Terms & Conditions for the Use of the Smart Home Controller

Using the Software for Eaton Smart Home Controller (SHC) and its related mobile applications (together herein referred to as “Software”) allows a user to visualize, control and manage an xComfort electrical installation.

This End User License Agreement (EULA) describes the terms and conditions under which the Software can be used. To enable the use of the Software the EULA have to be agreed to and accepted. With the acceptance of the EULA it is agreed that the EULA applies every time the Software is used. By “clicking” the “Accept” button the EULA is accepted.

The following EULA governs the use of the Software by you (referred to as the “Customer”) and Eaton Industries Austria GmbH (referred to as “Eaton”).

  1. USE OF THE SOFTWARE
  2. Requirements to use the software

    The software can be used on mobile devices with the most popular operating and browser systems.

    Password

    The Customer will be asked to select a password during the installation process ("Password"). The Customer may not disclose the Password to anyone or allow anyone unentitled to use the Password. The Customer is responsible for maintaining the confidentiality of the Password and for any damage, harm etc. resulting from the disclosure, or allowing the disclosure, of any Password, or from use by any person of the Password other than those entitled. The Customer may not obtain, attempt to obtain, use or attempt to use the Password of anyone else. The Customer is responsible for remembering the account information and Password. Eaton will not retrieve any lost Passwords.

    Fees and payment

    The Customer might be required to pay a download or access fee. The Customer will be informed of any applicable download fees, subscription fees, item charges, or any other fees, together with the respective payment terms, during the registration process. The current fees and payment terms can be found under http://www.eaton.eu/xcomfort/.. Eaton reserves the right to amend the fees and payment terms from time to time.

    All fees are payable in Euro or such other currency as stated in the payment terms. All fees are non-refundable unless expressly stated otherwise in the EULA. Failure to pay any such fees will constitute a material breach of this EULA, and Eaton may terminate the EULA with immediate effect.

    The Customer is responsible to review the current fees and payment terms. If a change is unacceptable to the Customer, the Customer may, as the sole and exclusive remedy, terminate the EULA as described in section 2 below. The Customer is responsible for paying all applicable taxes and for all hardware, software, Internet service, subscriptions and any other costs which he may incur to use the Software.

    Update of the Software

    Eaton has the right to update the software from time to time for important reasons such as security, the correction of errors or outdated help information. The Customer hereby grants Eaton access to his systems as required for the update.

    New releases

    The Customer is not entitled to receive any new releases of the Software, or any expansion packs, updates, upgrades or similar products under the EULA, however Eaton may, at its sole discretion, offer any or all of the foregoing to the Customer. Eaton may update, upgrade or otherwise enhance the Software at any time, at its sole discretion, without obligation to the Customer.

  3. TERMINATION
    1. Eaton does not guarantee that it will continue to support the Software. Eaton may, at its sole discretion, cease to provide any or all of the services offered in connection with Smart Home Controller (including remote access to the system and any or all features or components of the Software), terminate the EULA and cancel all of the rights granted under the EULA. Eaton may communicate such termination to the customer upon 3 months´ notice in any of the following manners: (i) in a notice on Eaton's website; (ii) via electronic mail; or (iii) in another manner that Eaton deems suitable to inform Customer of the termination.
    2. Eaton may terminate the EULA and cancel all rights granted to Customer under the EULA if the Customer or anyone using any of the Customers accounts materially breaches the EULA, makes any unauthorized use of the Software, or infringes the rights of Eaton or any third party; or (iv) Eaton becomes aware of any activity connected to the use of the Software that in Eaton's discretion is inappropriate or offensive. Such termination shall be effective upon notice transmitted via electronic mail, or any other means deemed appropriate to reach the Customer.
    3. In addition, this EULA and the license granted hereunder shall terminate immediately upon the termination of the agreement between Eaton and any third party from whom Eaton licenses third party content data for use as part of or in the Eaton Mobile Application.
    4. All provisions relating to confidentiality, indemnity, proprietary rights, and non-disclosure shall survive the termination of this EULA. All other rights and obligations of the parties shall cease upon termination including, but not limited to, all licenses granted hereunder.
    5. Termination by Eaton under this section shall be without prejudice to or waiver of any and all of Eaton's other rights or remedies, all of which are expressly reserved, survive termination, and are cumulative. Customer will not be entitled to receive a refund of fees for a termination pursuant to this section.
    6. Customer may terminate the EULA upon notice to Eaton via electronic mail to mysmarthome@eaton.com. Customer will not receive a refund of any fees in the event of such termination.
    7. If a change in the fees or payment terms is unacceptable to the Customer, the Customer may, as Customers sole and exclusive remedy, terminate the EULA by notifying Eaton via electronic mail within thirty (30) days after the later of (a) the date that Eaton has posted the change on its website; or (b) the date the change has impacted the Customer (e.g., The Customers credit card has been charged). The Customer may receive a refund of any prepaid fees, prorated as of the effective date of Customers termination, by sending Eaton a request via electronic mail within thirty (30) days of the Customers termination notice. If the Customer continues to use the Software more than thirty (30) days after the later of (a) or (b) above to occur, without following the termination procedure set forth above, the Customer shall be deemed to have accepted the change and waive his rights to terminate under this section.
    8. If an amendment alters a material term of the EULA that is unacceptable to the Customer, the Customer may, as Customers sole and exclusive remedy, terminate the EULA by: (a) clicking the "DECLINE" button when Customer are prompted to review and agree to the amended EULA; or (b) notifying Eaton via electronic mail within thirty (30) days after the amended EULA was communicated to the Customer, provided that the Customer has not clicked the "ACCEPT" button, accessed the System or used the Software during that period. The Customer may receive a refund of any prepaid subscription fees, prorated as of the effective date of the Customers termination, by sending Eaton a request via electronic mail within thirty (30) days of the Customers termination notice. If the Customer clicks "ACCEPT" or otherwise continues to use the Software, the Customer shall be deemed to have accepted the amended EULA and waive his rights to terminate under this section.
  4. PRIVACY AND USE OF PERSONAL DATA
  5. Using the Smart Home Remote Access Server requires the use of an Eaton server that is located in the United States of America.. The following End User related personal data is saved on that server.

    Eaton will use the personal data strictly for the purpose for which they were collected and the performance of the agreement.

    The personal data is collected for the performance of the agreement of use of the Smart Home Controller, including but not limited to, control the identity of the user and associated Smart Home Controller, to perform the service, to reset the service, to save and reset the passwords, to automatically perform software updates, to send notification of available software and to send general instructions of use.

    Disclosure and Use of Personal Information

    Eaton does not sell, trade, rent or allow others to use personal data outside of Eaton.

    Eaton uses appropriate reasonable measures to protect personal data .through using physical, electronic and managerial safeguard procedures to protect this data.

  6. LICENSE
    1. Eaton grants the Customer a non-exclusive right to use the Software and interface it via a browser or mobile application from an unlimited number of clients. Eaton grants the Customer a non-exclusive right to use the native mobile applications on his mobile devices. In addition the licensed use of the native mobile applications may depend on the license conditions of the distributing application store (e.g. Apple app store, Google play store).
    2. As long as the Customer is in the possession of the Software Products he shall refrain:
      1. From copying the Software Products or having them copied for other purposes than for creating the back-up copies necessary and for copies within the framework of using the Software Products in accordance with clause 4.1;
      2. From renting out the Software Products or making them available to any third parties in any other way or to have this done by any third parties, except to employees of the Customer if their access is necessary for the purpose of the Customer within the limits of the intended use of the Software Products as provided in this Agreement;
      3. From translating, editing, changing or arranging the Software Products or any related files as well as from revising them in any other way;
      4. From copying the source code of the Software Products or any part thereof (or from having them copied) or from translating the code form (or from having it translated), from decompiling the Software Products or allowing any third parties to do this as far as it is not allowed pursuant to the statutory regulations for the purpose of their interoperability with other software programs (§ 40e of the Austrian Copyright Act);
      5. From copying (or having copied) all or part of the Documentations, manuals, training papers and other user-related documents without Eaton’s prior written approval.
      6. From decompiling or disassembling the software
    3. In case of the Customer’s intentional or negligent breach of the provisions in clauses 2.2 to 2.4, Eaton shall be entitled to claim a penalty amounting to EUR 5,000 (five-thousand euros) per infringement. Eaton reserves the right to claim compensation for damages beyond that amount.
  7. PROPRIETARY INFORMATION
    1. All copyrights, trademark and other protective rights regarding the Software are the lawful rights of Eaton or suppliers specified for the Software handed out to the Customer. The Customer shall maintain all the proprietary notices in the Documentations such as copyright notices and other reservations of rights without modifying them, and he shall include them unaltered in all the copies he may produce.
    2. The Software is subject to the Austrian Copyright Act (UrhG), international copyright contracts and other laws and agreements relating to intellectual property.
    3. The Customer shall immediately inform Eaton in writing in case any third party should claim damages from him if the Customer’s usage of the Software infringes any third party’s copyright or other protective rights.
    4. If any claims pursuant to clause 5.1 have been made against the Customer or if any such claims are expected to be made, Eaton shall be entitled to change or replace the Software at its own expense in order to avoid any such claims. If neither this nor obtaining a usage right is possible through reasonable efforts, both the Customer and Eaton shall be entitled to terminate this EULA and the agreement on the purchase of the Software Products in accordance with. If this Agreement should be terminated for the reason specified above, the Customer shall have to pay a reasonable fee for the period in which he used the Software.
    5. The Software Products contains software modules from 3rd parties whose license terms can be accessed via the browser interface on the smart home controller. The Customer has to respect any 3rd party property rights to the same extent as set forth above for Eaton´s property rights.
  8. WARRANTY
    1. The Customer takes notice and accepts that the current state of the art does not allow the exclusion of errors in the data processing programs under all conditions of use. Eaton shall not assume any warranty in case such risks actually occur.
    2. Eaton’s warranty shall not cover any defects caused by non-respect of the conditions of use specified in the program documentation.
    3. Eaton shall be entitled to choose the means it deems suitable for meeting the warranty requirements. As a remedy Eaton can either choose to eliminate the error or to replace the Software with new Software.
    4. The Customer is entitled to terminate the EULA due to defective Software in accordance with his statutory warranty claims or to request a reduction of the remuneration, provided he has reported the respective defects to Eaton in writing and Eaton (a) fails to rectify the defects within a reasonable time despite a written request (by electronic mail) to remedy the defects and despite having been granted a reasonable period of grace - of at least 14 days; or Eaton (b) fails to eliminate the defects in the first attempt and despite repeated - at least three written requests (by electronic mail) of the Customer fails again in a second attempt within a reasonable time (at the latest 14 days after the third written notice).
    5. Eaton does not provide any further warranties whether express or implied, including for the merchantability, fitness for particular purpose and non-infringement. Eaton does not warrant that the operation of the software, or that the use of the Software will be uninterrupted or error-free, or that the System or Software will be compatible with Customers hardware and software.
    6. Eaton provides the remote access service
    7. This service and its uninterrupted availability is dependent on a variety of factors many of which are beyond the control of Eaton, however they still affect the quality and availability of the service (e.g. problems with the internet access of the phone or the controller). Therefore Eaton cannot guarantee the uninterrupted and undisturbed remote access service. Eaton commits itself to solve interruptions as quickly as technically and economically possible.

      The Customer should inform Eaton as soon as possible if he becomes aware of a disturbance in his remote access service.

  9. LIABILITY DISCLAIMER
  10. In no event shall Eaton, its affiliates, licensors or suppliers be liable to the Customer or to any third party for any special, indirect, incidental, consequential, punitive or exemplary damages (including without limitation, lost profits or lost data), arising out of or in connection with the Software, the Customers access to the Software and its use, EULA, or any other services or materials provided in connection therewith, whether based on warranty, contract, tort or any other legal theory, and whether or not Eaton is advised of the possibility of such damages, and even if any stated remedy fails of its essential purpose.

  11. LIMITATION OF LIABILITY
    1. Except as set forth below, Eaton's maximum liability for any and all claims arising out of or in connection with the Customers use of the Software, the Customers access to the Software and its use EULA, and any other services or materials provided in connection therewith, shall not exceed an amount equal to the purchase price of the Software affected.
    2. In the event of a material breach of Eaton's obligations to provide access to and use of the Software, the Customers sole and exclusive remedy shall be a refund of the purchase price paid for the Software.
    3. If any of the foregoing disclaimers or limitations of liability are declared to be void or unenforceable, then Eaton's liability shall be limited to the maximum extent permissible under applicable law. The remedies set forth herein are exclusive and in lieu of all other remedies, oral or written, express or implied.
  12. INDEMNITY
  13. The Customer shall defend, indemnify and hold harmless Eaton and its affiliates, licensors and suppliers and their respective employees, contractors, officers and directors from any and all claims, loss, damages and demands, including reasonable attorney´s fees, arising out of the Customers use of misuse of the Software.

  14. AMENDMENTS TO EULA
    1. Eaton may, in its sole discretion, amend the EULA from time to time by posting an amended version at http://www.eaton.eu/xcomfort/ and/or notifying the Customer when he attempts to log in to the system. If the EULA is amended, the Customer will be asked to review the amended EULA and to indicate and confirm Customers acceptance of the amended EULA by clicking the "ACCEPT" button the Customer must accept the EULA in order to continue to use the Software.
    2. If the amendment alters a material term of the EULA that is unacceptable to the Customer, the Customer may, as Customers sole and exclusive remedy, terminate the EULA as described in Section 2, Termination.
  15. GOVERNING LAW AND EXCLUSIVE JURISDICTION
    1. The EULA, and the rights and obligations of the parties hereto, shall be governed and construed by and in accordance with the laws of Austria. The EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
    2. The sole and exclusive place for resolving any controversy, dispute or claim arising out of or relating to the EULA, or otherwise relating to any rights in, access to or use of the Software and/or the rights and obligations of the parties hereto, shall be Vienna. Customer hereby expressly waives and agrees not to raise any and all objections based on personal jurisdiction, venue and/or inconvenience of such forum and agree to the jurisdiction of the court of Vienna.
  16. MISCELLANEOUS
    1. If any part of the EULA is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, and the original intentions of the parties expressed in the EULA, and the remaining portions shall remain in full force and effect.
    2. The Customer shall comply with all applicable laws regarding use of the Software. Without limiting the foregoing, the Customer may not download, use or otherwise export or re-export any part of the information accessible through the Software except in full compliance with all applicable laws and regulations.
    3. Except as otherwise provided herein, the Customer may not assign or transfer the EULA or Customers rights thereunder and any attempt to do so is void. The EULA, including the Rules of Conduct and the fees and payment terms as referenced therein, as each may be amended by Eaton from time to time, sets forth the entire understanding and agreement between Eaton and the Customer with respect to the subject matter hereof. Except as provided above, or in writing signed by both parties, the EULA may not be modified or amended. No distributor, agent or employee of Eaton is authorized to make any modifications or additions to the EULA.

Rev. B / 2015-01-26