Effective Date: December 12, 2022

INTRODUCTION

iMKapps (“iMKapps”, “us”, “we”, “our”) is pleased to offer you Atag One Control (“Service”), a mobile application available to monitor, control and configure your ATAG One thermostate.

This End User License Agreement (“Agreement”) is a binding contract between you and iMKapps which governs the use of the Service. The Service is only for your own personal use. You may not use the Service for any commercial purpose or in any way not expressly permitted by this Agreement. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND IMKAPPS.

This Agreement may be accepted by clicking the “accept” button. YOU ALSO ACCEPT THIS AGREEMENT AND ANY UPDATES, CHANGES, OR MODIFICATIONS TO THIS AGREEMENT BY ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, AND YOU AGREE TO COMPLY WITH AND BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.

Your use of the Service is subject to its privacy policy, located at https://imkapps.com/atag-one-control/privacy/ (“Privacy Policy”), which is hereby incorporated by this reference, and other policies that iMKapps may adopt from time to time.
iMKapps may modify this Agreement from time to time. If we change this Agreement, we will update the Effective Date listed above. If you continue to access or use the Service after such modification, you will be deemed to have read, understood and unconditionally agreed to such changes.

If you are under the age of 18, you represent that you have reviewed these terms and conditions with your parent or legal guardian to make sure that you and your parent or guardian understand these terms and conditions. If you are a parent or guardian permitting a person under the age of 18 (a “minor”) to use the Service, you agree to: (i) exercise supervision over the minor’s use of the Service; (ii) assume all risks associated with the minor’s use of Content received through the Service including the transmission of Content to and from third parties via the internet; (iii) assume liabilities resulting from the minor’s use of the Service, including payment obligations; and (iv) ensure the accuracy and truthfulness of all information submitted by the minor.

iMKapps may modify this Agreement from time to time. If we change this Agreement, we will update the Effective Date listed above. If you continue to access or use the Service after such modification, you will be deemed to have read, understood and unconditionally agreed to such changes.

Any translation of this document into languages other than English is intended solely as a convenience to the non-English-reading public. The official text is the English text and any differences in the translation are not binding and have no legal effect.

1. LICENSE
1.1 Grant of License.

Subject to the terms and conditions of this Agreement, iMKapps hereby grants to you, and you accept, a limited, personal, nonexclusive, nontransferable and revocable license to use the Service only as authorized in this Agreement. Your access to the Service is licensed, not sold. All references to the Service includes all related graphics, user interfaces, scripts and software used to implement and provide access to the Service, and any updates, upgrades, enhancements, modifications, revisions or additions to the Service made available to end users by iMKapps. However, iMKapps is under no obligation to provide any updates, upgrades, enhancements, modifications, revisions or additions to the Service.

1.2 Trial period.
The Service has no Trial period.

1.3 Restrictions.

(i) You may not reverse engineer, copy, decompile, disassemble, derive the source code of, modify, adapt, capture, reproduce, publicly display, publicly perform, transfer, sell, license, create derivative works from or based upon, republish, upload, edit, post, transmit, distribute, exploit, circumvent or otherwise translate (or encourage or assist any other person to do any of the foregoing) the Service in whole or in part.

(ii) You may not use the Service for any purpose that is unlawful or prohibited by this Agreement. You are specifically prohibited from using the Service to share, publish or otherwise include content that (a) violates any third party’s rights, including privacy and intellectual property rights; (b) is obscene, abusive, threatening, defamatory, violent, illegal, hateful, discriminatory, racist, sexist, or otherwise objectionable (as determined in our sole discretion) or in non-conformance with iMKapps’ content or use guidelines; or (c) contains viruses or other harmful software, code or other means that impact or limit the Service or the devices running the Service.

(iii) You may not interfere or attempt to interfere with the operation or use of the Service by others in any way through any means or device, including but not limited to spamming, hacking, uploading computer viruses or time bombs, or any other means. You may not, using the Service, collect or harvest personal information. You may not impersonate or pretend to be anyone else but you.

(iv) You may not use any robot, spider, script, or any manual or automated program or other means to extract, download, index, frame, enclose, mine, scrape, reproduce, or circumvent the presentation, operation, or intended use of any feature, function, or part of the Service.

(v) You may not use the Service to make any unsolicited offers, request, advertisements, or spam.

(vi) If the Service permits you to post pictures, you may not submit, share, or post pictures that are (a) not yours or pictures that you do not otherwise have the right to post (i.e., pictures that you find on the Internet or photos of or including another individual who has not consented to you posting it); (b) pornographic, nude, partially nude or sexually suggestive pictures; (c) pictures depicting illegal content or activities; or (d) pictures that include any person other than yourself unless you have secured all necessary rights and licenses to do so, and in no circumstance, submit a picture including any other person under 13 years of age.

(vii) If the Service allows you to submit reviews, you may not submit any fake or fabricated reviews. Any reviews by you will be genuine and will represent your own personal experiences. You warrant that you have not been offered any payment or other incentive to write a review.

2. INTELLECTUAL PROPERTY, LICENSES
2.1 Ownership.
You acknowledge that the Service is proprietary to iMKapps and its licensors, and protected under applicable copyright, patent, trademark and trade secret laws. You further acknowledge and agree that, as between you and iMKapps,  iMKapps owns and shall continue to own all right, title and interest in and to the Service, including associated intellectual property rights under the above referenced applicable laws. This Agreement does not grant you any ownership interest in or to the Service, but only a limited license to use that is revocable in accordance with the terms of this Agreement. Notwithstanding the foregoing, we do not claim ownership of any pictures that you post on the Service (if the Service permits you to post pictures). You represent and warrant that you have secured (and are able to produce proof in writing) of any and all rights necessary and appropriate to submit the pictures on the Service, including all necessary releases. You do however grant us a perpetual, worldwide, unrestricted, non-exclusive, royalty-free, transferable license to use the pictures that you post on the Service. Nothing in this Agreement gives you a right to reproduce, copy, imitate, distribute, sell, broadcast, license, or otherwise use any of iMKapps’ or our licensor’s trademarks, logos, domain names, and other distinctive brand features in whole or in part. You agree that you are responsible for all data charges you incur through use of the Service. You are not permitted to remove, obscure, conceal, modify or otherwise alter any proprietary rights notices, signs, trademarks, service marks, trade names, logos or other marks of iMKapps,  iMKapps’ subsidiaries or any third party (including copyright and trade mark notices) which pertain to, are affixed to or which are contained within the Services and you agree not to use any such signs, trademarks, service marks, trade names, logos or other marks of iMKapps,  iMKapps’ affiliates or any third party in a way that is intended to, likely to or foreseeable to mislead others or cause confusion about the owner, license holder or authorized user, as the case may be, of such marks, names or logos.

2.2 Right To Modify, Suspend or Discontinue Service.
iMKapps reserves the right to change the Service without notice. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, iMKapps and its licensors reserve the right to modify, suspend, remove or disable access to the Service, or discontinue the Service, in whole or in part, at any time without notice for any reason, and in no event shall iMKapps be liable for any claims, costs or damages caused by or arising out of such actions. Any of these circumstances shall not give grounds for (partial) reimbursement of license fees paid by you for access to the Service.

2.3 Right to Monitor.
We may, but have no obligation to monitor your use, activity, and communications on the Service. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users and without prior notice to you. We have no liability or responsibility to users for performance or nonperformance of such activities.

2.4 Third Party Materials.
The Service includes software or other materials developed by third parties.

3. USE; CONTENT
3.1 Use.
Use of the Service will require your devices to have access or connection via mobile network or Internet (fees may apply), and may require you to obtain updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to use the Service may be affected by the reliability and performance of such system requirements. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. You also acknowledge that the Service will not be available in all countries or on all devices, and may be subject to restrictions imposed by your network carrier or Internet provider.

3.2 Third Party Services.
Use of the Service may include or link to services provided by a third party service provider (“Third Party Services”). Your use of Third Party Services shall be solely between you and the third party, and subject to the applicable terms and conditions from such third party. iMKapps hereby disclaims all responsibility and liability for your use of Third Party Services, including but not limited to the reliability or the performance of Third Party Services.

3.3 Accuracy.
You understand that by using the Service, you may encounter content that may be offensive, indecent, explicit or objectionable. You agree to use the Service at your sole risk and that iMKapps shall have no liability to you for content that may be offensive, indecent, explicit or objectionable.

3.4 Your Information.
If registration information is required, you agree to provide accurate, current and complete information required to register with the Service and/or at any other time as may be required in the course of using the Service. You further agree to maintain and update your registration information as required to keep it accurate, current and complete. Without in any way limiting or abrogating the Privacy Policy, you agree that iMKapps may store and use the registration information you provide for use in maintaining your account and providing the Service. You are solely responsible for any activity that occurs on your account, for providing and maintaining accurate registration information and for maintaining the confidentiality of your password. If there has been an unauthorized use of your password or account, please notify us immediately.

4. TERM; TERMINATION
4.1 Effective Date.
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing or otherwise using the Service. The Service has no predetermined termination date and may continue until such time as iMKapps decides to terminate the Service or when this Agreement is terminated consistent with the terms herein.

4.2 Termination by iMKapps.
If you fail, or iMKapps reasonably suspects that you have failed to comply with any of the provisions of this Agreement, without limiting iMKapps’ other rights and remedies, all of which are expressly reserved, at its sole discretion and without notice to you, iMKapps may immediately discontinue your access to the Service and terminate this Agreement. iMKapps reserves the right to terminate your use of the Service (or any features with the Service) at any time for any reason without prior notice to you. If your use of the Service is terminated, your access to data that you have added to the Service (e.g. settings) will no longer be accessible.

4.3 Cancellation Policy.
The Service can be used for free with limited functionality. It also offers a Premium subscription for unlimited access, which renews automatically after the subscription period expires. To prevent a renewal, you have to cancel your subscription before the existing period expires. For more information, see the Apple documentation regarding cancellation.

5. INDEMNIFICATION
You will indemnify, release and hold harmless iMKapps,  its parent, subsidiaries and affiliates, and all officers, directors, agents and employees thereof, and any party acting on iMKapps’ behalf, from and against any and all third party claims, actions, liabilities, losses, damages, judgments, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”) arising out of (i) any use of the Service by you or by any person that you allow to use the Service that is not in accordance to the terms of this Agreement, (ii) any breach of this Agreement by you or by any person that you allow to use the Service or (iii) any violation of any laws, regulations or the rights of any third party by you or by any person that you allow to use the Service.

6. DISCLAIMER
6.1 Disclaimer of Warranties.
THE SERVICE IS PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. IMKAPPS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, AND SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

WITHOUT LIMITING THE PREVIOUS DISCLAIMER, IMKAPPS AND ITS LICENSORS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SERVICE WILL (I) OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (II) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS (III) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO YOU OR THE INFORMATION YOU PROVIDED) FROM UNAUTHORIZED ACCESS OR (IV) WILL BE ACCURATE, COMPLETE, OR RELIABLE, THAT THE QUALIFY OF THE SERVICE WILL BE SATISFACTORY TO YOU, OR THAT ERRORS WILL BE CORRECTED. IMKAPPS MAY, IN ITS SOLE DISCRETION, WITHOUT PRIOR WARNING OR NOTICE, CHANGE, SUSPEND, OR CEASE PROVIDING THE SERVICE.

6.2 Disclaimer of Certain Damages.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL IMKAPPS OR ITS LICENSOR BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF IMKAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT LIABILITY, INFRINGEMENT OR ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT IMKAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS MEANS THAT YOU HEREBY WAIVE ANY AND ALL RIGHTS TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS FROM IMKAPPS AND ITS LICENSORS. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT IMKAPPS WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. WE SHALL NOT BE LIABLE FOR ANY LOSS OF DATA OR SAVED GAME, BREACH OF SECURITY ASSOCIATED WITH THE SERVICE, OR FOR ANY USER CONTENT, PICTURE OR COMMUNICATIONS ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF THE SAME, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM. SHOULD YOU CHOOSE TO COMMUNICATE OR MEET DIRECTLY WITH OTHER USERS OF THE SERVICE, WE ARE NOT RESPONSIBLE FOR THOSE COMMUNICATIONS OR ANY MEETINGS THAT MAY TAKE PLACE BETWEEN YOU AND OTHER USERS. IF YOU HAVE A DISPUTE WITH US OR ARE DISSATISFIED WITH THE SERVICE, TERMINATION OF YOUR USE OF THE SERVICE IS YOUR SOLE REMEDY. WE HAVE NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU.

7. YOUR WARRANTIES AND REPRESENTATIONS
YOU ARE ENTIRELY RESPONSIBLE FOR THE USER CONTENT PROVIDED BY YOU AND FOR ANY CONSEQUENCES ARISING IN CONNECTION WITH THAT USER CONTENT (INCLUDING ANY LOSS OR DAMAGE SUFFERED OR INCURRED BY IMKAPPS AND IMKAPPS’ SUBSIDIARIES). IN PARTICULAR, YOU WARRANT AND REPRESENT TO IMKAPPS THAT: A. YOU ARE THE OWNER OF ALL RIGHTS PERTAINING TO THE USER CONTENT OR OTHERWISE AUTHORIZED TO GRANT IMKAPPS THE USER CONTENT LICENSE; B. THE USER CONTENT WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHTS; C. THE USER CONTENT WILL NOT CONTAIN ANY MATERIAL WHICH IS HARMFUL, INACCURATE, PORNOGRAPHIC, ABUSIVE, OBSCENE, THREATENING, DEFAMATORY, OR WHICH IS OTHERWISE ILLEGAL OR WHICH DOES NOT COMPLY WITH APPLICABLE LAW OR IMKAPPS’ CONTENT GUIDELINES; D. THE USER CONTENT WILL NOT CONTAIN ANY VIRUSES OR OTHER HARMFUL SOFTWARE, CODE OR SIMILAR MEANS AND DEVICES WHICH COULD DAMAGE, HARM, DISABLE OR OTHERWISE IMPACT OR LIMIT THE FUNCTION AND PERFORMANCE OF THE SERVICES AND/OR ANY DEVICE ACCESSING SUCH USER CONTENT. REGARDLESS OF WHETHER THIS DEVICE BELONGS TO IMKAPPS OR ANY OTHER USER OR THIRD PARTY INCLUDING SERVER, NETWORKS NODES OR ANY SIMILAR EQUIPMENT; AND E. THE USE OF THE USER CONTENT BY IMKAPPS OR IMKAPPS’ SUBSIDIARIES WILL NOT IMPOSE ANY OBLIGATION UPON IMKAPPS OR IMKAPPS’ SUBSIDIARIES TO PAY ANY KIND OF MONETARY CONTRIBUTION (INCLUDING LICENSE FEES, DUES OR OTHERWISE) TO ANY THIRD PARTY (IN PARTICULAR COLLECTING SOCIETIES).

8. PRIVACY
iMKapps is committed to the protection of your privacy, including the information you share on the Service. You agree and acknowledge that you may be asked to provide certain personal information, such as your telephone number, user name, profile photos, and other personally identifiable information when you use the Service. The Privacy Policy governs how iMKapps collects and uses your information and information relating to your use of the Service. iMKapps may update the Privacy Policy from time to time, so please periodically review the Privacy Policy.

9. GENERAL TERMS
9.1 Choice of Law.
This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of The Netherlands without regard to its conflict or choice of law principles.

9.2 Arbitration.
By using the Service, you unconditionally consent and agree that:
(i) any claim, dispute or controversy (whether in contract, tort, or otherwise) you may have against any iMKapps entity, the officers, directors, agents and employees of any iMKapps entity (the “ iMKapps Entity(ies)”) arising out of, relating to, or connected in any way with the Service or the determination of the scope or applicability of this clause, will be resolved exclusively by final and binding arbitration administered by Result ADR in The Netherlands (international administered by JAMS International) and conducted before a sole arbitrator in accordance with the rules of JAMS; (ii) this clause is made pursuant to a transaction involving international commerce, and shall be governed by the Dutch law. (iii) the arbitration shall be held in Amsterdam, The Netherlands; (iv) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any other agreements referenced herein that you have agreed to in connection with the Service; (v) the arbitrator shall apply Dutch law and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (vi) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable iMKapps Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and you will not file or participate in a class action against us; (vii) the arbitrator shall not have the power to award punitive damages against you or any iMKapps Entity; (viii) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any iMKapps Entity exceed One Hundred Twenty-Five Euros (EUR 125), and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, iMKapps agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, iMKapps will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive; and (ix) with the exception of subsection (vi) above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subsection (vi) above is found to be invalid, unenforceable or illegal, the entirety of this arbitration provision shall be null and void, and neither you nor iMKapps shall be entitled to arbitrate the dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.

9.3 Severability.
If any term or provision of this Agreement is held to be void or unenforceable by any judicial or administrative authority, such determination shall not affect the validity of enforceability of the remaining terms and provisions of this Agreement. The remaining provisions of this Agreement shall remain in effect and shall be construed in accordance with its terms.

9.4 Survival.
Sections 1.3, 2, 5, 6 and 8 of this Agreement, and any other provision that by its nature should continue to be in effect, shall survive the expiration or earlier termination of this Agreement, and shall remain valid and binding.

9.5 Headings.
The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

9.6 No Waiver.
The failure of iMKapps to enforce at any time any of the provisions of this Agreement, or the failure by iMKapps to require at any time performance by you of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of iMKapps to enforce such provision thereafter. The express waiver by iMKapps of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

9.7 Third Party Sites.
We may offer links or other materials on the Service which allow you to browse or be redirected to a third party’s website, such as a social networking platform. We are not associated with, endorsing, or responsible for the services, websites, or content of these third parties. If you have any questions about these other companies’ practices, you should review their terms of use and other policies.

9.8 Changes.
We reserve the right to change any part of the Service, including this Agreement, at any time and without prior notice to you. If we change this Agreement, we will update the Effective Date listed above. Your continued use of the Service means that you agree with our updated Agreement. If you do not agree with our updated Agreement, you may not use our Service.

9.9 Third Party Beneficiaries.
Each of the iMKapps affiliate is an intended third party beneficiary to this Agreement and shall be entitled to directly enforce and rely upon any provision of these terms and conditions, which confers a benefit on (or rights in favour of) them.

9.10 Assignment.
You are not permitted to transfer, assign or otherwise dispose of this Agreement which is personal to you, or any of your rights or obligations arising under this Agreement without the prior written consent of iMKapps.

9.11 Force Majeure.
iMKapps is not liable or responsible for any failure to perform, or delay in performance of any of iMKapps’ obligations under this Agreement that is caused by events outside iMKapps’ reasonable control (“Force Majeure Event”), in particular (without limitation) (a) unavailability of public or private telecommunication networks (b) acts, decrees, legislation, regulations or restrictions of any government or (c) strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attacks or threats of terrorist attacks, war (whether declared or not) or any natural disaster. iMKapps’ performance under this Agreement is deemed to be suspended for the period that Force Majeure Event continues, and iMKapps will have an extension of time for performance for the duration of that period. iMKapps will use its reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which iMKapps’ obligations under this Agreement may be performed despite the Force Majeure Event.