GEA APPLIANCES

 

END USER LICENSE AGREEMENT FOR WI-FI CONNECT MOBILE APPLICATION

IMPORTANT: THIS END USER LICENSE AGREEMENT IS BETWEEN YOU AND HAIER U.S. APPLIANCE SOLUTIONS, INC. D/B/A GE APPLIANCES (“GEA”) AND ITS SUPPLIERS (COLLECTIVELY, “THE “OPERATOR”).  PLEASE READ AND AGREE TO THIS END USER LICENSE AGREEMENT BEFORE USE OF THE GEA WI-FI CONNECT FEATURE AND MOBILE PHONE APPLICATION (“APP”).  THE APP IS INTENDED FOR USE WITH WI-FI CONNECT APPLIANCES (“CONNECTED APPLIANCES”).  BY ACCEPTING THIS END USER LICENSE AGREEMENT (“EULA”) YOU (“YOU”) ARE BECOMING A PARTY TO THIS LICENSE AND AGREE TO BE BOUND BY IT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT LICENSED TO USE THE APP OR THE SOFTWARE CONTAINED THEREIN (“SOFTWARE”).  THE OPERATOR RECOMMENDS THAT YOU PRINT A COPY OF THIS EULA FOR FUTURE REFERENCE.

If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of this EULA shall remain in force.

1. SOFTWARE LICENSE GRANT. Subject to the terms of this EULA, THE OPERATOR hereby grants You a limited, personal, non-sublicenseable, non-transferable, non-exclusive, revocable license to use the App that is intended for use with any Connected Appliances you may have purchased, in accordance with this EULA and any documentation accompanying your Connected Appliances (the “Software License”). If you choose to sell or transfer ownership of your Connected Appliance(s) to a new owner, you agree that you will deactivate the transferred Connected Appliance(s) from your account.  The new owner will need to agree to the terms of this EULA and will need to submit a new agreement to use the App when they register any transferred Connected Appliance.

2. PERMITTED USE. This EULA allows You use of the App on a reasonable number of personal electronic devices (i.e., portable electronic devices such as mobile phones and tablets) which You or members of Your household own, for the limited purpose of accessing your Connected Appliance(s).

3. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this EULA, You may not, nor permit anyone else to, directly or indirectly: copy, modify, or distribute the App or reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the App  (except and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any Open Source Software, as defined below). As between the parties, title, ownership rights, and intellectual property rights in and to the App, and any copies or portions thereof, shall remain in and with THE OPERATOR and its suppliers or licensors.  To the extent permitted by applicable law, THE OPERATOR may modify or discontinue offering the App   at any time for valid reasons (e.g., to reflect changes in relevant laws, to protect security, or to implement technical adjustments and improvements).  THE OPERATOR will seek to notify You by reasonable means of any modifications that will have a material adverse effect on the use of the App, taken as a whole.  You understand that THE OPERATOR through its software platform partners may elect to begin charging a licensing fee for the use of the App and that THE OPERATOR or its partners may elect to begin charging a one-time fee or a reoccurring subscription fee for the services provided by the App, but will not do so without giving You the option of paying the fee or discontinuing use of the App.  To the extent permitted by applicable law, THE OPERATO may modify any such fee where reasonably necessary.  THE OPERATOR will seek to notify You by reasonable means of any material increase in any such fee.  All rights not expressly granted to you in the Software herein are expressly reserved to THE OPERATOR.

4. OPEN-SOURCE SOFTWARE. The App or Connected Appliances may include certain software code that is licensed under various free and open source licenses (collectively, the “Open Source Software”). To the extent required under the relevant open sourced licenses (and specifically limited to those requirements), each contributor to the Open Source Software, hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the work and such derivative works in source or object form.  THE OPERATOR is not obligated to provide any updates, maintenance, warranty, technical or other support or services for the resultant modified software.  You may access through the App a list of the source code for any Open Source Software that is included in the App.

5. TRANSACTIONS. The App may make available listings, descriptions, and images of products. Except to the extent prohibited by applicable law, THE OPERATOR makes no representations as to the completeness or accuracy of such listings, descriptions, or images (including any features, specifications, and prices contained therein).  Such information and the availability of any product are subject to change at any time without notice.  You may be able to purchase products through the App (a “Transaction”).  You confirm that you have the right to use any method of payment that you submit.  Verification of information may be required prior to the acknowledgment or completion of any Transaction.  It is your responsibility to comply with all applicable laws regarding the purchase and use of any product.  To the fullest extent permitted by applicable law, THE OPERATOR reserves the right, including without prior notice, to limit the available quantity of or discontinue the availability of any product and to bar any user from making a Transaction.  Refunds and exchanges are subject to our applicable refund and exchange policies.  You agree to pay all charges incurred by you or on your behalf through the App, at the prices in effect when such charges are incurred, including applicable charges for shipping, handling, and taxes.  While it is the practice of THE OPERATOR to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute THE OPERATOR’s acceptance of an order or its confirmation of an offer to sell a product.  Unless prohibited by applicable law, Transactions are made pursuant to a shipment contract, and, as a result, risk of loss and title for products pass to You upon THE OPERATOR’s delivery of the products to the carrier, and You are responsible for filing any claims with carriers for damaged and/or lost shipments.

6. FEEDBACK. If You provide to THE OPERATOR any ideas, proposals, suggestions, or other materials (“Feedback”), whether related to the App or otherwise, You agree that such Feedback is not confidential and that Your provision of such Feedback is gratuitous, unsolicited, and without restriction, and does not place THE OPERATOR under any obligation in respect of such Feedback.

7. LIMITED WARRANTY. THE OPERATOR warrants the App to be free from major defects in workmanship under normal use for a period of thirty (30) days from the initial download of the App. Your exclusive remedy under this Section shall be a replacement of the App with the currently available version of the  App.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED OR IMPLIED BY ANY DOCUMENTATION OR PACKAGING.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.  FURTHER, IF YOUR PERSONAL ELECTRONIC DEVICE IS CONFIGURED TO ALLOW MODIFICATION OF, ADMINISTRATIVE ACCESS TO, OR PRIVILEGED ACCESS TO YOUR DEVICE’S OPERATING SYSTEM, SUCH CONFIGURATION COULD COMPROMISE THE SECURITY AND OPERATING FEATURES OF THE APP. USE OF THE APP ON ANY SUCH CONFIGURED DEVICE VOIDS THE LIMITED WARRANTY.

8. WARRANTY DISCLAIMER. EXCEPT AS IS EXPRESSLY STATED IN THE OPERATOR’S LIMITED WARRANTY FOR THE APP IN PARAGRAPH 7 ABOVE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE OPERATOR DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE APP AND THE OPEN SOURCE SOFTWARE, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE OPERATOR OR A THE OPERATOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY LIMITATIONS, SO THE LIMITATIONS SET FORTH IN PARAGRAPHS 7 AND 8 MAY NOT APPLY TO YOU.  ANY WARRANTY FOR AN CONNECTED APPLIANCE IS SEPARATELY SET FORTH IN THE OPERATOR’S LIMITED WARRANTY FOR SAID CONNECTED APPLIANCE, WHICH WARRANTY SHALL ACCOMPANY THE CONNECTED APPLIANCE, AND THIS EULA DOES NOT EXPAND OR CONTRACT IN ANY WAY THE LIMITED WARRANTY ON THE CONNECTED APPLIANCE.

IN RESPECT OF ANY CONDITIONS, WARRANTIES, OR GUARANTEES THAT CANNOT BE EXCLUDED UNDER STATUTE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIABILITY OF THE OPERATOR IS LIMITED (AT THE OPERATOR’S OPTION) TO THE RESUPPLY OR REFUND OF THE COST OF THE APP.

9. GENERAL LIMITATIONS. You are responsible for safe appliance operation. You cannot rely on the App as a means of preventing accidents, fire or damage to your appliances or home; the App is not designed for that purpose.  It is your responsibility to ensure that your appliances are maintained in good working order and that they are used in a safe and responsible manner.  THE OPERATOR will make its “best effort” to ensure that notifications and communications are conveyed to and from you and to and from your Connected Appliances, but THE OPERATOR does not guarantee the accuracy of results or the reliability or timeliness of communications.  You agree that use of the App is subject to limitations and restrictions outside of THE OPERATOR’s control (such as internet availability, environmental conditions such as buildings and topography, weather and atmospheric conditions, and availability of cell phone service, and satellite access) and THE OPERATOR is not responsible for these limitations.

10. COMPLIANCE WITH THE LICENSE. You are responsible for compliance with this license for not only Yourself, but also for anyone else who uses the App under this license. You agree to make all other users aware of the terms of this license and you agree that You are solely responsible for the use of the Connected Appliances services in conjunction with the use of this App.

11. SOFTWARE UPDATES. THE OPERATOR maintains a policy of continuous improvement of its products and reserves the right to change or update the App and, to the fullest extent permitted by applicable law, may choose to update your Connect Appliance(s) remotely without notifying You. By accepting this EULA, You agree to accept these updates and changes by THE OPERATOR. Use of the App will allow Your Connected Appliance(s) to communicate with THE OPERATOR’s servers for the purposes of applying these updates. GEA will provide you updates and support for the GEA Application and your GEA Appliance software two (2) years from the GEA appliances’ original purchase date or five (5) years from the GEA appliances’ launch date, whichever is longer.

12. LIMITATION OF LIABILITY. NOTHING IN THIS EULA RESTRICTS, EXCLUDES, OR MODIFIES, OR PURPORTS TO RESTRICT, EXCLUDE, OR MODIFY ANY MANDATORY STATUTORY CONSUMER RIGHTS UNDER APPLICABLE LAW.

TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE OPERATOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR LOSSES THAT WERE NOT FORESEEABLE TO YOU OR THE OPERATOR AT THE TIME YOU AGREED TO THIS EULA, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF THE OPERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME YOU AGREED TO THIS EULA, BOTH YOU AND THE OPERATOR KNEW IT MIGHT HAPPEN.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  UNLESS SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT SHALL THE OPERATOR’S CUMULATIVE LIABILITY UNDER THIS EULA TO YOU EXCEED FIFTY UNITED STATES DOLLARS ($50.00).  THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

THE OPERATOR DOES NOT EXCLUDE OR LIMIT IN ANY WAY ITS LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO.  THIS MAY INCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE OPERATOR’S NEGLIGENCE OR THE NEGLIGENCE OF THE OPERATOR EMPLOYEES, AGENTS, OR SUBCONGRACTORS, FOR GROSS NEGLIGENCE OR WILLFUL BEHAVIOR, OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

If you are a resident of Germany, nothing in this EULA shall limit THE OPERATOR’s statutory liability (a) under the German Product Liability Act, (b) for damages (Schaden und vergebliche Aufwendungen) arising from loss of life, bodily injury, or damage to health, (c) for damages caused by THE OPERATOR’s gross negligence or willful misconduct, (d) for damages arising from fraudulently concealed defects, and (e) for damages covered by a guarantee of THE OPERATOR.  Subject to the foregoing sentence, in cases of THE OPERATOR’s ordinary negligence, THE OPERATOR’s liability for damages (y) shall be limited to damages foreseeable at the time this EULA comes into force and that typically arise from transactions of this nature, and (z) shall be excluded with regard to damages caused by a breach of immaterial contractual obligations of THE OPERATOR.  In addition, THE OPERATOR shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the App not under THE OPERATOR’s control, including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs not under the control of THE OPERATOR used for electronic communications and transmission of viruses.

13. THIRD-PARTY LINKS. The App may contain links to third-party services. THE OPERATOR does not control or endorse, and is not responsible for, any such third-party services.

14. TERM AND TERMINATION. This EULA shall continue until terminated as set forth in this Paragraph. You may terminate this EULA at any time by decommissioning your Connected Appliance.  Your rights under this EULA will terminate if You fail to comply with any term(s) of this EULA.  Where reasonable under the circumstances, THE OPERATOR will provide You with at least twenty-four (24) hours’ prior notice of termination, provided that if THE OPERATOR reasonably believes that You have materially breached this EULA, THE OPERATOR may immediately terminate Your rights under this EULA.  Any termination of this EULA shall also terminate the licenses granted hereunder.  Paragraphs 7, 8, 9, 10, 11, 12, 14, 16, and 17 shall survive termination of this EULA.

15. EXPORT CONTROLS. You shall not export, or allow the export or re-export of any Connected Appliances or the App in violation of any applicable laws or regulations. By installing or using the App, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any country subject to restriction by the United States government or any other applicable law.

16. GOVERNING LAW. This EULA shall be governed by and construed under Delaware law without regard to the Uniform Computer Information Transactions Act. Choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply.  This EULA shall also be governed by the law that would be applicable in the absence of the designation of jurisdiction in the preceding sentence.  This means that a court may determine that: (a) You may be able to bring an action pursuant to this EULA against THE OPERATOR in a court of competent jurisdiction in your country of residence or in the country identified in the preceding sentence, and (b) THE OPERATOR may be able to bring an action against You in a court of competent jurisdiction only in your country of residence.

17. ARBITRATION. If You are a resident of the United States, then any dispute arising out of Your use of the App, Connected Appliances, or the terms and conditions of this EULA, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, shall be submitted to final and binding arbitration under the International Institute for Conflict Prevention & Resolution (“CPR”) Rules for Non-Administered Arbitration of Business Disputes in effect at the time of Your acceptance of this EULA by one arbitrator appointed by CPR in accordance with Section 6.1 of the CPR Rules. The arbitration proceeding shall take place in [Venue]Louisville, Kentucky and shall be governed by the laws of Delaware, in accordance with Paragraph 16. The arbitrator shall not be requested nor shall they have the power to render any decision or award except as provided in the preceding sentence or as may otherwise be specifically provided herein.  The prevailing party will be entitled to an award of all fees, costs and expenses of the arbitration and the arbitrator.  You agree that any suit, action or proceeding required to enforce any arbitration award rendered pursuant to this Paragraph may be brought in the courts sitting in Louisville, Kentucky, and You irrevocably submit to the jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment.

18. NO ASSIGNMENT. You may not assign any rights or delegate any duties under this EULA and any attempt to do so will be void.

19. FORCE MAJEURE. Neither party will be responsible for any failure or delay in its performance under this EULA due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.

20. WAIVER AND SEVERABILITY. Any express waiver or failure to exercise promptly any right under this EULA will not create a continuing waiver or any expectation of non-enforcement. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.

21. ACKNOWLEDGEMENT AND EXCLUSIVITY. You acknowledge that you have read this EULA, understand it, and agree to be bound by its terms and conditions. You further agree that this EULA is the complete and exclusive statement of the agreement between you and THE OPERATOR regarding the subject matter of this EULA, and, in the absence of fraud, that this EULA supersedes all prior or contemporaneous oral or written communications, proposals, representations, and any other communication between you and THE OPERATOR relating to the subject matter of this EULA.  No modification to this EULA will be binding unless in writing and signed by an authorized representative of each party.

22. INFORMATION. If you have a question regarding the App, you may contact us as follows:

Email:  connected @help.geappliances.com or writing us at:

GE Appliances

4000 Buechel Bank Road, AP5-2N61

Louisville, Kentucky 40225 U.S.A.

 

23. TERMS REQUIRED BY APPLE. In addition to Sections 1 to 22 above, and notwithstanding anything to the contrary in this EULA, the following provisions in this Section 23 apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this EULA and does not own and is not responsible for the App.  Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it.  Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App 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 App, including those pertaining to intellectual property rights, must be directed to THE OPERATOR.  The licence you have been granted in this EULA is limited to a non-transferable licence to use the App 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 out 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 App, 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 EULA, will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary of this EULA.  Notwithstanding these rights of Apple and Apple’s subsidiaries, THE OPERATOR’s right to enter into, rescind or terminate any variation, waiver or settlement under this EULA is not subject to the consent of any third party.

Published November 2019.

 

FISHER & PAYKEL APPLIANCES LIMITED

 

END USER LICENSE AGREEMENT FOR WI-FI CONNECT APPLIANCE MOBILE SOFTWARE APPLICATION

IMPORTANT: THIS END USER LICENSE AGREEMENT IS BETWEEN YOU AND FISHER & PAYKEL APPLIANCES LIMITED AND ITS AFFILIATES (COLLECTIVELY, “FPA”).  PLEASE READ AND AGREE TO THIS END USER LICENSE AGREEMENT BEFORE USE OF THE FPA WI-FI CONNECT FEATURE AND MOBILE PHONE APPLICATION (“FPA APPLICATION” or “APP”).  THE APP IS INTENDED FOR USE WITH WI-FI CONNECT APPLIANCES (“FPA CONNECTED APPLIANCES”).  BY ACCEPTING THIS END USER LICENSE AGREEMENT (“EULA”) YOU (“YOU”) ARE BECOMING A PARTY TO THIS LICENSE AND AGREE TO BE BOUND BY IT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, YOU ARE NOT LICENSED TO USE FPA APPLICATION OR THE SOFTWARE CONTAINED THEREIN (“SOFTWARE”).  FPA RECOMMENDS THAT YOU PRINT A COPY OF THIS EULA FOR FUTURE REFERENCE.

If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of this EULA shall remain in force.

1. FPA SOFTWARE LICENSE GRANT. Subject to the terms of this EULA, FPA hereby grants You a limited, personal, non-sublicenseable, non-transferable, non-exclusive, revocable license to use the FPA Application that is intended for use with any FPA Connected Appliances you may have purchased, in accordance with this EULA and any documentation accompanying your FPA Connected Appliances (the “Software License”). If you choose to sell or transfer ownership of your FPA Connected Appliance(s) to a new owner, you agree that you will deactivate the transferred FPA Connected Appliance(s) from your account.  The new owner will need to agree to the terms of this EULA and will need to submit a new agreement to use the FPA Application when they register any transferred FPA Connected Appliance.

2. PERMITTED USE. This EULA allows You use of the FPA Application on a reasonable number of personal electronic devices (i.e., portable electronic devices such as mobile phones and tablets) which You or members of Your household own, for the limited purpose of accessing your FPA Connected Appliance(s).

3. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this EULA, You may not, nor permit anyone else to, directly or indirectly: copy, modify, or distribute the FPA Application or reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the FPA Application (except and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any Open Source Software, as defined below). As between the parties, title, ownership rights, and intellectual property rights in and to the FPA Application, and any copies or portions thereof, shall remain in and with FPA and its suppliers or licensors. To the extent permitted by applicable law, FPA may modify or discontinue offering the FPA Application at any time for valid reasons (e.g., to reflect changes in relevant laws, to protect security, or to implement technical adjustments and improvements).  FPA will seek to notify You by reasonable means of any modifications that will have a material adverse effect on the use of the FPA Application, taken as a whole.  You understand that FPA through its software platform partners may elect to begin charging a licensing fee for the use of the FPA Application and that FPA or its partners may elect to begin charging a one-time fee or a reoccurring subscription fee for the services provided by the FPA Application, but will not do so without giving You the option of paying the fee or discontinuing use of the FPA Application.  To the extent permitted by applicable law, FPA may modify any such fee where reasonably necessary.  FPA will seek to notify You by reasonable means of any material increase in any such fee.  All rights not expressly granted to you in the Software herein are expressly reserved to FPA.

4. OPEN-SOURCE SOFTWARE. The App or FPA Connected Appliances may include certain software code that is licensed under various free and open source licenses (collectively, the “Open Source Software”). To the extent required under the relevant open sourced licenses (and specifically limited to those requirements), each contributor to the Open Source Software, hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the work and such derivative works in source or object form.  FPA is not obligated to provide any updates, maintenance, warranty, technical or other support or services for the resultant modified FPA software.  You may access through the Application a list of the source code for any Open Source Software that is included in the FPA Application.

5. TRANSACTIONS. The App may make available listings, descriptions, and images of products. Except to the extent prohibited by applicable law, FPA makes no representations as to the completeness or accuracy of such listings, descriptions, or images (including any features, specifications, and prices contained therein).  Such information and the availability of any product are subject to change at any time without notice.  You may be able to purchase products through the App (a “Transaction”).  You confirm that you have the right to use any method of payment that you submit.  Verification of information may be required prior to the acknowledgment or completion of any Transaction.  It is your responsibility to comply with all applicable laws regarding the purchase and use of any product.  To the fullest extent permitted by applicable law, FPA reserves the right, including without prior notice, to limit the available quantity of or discontinue the availability of any product and to bar any user from making a Transaction.  Refunds and exchanges are subject to our applicable refund and exchange policies.  You agree to pay all charges incurred by you or on your behalf through the App, at the prices in effect when such charges are incurred, including applicable charges for shipping, handling, and taxes.  While it is the practice of FPA to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute FPA’s acceptance of an order or its confirmation of an offer to sell a product.  Unless prohibited by applicable law, Transactions are made pursuant to a shipment contract, and, as a result, risk of loss and title for products pass to You upon FPA’s delivery of the products to the carrier, and You are responsible for filing any claims with carriers for damaged and/or lost shipments.

6. FEEDBACK. If You provide to FPA any ideas, proposals, suggestions, or other materials (“Feedback”), whether related to the FPA Application or otherwise, You agree that such Feedback is not confidential and that Your provision of such Feedback is gratuitous, unsolicited, and without restriction, and does not place FPA under any obligation in respect of such Feedback.

7. LIMITED WARRANTY. FPA warrants the FPA Application to be free from major defects in workmanship under normal use for a period of thirty (30) days from the initial download of the FPA Application. Your exclusive remedy under this Section shall be a replacement of the FPA Application with the currently available version of the FPA Application.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED OR IMPLIED BY ANY DOCUMENTATION OR PACKAGING.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.  FURTHER, IF YOUR PERSONAL ELECTRONIC DEVICE IS CONFIGURED TO ALLOW MODIFICATION OF, ADMINISTRATIVE ACCESS TO, OR PRIVILEGED ACCESS TO YOUR DEVICE’S OPERATING SYSTEM, SUCH CONFIGURATION COULD COMPROMISE THE SECURITY AND OPERATING FEATURES OF THE FPA APPLICATION. USE OF THE FPA APPLICATION ON ANY SUCH CONFIGURED DEVICE VOIDS THE LIMITED WARRANTY.

8. WARRANTY DISCLAIMER. EXCEPT AS IS EXPRESSLY STATED IN FPA’S LIMITED WARRANTY FOR THE FPA APPLICATION IN PARAGRAPH 7 ABOVE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FPA DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE FPA APPLICATION AND THE OPEN SOURCE SOFTWARE, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FPA OR A FPA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY LIMITATIONS, SO THE LIMITATIONS SET FORTH IN PARAGRAPHS 7 AND 8 MAY NOT APPLY TO YOU.  ANY WARRANTY FOR AN FPA CONNECTED APPLIANCE IS SEPARATELY SET FORTH IN FPA’S LIMITED WARRANTY FOR SAID FPA CONNECTED APPLIANCE, WHICH WARRANTY SHALL ACCOMPANY THE FPA CONNECTED APPLIANCE, AND THIS EULA DOES NOT EXPAND OR CONTRACT IN ANY WAY THE LIMITED WARRANTY ON THE FPA CONNECTED APPLIANCE.

IN RESPECT OF ANY CONDITIONS, WARRANTIES, OR GUARANTEES THAT CANNOT BE EXCLUDED UNDER STATUTE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE LIABILITY OF FPA IS LIMITED (AT FPA’S OPTION) TO THE RESUPPLY OR REFUND OF THE COST OF THE FPA APPLICATION.

9. GENERAL LIMITATIONS. You are responsible for safe appliance operation. You cannot rely on the FPA Application as a means of preventing accidents, fire or damage to your appliances or home; the FPA Application is not designed for that purpose.  It is your responsibility to ensure that your appliances are maintained in good working order and that they are used in a safe and responsible manner.  FPA will make its “best effort” to ensure that notifications and communications are conveyed to and from you and to and from your FPA Connected Appliances, but FPA does not guarantee the accuracy of results or the reliability or timeliness of communications.  You agree that use of the FPA Application is subject to limitations and restrictions outside of FPA’s control (such as internet availability, environmental conditions such as buildings and topography, weather and atmospheric conditions, and availability of cell phone service, and satellite access) and FPA is not responsible for these limitations.

10. COMPLIANCE WITH THE LICENSE. You are responsible for compliance with this license for not only Yourself, but also for anyone else who uses the FPA Application under this license. You agree to make all other users aware of the terms of this license and you agree that You are solely responsible for the use of the Connected Appliances services in conjunction with the use of this FPA Application.

11. SOFTWARE UPDATES. FPA maintains a policy of continuous improvement of its products and reserves the right to change or update the FPA Application and, to the fullest extent permitted by applicable law, may choose to update FPA Appliances remotely without notifying You. By accepting this EULA, You agree to accept these updates and changes by FPA. Use of the FPA Application will allow Your FPA Appliance to communicate with FPA’s servers for the purposes of applying these updates. GEA will provide you updates and support for the GEA Application and your GEA Appliance software two (2) years from the GEA appliances’ original purchase date or five (5) years from the GEA appliances’ launch date, whichever is longer.

12. LIMITATION OF LIABILITY. NOTHING IN THIS EULA RESTRICTS, EXCLUDES, OR MODIFIES, OR PURPORTS TO RESTRICT, EXCLUDE, OR MODIFY ANY MANDATORY STATUTORY CONSUMER RIGHTS UNDER APPLICABLE LAW.

TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL FPA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR LOSSES THAT WERE NOT FORESEEABLE TO YOU OR FPA AT THE TIME YOU AGREED TO THIS EULA, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE FPA APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF FPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME YOU AGREED TO THIS EULA, BOTH YOU AND FPA KNEW IT MIGHT HAPPEN.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  UNLESS SUCH A LIMITATION IS PROHIBITED BY LAW, IN NO EVENT SHALL FPA’S CUMULATIVE LIABILITY UNDER THIS EULA TO YOU EXCEED FIFTY UNITED STATES DOLLARS ($50.00).  THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

FPA DOES NOT EXCLUDE OR LIMIT IN ANY WAY ITS LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO.  THIS MAY INCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY FPA’S NEGLIGENCE OR THE NEGLIGENCE OF FPA EMPLOYEES, AGENTS, OR SUBCONGRACTORS, FOR GROSS NEGLIGENCE OR WILLFUL BEHAVIOR, OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

If you are a resident of Germany, nothing in this EULA shall limit FPA’s statutory liability (a) under the German Product Liability Act, (b) for damages (Schaden und vergebliche Aufwendungen) arising from loss of life, bodily injury, or damage to health, (c) for damages caused by FPA’s gross negligence or willful misconduct, (d) for damages arising from fraudulently concealed defects, and (e) for damages covered by a guarantee of FPA.  Subject to the foregoing sentence, in cases of FPA’s ordinary negligence, FPA’s liability for damages (y) shall be limited to damages foreseeable at the time this EULA comes into force and that typically arise from transactions of this nature, and (z) shall be excluded with regard to damages caused by a breach of immaterial contractual obligations of FPA.  In addition, FPA shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the FPA Application not under FPA’s control, including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs not under the control of FPA used for electronic communications and transmission of viruses.

13. THIRD-PARTY LINKS. The FPA Application may contain links to third-party services. FPA does not control or endorse, and is not responsible for, any such third-party services.

14. TERM AND TERMINATION. This EULA shall continue until terminated as set forth in this Paragraph. You may terminate this EULA at any time by decommissioning your FPA Connected Appliance.  Your rights under this EULA will terminate if You fail to comply with any term(s) of this EULA.  Where reasonable under the circumstances, FPA will provide You with at least twenty-four (24) hours’ prior notice of termination, provided that if FPA reasonably believes that You have materially breached this EULA, FPA may immediately terminate Your rights under this EULA.  Any termination of this EULA shall also terminate the licenses granted hereunder.  Paragraphs 7, 8, 9, 10, 11, 12, 14, 16, and 17 shall survive termination of this EULA.

15. EXPORT CONTROLS. You shall not export, or allow the export or re-export of any FPA Connected Appliances or the FPA Application in violation of any applicable laws or regulations. By installing or using the FPA Application, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any country subject to restriction by the United States government or any other applicable law. 

16. GOVERNING LAW. This EULA shall be governed by and construed under Delaware law without regard to the Uniform Computer Information Transactions Act. Choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply.  This EULA shall also be governed by the law that would be applicable in the absence of the designation of jurisdiction in the preceding sentence.  This means that a court may determine that: (a) You may be able to bring an action pursuant to this EULA against FPA in a court of competent jurisdiction in your country of residence or in the country identified in the preceding sentence, and (b) FPA may be able to bring an action against You in a court of competent jurisdiction only in your country of residence.

17. ARBITRATION. If You are a resident of the United States, then any dispute arising out of Your use of the FPA Application, FPA Connected Appliances, or the terms and conditions of this EULA, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, shall be submitted to final and binding arbitration under the International Institute for Conflict Prevention & Resolution (“CPR”) Rules for Non-Administered Arbitration of Business Disputes in effect at the time of Your acceptance of this EULA by one arbitrator appointed by CPR in accordance with Section 6.1 of the CPR Rules. The arbitration proceeding shall take place in Louisville, Kentucky and shall be governed by the laws of Delaware, in accordance with Paragraph 16. The arbitrator shall not be requested nor shall they have the power to render any decision or award except as provided in the preceding sentence or as may otherwise be specifically provided herein.  The prevailing party will be entitled to an award of all fees, costs and expenses of the arbitration and the arbitrator.  You agree that any suit, action or proceeding required to enforce any arbitration award rendered pursuant to this Paragraph may be brought in the courts sitting in Louisville, Kentucky, and You irrevocably submit to the jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment.

18. NO ASSIGNMENT. You may not assign any rights or delegate any duties under this EULA and any attempt to do so will be void.

19. FORCE MAJEURE. Neither party will be responsible for any failure or delay in its performance under this EULA due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.

20. WAIVER AND SEVERABILITY. Any express waiver or failure to exercise promptly any right under this EULA will not create a continuing waiver or any expectation of non-enforcement. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.

21. ACKNOWLEDGEMENT AND EXCLUSIVITY. You acknowledge that you have read this EULA, understand it, and agree to be bound by its terms and conditions. You further agree that this EULA is the complete and exclusive statement of the agreement between you and FPA regarding the subject matter of this EULA, and, in the absence of fraud, that this EULA supersedes all prior or contemporaneous oral or written communications, proposals, representations, and any other communication between you and FPA relating to the subject matter of this EULA.  No modification to this EULA will be binding unless in writing and signed by an authorized representative of each party.

22. INFORMATION. If you have a question regarding the FPA Application, you may contact us as follows:

Email:  customer.care@fisherpaykel.com

or writing us at:

Fisher & Paykel Appliances Limited 
78 Springs Road 
East Tamaki, Auckland 2013

New Zealand 
Attention:  Connected Appliances Team

23. TERMS REQUIRED BY APPLE. In addition to Sections 1 to 22 above, and notwithstanding anything to the contrary in this EULA, the following provisions in this Section 23 apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this EULA and does not own and is not responsible for the App.  Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it.  Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App 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 App, including those pertaining to intellectual property rights, must be directed to FPA.  The licence you have been granted in this EULA is limited to a non-transferable licence to use the App 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 out 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 App, 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 EULA, will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary of this EULA.  Notwithstanding these rights of Apple and Apple’s subsidiaries, FPA’s right to enter into, rescind or terminate any variation, waiver or settlement under this EULA is not subject to the consent of any third party.