Niko Smart Home Solution
Terms and Conditions
Version May 2018
1.1. The Solution is provided by Niko NV, with registered office at Industriepark-West 40, B-9100 Sint-Niklaas, With VAT/RPR 0405.045.670, tel. +32 (0)3 778 90 00, e-mail email@example.com.
1.2. By using the Solution, you are accepting these Terms and Conditions.
1.3. We will not hold these Terms and Conditions on file. You will have to store them for yourself.
“Minimum Requirements” refers to the minimum requirements that your Device must fulfil in order to use the Solution - the Minimum Requirements are indicated on http://guide.niko.eu/
“Solution” refers to the Niko Smart Home Solution that we have developed, comprising the Hardware and Software:
“Hardware” refers to one or more devices that form part of the Solution, such as the gateway, switches, cameras and other actors and sensors;
“App” refers to the mobile app via which you can use the Solution;
“Web portal” refers to the website via which you can use the Solution;
“User account” refers to the online registration that you must complete and via which you can connect to the Hardware, as a user;
“Manual” refers to the manual for using the Solution;
"Intellectual Property Rights" refers to all rights regarding inventions, patents, copyrights, drawings and models, trademarks and trade names, databases, trade secrets, know-how and all other Intellectual and Industrial Rights (both registered and unregistered) and all applications thereof, anywhere in the world;
“Party" refers to you or us;
"Parties" refers to both of us;
“Programming software” means the computer program that we make available to you for configuring and parameterising the Solution;
“Software” refers to all computer software that we make available to You or allow You to use within the framework of the Solution, including but not limited to operating software of the ardware, programmeersoftware voor de Oplossing, software running on the Web Portal, the Third-Party Programming Software, the App and Software, including all possible updates and upgrades as well as all associated documentation;
“Third-Party Software” refers to third-party computer software (i) that is integrated into the Hardware and/or Software, (ii) that links the Resolution to other hardware or Software at Your request, and (iii) third-party software that enables and controls the link under (ii) above;
“You" and "Your” refers to the end-user who purchases and/or uses the Solution;
“Your Device” refers to one or more devices to which you have access and via which you can use the Solution, such as a PC and/or smartphone;
“Terms and Conditions” refers to this agreement, as amended from time to time and available via your User account;
“We” or “Our” refers to the party defined in Article 1.1.
3.1. In order to use the Solution, you must have the following items:
3.1.2. A User account.
3.1.3. If you wish to use the Solution via the Internet (optional): a working and secure broadband internet connection at the location at which the Hardware is installed. You are responsible for providing this and the provision of this type of connection is not included in the Solution.
3.1.4. If you wish to use the Solution via the App and/or wish to set parameters for the Solution yourself: the App, the Programming software and/or the Web portal rogrammeersoftware that you can install and use via your Device. The supply of your Device is not included in the Solution. The Web portal is available via the internet on the URL that we will provide. The App is available in the IOS and Android app stores. The Programming Software is available on our website.
3.2. The Solution will work in line with the provisions set out in the Terms and Conditions, the Manual or the specifications you have been given. With respect to anything else, we do not extend or accept any explicit or implicit, statutory or other guarantees or conditions, with regard to the condition, quality performance or suitability for the Solution's objective, and such conditions and guarantees are excluded unless and to the extent that such exclusion is forbidden in law.
3.3. The Solution is only supplied in the countries indicated on our website.
3.4. In the case of questions, you may contact our customer service department, the contact details for which can be found on the website www.niko.be.
4.1. The Hardware is essential in order to use the Solution.
4.2. The Hardware needs no support or maintenance, unless specified otherwise.
4.3. The Hardware may only be used with the Software and vice versa.
5.1. We grant you a non-exclusive right to the Software and the manual exclusively to use the Solution for your personal purposes, and this in line with the Manual and other user instructions.
5.2. In order to use the software, your Device must fulfil the Minimum Requirements.
5.3. The Software can only be employed to use the Solution for your own purposes.
5.4. You shall not, either independently or through a group to which you belong, or through a connected or associated company, intermediary or any other third party:
5.4.1. Use the Solution for any purposes other than those defined under article 5.3;
5.4.2. Sell-on the Software, commercialise it in any way or make it available to third parties;
5.4.3. Modify, decompile, disassemble or reverse engineer the Software partially or completely, or merge it with other computer software, except and insofar as this is necessary or permitted in order to comply with mandatory legal provisions;
5.4.4. Incorporate the Software in other software or derivative software, or write, develop or have developed any software based on this Software;
5.4.5. Grant sub-licenses for the use of the Software to third parties or provide a copy to third parties;
5.5. The aforementioned user rights to the Software are limited to the machine code. Under no circumstances will the source code be provided.
5.6. Unless specified otherwise in product-specific documents or the Manual, these Terms and Conditions do not provide a right to any upgrade/update for the Software and the provision of updates and upgrades by us is optional. If we provide updates and upgrades for the Software, you shall be obliged to install said updates/upgrades by implementing them or having them implemented. If you do not install updates/upgrades, implement them or have them implemented, the (correct) functioning or security of the Solution can no longer be guaranteed. We can implement updates/upgrades automatically if necessary due to security or compatibility reasons, or in order to assure the functionality of the Software.
5.7. When the Solution contains Software of Third Parties, it is possible that the use of this software is subject to additional license terms. In that case these terms will be displayed on www.niko.be.
5.8. We cannot rule technical errors or defects occurring within the Software. We retain the right, due to technical reasons, security considerations or as a result of maintenance work, to entirely or partially suspend or modify access to the Software. For these reasons, we cannot guarantee that access to and the use of the Software will always be uninterrupted and disruption-free as a result of such problems and we reject any responsibility for this.
6. Your liabilities
6.1. You undertake to use the Solution in accordance with these Terms and Conditions, the Manual and other user instructions.
6.2. You undertake to consult these Terms and Conditions online on a regular basis, so that you are always in possession of the most recent version, and agree that the most recent Terms and Conditions replace all previous versions, and are the only valid terms between you and us.
6.3. You shall use the Solution responsibly.
6.4. You shall ensure that your Device always fulfils the Minimum Requirements as long as you are using the Solution.
6.5. You shall always implement updates or upgrades that we provide for the Software.
6.6. You can connect the Solution to the internet. This corresponds to a security risk. You must take adequate security measures to minimise this risk, such as but not limited to:
6.6.1. Keeping the password for your User account strictly secret and not sharing it with anyone.
6.6.2. You shall secure your internet connection and Your Device against unauthorised access, such as via the use of a password, sleep mode, screen security, etc.
6.6.3. You will equip your Device with sufficient, effective anti-virus software.
6.6.4. If you are aware that the security of your Device could have been compromised, you shall immediately notify us and change the Password of your User account (if still possible).
6.7. You shall comply with this Condition, the Manual and user instructions. If we establish that this is not the case, we retain the right to immediately suspend the provision of the Solution, without prejudice to the application of other rights that we have under common law.
7.1. Aside from the provisions stated in the Terms and Conditions, the Manual or the specifications, with respect to the Solution, we do not provide or accept any explicit or implicit guarantees regarding the conditions, quality, performance or suitability for the intended purpose of the Solution, unless and insofar such guarantees arise as a result of mandatory law.
7.2. We are not liable for any damage in the following cases:
7.2.1. Your Device does not fulfil the Minimum Requirements and/or has been inadequately secured.
7.2.2. You fail to implement all of the updates or upgrades that we provide.
7.2.3. You fail to comply with the instructions for use for the Solution, as indicated in the Manual, user instructions, Web portal or our website.
7.2.4. You fail to comply with one of the obligations included within the Terms and Conditions.
7.2.5. There is no or an inadequate connection with the internet or with the Solution's wireless components.
7.2.6. There are disruptions on or issues with the electricity network, for which we cannot be held accountable.
7.2.7. You connected the Solution to third-party equipment or software not authorised by us.
7.3. Insofar as permitted under applicable law, the liability of each party in connection to the user of the Solution is, in any case, limited to the amount of the amount paid for the Hardware, irrespective or the legal foundation (contractual or extra-contractual) and even in the case of serious errors.
7.4. The exclusions and limitations with respect to liability included in these Terms and Conditions do not breach the rules regarding product liability. We are not liable on the basis of the rules regarding product liability if the damages are due to a defect in the Solution, or they are your fault or the fault of another person for whom you are responsible.
8. Duration and termination
8.1 These Terms and Conditions take effect from the initial commissioning of the Solution and apply for as long as the Solution is used by you, unless terminated earlier based on these Terms and Conditions.
8.2 These Terms and Conditions shall automatically terminate if you cease to use the Solution.
8.3 We also have the right to dissolve these Terms and Conditions extra-judicially against you with immediate effect, if you are in serious breach of the Terms and Conditions and do not remedy the breach within 5 working days of being informed by us.
8.4 We have the right to terminate these Terms and Conditions at any time with a term of notice of at least one month.
9. Intellectual Property Rights
9.1 We remain at all times the exclusive and sole owner of all the Intellectual Property in the Solution, all associated know-how, trademarks, trade names, logos, documents such as preparatory material, marketing material, etc. All possible related indications appearing on any carrier made available by us should be maintained in full and unchanged by you.
9.2 You agree that:
9.2.1 You will immediately inform us in writing of any third party claim lodged against you on the grounds of infringement or presumed infringement of any Intellectual Property Right of the Software, of which you are aware;
9.2.2 You may not give any admission of liability nor give any consent to a resolution or settlement concerning any claim relating to Intellectual Property Rights without prior written permission from us; and
9.2.3 You have the right, at your own request and expense, to take the initiative and/or reach an amicable settlement in all negotiations and legal cases resulting from any claims relating to Intellectual Property Rights to the Solution. You must provide us, at our request and expense, with all reasonable assistance with regard to such negotiations and legal proceedings.
9.3 Nothing in these Terms and Conditions shall be interpreted as a transfer of any Intellectual Property from us to you or any third party.
10 Use of personal data
10.2 If you connect cameras to your Solution, the use of cameras may be subject to local regulations, such as those relating to the processing of personal data and/or the use of (security) cameras. Please inform yourself so that you comply with the applicable rules. We cannot be held responsible or liable for the use of cameras connected to the Solution or for the use of camera images.
11. Price and payment
11.1 The optional use of the Solution via the App, the Web portal and the programming software is not now subject to payment of a fee to us however there is an assumption of legal possession of the Hardware and Software.
11.2 As the functionality of the Solution or the Software of Third Parties (if applicable) increases or new versions are issued, we are entitled to subject the use of the App, the Web portal and the Programming software to payment.
12 Other provisions
12.1 Unless expressly provided for in these Terms and Conditions, you may not license out any of his rights or obligations pursuant to these Terms and Conditions, nor relinquish or otherwise transfer them without our prior written permission.
12.2 The invalidity, illegality, or unenforceability of any of the provisions of these Terms and Conditions does not affect the validity, legality, and enforceability of the other provisions of these Terms and Conditions.
12.3 These Terms and Conditions may be changed by us at any time and a new version shall be distributed via your User account. If you do not approve of the changes, you must cease use of the Solution.
12.4 These Terms and Conditions and any other documents referred to, together form the integral agreement between the Parties in regard to the subject of these Terms and Conditions, and they replace all previous agreements between the Parties in regard to this subject.
12.5 These Terms and Conditions are only governed by Belgian law, without prejudice to your right to the application of overriding mandatory provisions at the location of your official residence or registered business headquarters. All disputes connected to these Terms and Conditions, the purchase or the use of the Solution, the use of the Software or the Hardware shall be settled by the competent courts in Ghent, district of Dendermonde, without prejudice to your right to the application, under mandatory law, to use the court at the location of your official residence or registered business headquarters.