Liebherr Smart Device Terms of Service (USA/CA)

1. INTRODUCTION

Thank you for choosing Liebherr. In this Agreement, “Liebherr” or “we” refers to Liebherr USA, Co. and “you” refers, individually and collectively, to the registered user(s) of the Liebherr Smart Devices.

Liebherr and our affiliates have developed certain appliances (“Smart Devices”) that may be connected via a SmartDeviceBox (“SDB”) to provide users with an extensive range of services and functions (“Services”). The Services will be provided to you via the Liebherr SmartDevice mobile app. The SDB and Services are referred to collectively in this Agreement as the “SDB/Services.”

Please read these Liebherr Smart Device Terms of Service carefully. Together with the (i) terms and conditions (including warnings and warranty limitations) included in the sales documentation and operating instructions (“Operating Instructions”) for the particular Smart Devices; (ii) any additional terms and conditions that may be posted by Liebherr through the SDB/Services from time to time; and (iii) the Liebherr Smart Device Privacy Policy to our customers in the United States and Canada, as the same may be amended from time to time (the “Privacy Policy”), which are incorporated into these Terms of Service, they comprise the entire agreement between you and Liebherr with respect to your use of and access to the SDB/Services (the “Agreement”). It is your responsibility to read these Terms of Service and the additional terms and policies referred to above carefully, including any amendments or modifications we may post through the SDB/Services or otherwise provide to you from time to time.

You may use the SDB/Services only with Smart Devices owned by you or which you have been authorized to use in accordance with the terms and conditions of this Agreement.

THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISIONS (“ARBITRATION AGREEMENT”). THE ARBITRATION AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

YOU MAY NOT ACCESS OR USE THE SDB/SERVICES UNLESS YOU ARE AT LEAST 13 YEARS OLD. IF YOU ARE UNDER THE AGE OF 18 (OR THE LEGAL AGE TO ENTER INTO THIS AGREEMENT IN YOUR JURISDICTION), IN ORDER TO ACCESS OR USE THE SDB/SERVICES, YOU MUST HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT AND SUCH PARENT OR GUARDIAN MUST HAVE EXPRESSLY AGREED TO BE LIABLE FOR ANY USE OF THE SDB/SERVICES OR SMART DEVICE BY YOU. YOU MAY NOT ACCESS OR USE THE SDB/SERVICES OR ANY SMART DEVICE IF YOU ARE UNDER THE AGE OF 13, EVEN IF YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT.

BY CHECKING THE BOX, CLICKING “I AGREE”, OR ACCESSING OR USING THE SDB/SERVICES, YOU AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SDB/SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE SDB/SERVICES.

2. MY ACCOUNT

(a) Account Creation / Management.

(i) General. In order to use the full extent of the SDB/Services, you must create an SDB/Services user account and activate the connected functionality of the Smart Device. By creating an SDB/Services account and entering your Smart Device’s Serial Number in the SDB/Services account, the Smart Device will automatically be registered with Liebherr for product warranty purposes.

(ii) Create Your User Account. To create an SDB/Services user account, complete the account set-up process via the SmartDevice mobile app. Liebherr will automatically transfer and store your user account data and any other data necessary to provide the Services on our website at . You agree to accurately furnish all contact and other information requested by Liebherr and to notify Liebherr immediately of any change in the information. You must choose a password for your account and maintain the confidentiality of your password. Liebherr encourages you to use “strong” passwords (passwords that use a combination of upper and lower case letters and numbers and keyboard symbols) with your account. The security and privacy provided by passwords is not complete, and can be circumvented. Your use of passwords is at your own risk. We may reject, or require that you change, any user name, password or other information that you provide to us during the account set-up process. Your user name and password are for your personal use only. You are solely responsible for the activity that occurs on your account. You, and not Liebherr, are responsible for any use or misuse of your account, user name, or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your SDB/Services account. You may never use another user’s account without permission, act in a way that interferes with another user’s use of the SDB/Services or solicit another user’s password. Liebherr will not be liable for any losses caused by any unauthorized use of your account.

(iii) Connecting to Smart Devices. To access and use the connected functionality of a Smart Device through the SDB/Services, you must add the Smart Device to your SDB/Services account by following the instructions at home.myliebherr.com or as provided by the SDB/Services.

(iv) Internet and Mobile Usage. Smart Devices use your Internet connection to provide you with the connected functionality of the Smart Device. As such, to use the SDB/Services you must have a working wireless Internet connection at the location of your Smart Device. Use of the SDB/Services and receipt of notifications via your mobile device requires use of your mobile data connection, so you must purchase an appropriate data plan from your mobile service carrier in order to receive such notifications or use such SDB/Services. You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the SDB/Services. Please consult your Internet service provider’s or mobile service carrier’s pricing plan terms and policies to determine applicable data charges (including text messaging charges if applicable), allotments and limitations, restrictions such as permissible uses, and other terms and conditions of service. Liebherr is not responsible for any overage or other charges or actions that your Internet service provider or mobile service carrier may take against you for using data or the network in violation of your Internet service provider’s or mobile service carrier’s terms and policies. To avoid data charges (including text messaging charges if applicable) relating to use of the SDB/Services, stop using and uninstall the SDB/Services from your mobile device and disable all notifications through your SDB/Services account. If you wish to avoid any additional data charges from your Internet service provider relating to use of the SDB/Services and/or Smart Devices, stop using the SDB/Services and Smart Devices and de-provision your Smart Device from your wireless router in accordance with the instructions in the applicable Operating Instructions.

(v) Transfer of Smart Device. You may sell, loan or transfer your Smart Device to someone else. However, if you sell, loan or transfer your Smart Device to another person: (1) you agree to notify such person that the Smart Device is a Smart Device and is subject to the terms and conditions of this Agreement; and (2) you must promptly remove the Smart Device from your SDB/Services account or delete your SDB/Services account. Upon such sale, loan or transfer of a Smart Device, you agree to not attempt to access or use the Smart Device or interfere with any access to or use of the Smart Device.

(vi) Deactivation or Deletion of Your Account. You may delete or deactivate your SDB/Services account at any time at home.myliebherr.com. However, if you choose to keep your Smart Device connected to your Wi-Fi router after you deactivate your account, your Smart Device will continue to transmit data to Liebherr unless you disconnect your Smart Device from your Wi-Fi router. While deactivating your SDB/Services account will stop you from receiving further Smart Device notifications, it will not automatically opt you out of receiving other communications from Liebherr (as per the Liebherr Smart Device Privacy Policy). You may change your communications preferences to stop receiving certain communications from us as described in the Privacy Policy.

(b) Privacy / Security. By using the SDB/Services, you consent to the collection, use, disclosure and sharing of data as set forth in the Privacy Policy. Data stored as part of the services offered through the SDB/Services, on the SDB/Services, or on a Smart Device, transmitted over the Liebherr networks, or stored by Liebherr or its service providers may be deleted, modified, or damaged, and Liebherr is not responsible for any such deletions, modifications or damage. Liebherr is committed to maintaining the security of the data you provide us and will take reasonable organizational, technical and administrative measures to protect your personal information. However, the SDB/Services and related services are provided through wireless networks and the Internet, and there is always some risk in transmitting information over the Internet. For this reason, Liebherr cannot guarantee the security and privacy of wireless transmissions or transmissions via the Internet, and you agree that we will not be liable for any lack of security relating to the use of the SDB/Services or any Smart Device by you. You agree that you will not hold Liebherr liable for any damages resulting from any loss of privacy or security occurring in connection with any communications over such networks.

(c) SDB/Services Features & Functionality.

(i) General. You can download the Liebherr SmartDevice mobile app from a third-party app store and install it on a compatible mobile device.

(ii) The “Appliance control” function of the Liebherr SmartDevice mobile app allows you to control the temperature of your Smart Device via the SmartDevice mobile app and, if available for the respective Smart Device, to control special functions, such as SuperCool and SuperFrost.

(iii) The “Notifications” and “Reminders” function allows you to receive information about events in respect of your Smart Device, such as alarms (door alarm, critical temperature, power failure) and reminders about replacing air filters.

(iv) In addition, the Liebherr SmartDevice mobile app offers the option of contacting a Liebherr service partner.

(d) Updates to SDB/Services / Smart Device. Over time, the software within the Smart Device that supports the features of the Smart Device, as well as features and functions that are enabled within the SDB/Services, will change as our business and technology evolve. New features and functions may be added, and others deleted or modified. You agree that Liebherr may update, modify, or discontinue the SDB/Services (in whole or in part) or any features or functions within the SDB/Services or Smart Device, at any time, in Liebherr’s sole discretion. In order to provide you with a more seamless user experience, we may update or modify the SDB/Services or Smart Device remotely without notifying you in order to ensure the safe and proper operation of the SDB/Services (e.g., bug fixes), and you consent to such updates or changes by Liebherr.

(e) Changes to Agreement / Notices. Smart Devices will continue to evolve. As such, we may need to update or modify the terms of this Agreement. We may change this Agreement by notifying you of the changes by any reasonable means, including by posting a revised Agreement through the SDB/Services. When we make a material change to the terms and conditions of this Agreement, you will be notified of the revised terms when you first attempt to access the SDB/Services after the changes have become effective. You will not be able to access or use the SDB/Services until you review and click to accept the revised terms. The revised terms will not apply to any dispute between you and Liebherr arising prior to the date on which you accepted those revised terms. You will not be notified of non-material changes to this Agreement except by an amendment to the “Last Updated” legend above, which indicates when this Agreement was last changed. Your continued use of the SDB/Services following any changes to this Agreement will constitute your acceptance of those changes. Notices to you regarding the subject matter of this Agreement (including notices of changes to this Agreement) may be made via posting to the SDB/Services or by e-mail (including in each case via links), or by regular mail. You may not change, supplement, or amend this Agreement in any manner.

3. USE OF THE SDB/SERVICES.

(a) Acceptable Use Policy. You may use the SDB/Services and Smart Device only in compliance with the terms and conditions of this Agreement, and all local, state, national, and international laws, statutes, rules and regulations applicable to your use of the SDB/Services and/or Smart Device (“Laws”). You may not use the SDB/Services or Smart Device in any manner that could harm Liebherr, its service providers or any person or property. In addition, in connection with your use of the SDB/Services and Smart Device, you must not:

(i) Use the SDB/Services to post, transmit or otherwise make available through or in connection with the SDB/Services any materials that are or may be: (1) threatening, violent, dangerous, hateful, harassing, degrading, intimidating, or otherwise fail to respect the rights and dignity of others; (2) defamatory, libelous, fraudulent, or otherwise tortious; (3) obscene, indecent, pornographic, or otherwise objectionable; (4) protected by copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner; or (5) otherwise unlawful.

(ii) Post, transmit or otherwise make available through or in connection with the SDB/Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.

(iii) Collect or attempt to collect information about users of the SDB/Services.

(iv) Interfere with or disrupt the operation of the SDB/Services or the servers or networks used in connection with the Smart Devices, including by hacking or defacing any portion of the SDB/Services or violating any requirement, procedure, or policy of such servers or networks.

(v) Impersonate any person, business, entity, or IP address (e.g., IP spoofing).

(vi) Gain or attempt to gain unauthorized access to a Smart Device’s firmware or software, including by reverse engineering firmware or installing firmware not approved by Liebherr (except where the restriction is expressly prohibited by applicable law).

(vii) Frame or mirror any portion of the SDB/Services, or otherwise incorporate any portion of the SDB/Services into any product or service, without Liebherr’s express prior written consent.

(viii) Systematically download and store SDB/Services content, or alter, damage, or delete any content provided by Liebherr.

(ix) Use any robot, spider, SDB/Services search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather SDB/Services content, or reproduce or circumvent the navigational structure or presentation of the SDB/Services, without Liebherr’s express prior written consent.

(b) Service Limitations.

(i) General. Because your Smart Device communicates with Liebherr by transmitting information wirelessly and over the Internet, the availability of the SDB/Services and connected functionality of the Smart Device are subject to certain limitations. You agree that the SDB/Services are subject to limitations and restrictions outside Liebherr’s control, which include such things as wireless network capabilities, Internet availability, environmental conditions (such as buildings, weather, geography, and topography), atmospheric conditions, mobile device and operating system limitations, and other factors associated with the use of the Internet or with satellites and satellite data. You may only use the SDB/Services in the United States and Canada. The SDB/Services are controlled or operated (or both) from the United States and are not intended to subject Liebherr to any non-U.S. or non-Canadian jurisdiction or law. The SDB/Services may not be appropriate or available for use in some non-U.S. and non-Canadian jurisdictions. We may limit the SDB/Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.

(ii) Responsible Usage. You must use the SDB/Services and the Smart Device responsibly. You are solely responsible for using the SDB/Services and Smart Device in accordance with this Agreement and the applicable Operating Instructions. You acknowledge that the Smart Devices and the SDB/Services are designed for personal, family and household use and not commercial use. Without limiting the notices, warnings and additional exclusions set forth in the Operating Instructions for the Smart Devices, neither Liebherr, our affiliates, any of our respective shareholders, directors, officers, employees, agents, or representatives (our affiliates and all such other persons, “Affiliated Persons”), nor any contractors, licensors, suppliers or any other party involved in creating, producing, or delivering the SDB/Services and connected functionality of the Smart Device will be held liable for the accuracy, completeness or timeliness of the materials or content provided as part of the Smart Device or the SDB/Services; the results obtained through any connected functionality of the Smart Device or the SDB/Services; or any improper, incorrect or commercial use of the SDB/Services or Smart Device. The Smart Device error code notifications are not intended to replace regular, recommended maintenance of your Smart Device as indicated in the applicable Operating Instructions. The SDB/Services are provided to you as a convenience and are not a substitute for safe, responsible use of your Smart Device. You should not rely on the SDB/Services (including any error notifications) as a means to prevent accidents, damage, fire, or other hazards. IT IS YOUR RESPONSIBILITY TO OPERATE YOUR SMART DEVICE SAFELY AND TO MAINTAIN YOUR SMART DEVICE IN GOOD WORKING ORDER AND IN COMPLIANCE WITH THE APPLICABLE OPERATING INSTRUCTIONS. FAILURE TO DO SO MAY RESULT IN DAMAGE TO YOUR SMART DEVICE, PROPERTY DAMAGE, BODILY HARM, AND/OR SERIOUS INJURY OR DEATH.

(c) Compliance with the Agreement. You are solely responsible for your use of the SDB/Services and compliance with this Agreement, as well as for the use and compliance by all users of your Smart Device and users of your SDB/Services account, whether or not authorized by you. You agree to make all other users of your SDB/Services accounts and Smart Devices aware that their use is subject to this Agreement.

(d) Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Liebherr, its Affiliated Persons (as defined in Section 3(b)(ii)), and their respective licensors, suppliers and service providers (the “Indemnified Parties”) from and against all claims, demands, damages, losses, costs and expenses (including attorneys’ fees or reasonable legal fees and expenses, as applicable) arising out of, or connected to, (i) your use of, or activities in connection with, the SDB/Services (including all User Content); and (ii) any violation or alleged violation of this Agreement by you. You will assist and co-operate as fully as reasonably required by the Indemnified Parties in the defense of any such claim or demand.

(e) Paid Products or Services. The SDB/Services are provided free of charge (excluding the purchase price of the Smart Devices and the SmartDeviceBox). However, Liebherr may allow you to purchase products or services from Liebherr (“Products”) within the SDB/Services or to participate in programs or utilize particular features or services for which a charge may apply. Liebherr will make any applicable pricing and payment terms available to you prior to implementing any paid services or offering any Products for purchase through the SDB/Services.

(f) Third Party Offerings. Through your use of certain features of the SDB/Services, you may be able to access or interact with materials, products or services made available by individuals or entities other than Liebherr (“Third Party Offerings”). These SDB/Services features may allow for the transmission of Third Party Offerings to you, including via links. By using these features of the SDB/Services, you are asking us to access, route and transmit to you the applicable Third Party Offerings and to transmit your information and data to the Third Party Offerings to enable you to use or obtain the Third Party Offerings. We neither control nor endorse, nor are we responsible for, any Third Party Offerings, including their accuracy, integrity, quality, legality, usefulness or safety. Liebherr has no obligation to monitor Third Party Offerings, and may block or disable access to any Third Party Offerings (in whole or part) through the SDB/Services at any time. SINCE LIEBHERR IS NOT THE PROVIDER OF THE THIRD PARTY OFFERINGS, YOU UNDERSTAND AND AGREE THAT THIS AGREEMENT AND THE PRIVACY POLICY DO NOT APPLY TO YOUR USE OF ANY THIRD PARTY OFFERINGS. YOUR USE OF THIRD PARTY OFFERINGS (INCLUDING BY LINKING ANY THIRD PARTY OFFERINGS TO YOUR SMART DEVICE OR ANY SDB/SERVICES) IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO THE THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICY OF THE PROVIDERS OF THE THIRD PARTY OFFERINGS).

4. INTELLECTUAL PROPERTY

(a) User-Provided Content. The SDB/Services may contain features that allow you and other users to make available certain content and materials, including, without limitation, text, voice recordings and images (“User Content”) through or in connection with the SDB/Services. We may (but have no obligation to) monitor, evaluate, alter or remove User Content before or after it appears on the SDB/Services. We may disclose any User Content and the circumstances surrounding its transmission to anyone to the extent as necessary to provide you with any of the features of the SDB/Services. Liebherr has no control over, and is not responsible for, any use or misuse (including any distribution) by any third party of any User Content. For purposes of clarity, you retain ownership of your User Content. For all User Content provided by you, you grant to us and our affiliates a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, adapt, modify and otherwise use and exploit the User Content to the extent as necessary to provide you with any of the features of the SDB/Services. You represent and warrant that you have all rights necessary to grant the licenses granted by you in this section, and that your User Content and your provision of User Content through or in connection with the SDB/Services, is complete and accurate, and does not violate any applicable Law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding your User Content that you may have under any applicable law under any legal theory. IF YOU CHOOSE TO MAKE ANY OF YOUR USER CONTENT (INCLUDING ANY PERSONAL INFORMATION) OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SDB/SERVICES, YOU DO SO AT YOUR OWN RISK.

(b) Customer Comments. We always appreciate hearing from our customers regarding our products and services. If you provide us with any ideas, proposals, suggestions or other materials relating to the SDB/Services, any Smart Device, or Liebherr’s other products or services (“Feedback”), we may use the Feedback in any manner for any purpose without restriction or compensation, and you acknowledge and agree that the Feedback is not confidential, and that your provision of the Feedback is gratuitous and unsolicited, and does not place Liebherr under any fiduciary or other obligation. By submitting Feedback, you represent and warrant to Liebherr that you have all necessary rights in and to the Feedback, to provide the Feedback to us and all information it contains, and that the Feedback does not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information or material.

(c) License; Liebherr’s Proprietary Rights.

(i) Limited License. Subject to your compliance with Paragraph 2(a)(v) (Transfer of Smart Device), this Paragraph 4(c)(i) (Limited License), and Paragraph 4(c)(ii) (Additional License Restrictions; Retention of Rights), and solely for so long as this Agreement remains in effect, we grant you, a limited, non-exclusive, revocable, non-transferable, non-sublicensable right and license to install and use the Liebherr SmartDevice mobile app on a smartphone, tablet, or other device that you own or control solely in conjunction with the use of the SDB/Services for personal, family and household use.

(ii) Additional License Restrictions; Retention of Rights. The Services - with exception of the SDB - are licensed (not sold). Liebherr and its licensors retain all right, title, and interest in and to the Services; all content and other subject matter contained in or made available through the SDB/Services; and all related intellectual property rights. Except for the limited rights granted to you in Paragraph 4(c)(i), you obtain no rights in or to the Services under this Agreement or any content or other subject matter made available through the SDB/Services. You may not reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the SDB/Services, except as expressly authorized in this Agreement. You may not reverse engineer, decompile or disassemble any portion of the SDB/Services, provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, Liebherr will retain the maximum protection available against reverse engineering, decompiling, or disassembly under applicable law. You also may not remove any patent, copyright, trade name, trademark, service mark, logo or other proprietary rights notice from the SDB/Services.

(iii) Marks. All trade names, trademarks, service marks and logos on the SDB/Services are the property of their respective owners. You are not granted any rights to use any trade names, trademarks, service marks or logos on or in the SDB/Services under this Agreement.

(d) Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the SDB/Services infringe your copyright, you (or your agent) may send to Liebherr a written notice by mail or e-mail, requesting that Liebherr remove the material or block access to it. If, in good faith, you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Liebherr a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Liebherr USA, Co. as follows: By mail to Liebherr USA, Co., Division Refrigerators and Freezers, 15101 NW 112th Ave. Hialeah Gardens, FL 33018, USA; or by e-mail to [email protected].

We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.

5. LEGAL NOTICES.

(a) Disclaimer of Warranties. WE ARE NOT PROVIDING ANY WARRANTIES RELATING TO THE SDB/SERVICES, PRODUCTS OR THIRD PARTY OFFERINGS. NO WARRANTY, REPRESENTATION OR CONDITION, EXPRESS OR IMPLIED, IS MADE REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF ANY INFORMATION OR CONTENT CONTAINED IN THE SDB/SERVICES OR THE RESULTS THAT YOU MAY OBTAIN THROUGH THE SDB/SERVICES. THE SDB/SERVICES, ANY AND ALL PRODUCTS AND THIRD PARTY OFFERINGS, AND ALL INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SDB/SERVICES, PRODUCTS AND THIRD PARTY OFFERINGS ARE MADE AVAILABLE TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, LIEBHERR DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS WITH RESPECT TO THE SDB/SERVICES AND ANY PRODUCTS AND THIRD PARTY OFFERINGS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF LIEBHERR, ITS AFFILIATED PERSONS (AS DEFINED IN PARAGRAPH 3(b)(ii)), AND LIEBHERR’S AND EACH AFFILIATED PERSON’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME FEDERAL, STATE, AND PROVINCIAL LAW, OR THE LAW OF OTHER APPLICABLE JURISDICTIONS MAY NOT ALLOW OR MAY LIMIT EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

We do not guarantee that the SDB/Services are or will remain updated, complete, correct or secure, or that access to the SDB/Services will be uninterrupted. Liebherr makes no warranties or representations as to the accuracy, completeness, or timeliness of the materials or content provided as part of the SDB/Services. The SDB/Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized modifications to the SDB/Services. If you become aware of any such modifications, contact us at [email protected] with a description of the modification and its location on the SDB/Services.

(b) Limitation of Liability. LIEBHERR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SDB/SERVICES OR FOR ANY DAMAGES FOR LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF USE OF THE SDB/SERVICES, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, LOSS OF OTHER INTANGIBLES, OR UNAUTHORIZED ACCESS TO OR USE OF THE SDB/SERVICES, YOUR DATA OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF LIEBHERR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT LIMITING THE FOREGOING, LIEBHERR WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SDB/SERVICES OR FROM ANY PRODUCTS OR THIRD PARTY OFFERINGS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SDB/SERVICES OR ANY PRODUCTS OR THIRD PARTY OFFERINGS IS TO STOP USING THE SDB/SERVICES, PRODUCTS OR THIRD PARTY OFFERINGS. THE MAXIMUM AGGREGATE LIABILITY OF LIEBHERR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SDB/SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO LIEBHERR TO USE THE SDB/SERVICES, OR $100.00, WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF THE AFFILIATED PERSONS (AS DEFINED IN PARAGRAPH 3(b)(ii)), AS WELL AS LIEBHERR’S AND EACH AFFILIATED PERSON’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS.

SOME STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR PROVINCE TO PROVINCE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

(c) Export Controls. You are responsible for complying with United States, Canada and foreign export controls and for any violation of such controls. You represent, warrant and covenant that you are not (i) located in, or a resident or a national of, any country subject to a U.S. government or Canadian government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government or Canadian government lists of restricted end users.

(d) Advice or Information. Advice or information provided by Liebherr, its Affiliated Persons or its representatives, whether oral or written, will not create any representation, warranty, or condition or vary or amend this Agreement, including the above disclaimer, liability exclusion, liability limitation and indemnity provisions, and you may not rely upon any such advice or information.

(e) Release. YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE EACH OF LIEBHERR AND ITS PROVIDERS AND ALL OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, ATTORNEY’S FEES, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SDB/SERVICES.

6. GOVERNING LAW; DISPUTE RESOLUTION.

As used in this Article 6: “You” and “Your” mean the registered user(s) of the SDB/Services appliances, and all of his/her heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, predecessors in interests, successors, assigns, as well as all authorized and unauthorized users or beneficiaries of services under this or prior agreements between us; and “We” and “Our” will mean Liebherr and will be deemed to include all of its representatives, subsidiaries, affiliates, agents, employees, directors, officers, predecessors in interests, successors, assigns.

READ THE FOLLOWING CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION OR AS A MEMBER OF A CLASS.

(a) Governing Law. This Agreement is and will be governed by and construed under the laws of the Commonwealth of Virginia, U.S.A., without regard to its principles of conflicts of law, and regardless of Your location.

(b) Information / Complaints. If you have a question or complaint regarding the SDB/Services, please contact us by writing to Liebherr USA, Co., Division Refrigerators and Freezers Division, 15101 NW 112th Ave. Hialeah Gardens, FL 33018, USA; or by e-mail to [email protected]. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

(c) Arbitration.

(i) This Arbitration clause is intended to be broadly interpreted. Except where prohibited by law, it applies to any and all claims, disputes, or controversies of any nature whatsoever whether in contract, tort or otherwise, including but not limited to statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property, or equitable claims) arising out of, relating to, or in connection with the SDB/Services or this Agreement including any claims relating to the validity, scope, interpretation, breach or enforceability of this Agreement and claims that may arise after the termination of this Agreement (all of which are collectively referred to herein as “Claims”).

(ii) Except where prohibited by law, You and We agree that any and all Claims are to be arbitrated by a single arbitrator. NOT APPLICABLE TO RESIDENTS OF QUEBEC.

(iii) In the event that You intend to commence an arbitration, You must first notify Liebherr by contacting Liebherr USA, Co., Division Refrigerators and Freezers Division, 15101 NW 112th Ave. Hialeah Gardens, FL 33018, USA (“Notice”) and attempt to resolve Your Claim. If We and You do not reach an agreement to resolve your Claim within 30 days after Notice has been provided, You or We may commence an arbitration in accordance with this Agreement.

(iv) An arbitration commenced pursuant to this Agreement will be administered and governed by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”). To the extent there is any inconsistency between the terms of this Agreement and the AAA Rules the provisions of this Agreement will apply. The AAA Rules, forms and information are available online at www.adr.org, or can be obtained by calling the AAA at 1-800-778-7879. Unless We and You agree otherwise, any arbitration hearing(s) will take place in Newport News, Virginia or, in the case of residents of Quebec, the seat of arbitration will be Toronto, Ontario. All statutes of limitation that would otherwise be applicable to an action in a court of law shall apply to any arbitration proceeding under this Agreement.

(v) This Section shall not prevent either you or us from (1) seeking a temporary restraining order or temporary or preliminary injunctive relief from a court of competent jurisdiction in order to protect our rights under this Agreement, (2) joining the other party in any litigation or proceeding commenced by any third party against you or us in which the other party is an indispensable party or potential third party defendant, or (3) filing suit in a court of competent jurisdiction for the sole purpose of obtaining an order from the court to compel arbitration pursuant to this Section. In the event you or we seek such injunctive or other such judicial relief or pursuit of provisional or ancillary remedies, that action will not constitute a waiver of the provisions of this Section requiring arbitration, which shall continue to govern any and every dispute between you and us under this Agreement, including without limitation the right to damages, permanent injunctive relief and any other remedy, at law or in equity.

(vi) In any proceeding, the substantially prevailing party will be entitled to recovery of its filing, administration, service, case management, arbitrator and hearing fees and reasonable attorneys’ fees from the other party.

(d) Class Action Waiver. EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, WHETHER BEFORE AN ARBITRATOR OR IN COURT, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT. You expressly waive any right You may have to bring or participate in a Claim as a class, collective, or representative proceeding in court or before an arbitrator. Further, unless both You and We agree in writing, the arbitrator may not consolidate Your claim with another person’s claim, and may not otherwise preside over any form of a representative or class proceeding. THIS SECTION IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.

(e) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND WE KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY in any action or proceeding based upon, arising out of, or in any way relating to this Agreement or the SDB/Services, whether sounding in contract, tort or otherwise, and regardless of what relief is sought. If this waiver is ineffective as to one or more causes of action for any reason, this waiver will remain effective as to all other causes of action.

7. GENERAL TERMS

(a) Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. Any attempted transfer or assignment in violation of this provision will be null and void.

(b) Entire Agreement This Agreement and all other terms and conditions referenced in this Agreement constitutes the entire agreement between you and us relating to the subject matter of this Agreement, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

(c) Force Majeure. We will not be responsible for any failure to fulfill any obligation due to any cause beyond our control.

(d) Interpretation. Any heading, caption or article, section, or paragraph title contained in this Agreement is for convenience only, and in no way defines or explains any provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”

(e) Promotions. Any sweepstakes, contests or similar promotions (collectively, “Promotions”) made available through the SDB/Services may be governed by rules that are separate from this Agreement. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.

(f) Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us.

(g) Severability / Waiver. If any provision of this Agreement or portion of a provision is held to be unlawful, void or for any reason unenforceable in a particular case or jurisdiction, that provision (or portion of the provision), to the extent required, will be severed from this Agreement in that case or jurisdiction, as the case may be, but such severance will not affect the validity and enforceability of the remaining provisions of this Agreement and will not affect the validity and enforceability of the Agreement as a whole in other cases and jurisdictions. No waiver, express or implied, by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default.

(h) English and French Language. The parties have expressly requested and required that this agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais.

(i) Term and Termination. This Agreement is effective until terminated. We may terminate or suspend your use of the SDB/Services and any or all of the connected features of the Smart Devices enabled through or in conjunction with the SDB/Services at any time and without prior notice, irrespective of any breach of any provision of this Agreement. Upon any such termination or suspension, all rights and licenses granted under this Agreement, including your right to use the SDB/Services will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections/Paragraphs 2(a)(v), 2(a)(vi), 2(b), 3(a), 3(b)(ii), 3(d), 3(f), 4(a), 4(b), 4(c)(ii), 4(c)(iii), and 4(d) and Articles 5, 6, 7, and 8 will survive expiration or any termination of this Agreement.

8. ADDITIONAL TERMS FOR CERTAIN MOBILE APP USERS.

(a) Apple Users. In addition to your agreement with the foregoing terms and conditions, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the following provisions apply with respect to your use of any version of the SDB/Services compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the SDB/Services. Apple is not providing any warranty for the SDB/Services except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the SDB/Services and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the SDB/Services, including any third-party product liability claims, claims that the SDB/Services fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the SDB/Services, including those pertaining to intellectual property rights, must be directed to Liebherr in accordance with Section 6(b). In the event of any third party claim that the SDB/Services or the end-user’s possession and use of the SDB/Services infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim. The license you have been granted under this Agreement is limited to a non-transferable license to use the SDB/Services on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the SDB/Services, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary. Notwithstanding the foregoing, our right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.

Last Updated: December 2019