END USER LICENSE AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY:  This End User License Agreement (this “Agreement”) is a legally enforceable contract between you and Toughbuilt Industries, Inc., a Nevada corporation (“Toughbuilt”), regarding your use of Toughbuilt’s proprietary mobile application together with the associated Documentation, technical configurations, and technical data (the “Toughbuilt App”).  “Documentation” means the user manual and other documentation (including print and online), if any, provided to you with the Toughbuilt App.

BY CLICKING “I AGREE” BUTTON BELOW OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE TOUGHBUILT APP, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THE AGREEMENT, YOU MUST NOT ACCEPT THE AGREEMENT AND MAY NOT USE THE TOUGHUILT APP.

TOUGHBUILT RESERVES THE RIGHT TO MODIFY THESE TERMS AT ANY TIME, AND EACH SUCH MODIFICATION SHALL BE EFFECTIVE UPON NOTIFYING YOU OF SUCH CHANGE BY REASONABLE MEANS INCLUDING THROUGH THE TOUGHBUILT APP.  ALL MATERIAL MODIFICATIONS WILL APPLY PROSPECTIVELY ONLY.  YOUR CONTINUED USE OF THE TOUGHBUILT APP FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR AGREEMENT TO BE BOUND BY AND YOUR ACCEPTANCE OF THESE TERMS, AS MODIFIED.  IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE TOUGHBUILT APP.

1.         Limited License.  Subject to the terms and conditions of this Agreement, Toughbuilt grants you a non-exclusive, non-transferable, non-sublicensable, limited license, to download, install and use the Toughbuilt App, in object code version, on a single mobile device owned or controlled by you for your personal use.

2.         Ownership.  You acknowledge that the Toughbuilt App is the intellectual property of, and is owned by, Toughbuilt and its licensors.  The structure, sequence and organization of the Toughbuilt App are the valuable trade secrets and confidential information of Toughbuilt and its licensors.  Toughbuilt App is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is used.  You acknowledge that Toughbuilt, or its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Toughbuilt App.  You will take no actions which adversely affect Toughbuilt’s intellectual property rights in the Toughbuilt App.  This Agreement is a license and not an agreement for sale.  No title to, or ownership of, the Toughbuilt App, or any intellectual property rights subsisting therein, is transferred to you.

3.         Restrictions.  Toughbuilt App is licensed solely for your personal use and any other use including for third parties is expressly prohibited.  Toughbuilt and its licensors reserve all rights not expressly granted to you in this Agreement.  Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) make copies of the Toughbuilt App except as expressly permitted by Toughbuilt, (ii) disassemble, decompile, reverse engineer, or translate any part of the Toughbuilt App, or otherwise attempt to reconstruct or discover the source code of the Toughbuilt App, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (iii) modify or create derivative works based upon the Toughbuilt App, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Toughbuilt App, (v) rent, lease, lend, or use the Toughbuilt App, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use the Software (except as expressly provided in this Agreement), (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the Toughbuilt App, (vii) take any action that would cause the Toughbuilt App to be placed in the public domain or become subject to open source license agreement, or (viii) use the Toughbuilt App in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or may be implemented by federal, state or local authorities.

4.         Collection and Use of Your Information.  You acknowledge that when you download, install, or use the Toughbuilt Mobile App(s), Toughbuilt may use automatic means (including, for example, cookies and web beacons) to collect information about your mobile device and about your use of the Toughbuilt App.  You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Toughbuilt App or certain of its features or functionality.  All information we collect through or in connection with this Toughbuilt App is subject to Toughbuilt’s Privacy Policy https://www.toughbuilt.com/mobile-app-eula.  By downloading, installing, using, and providing information to or through the Toughbuilt App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

5.         Updates.  Except as otherwise expressly provided herein, this Agreement will govern any updates and upgrades to the Toughbuilt App that may be provided to you in accordance with Toughbuilt’s then-current maintenance and support policies, unless such updates and upgrades are provided under a separate license agreement.  You may use such updates or upgrades only in conjunction with your then-existing Toughbuilt App licensed under this Agreement.  The Toughbuilt App and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Toughbuilt App to exceed the scope of your original license.

6.         No Support.  Except as expressly required by applicable law, nothing in this Agreement entitles you to any support, maintenance or new versions of the Toughbuilt App.  You may contact Toughbuilt to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply.

7.         Disclaimer of Warranties.  THE TOUGHBUILT APP IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TOUGHBUILT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TOUGHBUILT APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, TOUGHBUILT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE TOUGHBUILT APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

8.         Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL TOUGHBUILT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE TOUGHBUILT APP FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE TOUGHBUILT APP.  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  IN SUCH STATES AND JURISDICTIONS, EITHER PARTY’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.  THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

9.         Your Indemnification.  You agree to fully indemnify and completely save harmless Toughbuilt, its affiliates and their directors, officers, employees, agents, representatives of and from any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Toughbuilt App or your breach of this Agreement.

10.       Sole Remedy and Allocation of Risk.  YOUR SOLE AND EXCLUSIVE REMEDY AND TOUGHBUILT’S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS AGREEMENT.  This Agreement defines a mutually agreed-upon allocation of risk.

11.       Third Party Licenses.  You understand and acknowledge that the Toughbuilt App contains certain third party programs or code (“Third Party Software”) that are used by Toughbuilt in accordance with the terms and conditions of separate and distinct license agreements, copies of which are contained in or can be found in the licenses folder accompanying the Toughbuilt App (“Thirty Party License”).  You further agree that, although provided to you by Toughbuilt with the Toughbuilt App, the Third Party Licenses govern any use of the corresponding Third Party Software.  The ownership terms in Section 2 and restrictions in Section 3 do not apply to Third Party Software.  If there is a conflict between this Agreement and the terms of any Third Party License, the provisions of the Third Party License shall prevail with respect to the use of the corresponding Third Party Software.

12.       Export Restrictions.  You agree to comply with all export and re-export restrictions and regulations (“Export Restrictions”) imposed by the United States or any other country in which you reside.  Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Toughbuilt regarding an ultimate destination of the Toughbuilt App, you represent and warrant that you understand the U.S. law currently prohibits the export or re-export, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, Sudan, North Korea and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. government.  You will not commit any act or omission that will result in a breach of any such Export Restrictions.  Your breach of this clause shall constitute cause for immediate termination of this Agreement.

13.       High Risk Activities.  The Toughbuilt App is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the “High Risk Activities”).  The Company specifically disclaims any express or implied warranty of fitness for High Risk Activities.

14.       Term and Termination.  The term of this Agreement commences when you download/install the Toughbuilt App and will continue in effect until terminated by you or Toughbuilt as set forth in this Section 14.  You may terminate this Agreement by deleting the Toughbuilt App from your mobile device.  Toughbuilt may terminate this Agreement at any time without notice if it ceases to support the Toughbuilt App, which Company may do in its sole discretion.  In addition, all licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this Agreement.  Upon termination, you must immediately uninstall and delete the Toughbuilt App.  This shall not limit or affect any remedy available to the Company for your breach of this Agreement.

15.       Resolution of Disputes.

(a)        If any dispute arises between the parties relating to this Agreement, one party will provide written notice of the dispute to the other party describing the dispute in reasonable detail.  Executives of the parties, who are not directly involved in the administration of this Agreement and have the authority to resolve the dispute, must attempt to negotiate a resolution of the dispute.  During the negotiation, each party will provide to the other party all information reasonably requested by the other party.  The parties will take any actions necessary to toll any applicable statutes of limitation and defenses based upon the passage of time during this period of notice and negotiation.  All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws.  If the dispute is not resolved within 60 days after the written notice is delivered, either party may initiate arbitration.

(b)        Each party will choose one arbitrator.  The parties will attempt to agree on the third arbitrator.  If the parties fail to agree on the third arbitrator within 20 days of the parties choosing their arbitrators, the American Arbitration Association (the “AAA”) will choose the third arbitrator.  If the dispute involves patent law, despite anything to the contrary, every arbitrator will be an attorney that specializes in patent law.

(c)        The arbitrators may grant any remedy or relief that does not conflict with any term in this Agreement, including, but not limited, specific performance or injunctive relief.  Any award granted by the arbitrators will be final and binding on the parties unless appealed in accordance with the AAA’s Optional Appellate Arbitration Rules within 30 days following the award.  If appealed as provided above, the decision rendered in the appeal will then be deemed final and binding on the parties.  The final judgment resulting from the arbitration may be entered in any court having jurisdiction.

(d)        Except as required by law, the parties (including counsel and other representatives), the witnesses, and the arbitrators may not disclose the existence, contents, or results of any dispute or arbitration under this Agreement without the prior written consent of both parties.  Any documentary or other evidence produced in any arbitration will be treated as confidential and will not be disclosed to any third party (other than a witness or expert used during the arbitration), except as required by law.

(e)        The United States Arbitration Act, as amended to date (the “Federal Arbitration Act”), will govern the interpretation, enforcement and all proceedings of the arbitration.  To the extent that the Federal Arbitration Act is inapplicable, or held not to require arbitration of a particular claim or claims, the arbitration law of California will apply.

(f)         The prevailing party in any dispute related to this Agreement will receive from the other party all reasonable costs incurred by the prevailing party, including reasonable attorneys’ fees.

(g)        This Agreement shall be governed by the laws of the State of California, exclusive of its choice of law rules.  Any dispute between you and Toughbuilt regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts sitting in the County of Orange in the State of California; provided that any arbitration shall be in Orange County in the State of California.   

16.       Miscellaneous.

(a)        The Toughbuilt App is commercial computer software, as such term is defined in 48 C.F.R. §2.101.  Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

(b)        You may not assign, sublicense, or transfer this Agreement, the Toughbuilt App, or any rights or obligations hereunder without prior written consent of Toughbuilt.  Any such attempted assignment, sublicense, or transfer without Toughbuilt’s consent will be null and void.  Toughbuilt may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer without Toughbuilt’s consent.

(c)        This Agreement is in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.  All communications and notices to be made or given pursuant to this Agreement must be in the English language.

(d)        The Agreement constitutes the final and complete understanding between you and Toughbuilt with respect to the subject matter of this Agreement. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.

(e)        If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.

(f)         Failure or delay on the part of either party to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of such party.

(g)        No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.