Conditions of use for the Homematic IP App and Homematic IP Cloud

In view of the constantly changing legal situation and technical progress, we, as a company, aim to word the conditions for the use of our products and services extensively and at the same time transparently, whereby technical products and applications with various and self-propagating functions require an even more comprehensive elaboration.

PLEASE READ THESE CONDITIONS OF USE CAREFULLY. BY CONFIRMING WITH THE BUTTON “AGREE” (ANDROID) AND/OR “ACCEPT” (IOS) AND/OR DOWNLOADING; INSTALLION OR USE OF THE HOMEMATIC IP APP, YOU ACCEPT THE VALIDITY OF THESE USER CONDITIONS AND CONCLUDE ON THIS BASIS A USER CONTRACT WITH EQ-3 AG, MAIBURGER STRASSE 29, 26789 LEER. THE CONTRACT BETWEEN EQ-3 AG AND YOU (HEREINAFTER REFERRED TO AS THE “USER”) REGULATES THE USE OF THE HOMEMATIC IP APP AND THE USE OF THE HOMEATIC IP CLOUD ACCORDING TO THE FOLLOWING CONDITIONS.


GENERAL CONDITIONS FOR USE

1 Contractual object and establishment of the contract / eQ-3 performance obligations
1.1 The object of the user contract shall be the free use of the Homematic IP App (hereinafter referred to “App”) and the use of the Homematic IP Cloud (hereinafter referred to “Cloud services”) in each case in the version and scope as provided by eQ-3 AG. The App and the Cloud Services shall be provided by eQ-3 AG, Maiburger Str. 29, 26789 Leer, Germany (hereinafter referred to as “eQ-3”).
1.2 When installing the App, the user shall confirm by clicking the button “Agree” (Android) and/or “Accept” (iOS) that he agrees with these user conditions. The same applies when the User installs, copies, uses or accesses the app.
1.3 Should the user not agree to the user conditions, he shall refrain from any use, installation, or reproduction whatsoever of the App and shall not be allowed access to the Cloud Services.
1.4 No guarantee in the legal sense or a procurement risk as per Art. 276 German Civil Code shall be assumed by eQ-3 under this contract.

2 Rights of use, technical requirements
2.1 The user receives for the term of the user contract the non-exclusive, non-transferrable right, limited in time for the term of the agreement, to install the App in its respective availability and in the scope as provided by eQ-3 into an App-supported end device, i.e. Smartphone or Tablet which is in his own possession or which has been made legally available to him and to use the same exclusively in line with these user conditions together with the Cloud Service made accessible through the App.
2.2 The user shall have the right to reproduce the App entrusted to him in so far as the reproduction is required by him in order to use the App (e.g. downloading, installation of App to the end device, loading the App). The user is not permitted to re-engineer the software or use of the App and/or Cloud Service which is not part of the designated contractual use, in particular the downloading of the eQ-3 software depicting the App function and/or the Cloud Service and shall refrain from doing so.
2.3 All rights to the App and the Cloud Service – with the exception of the rights of use granted with these conditions of use – shall belong exclusively to eQ-3 and the respective eQ-3 licensors. The App and the Cloud Services as well as the rights to these shall be protected by copyright and by international intellectual property laws.
2.4 The user may make a copy of the App for back-up purposes insofar as the end device on which the backup copy is stored belongs to the user or the user is in possession of exclusive rights of disposal over it. The user shall be obliged to prevent access to the backup copy and the App by unauthorized third parties by taking suitable measures.
2.5 The user may only edit the App, in particular make amendments and additions, insofar as this is permitted by mandatory laws or has been contractually agreed with eQ-3 in advance. eQ-3 points out that even minor amendments can lead to considerable, non-foreseeable disturbances in the operation of the App. Copyright notices, serial numbers, version numbers, brand names or other identification features of the App may under no circumstances be changed or removed. The same shall apply for features for suppressing display features on the screen.
2.6 The App and the Cloud Services may only be used by the user and only for the agreed purposes. The App and the Cloud Services have not been developed for and neither are they suitable for the safety sector, direct personal safety and the medical sector and must therefore not be deployed in these sectors.
2.7 The App requires for the Android end device and Android operating system Version 5 or higher and for Apple end devices an iOS operating system 9.3 or higher. Although eQ-3 strives without expressed legal obligations to adapt the App to modified operating system versions and new mobile end device variants and to make the App and the Cloud Services available to these end devices the user shall have no right to such update by eQ-3. In view of the aforementioned technical prerequisites, the user himself shall be responsible for checking and ensuring the suitability of the App for the installation on the intended end device. Operation of the App assumes that the end device itself provides the means of connection with App and the Cloud Service – even in compliance with the operating system version.

3 Scope of performance of the App and Cloud Services
3.1 eQ-3 shall make available to the user – exclusively however within the framework and scope of the App and Cloud Services solution maintained in each case by eQ-3 – to access the free, technical facility and entitlement to Cloud Services by means of the App and Internet and to use the functionalities of the Cloud Service within the framework of the user conditions. eQ-3 shall make the free Cloud Services available to the user without any promise of certain availability. A right to using the Cloud Services shall exist only within the framework of the technical and operative facilities at eQ-3 and in the framework and scope of the maintained App and Cloud Solution maintained by eQ-3 in each case. eQ-3 shall strive without any expressed legal obligations to provide free access to the Cloud Services with an average annual availability of 99.5%. However, maintenance measures and technical disturbances (such as an interruptions in the power supply, hardware or software faults, technical problems in the data lines), temporary restrictions or disruptions may occur which lead to a considerable reduction in the aforementioned targeted availability.
3.2 The Cloud Services shall be provided on a server operated by eQ-3 and can be called up by the user. The authoritative service transfer point for the Cloud Services shall be the network access of the computer Centre used by eQ-3 for the contractual services. eQ-3 cannot be held responsible for failure or non-availability of hardware and software components, the Internet or other networks downstream from this service transfer point. The user’s link to the Internet, the maintenance of the Internet connections as well as the procurement and provision of the hardware and software required by the user is the sole responsibility of the user. Using the system via Access Point is not possible via app. If there are no usage rights for the App or the Cloud service, it is possible to continue operating the system with a CCU3 instead of an Access Point.
3.3 The scope of App and Cloud Services, the technical requirements for use and other details regarding the application of the App and Cloud services are described in the “Homematic IP User’s Manual (hereinafter referred to as “User’s Manual”). However, the information contained in the user‘s manual are no quality specifications for the App and Cloud services in so far as this is not expressed as such in the user’s manual.
3.4 eQ-3 shall be entitled to adapt the App and Cloud Services to the latest technical developments particularly with regard to new functions and the closure of safety gaps for reason of changes in legislation, changes in jurisdiction or changes in economic conditions of eQ-3 and to change the App and Cloud Services within the framework of technical properties and functionalities. Insofar as such adaptation might negatively impact the legitimate interests of the user, notice of such adaptation will be given at the latest one month prior to its execution to the user in text form by sending a Push message and/or by displaying the information in the App. Contractual inclusion or rejection of the adaptation shall be correspondingly regulated by the process given under Clause 8.2.
3.5 eQ-3 shall be entitled to block the user’s access to the Cloud Services temporarily or permanently should there be specific, objective reasons to believe that the user is breaching, or has breached the conditions of use and/or is violating, or has violated any applicable law during use. Should eQ-3 decide to block the user’s access, it shall take appropriate account of the legitimate interests of the user.

4 Guarantee
4.1 eQ-3 shall guarantee the usability of the App and the Cloud Services and their properties with regard to the free use of the service only to the extent of the version and scope provided by eQ-3 AG.
4.2 Guarantee and liability for material defects shall be excluded if, in line with the concluded contract, the user fails to observe the provisions or directions for use of the App and/or the Cloud Service as specified and insofar stipulated by eQ-3; in particular has failed to observe those given in the user manual, or because of this the customer has suffered damage.

5 Liability
5.1 Subject to the following exceptions, eQ-3 shall not be held liable, in particular not for claims from the user for compensation or reimbursement of expenses – on whatever legal ground – resulting from the infringement of obligations arising from the contractual relationship.

5.2 The above exclusion of liability as per Clause 5.1 shall not apply for

- own intentional or grossly negligent breach of obligations and intentional or grossly negligent breach of obligations by legal representatives or vicarious agents;

- breach of essential contractual obligations; “essential obligations” are those whose fulfilment constitutes the nature of the contract and upon which the user may depend”.

- cases of injury to body, life and health, also when caused by legal representatives or vicarious agents;

- cases of default, insofar as a definite date was set for delivery and/or provision of service;

- insofar as eQ-3 has accepted the guarantee for the quality of a goods or the existence of a successful performance or a procurement risk within the meaning of Paragraph 276 of the German Civil Code;

- liability as per the product liability law or other liability facts compellingly prescribed by law.

5.3 Should eQ-3 or it vicarious agents be culpable of only minor negligence and there is no case under Clause  5.2, indents 3, 5 and 6 then eQ-3 shall also be liable only for foreseeable damage typical for the contract if essential contractual obligations are breached.
5.4 eQ-3’s liability for each individual case of damage shall be limited to a maximum liability sum of € 10,000.00. This shall not apply if eQ-3 is culpable of fraudulent intent, intentional wrongdoing or gross negligence, or in case of claims arising from injury to body, life and health as well as in cases of claims arising from criminal dealings or an expressly accepted guarantee or the acceptance of a procurement risk as per Paragraph 276 German Civil Code or in cases of divergent higher liability sums compellingly prescribed by law. Any greater liability is excluded.
5.5 Liability exclusions and/or restrictions in accordance with the above Clauses 5.1 to 5.4 shall apply to the same extent in favour of corporate bodies, executive and non-executive employees and other vicarious agents, as well as sub-contractors engaged by eQ-3.
5.6 A reversal in the burden of proof is not connected to the aforesaid provisions.

6 Special provisions relating to Google, Inc. (“Google”) and Apple, Inc. (“Apple”)  
6.1 These conditions of use shall be agreed between eQ-3 and the user and not with Google or Apple as operators of the respective App Stores. Google and Apple shall not be obliged to provide support services, to remedy material defects and legal deficiencies or to provide any other services for the App and Cloud Services on the basis of these conditions of use.
6.2 Insofar as the App is downloaded from the Apple-operated App Store, Apple shall also fall under the benefit of the contract concluded on the basis of these conditions of use with eQ-3 and Apple shall be entitled to assert claims against the user arising from this contract (a genuine contract in favour of third parties).
6.3 The user may not use the App and the Cloud Service or bring the software belonging to the App or the Cloud Service into a country if he is resident or located in a country which is subject to a US embargo or a country which has been classified by the US government as a “country supported by terrorism” or in a country which is listed by the US government and subject to export bans and export restrictions, unless prior approval has been obtained from the relevant authority. The same shall apply for any export restrictions of the Federal Republic of Germany and the European Union.

7 Term of contract and termination of Cloud Services / user’s obligation to inform
7.1 The contract for the provision of the Cloud Services shall commence with the initial commissioning and configuration of Homematic IP devices with the App and the associated use of the Cloud Services by the user. The term of the control shall have an indefinite term. It may be duly terminated by the user at any time by deleting the app (see 7.2 below) and may be duly terminated by eQ-3 with three months’ notice to the end of the month by means of a termination notice in the app, but at the earliest on 31.12.2021 (time of termination) for eQ-3. eQ-3 shall ensure operation of the Cloud itself independently of the license for cloud use regulated in these conditions of use until at least the end of 2030.  Sec. 7.4 remains unaffected.
7.2 The user may terminate the contract for the provision of Cloud services at any time by deactivating or erasing the App from his end device.
7.3 Immediately after terminating the contract for provision of Cloud Services, eQ-3 shall erase the configuration and user data and all other user data.
7.4 The right to terminate the contract for the provision of Cloud Services as per Paragraph 314 of the German Civil Code at any time for important reasons shall remain unaffected for eQ-3 and the user. One important reason which shall justify the termination of the contract for the provision of Cloud Services by eQ-3 is particularly given if a continuation of the Cloud Services becomes economically unacceptable for eQ-3 when too few people use the services or the Homematic IP devices. It is unacceptable for eQ-3 to operate, in particular, if the turnover from the offered products in relation to the costs of operating and maintenance of the Cloud services deteriorates by 50% compared to 2019.
7.5 During the term of the user contract, the user shall be obliged at least once a month to obtain information about any new developments and information regarding the functions of the App and/or Cloud Services by logging into the App.

8 Messages and modifications
8.1 To enable the user to receive Push information or other displays in the App the following conditions must be met: when installing the App, select the mandatory setting which allows the App to send the user a message. Furthermore, the user must be registered with / logged into his end device and must have an adequate Internet connection. The user is obliged to register with/log into the App at least once a month to check the receipt of any messages posted in the App.

8.2 Should there be any amendments to the law, changes in jurisdiction or changes in the economic situation which affect eQ-3’s contractual performance, eQ-3 shall reserve the right to change these user conditions under the terms of the following regulation regarding the contract with the user at his reasonable discretion (paragraph 315 of the Civil German Law), insofar as the balance between the contracting parties (relationship between performance and consideration) does not change significant contractual contents and the changes are acceptable for the user.

eQ-3 shall communicate the changes to the user in good time, i.e. at least within two months prior to the text form coming into effect by sending a Push message and/or by means of a display in the App, informing about the changes. The communicated changes shall become effective two months following their notification. eQ-3 shall expressly point out this consequence to the user when communicating the changes to him.

Until the changes come into effect, the user may make objections to the changes. In the case of an objection, the customer shall have the right to cancel the contract with immediate effect and without notice and eQ-3 shall have the right to termination of the contract with regard to the free-of-charge service subject to a two months’ notice. Should the user not make any objections to the changes by the time they come into force, the new user conditions shall be deemed to be agreed between the contracting parties.

8.3 The user is responsible for ensuring that no unauthorized person has access to the App.

9 Amendments and supplements / applicable law / legal venue
9.1 Any amendments or supplements to these conditions shall require the text form. Paragraph 305b of the German Civil Code (legal preference of individual agreements) shall remain unaffected for individual agreements in whatever form.
9.2 This contract shall be subject exclusively to German law, with the exclusion of the UN Convention on the International Sale of Goods (CSIG). If the user is a commercial trader as defined in the German Commercial Code, or a legal entity under public law, or has separate assets governed by public law, or the user has no general legal venue in Germany, then the location of eQ-3 company headquarters shall be agreed as exclusive legal venue.

Please note: Our App contains components of Open Source software which may be used under various licenses. A list of Open Source software used in our App, together with the applicable licensing conditions can be found here. The Open Source software licensing condition apply for each Open Source software component used in the App insofar as, in line with the respective licensing conditions, these prevail over these user conditions.