Terms of Use - Zwilling J.A. Henckels, LLC / Zwilling Culinary World App

These Terms of Use determine the use of the Zwilling Culinary World App (hereinafter referred to as “App”), which is provided and operated by Zwilling J.A. Henckels, LLC (“Zwilling”) to the user (“you”). By downloading the App and completing the registration as set forth in Clause 2.4 below or, if you skip the registration, by accepting these Terms of Use as set forth in Clause 2.5 below, you indicate that you accept and agree to be bound by these Terms of Use.

This App has been designed to provide you and other users with numerous features around your app-enabled Zwilling Culinary World products by Zwilling such as pairing your products with a device in order to control these products, managing such products in your Zwilling Culinary World user account, as well as obtaining access to step-by-step recipes and other content that can be used with your app-enabled Zwilling Culinary World product (collectively “Services”).

1. 1.    Download and Use of the App
2. 2.    Registration; Acceptance of Terms of Use
3. 3.    Changes of the Services and the Terms of Use
4. 4.    Availability of the App and the Services
5. 5.    Intellectual Property
6. 6.    Privacy Policy
7. 7.    Abuse
8. 8.    Termination of Account
9. 9.    Disclaimer of Warranties; Limitation of Liability
10. 10.  Arbitration; Governing Law; Miscellaneous

1. Download and Use of the App

1. 1. This App can be downloaded in the Apple App Store for iOS devices or the Google Play Store for Android devices (collectively “App Stores”). The download takes place via the respective download button or similar functionality in the App Store. A compatible personal device is required on your side.
   2. Insofar as these Terms of Use do not contain anything to the contrary, the terms of the App Store from which you have downloaded the App will apply. In case of a conflict between the App Store’s terms and conditions and these Terms of Use, these Terms of Use shall prevail.
   3. These Terms of Use are also applicable to the use of the App in case it has not been downloaded from one of the App Stores.
   4. The download and use of this App is free of charge and is not limited to a certain number of personal devices. Notwithstanding, it is intended for use with one or more app-enabled Zwilling Culinary World products, which are sold separately.
   5. The following terms apply to any App accessed through or downloaded from any App Store where the App may now or in the future be made available by the distribution platform provider (each an “App Provider”):
      1. You acknowledge and agree that: (a) these Terms of Use are between you and Zwilling, and not with the App Provider, and Zwilling (not the App Provider), is solely responsible for the App; (b) the App Provider has no obligation to furnish any maintenance and support services with respect to the App; (c) to the maximum extent permitted by applicable law, the App Provider will have no warranty obligation whatsoever with respect to the App, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zwilling; (d) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Zwilling will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use; and (f) the App Provider and its affiliates are third-party beneficiaries of these Terms of Use as related to your license to the App, and that, upon your acceptance of these Terms of Use, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the App against you as a third-party beneficiary thereof.
      2. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (b) you are not listed on any U.S. Government list of prohibited or restricted parties; and (c) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
      3. You must also comply with all applicable third party terms of service when using the App.
   6. This App and the Services as well as the app-enabled Zwilling Culinary World products are intended only for private or household use. They are not intended for commercial or professional use.
   7. Some functions of the App cannot be used without an active internet connection of the used personal device. Costs may arise in connection with the use of such individual functions of the App over the internet, depending on your contract with your communications provider.

2. Registration; Acceptance of Terms of Use

1. 1. You can use basic functionality of the App without registering. To use the full functionality of the App and the Services, you need to create a Zwilling user account (“Account”). You can register via the App or via our website at www.zwilling.com. You may also use a third-party login service (such as Facebook) made available in the App to create an account and then use this third-party login service to log into your Account. In case you already have an account for the Zwilling online shop, you can use the username and password of this account to login to your Account.
   2. The App may allow you to invite other users to access the app-enabled Zwilling Culinary World products connected to your Account. In order to accept an invitation, these other users need to download the App and create their own Account.
   3. In each case, you (and each user you invite) need to accept these Terms of Use and confirm that you had the opportunity to read the Privacy Policy before the registration can be completed and/or you can start using the Services.
   4. The contract between you and Zwilling regarding these Terms of Use will be concluded when you receive Zwilling’s confirmation of your registration via email. We may first ask you in an email to confirm your email address and the creation of your Account by clicking the confirmation link in an email sent to you by Zwilling; in this case the contract will be concluded only after you have clicked such link and Zwilling then confirms that the registration process has been completed.
   5. If you choose to skip the registration and the creation of an Account, the contract between you and Zwilling regarding these Terms of Use will be concluded when you click “Accept” in the App and we confirm receipt of your acceptance within the App.
   6. We will keep a copy of these Terms of Use. You will be able to retrieve a copy of these Terms of Use through our web site at www.zwilling.com.
   7. By creating your Account, you ensure to provide accurate, current and complete information required to register and to maintain and update your registration information as required to keep it accurate, current and complete.
   8. You are solely responsible for maintaining the confidentiality of your Account and password and for restricting access to your personal device(s). You agree to assume responsibility for all activities that occur under your Account and/or password. If you have reason to believe that your Account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your login data), you agree to immediately notify Zwilling about these circumstances.

3. Changes of the Services and the Terms of Use

1. 1. Zwilling reserves the right to extend the rendered Services and functions through this App or to cease any part thereof, which is not necessary to use the function of your Zwilling Culinary World product. As download and use of this App are free of charge, you agree that Zwilling is not obliged to (unchanged) further performance and provision of the App.
   2. Zwilling reserves the right to amend these Terms of Use at any time this seems to be necessary, i.e. due to further development of the App, to the introduction of new functions, to technical or operational issues or to any changes in law. The amendments will not result in any changes of the scope of Services. You will be informed about such changes by notification in the App and be asked to accept the new version of these Terms of Use.
   3. Automatic updates and upgrades will be provided by Zwilling through the App Stores and may be installed without your prior consent, depending on your device settings. The updates and upgrades will only include modifications of the software but no fundamental changes to the basic functions of the App.
   4. Firmware updates for app-enabled Zwilling Culinary World products connected to your Account will be made available through the App. Firmware updates may be required in order to use Zwilling Culinary World products with new versions of the App.

4. Availability of the App and the Services

1. 1. Zwilling will endeavour to provide a 24/7 availability of the App and the Services but Zwilling cannot provide a guarantee that there will not be interruptions.
   2. In particular, temporary interruptions of provision due to maintenance, system immanent disturbances of the Internet with external network operators, further technical reasons as well as in the case of force majeure are possible.
   3. In case of any defects or performance issues regarding the App, please contact zwillingappsupport@cuciniale.com.

5. Intellectual Property

1. 1. The App as well as pictures, videos, recipes and further content that is made available through the Services (collectively “Zwilling Content”) are protected by copyright, trademark, and other proprietary right laws in the United States and other jurisdictions. Zwilling hereby grants you a limited, non-exclusive, nontransferrable and non-sub-licensable right to use the App and the Zwilling Content for the purposes permitted under these Terms of Use.
   2. In particular, it is prohibited to:
      1. Reproduce the App or Zwilling Content, except to the extent that it is necessary to download, install and use the App on your personal device(s) (including sharing Zwilling Content through the intended functionality of the App), to create a reasonable number of backups or to the extent that this is otherwise permitted under these Terms of Use;
      2. Sell, redistribute, sublicense, lease or rent the App or Zwilling Content to third parties;
      3. Make any modifications and/or changes to the App or Zwilling Content;
      4. Decrypt, disassemble, decompile and/or reverse engineer the App;
      5. Use the App or Zwilling Content for commercial purposes. You may use the App or Zwilling Content only for your own private, noncommercial purposes and only as permitted under these Terms of Use; and/or
      6. Attempt any of the actions described in Sections 5.2.1 to 5.2.5;
      in each case, except with Zwilling’s prior written consent or where explicitly allowed by mandatory provisions of the applicable copyright laws.
   3. You retain the full copyright, if applicable, to content that you create yourself in the App or through the Services. You agree that Zwilling may reproduce, distribute and make available your content in order to provide the Services to you.

6. Privacy Policy

1. 1. When you download and use the App and/or register for an Account, Zwilling will process your personal data. Zwilling is aware of the value of your personal data and will treat them with respect, confidentiality and in accordance with the applicable data protection laws. For details, please refer to our Privacy Policy.
   2. Zwilling will notify you of updates to its Privacy Policy when Zwilling makes changes on how it processes your personal data. When required under applicable data protection laws or when Zwilling otherwise determines that it is appropriate, Zwilling will ask for your prior consent.

7. Abuse

1. 1. You agree that you will not and will not attempt to:
      1. Hack the App, the Services and/or Zwilling’s system in order to gain unauthorized access to Zwilling’s systems used to provide the Services, or other data stored on Zwilling’s systems or in order to damage, deactivate or impair Zwilling’s systems;
      2. Use the Services or otherwise access Zwilling’s systems used to provide the Services in an excessive way, i.e. in a way that grossly exceeds normal household use, in order to overload Zwilling’s systems (so-called denial-of-service attack);
      3. Work around any technical limitations of the App in order to gain access to Zwilling Content or other functionality that has not been licensed to you; and/or
      4. Use the App in a manner that is unlawful.

8. Termination of Account

1. 1. Zwilling reserves the right to terminate these Terms of Use (and thus your right to use the Services) and/or delete your Account for cause, in particular in case you:
      1. Provided inaccurate, outdated and/or incomplete information when registering for an Account or did not update your registration information even though it has changed, provided that we have either asked you via email to correct such information within a cure period of no less than thirty days or could not contact you because the email address you provided was invalid;
      2. Do not comply with Clause 5.2 and thereby infringe the intellectual property rights of Zwilling or third parties;
      3. Do not comply with Clause 7.1; and/or
      4. Do not comply with these Terms of Use or any applicable law in any other way.
   2. Zwilling further reserves the right to terminate these Terms of Use (and thus your right to use the Services) at any time.
   3. If you wish to terminate your Account, you may do so with immediate effect by deleting it through the app. For the avoidance of doubt, we may retain some of your information in accordance with applicable laws even after you delete your Account; for details please refer to our Privacy Policy.

9. Disclaimer of Warranties; Limitation of Liability

1. 1. THE APP AND SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," AND NONE OF US, OUR AFFILIATES AND OUR SERVICE PROVIDERS AND AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, (1) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (2) WARRANTIES RELATING TO TITLE AND NON-INFRINGEMENT, (3) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS, IN THE OPERATION OF THE APP OR ANY PART OF IT, (4) WARRANTIES RELATING TO THE AVAILABILITY OF THE APP AT ANY PARTICULAR TIME OR LOCATION, (5) WARRANTIES RELATING TO THE USE, VALIDITY, ACCURACY, CURRENCY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF THE APP OR ANY INFORMATION PUBLISHED ON THE APP, AND (6) WARRANTIES RELATING TO WEBSITES TO WHICH THE APP IS LINKED, AND ANY AND ALL SUCH WARRANTIES ARE DISCLAIMED. THE APP AND SERVICES MAY CONTAIN ERRORS, PROBLEMS OR OTHER LIMITATIONS. NONE OF US, OUR AFFILIATES, AND OUR SERVICE PROVIDERS AND AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE APP OR SERVICES. It is your responsibility to evaluate (or take professional advice on) the accuracy and completeness of all information, statements, opinions and other material on the App or any website with which it is linked. Some jurisdictions do not allow the exclusion or disclaimer of certain warranties. Accordingly some of the above disclaimers may not apply to you. We do not seek to exclude or limit liability for fraudulent misrepresentation. Your statutory rights as a consumer, if any, are not affected hereby.
   2. NONE OF US, OUR AFFILIATES, OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS, CLAIM OR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE THAT: (1) RESULTS FROM YOUR USE OF OR INABILITY TO USE OR THE LACK OF AVAILABILITY OF THE APP OR ANY WEBSITE WITH WHICH IT IS LINKED, OR (2) IS CAUSED BY VIRUSES THAT INFECT YOUR DEVICE, COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE APP, IN EACH CASE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, SO THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US, OUR AFFILIATES, AND SERVICE PROVIDERS AND AGENTS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED, SHALL NOT EXCEED $100 U.S. WE DO NOT SEEK TO EXCLUDE OR LIMIT LIABILITY FOR FRAUDULENT MISREPRESENTATION.
   3. YOU ACKNOWLEDGE THAT THE APP AND SERVICES WOULD NOT BE PROVIDED BY US WITHOUT THE FOREGOING DISCLAIMERS AND LIMITATIONS.
   4. The App may contain links or advertisements to other websites as a convenience to you. Those sites are not operated or controlled by us. Neither we nor our affiliates are responsible for the actions, content, accuracy opinions expressed, privacy policies, products or services provided through such websites, or made available through these resources or appearing in such websites. Neither we nor our affiliates shall have any liability to you for any damages or losses, directly or indirectly, caused or alleged to have been caused as a result of your use or reliance on such websites. We have not investigated, monitored or checked for accuracy, completeness, or conformance with applicable laws and regulations any of these sites. Inclusion of any linked website in the App does not imply approval, acceptance, or endorsement of the linked website or any of the products and services made available through such website by us. We do not make any representations whatsoever, or give any warranties of any kind, expressed, implied, or otherwise about any websites which you may access through the App, the content thereof, or the products or services made available through such websites. If you decide to access these other websites, you do so at your own risk. All rules, policies (including privacy policies) and operating procedures of such websites will apply to you while on such websites.

10. Arbitration; Governing Law; Miscellaneous

1. 1. Neither you nor Zwilling will be able to sue in court in connection with a dispute involving the App (an “App Dispute”). All App Disputes must be resolved through individual (non-class) arbitration. You indicate your acceptance to these Terms of Use, including this agreement to arbitrate, by continuing to use the App after having the opportunity to review these Terms of Use. You and Zwilling intend for this to be an agreement for arbitration that can be enforced under the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1–16. You and Zwilling waive any rights to maintain other available resolution processes for App Disputes, such as a court action or administrative proceeding, to settle disputes. You and we waive any right to a jury trial for App Disputes. Instead of suing in court, we each agree to settle App Disputes only by arbitration. The rules in arbitration are different. There’s no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in the agreement as a court would. Any App Dispute shall be determined by arbitration in Westchester County New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. If for any reason, JAMS cannot or will not provide this arbitration, the parties may ask any court of competent jurisdiction to select an arbitrator from a list provided by the parties. Notwithstanding the foregoing, we retain the right to bring legal proceedings in any jurisdiction where we believe that breach of these Terms of Use is taking place or originating. To the extent a party commences any action that includes both App Disputes and Non-App Disputes, consideration of the Non-App Disputes shall be stayed until the App Disputes are fully arbitrated. Then, any Non-App Disputes will be considered by any court of competent jurisdiction. You agree that you will not file a class action against us and our affiliated companies, or participate in a class action against us and our affiliated companies, in any App Dispute. You agree that you will not file or seek a class arbitration, or participate in a class arbitration against us and our affiliated companies, in any App Dispute. Any cause of action by you with respect to the App (or any information or Services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred and all actions shall be subject to the limitations set forth in these Terms of Use.
   2. No provision in these Terms of Use shall apply to any consumer in New Jersey if the provision limits redress for/under: (1) Zwilling’s tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (2) the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (3) the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages in the event of harm caused by actual malice, wanton and willful disregard, reckless indifference); (4) the New Jersey Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (5) Zwilling’s failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the New Jersey Identity Theft Protection Act, N.J.S.A.56:8-161, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-3, et seq.). With respect to these Terms of Use, the provision concerning the exclusion or limitation of certain damages is not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
   3. These Terms of Use and the agreement created by your acceptance of them through your use of the App shall be treated as though executed and performed in New York, and shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles. Access to, or use of, the App or information, materials, or Services on the App may be prohibited by law in certain countries or jurisdictions. We do not make any representations or warranties regarding the use of or access to the App outside of the United States and you are responsible for compliance with all applicable laws of the country from which you are accessing the App. The language in these Terms of Use shall be interpreted as to its fair meaning and not strictly for or against either party. You expressly submit to the exclusive jurisdiction of said courts and consent to extraterritorial service of process. Should any part of these Terms of Use be held invalid or unenforceable, the remaining portions of these Terms of Use shall remain in full force and effect. To the extent that anything in or associated with the App is in conflict or inconsistent with these Terms of Use, these Terms of Use shall control. Our failure to enforce any provision of these Terms of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use or your use of the App and neither we nor you have any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as authorized in writing by the party to be bound.
   4. In providing the App, we may act as a "services provider" (as defined by DMCA) and offer services as an online provider of materials and links to third party web sites. We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information: (1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) Description of the copyrighted work that you claim has been infringed; (3) A description of where the material that you claim is infringing is located in the App; (4) Your address, telephone number, and email address; (5) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (6) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.