We as a company constantly strive to word the terms for the use of our products and services comprehensively as well as transparently so that they are always in conformity with constantly changing legal requirements and technological developments. Technical products and applications with differing and evolving functions require a more comprehensive form.
1 Subject matter of the agreement and conclusion of the agreement/performance obligation on the part of eQ-3
1.1 The subject matter of the agreement is the use, free of charge, of the Homematic IP App (hereinafter: “App”) and the use of the Homematic IP Cloud (hereinafter: “Cloud Services”) in the version and scope provided by eQ-3 AG. The App and the Cloud Services are provided by eQ-3 AG, Maiburger Str. 29, 26789 Leer (hereinafter: “eQ-3”).
1.4 No guarantee within any legal sense or procurement risk pursuant to section 276 Civil Code [Bürgerliches Gesetzbuch; BGB] is assumed by eQ-3 under this agreement.
2 Rights of use, technical requirements
2.2 The User is granted the right to reproduce the provided App insofar as the reproduction is required for the use of the App by the User (e.g. downloading, installing the App on the device, loading the App). The User is not authorised to reverse engineer the software or to use the App or the Cloud Service for purposes other than the contractual use, in particular to download the software from eQ-3 that maps the App function and/or the Cloud Service, and shall desist from doing so.
2.4 The User may make a copy of the App for backup purposes, provided that the device on which the backup copy is stored is owned or controlled exclusively by the User. The User is obligated to implement suitable precautions to prevent unauthorised third-party access to the backup copy and the App.
2.5 The User may make changes to the App (in particular modify or extend it) solely insofar as this is expressly permitted by mandatory laws or has been contractually agreed with eQ-3 in advance. eQ-3 points out that even minor modification may lead to significant, unforeseeable disruptions in the operation of the App. The User may not under any circumstances change or remove any copyright notices, serial numbers, version numbers, trademarks or any other identification features of the App. The above provision applies equally to the suppression of the on-screen display of these elements.
2.6 The App and the Cloud Services may be used solely by the User and solely for the agreed purposes. The App and the Cloud Services have not been developed and are not suitable for uses in security, direct personal security and medicine and may not be used in these sectors.
2.7 The App requires version 5 or higher of an Android operating system and version 9.3 or higher of the iOS operating system version for Apple devices. Although eQ-3 endeavours, without any legal obligation to this effect, to adapt the App to modified operating system versions and new mobile device models and to make the App and the Cloud Services available on these devices, the User does not have any claim to any such update from eQ-3. The User is him-/herself responsible for reviewing and ensuring the suitability of the device on which he/she intends to install the App with respect to the aforementioned technical requirements. The operation of the App requires that the device itself — even if compliance with the operating system version is assured — is capable of connecting to the App and the Cloud Service.
3 Scope of performance of the App and Cloud Services
3.2 The Cloud Services are provided on a server operated by eQ-3 for use and retrieval by the User. The definitive service delivery point for the Cloud Services is the network access of the data centre used by eQ-3 for provision of the contractual service. EQ-3 is not accountable for system failures or the unavailability of hardware and software components, the internet or other networks downstream of this service delivery point. The User is solely responsible for his/her connection to the internet, the maintenance of the network connection and the procurement and provision of the required hardware and software. Use of the system via an access point without the App is not possible. If there are no rights of use for the App or the Cloud Service, continued operation of the system with a CCU3 instead of an access point is possible.
3.3 The functional scope of the App and the Cloud Services, the technical requirements for use and further details on using the App and the Cloud Services are described in the “Homematic IP User Manual” (hereinafter: “User Manual”). The information in the User Manual is not a statement of guaranteed features of the App and the Cloud Services unless expressly designated as such in the User Manual.
3.4 eQ-3 has the right to adapt the App and the Cloud Services to include the latest technical developments (especially with regard to new functions and closure of security gaps), as a consequence of changes in law, changes in legal precedents or changes in the economic circumstances of eQ-3 and to modify the technical properties and functions of the App and the Cloud Services accordingly. Insofar as any such adaptations could adversely affect the User’s legitimate interests, the adaptation will be announced to Users in text form at least one month before its implementation by issue of a push message or by display of a message in the App. The procedure regulated in subsection 8.2 applies mutatis mutandis to the contractual acceptance or rejection of the adaptations.
4.1 In view of the cost-free nature of the service, eQ-3 warrants the usability of the App and the Cloud Service and their features solely and exclusively within the framework of the version and scope made available by eQ-3 AG at any given time.
4.2 The warranty and liability for material defects are precluded if the User fails to observe the technical regulations or instructions for use of the App and/or the Cloud Service established by eQ-3 (in particular as contained in the User Manual) in concluding the agreement or as previously specified and the defect or harm suffered by the customer is a consequence of this failure.
5.1 Subject to the following exceptions, eQ-3 is not liable for any breach of obligations pursuant to the contractual relationship, in particular for User’s claims for damages or reimbursement of expenses, irrespective of the legal grounds.
5.2 The above preclusion of liability pursuant to subsection 5.1 does not apply:
- For any breach of obligations due to wilful intent or gross negligence and for any breach of obligations due to wilful intent or gross negligence on the part of its legal representatives or vicarious agents;
- For any breach of essential contractual obligations; “essential contractual obligations” are any obligations that must be fulfilled for the successful performance of the agreement and that the User may reasonably expect to be fulfilled;
- For any instances of injury to body, life and health, whether caused by eQ-3 or its legal representatives or vicarious agents;
- For any default insofar as a fixed delivery and/or fixed performance date was agreed;
- Insofar as eQ-3 has assumed a guarantee for the quality of a product or the success of a performance, or a procurement risk within the sense of section 276 BGB;
- For liability pursuant to the Product Liability Act or pursuant to statutory circumstances of mandatory liability.
5.3 In the event that eQ-3 or its vicarious agents are guilty solely of slight negligence and there are no exceptions as set forth in bullet points 3, 5 and 6 of subsection 5.2 above, eQ-3 is liable solely for any harm that is typical for the contract and foreseeable, even in the event of a breach of essential contractual obligations.
5.4 eQ-3’s liability is limited to a maximum amount of €10,000.00 for each and every single incident of damage or loss. The above provision does not apply if eQ-3 is guilty of fraudulent misrepresentation, wilful intent or gross negligence, to claims based on injury to body, life or health and to claims based on a tortious act or an expressly assumed guarantee or on the assumption of a procurement risk pursuant to section 276 BGB or in cases of deviating higher liability amounts mandated by law. Any more extensive liability is precluded.
5.5 The preclusions or limitations of liability pursuant to the above subsections 5.1 to 5.4 apply equally in favour of eQ-3’s officers and directors, executive and non-executive employees, other vicarious agents and subcontractors.
5.6 A reversal of the burden of proof is not associated with the above provisions.
6 Special provisions with regard to Google, Inc. (“Google”) and Apple, Inc. (“Apple”)
6.3 The User may not use the App and the Cloud Service or transfer the software related to the App and/or the Cloud Service to any country in which the User resides or is located if and when that country is subject to an embargo ordered by the government of the USA or that has been designated by the government of the USA as a country “supporting terrorism” or that is included on a list of export prohibitions or restrictions issued by the government of the USA unless approval for the use or transfer has been obtained in advance from the competent authority. The above provision applies mutatis mutandis to any export restrictions imposed by the Federal Republic of Germany and the EU.
7 Term of the agreement and termination of the Cloud Services/User’s duty to provide information
7.1 The agreement for the provision of the Cloud Services begins with the operational startup and configuration of Homematic IP devices with the App and the associated use of the Cloud Services by the User. The agreement has an indefinite term. The User may properly terminate the agreement at any time by deleting the App (see 7.2 below); eQ-3 may properly terminate the agreement by giving three months’ notice, expiring at the end of any calendar month, by means of a termination notice in the App. eQ-3 may not terminate the agreement any earlier than 31/12/2021 (effective termination date). The above provision is without prejudice to subsection 7.4.
7.2 The User may terminate the agreement for the provision of the Cloud Services at any time. The User may effect the termination by deactivating or deleting the App from his/her device.
7.3 eQ-3 will delete the configuration and use data together with any and all other data of the User immediately after termination of the agreement for the provision of the Cloud Services.
7.4 The above provisions are without prejudice to the right of eQ-3 and the User to terminate the agreement for the provision of the Cloud Services at any time for good cause in accordance with section 314 BGB. eQ-3 will be deemed to have good cause to terminate the agreement for the provision of the Cloud Services in particular if and when the continuation of the Cloud Services becomes economically unreasonable for eQ-3 because of the small number of users and/or of the Homematic IP devices utilised by users. The operation is unreasonable for eQ-3 in particular if the relationship of the revenue from the managed products to the costs of operating and maintaining the Cloud Services worsens by 50 percent compared to 2019.
8 Notifications and modifications
8.1 The following requirements must be met so that the User can receive push messages or other notifications in the App. During installation of the App, the required setting that the App may send messages to the User must be activated. Furthermore, the User must be registered/logged in to the app with his/her device and have an adequate internet connection. The User is obligated to sign in/log in to the app at least once a month and to check whether any notifications have been announced in the App.
eQ-3 will announce the amendments to the Users in good time (i.e. a minimum of two months before they enter into force) in text form by sending a push message or by displaying the announcement in the App and notifying the Users about the content of the amendments. The announced amendments will enter into effect two months after their announcement in the App. eQ-3 will expressly point out this consequence to the User when announcing the amendments.
8.3 The User is responsible for ensuring that no unauthorised user has access to the App.
9 Modifications and amendments/Proper law/Venue
9.1 Modifications and amendments to these terms and conditions will not be binding on the parties unless in text form. The above provision is without prejudice to section 305b BGB (priority of the individual agreement) for any form of individual agreements.
9.2 This agreement is governed solely and exclusively by German law, precluding application of the UN Sales Convention (CISG). If the User is a merchant within the sense of the Commercial Code (Handelsgesetzbuch; HGB) or a legal entity under public law or a special fund under public law, or if the User does not have a general venue in the Federal Republic of Germany, the registered office of eQ-3 is agreed as the exclusive venue.