iii) the use of your Data by Graco and/or its third party service providers, distributors and/or material suppliers; and (iv) your violation of any of the rights of any third party.
a. Assignment. You will not assign or transfer this Agreement or any of your rights or obligations hereunder in whole or in part, including by operation of law or otherwise, without Graco’s prior written consent. Any assignment or transfer in violation of this Section will be void.
b. Notice. Graco may give notice to you by means of a general notice on the Services, electronic mail to the e-mail address listed in your account, telephone or text message to any phone number listed in your account, or by written communication hand delivered or sent via nationally recognized overnight courier or by first class mail to the address listed in your account. Such notice will be deemed given: (i) 12 hours after sending, if sent through the Services, by e-mail or by telephone; (ii) upon receipt, if hand delivered or sent by nationally recognized overnight courier; or (iii) within three (3) days after deposit, if sent by first class mail. Any notice required or permitted to be given to Graco under this Agreement must be in writing and will be deemed given when received by Graco via registered or certified mail, return receipt requested, postage prepaid, or via nationally recognized overnight courier, at the following address: Graco Inc., 88 11th Ave. NE, Minneapolis, MN 55413, Attn: Reactor App, or at such other address as Graco may provide by advance notice to you.
c. Force Majeure. Neither party to this Agreement will be held liable for failure to comply with any of the terms of this Agreement when such failure has been caused solely by fire, war, government restrictions, force majeure, acts of God, or other cause beyond the control and not due to the fault of either party, provided such party uses due diligence to remedy such default.
d. Waiver. Any term or provision of this Agreement may be waived only by written agreement of the parties hereto. No forbearance by either party hereto of any obligation of the other party will act as a waiver or forbearance of any other obligation of such party from time to time.
e. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the conflicts of law provisions thereof. Each party hereto irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Minnesota and of the United States of America located in Hennepin County, Minnesota for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and agrees to waive the defense of an inconvenient forum.
f. Headings. The headings in the sections of this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
g. Severability. If any provision of this Agreement will be held to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the validity or enforceability of any of the remaining provisions of this Agreement, and this Agreement will be enforced as if such invalid or unenforceable provision had not been contained herein and such invalid or unenforceable provision will be reformed and enforced to the maximum extent permitted under applicable law.
h. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings with respect to the subject matter hereof.