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MyTitan End User License Agreement

MyTitan App

END USER LICENSE AGREEMENT

Thank you for choosing to download the MyTitan App (the “Mobile Application”) developed by or on behalf of Titan Tool, Inc. and its affiliates (the “Company”) for use on specified mobile devices.  All users of the Mobile Application are subject to the following end user license agreement terms (this “EULA”). 

Please read this EULA carefully because it will apply to your access to and use of the Mobile Application, and constitute a binding agreement between you and the Company.  By downloading the Mobile Application, you agree that you have read, understand and agree to be bound by this EULA, as amended from time to time.  If you do not wish to agree to this EULA, do not download the Mobile Application or promptly delete it from your device.  

  1. USING THE Mobile Application

The Mobile Application may be used to connect to paint sprayers or operate other functionality of the application.  This EULA does not comprise the terms of service for the Mobile Application, which you may access through the Mobile Application.  Rather, when you create an account on the Mobile Application, or if you already have an account on the Mobile Application, your use of the Mobile Application will be subject to the then current terms and conditions related thereto, including, without limitation:

            Terms of Service: https://www.titantool.com/terms-of-use

            Privacy Policy: https://www.titantool.com/privacy-policy

You will also be subject to any specific terms or rules applicable to promotions available for use on the Mobile Application.  Separate fees may apply as set forth there in.       

  1. LICENSE GRANT TO USE THE MOBILE APPLICATION

If you download or otherwise access the Mobile Application, you are granted a non-transferable, non-exclusive license to use the Mobile Application (including any data or images incorporated in or generated by the Mobile Application) for personal, non-commercial use.  You do not receive title to the Mobile Application and you may not distribute or use the Mobile Application other than for the purpose of using the applicable feature or service of the Mobile Application as offered by the Company.  This license does not allow you to use the Mobile Application on any device that you do not own or control, and you may not distribute the Mobile Application on any network where it could be used by devices owned by others. You may not modify, adapt, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Mobile Application.  You may not create any derivative works of the Mobile Application. The Mobile Application is subject to all restrictions on use, disclaimers of warranties and other provisions in this EULA.  The Company reserves all rights not expressly granted to you.

  1. TERMINATION OR RESTRICTION OF ACCESS

Your license to use the Mobile Application is effective until terminated.  You may terminate the license at any time by uninstalling the Mobile Application, deleting any related data from your device(s). 

This EULA and your right to use the Mobile Application will terminate immediately without notice if you fail to comply with this EULA.  Upon termination, you agree to immediately cease using and destroy the Mobile Application, including all accompanying documentation and materials.  

  1. UPDATES TO MOBILE DEVICES

Please note that updates to your existing mobile device operating systems or firmware may render your version of the Mobile Application incompatible.  The Company does not warrant that the Mobile Application will be backward or forward compatible with any updates to, or prior versions of, the mobile devices.  The Company may, but is not obligated to, provide you with updates to the Mobile Application that improve compatibility with updated mobile devices.

  1. DATA CHARGES

To the extent a Mobile Application requires, or permits utilization of, wireless or cellular data access, you shall be independently responsible for securing the necessary data access service.  The provider of such access to your mobile device may charge you data access fees in connection with use of the Mobile Application.  You are solely responsible for all such charges payable to third parties.

  1. PROPRIETARY INFORMATION

The entire contents of this Mobile Application (including all information, text, displays, images and audio and any software made available through or in connection with the Mobile Application) and the design, selection and arrangement thereof, are proprietary to the Company or its affiliates or licensors and are protected by United States and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights. You are authorized only to use the content on the Mobile Application for personal use. You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit or distribute any of the material of the Mobile Application without the prior written consent of the Company.  Neither the title nor any intellectual property rights to any material in this Mobile Application are transferred to you, but remain with the Company or the applicable owner of such content. Except as expressly authorized by the Company in writing, you may not reproduce, sublicense, distribute, sell or exploit for any commercial purposes (a) any part of this Mobile Application, or (b) access to this Mobile Application.

The Company name and logos, and all related names, logos, product and service names, designs and slogans contained in the Mobile Application are trademarks of the Company, its affiliates, licensors and/or contractors unless otherwise clearly specified in writing. You may not use such marks without the prior written permission of the Company. All other names, brands and marks are used for identification purposes only and may be the trademarks of their respective owners.  All rights are reserved.

  1. DISCLAIMER OF WARRANTIES

EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU, THE COMPANY MAKES NO REPRESENTATION OR WARRANTIES WITH RESPECT TO THE OPERATION, FUNCTION, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, APPLICABILITY OR COMPLETENESS OF THE CONTENTS OF THE MOBILE APPLICATION. 

 

EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT WITH YOU, THE COMPANY expressly disclaimS any and all warranties (express or implied) including but not limited to, the warranties of merchantability, or fitness for any particular purpose IN CONNECTION WITH THE MOBILE APPLICATION OR YOUR USE OF SAME. THE COMPANY DOES NOT WARRANT THAT THE MOBILE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

THE COMPANY DOES NOT WARRANT THE PERFORMANCE, EFFECTIVENESS OR APPLICABILITY OF ANY WEB PAGES TO WHICH LINKS ARE PROVIDED FROM THE MOBILE APPLICATION OR AS A RESULT OF THE USE OF THE MOBILE APPLICATION.  ALL LINKS ARE FOR YOUR CONVENIENCE ONLY AND ARE NOT WARRANTED FOR CONTENT, ACCURACY OR ANY OTHER IMPLIED OR EXPLICIT PURPOSE.

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from this Agreement

  1. LIABILITY OF THE COMPANY AND ITS LICENSORS

    YOU WAIVE THE ABILITY TO ASSERT A CLAIM AGAINST THE COMPANY MORE THAN ONE (1) YEAR AFTER THE FIRST EVENT OR FACT THAT GAVE RISE TO THE CLAIM. in no event SHALL THE COMPANY be held liable to YOU OR any OTHER party for any indirect, incidental or consequential damages (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR BUSINESS OPPORTUNITIES), REGARDLESS OF THE LEGAL THEORY, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, AND REGARDLESS OF WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS EULA EXCEED $100.  NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO INJURIES: (1) TO THE BODY OR PERSON; OR (2) CAUSED BY THE COMPANY’S WILLFUL, MALICIOUS, RECKLESS, OR GROSSLY NEGLIGENT ACTS OR OMISSIONS.  THESE LIMITATIONS OF LIABILITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.  BECAUSE THE LAW REGARDING LIMITATIONS OF LIABILITY VARIES BY STATE, THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.  NOTICE TO NEW JERSEY CONSUMERS: THESE LIMITATIONS OF LIABILITY APPLY IN NEW JERSEY.

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from this Agreement.

  1. INDEMNIFICATION

    You agree to indemnify and hold harmless the Company and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, third party information providers, licensors, licensees, distributors, contractors and others involved in the Mobile Application and related online services (collectively, the “Indemnified Parties”) from and against any and all liabilities, expenses, damages and costs, including reasonable attorney’s fees, arising from any violation by you of this EULA.

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from this Agreement.

  1. COMMENTS AND SUBMISSIONS

The Company welcomes your comments with respect to the Mobile Application. All comments, suggestions or other information sent by you to the Company will become the Company’s property.  For avoidance of doubt, the Company shall own any developments by the Company or on its behalf arising out of your comments, suggestions or other submissions. To the extent the Company does not own such materials, you grant and agree to grant the Company a perpetual, irrevocable, non-exclusive, royalty-free license to utilize, create derivative works of, distribute and sublicense such materials for any purpose in connection with the Company’s web sites, products and services. You understand that all information you submit is non-confidential for all purposes, and you have no expectation of any review, compensation or consideration of any type for all submissions hereunder.

  1. ARBITRATION

Except as otherwise provided in a written agreement with you, any controversy or claim, whether based in contract, tort, statute, regulation or otherwise, between you and the Company or our subsidiaries and affiliates, and our or their officers, directors and employees, arising out of or relating to this Agreement or your use of the Mobile Application, shall be adjudicated by binding arbitration, before a single arbitrator, in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS (or any successor of that organization in effect at the time the arbitration is initiated) which shall administer the arbitration.

 

You may hire an attorney to represent you. Each party shall bear its own costs and expenses related to such arbitration, regardless of which party prevails, but a party may recover any or all of its costs and expenses from the other party to the same extent as in court.  The arbitration award shall be in writing and shall include findings of fact and conclusions of law.  Judgment on the arbitration award may be entered by any court of competent jurisdiction.  Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of either party pending the completion of arbitration.  The parties hereby agree the arbitration will be held at the JAMS office closest to where you live or work, Minneapolis, Minnesota, or any other location where we agree to hold the arbitration.

 

This section is deemed to be a written agreement to arbitrate pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16.  You and the Company agree that this section is intended to satisfy the writing requirement of the FAA.  The FAA will apply even though this agreement provides that it is governed by the law of Minnesota.  YOU HEREBY WAIVE THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY.  DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT AND OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.  You hereby acknowledge that you have read and understood the implications of this provision.

 

NO CLASS ACTIONS.  Any controversy or claim will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or proceedings that involve any claim or controversy by you or any other person or party.  You and the Company expressly intend and irrevocably and voluntarily agree that each will not assert a class action or representative action against the other in arbitration, in court or otherwise.  You further agree that you do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any controversy or claim filed in either court or submitted to arbitration.  This provision is material and essential to the arbitration of any controversy or claim, and is non-severable from this agreement to arbitrate.

  1. CHOICE OF LAW, VENUE.

This Agreement, and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, will be governed under the laws of the State of Minnesota without regard to its conflicts of law provisions. All actions or proceedings commenced by you and arising out of or relating to these Terms of Use will be venued exclusively in state or federal court in Hennepin County, Minnesota. You hereby irrevocably consent and submit to the personal jurisdiction of said courts for all such purposes. However, we retain the right to bring legal proceedings in any jurisdiction where we believe that infringement of this Agreement is taking place or originating. 

The foregoing provisions set forth in this Section are essential parts of and cannot be severed from this Agreement.

  1. MISCELLANEOUS

    The Company makes no representation that the Mobile Application is appropriate or available for use outside of the United States. If you access the Mobile Application from other locations, you are responsible for complying with local laws.

You agree to abide by U.S. and other applicable laws, including export control laws, and not to transfer, by electronic transmission or otherwise, any software or other content downloaded from the Mobile Application to a destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. By downloading the Mobile Application, you warrant that you are not located in any country, or exporting such software to any person or place, to which the United States has embargoed goods.

Except as expressly set forth above, this EULA, as they may be amended from time to time, completely and exclusively states the agreement between you and the Company with respect to the Mobile Application, and no other terms that may have been communicated to you orally or in any other manner shall have any force or effect. Any cause of action you may have with respect to the Mobile Application must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.

The Company’s licensors and contractors are express third party beneficiaries of any of this EULA that are applicable to their products or services, including disclaimers of warranty and limitations of liability, and shall have the right to enforce directly against you all of your applicable representations, warranties, covenants, indemnifications and obligations under this EULA.

The Company’s failure to insist upon or enforce strict performance of any provision of this EULA shall not constitute a waiver of the provision. Neither a course of dealing or conduct between you and the Company nor any trade practices shall be deemed to modify this EULA.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this EULA or use of the Mobile Application.

A printed version of this EULA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

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