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Terms of Use

for the Festo Online-Shop and Festo App World

Festo Corporation / Effective October 2017

1. Scope, offering

1.1 These terms of use (“Terms of Use”), as may be amended by Festo from time to time at Festo’s sole discretion, shall govern the customer's access and use of the Festo Online Shop (“Online Shop”) and Festo App World (“App World”) at www.festo.com (together, the “Website”).

1.2 The products offered in the Online Shop and the software applications (“apps”) offered in App World are offered and available only to customers who are at least 18 years of age [and reside in the United States or any of its territories or possessions ]or legal entities [in the United States or any of its territories or possessions], represented by individuals who have the full power and authority to act on behalf of the respective legal entity. By using the Website, the customer represents and warrants that it meets the foregoing eligibility requirements.

1.3 Deviating, opposing or supplementary General Terms and Conditions of the customer are hereby expressly declined by and shall not become an integral part of the agreement nor be binding on Festo, even if Festo has knowledge of them, unless their applicability is expressly approved by Festo in writing.

2. Registration

2.1 The customer must register for use of the Online Shop and App World. During the registration process, the customer will be asked to create a user account by providing certain login details such as a valid e-mail address and a password of the customer's own choosing. In addition, when registering the customer shall provide all of the information requested on the electronic registration form, including company name, address, contact and payment details, and a contact person authorized to act on behalf of the business being registered. During registration, the customer must not pose as another person or business or use a personal or company name that the customer is not entitled to use. By entering the information required for the registration, the customer agrees that all such information is governed by Festo’s Privacy Policy accessible at [INSERT LINK] and the customer expressly consents to all actions Festo takes with respect to the information consistent with the Privacy Policy. Prior to the submission of the registration information on the Website, the customer will be prompted to review these Terms of Use. By clicking to accept or agree to these Terms of Use when this option is made available to the customer, the customer confirms that he/she has reviewed these Terms of Use and agrees to be bound and abide by them. If the customer declines to accept these Terms of Use, the customer shall not proceed with the registration.

2.2 If the customer's registration or profile information change within the period of use, the customer is obliged to correct that information immediately. If costs are incurred by Festo due to the inaccuracy of such information (such as but not limited to accounting errors due to incorrect account details), the customer is obliged to reimburse Festo for those costs.

2.3 The customer acknowledges that it is in Festo’s sole discretion to grant the customer access to the Website. Upon Festo’s approval of the customer’s registration, Festo shall activate the customer’s account and send the customer an e-mail confirmation containing a link. The customer shall confirm the activation of the account by clicking on the provided link. Upon activation of the account, the customer is authorized to use the Online Shop and App World in accordance with these Terms of Use.

2.4 The customer acknowledges that the user account and its login details are not transferable. Festo assumes no responsibility for ensuring that every profile owner is the person that the particular profile owner claims to be. Festo reserves the right during registration to conduct checks of the customer's identity and information provided. The customer therefore authorises Festo, as a precautionary measure, to use all the registration information to check the accuracy of the information provided by the customer (including updates of such information). Should any registration information be found incorrect or inconsistent according to Festo’s sole determination, Festo reserves the right and authority to suspend the customer’s access to and/or use of the Website.

3. Responsibility for login details and use of the Website

3.1 The login details of the customer, including but not limited to the user name, password [or other security information], must be kept confidential by the customer and may under no circumstances be made accessible to any third parties.

3.2 The responsibilities of the customer also include ensuring that only duly authorized representatives of the customer can access the Online Shop and App World and use the services or features made available through them. If there is any reason to believe that unauthorized third parties have gained or will gain knowledge of the Customer’s login details, Festo must be notified immediately.

3.3 The customer agrees to use the Website only for lawful purposes and strictly in accordance with these Terms of Use. The customer agrees not to use the Website (a) in any way that violates any applicable federal, state, local or international law or regulation (including without limitation, any laws regarding the export of data or software to and from the U.S. or other countries); [(b) transmit, procure the sending of, any advertising or promotional material, including any “junk mail” or any solicitation letters;] (c) engage in any other conduct that restricts or inhibits anyone’s use of the Website, or which, as determined by Festo, may harm Festo or users of the Website or expose them to liability; (d) use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website; (e) use any robot, spider or other automatic device, manual process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website; (f) for any other unauthorized purpose without Festo’s prior written consent; (g) use any device, software or routine that interferes with the proper working of the Website; (h) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; (i) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website; (j) attack the Website via a denial-of-service attack or distributed denial-of-service attack; and (j) copy or obtain any underlying software associated with the Website.

4. Temporary deactivation and termination of use

4.1 Without any liability to the customer, Festo may, in its sole discretion, temporarily suspend or permanently deactivate the customer's login access entirely or the customer's access to certain areas of the Website, if Festo has grounds to believe that the customer is violating or has violated these Terms of Use and/or applicable laws, rules and regulations.

4.2 In cases of temporary suspension or permanent deactivation, the customer's login access will be immediately deactivated. Festo shall provide the customer with written confirmation by e-mail of the temporary suspension of the customer’s login access and may grant the customer, at Festo’s sole discretion, a grace period to eliminate the ground for suspension (the “Suspension Period”). Should the customer fail to eliminate the reason for the suspension within the Suspension Period, if such shall have been granted by Festo, Festo reserves the right to permanently deactivate the customer’s login access. Customer acknowledges that a permanently deactivated login access cannot be restored. The customer will be notified by e-mail of the permanent deactivation or reactivation of their login access.

4.3 The customer may request the termination of his/her account without cause by sending an e-mail to [e-mail address] subject to a period of notice of fourteen (14) calendar days, such termination to be effective at the end of the calendar month in which the notice period ended. Without any liability to customer, Festo reserves the right to terminate the customer's account without cause with prior written notice subject to a period of notice of fourteen (14) calendar days. The use of acquired apps remains unaffected by a termination of the customer’s account in the Online Shop as the use of the apps is governed by the end-user license agreement for apps (the “License Agreement”) between Festo AG & Co KG as licensor and the customer or a subsequent user as licensee, and is not bound to these Terms of Use.

4.4 Notwithstanding the above, Festo may terminate the customer’s account for cause with immediate effect upon prior written notice to the customer without any liability to the customer.

5 Purchase of products in the Online Shop

5.1 Upon activation of the customer’s login access by Festo, the customer is authorized to purchase products that Festo offers in the Online Shop.

5.2 All purchases of products in the Online Shop shall be governed by Festo's terms and conditions of sale, as amended, and accessible at Terms and Conditions.

6. Acquiring apps in App World

6.1 In App World, a customer can view, search for, purchase and download apps in accordance with their intended use. In cases where apps offered in App World are linked to a particular Festo product (“designated product”), the customer must enter the Product Key of their specific designated product. If required in order to use the app with the designated products, the customer will be provided with a personal license key for the relevant designated product upon each purchase of an app. In cases where the apps are not yet installed on the customer's designated product and are not available via a firmware update for the designated product, the apps may comprise software, technology, data and/or other content that may expand the functionality of the designated product. Apps may also include updates, upgrades and other modifications and versions that the customer can use later or can download from Festo. The customer agrees to be bound to the restrictions of the use of apps which may be specified by Festo in the relevant product description and/or in the License Agreement.

6.2 When an app is acquired by a purchase by the customer, the purchase shall be governed by the Terms and Conditions.

6.3 The use of an app by the customer is subject to the terms and conditions of the License Agreement.

7. Modification of the terms of use; changes to the offering

7.1 Festo reserves the right to modify these Terms of Use from time to time. All changes are effective immediately when posted and shall apply to all access to and use of the Website thereafter. Festo may, at its sole discretion notify the customer of any such modifications before modifications come into effect, provided however that any such changes, revisions, amendments or modifications shall become effective without any further action by any party. The customer acknowledges that his/her continued use of the Website following the posting of revised Terms of Use shall be construed as his/her acceptance to the changes.

7.2 Festo may withdraw or amend the Website, and any feature or material posted on the Website, in its sole discretion and without prior notice to the customer. Festo shall not be liable if for any reason all or any part of the Website is unavailable at any time or for any period, regardless of its impact on any customer or other third party. Festo is at no time liable for any damages or consequential matters which may or may not be caused in any manner by the Website or its non-service. From time to time, Festo may restrict access to some parts of the Website, or the entire Website. Festo is entitled at any time to expand the offering in the Online Shop and App World and to provide new apps and services for payment or free of charge, and to modify, close or suspend the App World itself in whole or in part without any liability to the customer. In such cases, Festo may give consideration to the legitimate interests of the customer.

8. Intellectual Property Rights

8.1 The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, [video and audio], design, selection and arrangement thereof) are owned by Festo, its licensors, if any, or other providers of such material (the “Festo Materials”). The customer agrees not to reproduce, distribute, modify, create derivative works of, reverse engineer, publicly display, republish, download, store or transmit any of the Festo Materials except documents or materials uploaded by the customer or generated specifically in connection with the transaction between the customer and Festo such as quotations, purchase orders and invoices. The Website is protected by U.S. Copyright and other intellectual property rights in the U.S. and throughout the world.

8.2 The customer agrees not to use Festo’s or any of its affiliates’ names, trademarks and all related names, logos, product and service names, designs and slogans without the prior written consent of Festo.

8.3. Customer acknowledges and understands that Festo’s intellectual property includes the contents of the Website as well as the various patent, trademark, service mark, copyright, design, and other IP registrations made by Festo throughout the world, and as published via multiple online resources including the US Patent and Trademark Office and other countries’ intellectual property offices.

9. Disclaimer of Warranties

9.1 The customer acknowledges that Festo does not guarantee or warrant that files [and applications] available for downloading from the Website will be free of viruses or other destructive code. The customer shall be solely responsible for implementing sufficient procedures and checkpoints to satisfy his/her particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, FESTO SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT THE CUSTOMER‘S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO THE CUSTOMER’S USE OF THE WEBSITE OR ANY FEATURES[, SERVICES] OR MATERIALS OBTAINED THROUGH THE WEBSITE OR TO THE CUSTOMER‘S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

9.2 THE CUSTOMER ACKNOWLEDGES THAT HIS/HER USE OF THE WEBSITE, ITS CONTENT, AND ANY FEATURES[, SERVICES] OR MATERIALS OBTAINED THROUGH THE WEBSITE IS AT HIS/HER OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY FEATURES[, SERVICES] OR MATERIALS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER FESTO NOR ITS AFFILATES OR ANY PERSON ASSOCIATED WITH FESTO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING. NEITHER FESTO, NOR ITS AFFILIATES OR ANYONE ASSOCIATED WITH FESTO REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, FEATURES[, OR ANY SERVICES] OR MATERIALS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT FESTO‘S SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY FEATURES[, SERVICES] OR MATERIALS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET THE CUSTOMER‘S NEEDS OR EXPECTATIONS.

9.3 TO THE FULLEST EXTENT PROVIDED BY LAW, FESTO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

9.4 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

10. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL FESTO, ITS AFFILIATES, OR THEIR LICENSORS, IF ANY, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT OR FEATURES ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

11. Indemnification

The customer agrees to defend, indemnify and hold harmless Festo, its affiliates, licensors, if any, and service providers, and its respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to (i) the customer’s violation of these Terms of Use, (ii) the customer’s use of the Website or any information obtained from the Website other than as expressly authorized in these Terms of Use, and/or (iii) incorrect or inaccurate information entered by the customer or a third party for the customer during the registration process, or the customer’s failure to update such information.

12. General provisions

12.1 The customer can find detailed information about Festo in its capacity as the operator of the Online Shop and App World here.

12.2 All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

12.3 All disputes, legal suits, actions or proceedings arising from or in connection with the Website or these Terms of Use shall be submitted to the exclusive jurisdiction of the state and federal courts for the State of New York, Eastern District of New York. The parties hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.

12.4. If any provision of these terms of use should be or become void, the validity of the remaining provisions shall not be affected. In such cases, the parties are obliged to work together to agree on provisions through which a legally valid result coming as close as possible to the commercial intent of the invalid provision shall be achieved. The above shall apply accordingly in the event of gaps in the agreement.

12.5. Festo makes no claims that the Website or any of its content is accessible or appropriate outside of the United States, its territories or possessions. Access to the Website may not be legal by certain persons or in certain countries. If the customer access the Website from outside the United States, its territories or possessions, the customer acknowledges that he/she shall be responsible for compliance with all applicable local laws, rules and regulations.

12.6 No waiver by Festo of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Festo to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

12.7 These Terms of Use and the Privacy Policy shall constitute the sole and entire agreement between the customer and Festo with respect to the use of the Website and supersede all prior or contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the access and use of the Website.