SOMFY PROTECT FINAL USER LICENSE CONTRACT (FULC) FOR HARDWARE, APPLICATIONS AND INTEGRATED SOFTWARE
See previous version as of April 5th, 2015 here
This Somfy Protect Hardware, Applications, and Embedded Software End User License Agreement (the “EULA”) governs your use of the hardware products and web, mobile, and hardware-embedded software applications provided by Somfy Protect or any of its subsidiaries, parents, and affiliates (“Somfy Protect”).
The Master Agreement is between you and Somfy Protect by Myfox S.A.S, located at Regent Part II, Bat. 1, 2460 l’Occitane, 31670 Labege, France. The Master Agreement includes the following (each, a “Somfy Protect Agreement” or “Sub-Agreement”):
- Somfy Protect Sales Terms & Conditions Agreement, found here
- General Terms and Conditions of services for remote-controlled automation Systems, found here
- Somfy Protect Services Agreement, found here
- Somfy Protect Product & Services Warranty and Safety Warnings, found here
- Somfy Protect Additional Terms Applicable to Specific Territories, found here
By establishing an account with Somfy Protect or purchasing or using a Somfy Protect Product or Somfy Protect Services, you agree to be bound by all terms of the Master Agreement that are applicable in the territory where you are located. Somfy Protect retains the right to modify and change the Master Agreement or any of the Sub-Agreements, subject to applicable law, and your continued use of the Somfy Protect Product and/or Somfy Protect Services indicates your continued acceptance of the Sub-Agreement.
Any terms used in this EULA but not defined will have the meanings given them in the Somfy Protect Services Agreement. By establishing an account with Somfy Protect or purchasing a Somfy Protect product, you agree to be bound by all terms of the Master Agreement applicable in the territory where you are located.
2. The Product
Somfy Protect provides certain software that may be accessed via an Account on the web at www.somfyprotect.com, www.getmyfox.com, myfox.me, evology.myfox.me, www.myfox-online.com, www.myfox-evology.com, or on your mobile device via the Somfy Protect mobile app (the “Apps”), as well as certain Somfy Protect hardware products (the “Hardware”) that may contain embedded software and/or firmware (“Embedded Software”). The Apps, Hardware, Embedded Software, and all related software or other products or services offered by Somfy Protect collectively form the “Product.”
3. Updates to the EULA
Somfy Protect reserves the right, at its discretion, to change, modify, add or remove portions of this EULA at any time by posting the amended EULA on the Somfy Protect website here. We may, in our sole discretion, provide additional notice, such as an e-mail message or direct message to your Account, of any changes, but it is your responsibility to periodically check the EULA for changes. Unless otherwise stated, all amended terms shall be effective immediately after they are initially posted.
If at any point you do not agree to any portion of the then-current version of our EULA, your sole remedy is to stop using the Product. You will be deemed to have accepted any changes to the EULA by continuing to use the Product.
4. Grant of License; Ownership.
Subject to the terms and restrictions of this EULA, Somfy Protect grants you a personal, revocable, non-transferable, non-exclusive license to use the Product for your own personal, non-commercial purposes. You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on any element of the Product except as expressly authorized by Somfy Protect.
The Product, including without limitation the Apps, Embedded Software, and any patents, trademarks, software including source and object code, and other copyrightable materials incorporated in or displayed on the Product, is owned by Somfy Protect. Somfy Protect reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Product.
The license granted to you in this EULA is subject to the following restrictions:
- You will not use the Product for any commercial purpose.
- You will not abuse, hack, attack, interfere with, gain unauthorized access to, or disrupt the Product or do anything contrary to this EULA.
- You will not access the Product in a way that could violate applicable law, or in any manner not expressly authorized by Somfy Protect under this EULA or in a separate written agreement.
- You will not use the Product to infringe on the intellectual property or privacy rights of others, to obtain personal information or surveillance of others without authorization, or to otherwise violate applicable law.
- You will not use the Product to monitor dangerous equipment.
- You will use the Product in a prudent and responsible manner in keeping with the customary operation of a home automation and alarm system.
6. Products limitations
While we aim for the Product (including any notifications or other alerts provided by the Product) to be highly reliable and available, they are not intended to be reliable or available 100% of the time, and we do not guarantee that you will always receive notifications. The Product is subject to sporadic interruptions and failures for a variety of reasons beyond Somfy Protect’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Somfy Protect is not responsible for any damages or injury allegedly caused by the failure or delay of the Product to reflect current status or notifications.
You acknowledge and accept that the Products are for installation by the Customer and that you bear sole responsibility for decisions related to installation and use of the Hardware, including but not limited to proper Product installation, selection of the Product placement, confirmation that the Products have been correctly installed, deactivation or configuration of any sensor, hardware testing, ensuring that the Products are working, and compliance with all relevant rules, legislation, regulations, codes, bylaws and/or orders.
You further acknowledge that Somfy Protect does not guarantee that the Product will not be compromised or circumvented by third parties, or that the Product will provide adequate warning or protection from the events it is intended to detect and deter, including without limitation burglaries, robberies, fires, floods, or medical problems. The Product is intended to reduce the risk of damage or injury resulting from such events, but cannot eliminate that risk.
You acknowledge and agree that the Product, whether standing alone or when interfaced with third-party products or services, are not certified for emergency response. Somfy Protect makes no warranty or representation that use of the Product in combination with any third-party product or service will affect or increase any level of safety.
YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM – Somfy Protect DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.
In addition, Somfy Protect support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.
You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
7. Term & Termination
This EULA and the license granted hereunder are effective on the date you first use the Product and shall continue for as long as you use the Product or until this EULA is terminated. Somfy Protect may terminate this EULA at any time if you fail to comply with the terms of this EULA or of the other Somfy Protect Agreements. You may terminate this EULA effective immediately upon written notice to Somfy Protect customer service at https://support.somfyprotect.com/. If your Account is terminated for any reason, your rights under this EULA will automatically terminate as well. Upon termination of this EULA, the license granted hereunder will terminate and you must immediately stop using the Product.
8. Updates to the Product
You understand that the Product is an evolving one. Somfy Protect may require that you accept updates to the Product, and may automatically update the Product at any time with or without notifying you. By using the Product, you consent to these automatic updates. You may need to update third party software from time to time in order to receive the Product and use Somfy Protect’s software and hardware.
You agree to indemnify and hold Somfy Protect, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (the “Somfy Protect Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Product, any violation by you of this EULA or any other Somfy Protect Agreement, or any breach of the representations, warranties, and covenants made by you herein. Somfy Protect reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Somfy Protect Parties, and you agree to cooperate with Somfy Protect’s defense of these claims. Somfy Protect will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Product.
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THIS EULA OR IN THE PRODUCT WARRANTY, USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD).
b. SOMFY PROTECT DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR SECURE, NOR THAT THE SERVICE WILL PREVENT FORCIBLE ENTRY, FIRE, BURGLARY, OR OTHER DAMAGE OR LOSS TO YOU, PEOPLE, OR PROPERTY, OR PROVIDE ADEQUATE WARNING OF THE SAME. SOMFY PROTECT DOES NOT WARRANT THAT THE PRODUCTS OR SERVICE CANNOT BE BYPASSED OR OTHERWISE COMPROMISED.
c. YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIALS THROUGH THE SERVICE AT YOUR OWN RISK, AND SOMFY PROTECT IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.
d. NO ADVICE OR INFORMATION OBTAINED FROM SOMFY PROTECT OTHER THAN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS SHALL CREATE ANY WARRANTY NOT STATED IN THIS EULA.
e. WHEN YOU INSTALL, CONFIGURE OR USE SERVICES SUCH AS THIS, YOU ARE GIVEN THE OPPORTUNITY TO PERSONALIZE THE SETTINGS AND CHOOSE SPECIAL CONFIGURATIONS. THE CHOICES YOU MAKE CAN LEAD TO NON-RECOMMENDED OPERATION OF YOUR EQUIPMENT AND/OR THE SERVICE. SOMFY PROTECT HAS NO RESPONSIBILITY TO ENSURE YOU HAVE PROPERLY CONFIGURED THE SERVICE, THAT YOU HAVE FULFILLED ALL REQUIREMENTS FOR THE USE OF THE SERVICE AND THAT ALL NECESSARY EQUIPMENT IS FUNCTIONING AS REQUIRED FOR PROPER OPERATION OF THE SERVICE. YOU ASSUME ALL LIABILITY FOR ANY LOSS OR OTHER DAMAGE OR LIABILITY RELATING TO THE FUNCTIONING OF NECESSARY EQUIPMENT, YOUR FAILURE TO MEET THE REQUIREMENTS FOR PROPER USER OF THE SERVICE, AND YOUR CHOICE OF PARTICULAR SETTINGS AND SELECTION OR ADJUSTMENT DEFAULTS.
f. THESE LIMITATIONS OF LIABILITY EXTEND TO ALL CLAIMS, WHETHER KNOWN OR UNKNOWN, EXCEPT AS PROVIDED IN THIS EULA. YOU ACKNOWLEDGE THAT YOU HAVE READ THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." YOU UNDERSTAND THAT SECTION 1542 GIVES YOU THE RIGHT NOT TO RELEASE EXISTING CLAIMS OF WHICH YOU ARE PRESENTLY UNAWARE, AND HAVING BEEN SO INFORMED, BY USING THE SERVICE YOU HEREBY WAIVE THE APPLICATION OF SECTION 1542 AND EVERY OTHER SIMILAR LAW IN EACH OTHER APPLICABLE JURISDICTION.
11. LIMITED LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT SOMFY PROTECT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT SOMFY PROTECT IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SOMFY PROTECT LIABLE, FOR ANY LOSS RELATING TO:
- THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND YOU ACKNOWLEDGE THE RISK OF USING THE SERVICE WITH THIRD PARTIES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU;
- WHERE YOU ARE UNABLE TO COMPLY WITH ALL THE APPLICABLE REQUIREMENTS FOR USING THE PRODUCTS AND/OR SERVICES AS DESCRIBED IN SCHEDULE 1, AVAILABLE here, TO INSTALL AND CONFIGURE THE PRODUCTS ADEQUATELY AND TO USE THE PRODUCTS AND SERVICES IN COMPLIANCE WITH THE APPLICABLE REQUIREMENTS;
- ACCIDENTS OF ANY SORT AFFECTING THE HARDWARE OR THE TELEPHONE NETWORK, THE INTERNET, OR THE ELECTRICITY GRID, SUCH AS SHOCKS, OVERVOLTAGE, LIGHTNING, FLOODING OR FIRE AND IN GENERAL ANY EVENTS RESULTING FROM ABNORMAL USE OR AN ABNORMAL SITUATION;
- FAILURE OF THE TELEPHONE NETWORK, THE INTERNET OR THE ELECTRICITY GRID FOR REASONS ATTRIBUTABLE TO THEIR OPERATORS OR TO THE CUSTOMER;
- FAILURE OF THE ADSL NETWORK USED BY THE CUSTOMER, WHETHER THIS FAILURE IS ATTRIBUTABLE TO HIS SERVICE PROVIDER, TO FAILURE OF THE MODEM/ROUTER USED BY THE CUSTOMER OR TO ANY ONE OF THE ELEMENTS LOCATED BETWEEN THE CAMERA AND THE ADSL ROUTER (CABLE, SWITCH, ETC.);
- VARIATIONS OF THE CURRENT IN ELECTRICAL OR TELEPHONE LINES RESULTING FROM AND/OR CAUSING ELECTRICAL, RADIOELECTRICAL OR ELECTROMAGNETIC INTERFERENCE OF ANY KIND;
- INTERRUPTIONS OR LOSSES OF QUALITY IN THE PRODUCT WHEN THEY ARE USED SIMULTANEOUSLY WITH AN INTERNET, AUDIOVISUAL OR TELEPHONE SERVICE BY THE CUSTOMER BECAUSE THE EFFECTIVE SPEED OF THE INTERNET ACCESS IS REDUCED AS A RESULT; OR
- UNFORESEEABLE CIRCUMSTANCES AND ACTS OF GOD;
- ANY VIOLATIONS BY CUSTOMER OF ANY TERMS OF THE SOMFY PROTECT AGREEMENTS.
IT IS UNDERSTOOD AND AGREED THAT SOMFY PROTECT AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, SUBCONTRACTORS, DISTRIBUTORS, RETAILERS, AGENTS AND INDEPENDENT CONTRACTORS ARE NOT INSURERS NOR IS THIS AGREEMENT INTENDED TO BE AN INSURANCE POLICY OR A SUBSTITUTE FOR AN INSURANCE POLICY. YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT DOES NOT OFFER GUARANTEED PROTECTION AGAINST BURGLARY, ROBBERY, THEFT, PROPERTY DAMAGE, FIRE, SMOKE, BODILY INJURY OR ANY OTHER TYPE OF EMERGENCY OR DAMAGE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING YOUR INSURANCE NEEDS, AND PURCHASING ANY NECESSARY INSURANCE. YOU AGREE TO LOOK SOLELY AND EXCLUSIVELY TO YOUR INSURER TO RECOVER ALL LOSS, DAMAGE, OR EXPENSE DUE TO LOSS AND/OR DAMAGE TO YOUR PERSONAL PROPERTY OR REAL PROPERTY ALLEGEDLY CAUSED BY THE PRODUCT. YOU ALSO AGREE TO LOOK SOLELY AND EXCLUSIVELY TO YOUR INSURER IN RESPONSE TO ANY CLAIM FOR BODILY INJURY, PROPERTY DAMAGE, PERSONAL INJURY, AND/OR INVASION OF PRIVACY ALLEGEDLY CAUSED BY THE PRODUCT, INCLUDING CLAIMS MADE BY OR AGAINST YOU. YOU HEREBY RELEASE SOMFY PROTECT FROM ANY AND ALL LOSS, DAMAGE, AND/OR EXPENSE WHICH MAY OCCUR AS A RESULT OF YOUR USE, MISUSE, OR ATTEMPTED USE, OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF THE PRODUCT TO PERFORM, THE FAILURE OF THE SERVICES TO PERFORM, YOUR ALLEGED FAILURE TO COMPLY WITH ANY RELEVANT RULE, STATUTE, CODE, LAW OR ORDINANCE, AND ANY ACT OR OMISSION OF SOMFY PROTECT.
YOU ACKNOWLEDGE THAT THE PRODUCTS AND SERVICES PROVIDED FREE OF CHARGE OR IN CONSIDERATION OF PAYMENT ARE NOT INTENDED AS A SUBSTITUTE FOR AN INSURANCE CONTRACT. THE CUSTOMER DECLARES THAT HE HAS SUFFICIENT PERSONAL INSURANCE COVERAGE IN FORCE FOR RISKS OF FIRE, THEFT, WATER DAMAGE, ETC. LIKELY TO AFFECT HIS PROPERTY OR THE PERSONS PRESENT IN THE PREMISES PROTECTED BY THE PRODUCTS.
IN THE EVENT THAT SOMFY PROTECT IS FOUND CONTRACTUALLY LIABLE, SUCH LIABILITY SHALL BE LIMITED TO THE AMOUNT OF €10,000 PER CLAIM FOR ALL MATERIAL AND/OR INTANGIBLE DAMAGE.
THE CUSTOMER ACKNOWLEDGES ACCEPTANCE OF THIS LIMITATION WHICH, WITHOUT NECESSARILY COVERING ALL DAMAGES HE MAY SUFFER, CONSTITUTES COVERAGE SUITABLY ADAPTED TO THE RISKS PRESENT AND PROPORTIONATE TO THE MARKET-BASED CIRCUMSTANCES COVERED BY THIS CONTRACT.
SHOULD A CLAIM EXCEED THE CAP ON THIS INSURANCE, THE CUSTOMER THEREFORE EXPRESSLY STATES, IN RESPECT OF ANY EXCESS, THAT IT WAIVES ALL RECOURSE AGAINST SOMFY PROTECT AND ITS INSURER. THE CUSTOMER COVENANTS TO OBTAIN THE SAME WAIVERS FROM ITS OWN INSURERS.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Schedule 1Requirements For Proper Use of the Somfy Protect Products and Services
1. Technical Requirements
You will be responsible for obtaining and ensuring proper functioning and compatibility of all equipment, network connections, internet or telephone service, or other equipment or services necessary in order to access and use the hardware products, software, or services provided by Somfy Protect (“Requirements”). Requirements include, but are not limited to, the following:
- Broadband Internet access.
- Router (independent or integrated in a box) with an Ethernet or WiFi connection left permanently on.
- Computer equipped with an up-to-date web browser, if web access to the Services is desired.
- A GSM network of sufficient quality to benefit from GPRS communication services, if such services are desired.
You will be responsible for all charges associated with the Requirements, including without limitation all telephone, internet, and data charges, alarm system use or permit fees, or other expenses.
Upon receipt of the Hardware, whether they have been purchased directly from Somfy Protect or from a Somfy Protect distributor, the Customer shall take personal responsibility for the installing and configuring of the Hardware in accordance with the instructions provided in the packaging and on the websites. The Customer bears sole responsibility for the installation, configuration, and use of the Product. Somfy Protect may in no case be held responsible if the Product proves to be incompatible or present malfunctions with third party software, configurations, operating systems, or equipment.
By placing an order for, registering an account on, or otherwise using the Product, Customer represents to Somfy Protect that Customer meets all prerequisites and requirements for the proper use of the Product.