Terms of use Niko Home Control

Introduction

Niko Home Control enables automation and control of all fixed electrically operated applications in your home such as lights, shaded lights, shutters and awnings, ventilation, heating and power points through push buttons, a smart phone or a touch screen. It also enables monitoring the consumption of electricity, gas and water as well as the production of electricity.

These applications are controlled from the electricity cupboard. The supplied software enables the installer to manage the required settings and functionality. With the aid of the software, which can be downloaded from Niko’s website, the User will be able to adjust certain settings himself. It is a modular and flexible system which, depending on the required functionality, allows the user to choose a specific module. The User may also opt to have access to certain functionalities of Niko Home Control over a downloadable app. After installing additional hardware and online registration, the User can operate Niko Home Control remotely by means of this app. Niko Home Control is mainly intended for the residential market.

1. General

1.1 These Terms of Use, as can be found on www.niko.eu and on the USB stick provided by the installer on completion of the installation, have been issued by NIKO NV, which has its registered office at Industriepark West 40, 9100 Sint-Niklaas, with company registration number BE 0405.045.670, (hereinafter “Niko”).
1.2 Unless otherwise expressly agreed, these Terms of Use apply to all the Software (as defined below) distributed and provided or to be provided by Niko to users.
1.3 Definitions:

  • “Control Software”: the software needed for the control of Niko Home Control. This software is mainly integrated in the Niko Home Control Hardware and includes the software built in the

    controller or the touch screen;

  • “Energy Software”: the software made available by Niko to the User to visualise the User´s energy consumption and to optimise it if necessary;

  • “User Right”: the right granted by Niko to the User pursuant to article 2 of the Terms of Use;

  •  “Manual”: the manual developed for the User in order to use the Software;

  • “Hardware”: the hardware that the User must at least purchase in order to use the software with the Niko Home Control system, as described in Appendix 1;

  • “Intellectual Property Rights”: all rights relating to inventions, patents, copyrights, drawings and designs, brands and trade names, databases, trade secrets, know-how and all other rights of intellectual and industrial property (both registered and non-registered) and all their applications, no matter where in the world;

  • “User”: the end user of Niko Home Control;

  • “Terms of Use”: these terms, as amended in the interim and as available on www.niko.eu;

  • “Niko Home Control”: the automation system developed by Niko;

  • “Niko Home Control-App”: the downloadable application which enables the User to operate certain functionalities of Niko Home Control;

  • “Party”: the User or Niko;

  • "Parties": Niko and the User jointly;

  • “Software”: all software, including but not limited to the Control, Energy and End-user Programmable software and the Niko Home Control-App which Niko makes available to the User, including all updates and any later versions thereof as well as all accompanying documentation;

  • “Software of Third Parties”: software of third parties, which is integrated in Niko Home Control and/or the Software.

1.4 All other conditions and/or any of the User’s own conditions concerning the use of software will be explicitly excluded.

2. User Right

2.1 Niko grants the User a non-exclusive, non-transferrable right to use the Software for the period he uses Niko Home Control, for limited programming of Niko Home Control and for the monitoring of energy.
Niko grants the User a non-exclusive, non-transferrable right to use the Manual for the use of Niko Home Control.
The User has the right to make one copy of the Software for backup purposes.
2.2 The User may not, either for himself, through a group to which he belongs, an affiliated or associated company, intermediary or any other third party:

  • copy the Software in whatever manner unless permitted in accordance with article 2.1;

  • use the Software in a way that breaches the law;

  • change, decompile, dissemble or reverse-engineer the Software or the source code or combine it with other computer software, except if necessary to comply with mandatory statutory provisions;

  • incorporate the Software in other software, or write, develop or cause to be developed derived software or other software based on the Software;

  • provide third parties with sublicenses for the use of the Software or provide third parties with a copy. 

2.3 The source code of the Software may under no circumstances be transferred or made available to the User.
2.4 These Terms of Use will not automatically entitle the User to any upgrade/update of the licensed Software. Niko is free to offer upgrades/updates, in which case at least the conditions of these Terms of Use will apply to the upgrade/update.

2.5 Niko grants the User a non-exclusive, non-transferrable right to use the Software of Third Parties for the period he uses Niko Home Control, in accordance with the conditions imposed by this third party for the Software of Third Parties and which can be found on the following website www.niko.eu, in the relevant articles.

3. Obligations of the User

3.1 The User undertakes to use the Software only in accordance with the User Right granted, as set out in article 2.
3.2 The User undertakes to regularly consult these Terms of Use online so that he will at all times have the most recent version, and he agrees that the most recent Terms of Use fully replace all previous versions, and apply as the only conditions between the User and Niko.

4. Guarantee

4.1 Niko cannot guarantee that the Software works on operating systems that have not been mentioned, or mentioned in a different version than on www.niko.eu.
Niko cannot guarantee that the Software works on hardware that has not been included in Annex 1 (Hardware).
4.2 With the exception of that which has been explicitly provided for in these Terms of Use, Niko does not grant or accept any explicit or implicit, legal, regulatory or other guarantees or conditions with respect to the Software as to its condition, quality, performance and suitability for the intended purpose. All these guarantees and conditions are therefore excluded except to the extent that this exclusion is prohibited by law.
4.3 If the Software is not satisfactory, Niko will take all reasonable measures to repair or improve these shortcomings free of charge.
4.4 The guarantees in article 4 are given in so far as non-conformity with article 4.1 is not due to an act or action on the part of the User, also in so far as the User:

  • has used the Software in accordance with any specifications as to environment, machine configuration etc. and has used the Manual;

  • has kept the Software up to the most recent standard by installing the latest available updates;

  • has used the Software on properly functioning equipment;

  • has not changed the Software or made any attempts to do so.

5. Liability

5.1 Niko can under no circumstances be held responsible for any damage caused by the use of Niko Home Control by the User unless this damage is due to (i) an intentional act or serious fault on Niko’s part or (ii) in case of physical injury for which Niko is liable in accordance with applicable mandatory product liability legislation.
Except for legal exceptions, Niko is not liable under these Terms of Use for any indirect or consequential loss, including but not limited to the loss of profit or income, missed savings, loss of customers or damage caused by the loss of electronic data and information resulting from either negligence, breach of contract or otherwise.
The liability of Niko for any damage resulting from the use of Niko Home Control is in any case limited to 6,000 euros.
5.2 The User will indemnify Niko against and compensate Niko for all damage or possible claims or demands by third parties as a result of the con-compliance with the obligations of the User under these Terms of Use.

6. Price and payment

6.1 The User will pay Niko a one-off fee for the right of use. This fee is included in the purchase price of Niko Home Control.
6.2 As the functionality of the Software increases or new versions of the Software are issued to the User, Niko is entitled to charge an additional fee from the User.

7. Duration and cancellation

7.1 These Terms of Use take effect from the initial commissioning of the Software and apply for as long as the User uses Niko Home Control.
7.2 These Terms of Use will automatically terminate if the User ceases to use Niko Home Control. Niko is also entitled to terminate these Terms of Use, unilaterally and out of court, after prior notice of default and in so far as the User has failed to comply with the terms of this notice of default within 5 working days after the notice of default has been served.

8. Intellectual Property Rights

8.1 Niko will at all times remain the exclusive and sole owner of all Intellectual Property Rights to the Software, including the source code, the Manual, and all related know-how, brands, trade names, logos, documents, such as preparatory material, marketing material. Any markings made in this respect on any carrier provided by Niko must be maintained intact and unchanged.

8.2 Insofar as the Software shows messages, images, video and audio files, they are the property of Niko or its respective Users, and may only be reproduced or shared with the general public with the express prior written permission of Niko or its User.
8.3 The User agrees that:
a. he will immediately inform Niko in writing of any claim by a third party on the User instituted by virtue of an infringement or alleged infringement of any Intellectual Property Right to the Software of which he has been informed;
b. he will not admit to any liability and will not agree to any settlement or compromise whatsoever with respect to any claim concerning Intellectual Property Rights without the prior written permission of Niko, and
c. Niko has the right, at its own request and expense, to take charge and/or make settlements in all negotiations and proceedings, resulting from any claim concerning Intellectual Property Rights. The User must, at its request and expense, give Niko all reasonable support with respect to these negotiations and proceedings.
8.4 Nothing in these Terms of Use may be interpreted as a transfer of any Intellectual Property Right of Niko to the User or any third party.

9. The Niko Home Control-App

9.1 If the User opts to operate certain Niko Home Control functionalities over the Niko Home Control-App (the “App”), the following conditions apply as well:
(i) The User will comply with the general conditions of the app market from where he has downloaded the Niko Home Control-App.
(ii) The User certifies that he is not established in a country against which the government of the United States of America, the European Union or one of its Member States thereof has imposed an embargo, or which is considered by the government of the United States of America, the European Union or one of its Member States as a country that supports terrorist activities. The User also certifies that he does not appear on a list of prohibited or restricted contracting parties drawn up by the government of the United States of America, the European Union or one of its Member States.
(iii) Niko supplies the App on an ‘as is’ basis. The User will therefore use the App at his own risk.
(iv) The App only allows the User to operate Niko Home Control from his home network. If the User wishes to use the App from a different location, he must register on the website of Niko and install the hardware and software as shown in Annex.
(v) Niko has developed the App as generically as possible in order that the App should work irrespective of the type of device on which the operating systems run as provided for at www.niko.eu. Nevertheless, Niko will not be liable if the App does not run on the User’s device.
(vi) Niko will take all reasonable measures to protect the application and will make every possible effort to limit as much as possible any malfunctions resulting from technical faults. Nevertheless, Niko cannot rule out the possibility of technical faults, defects or infections occurring. Furthermore, Niko reserves the right to suspend or change entirely or partially the access to the web platform and/or the App for technical or safety reasons or for maintenance works. Niko will not be liable for failures of third parties or for malfunctions of the power supply or communication network. For these reasons, Niko cannot guarantee that access to and use of the App will not be disrupted or otherwise interrupted as a result of such problems, for which Niko declines all responsibility.
(vii) Niko does not undertake to provide further maintenance and support services with respect to the App.
(viii) Niko reserves the right to change the contents and terms of use of the App, and more specifically:
− Release new versions of the App with functions and a manner of use that differ from earlier versions of the App;
− Deny access to and use of the App;
− Notwithstanding Article 7.1, discontinue the use of the App at any time, subject to three months’ notice, and replace it with an App for which a one-off or regular subscription charge must be paid;
− Change the terms of use of the App when a new version is released.

10. Use of personal details

10.1 In order to gain access to the Software, the User must provide his personal details. The User hereby gives his permission to Niko, as controller, for these to be processed for the purposes referred to below, in accordance with the Personal Data Protection Act of 8 December 1992 for the protection of privacy with respect to the processing of personal data.
10.2 The personal details provided by the User will be used, as the case may be, for the purposes “customer management” and “direct marketing”.
10.3 The personal details may only be passed on to companies that form part of Niko’s group and not to other third parties, unless in the event of a legal obligation or a request by the police or judicial authorities.
10.4 The User may exercise his legal right to access, improvement and objection to the use of his personal details for direct marketing free of charge by sending a written, signed and dated request, together with a double-sided copy of his ID card to Niko at the address indicated in article 1.1 or by e-mail to legal@niko.be.

11. Other provisions

11.1 The User may not license any of his rights or obligations under these Terms of Use, relinquish them or otherwise transfer them without the prior written permission of Niko.
11.2 The invalidity, illegality or unenforceability of any of the provisions of these Terms of Use do not affect the validity, legality and enforceability of the other provisions of these Terms of Use.
11.3 Niko may change these Terms of Use at any time and a new version will be published on Niko’s website.
11.4 These Terms of Use and the documents referred to together constitute the full agreement between the Parties concerning the subject of these Terms of Use and replaces all earlier agreements between the Parties concerning this subject.
11.5 These Terms of Use are governed by Belgian law. Any dispute arising from these Terms of Use, the use of the Software or other related agreements will be resolved exclusively by the Court of Dendermonde.

12. Contacting Niko

If you have questions or comments about the use of your Niko Home Control, please contact your installer. If, nevertheless, you wish to get in touch with Niko directly, please send your questions or comments to the address you will find on our website.