TERMS AND CONDITIONS
This Subscription Services Agreement including any extension, annex and update, together with the Domotz Products and Services Privacy Policy (https://www.domotz.com/product-privacy-policy.php) and any applicable Order Form (collectively, the “Agreement”) sets forth the terms and conditions under which Domotz Inc. (“We” or “Domotz”) enable you, the Subscriber ("You" or "Subscriber"), to access Domotz integrated technology platform, as outlined in further detail in this Agreement and the Documentation as defined below
This Agreement supersedes and replaces any prior agreement, undertaking, representation or warranty whether in writing or oral. Any different or additional terms and conditions on Subscriber's purchase order or other documentation shall not be binding on Domotz and are hereby expressly objected to and rejected.
Please read these terms carefully before you download any Domotz Software, use any Domotz Services, or purchase any Domotz Hardware or Domotz Licenses or Service Credits. Please refer to our Privacy Policy for information on how we collect, use and disclose Personal Information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.
ACCEPTANCE
You are deemed to have accepted the terms of this Agreement. You will have created a binding contract with Domotz upon any of the following events: (a) download or installation of any Domotz Services or related Software or Hardware; (b) access to or use of any Domotz Services or related Software or Hardware; (c) payment for Domotz Services or related Software, Hardware, Subscription, or Service Credits; (d) entering into an order form for Domotz Services or related Software, Hardware, Subscription or Service Credits; or (e) clicking an "accept" button or other similar acknowledgment indicating your acceptance of this Agreement.
If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity and each of its affiliates to this Agreement. In that case, "You" and "Your" will refer to that company or other legal entity and its affiliates.
INFORMATION ABOUT US AND CONTACT DETAILS
The subscription services provided by Domotz to You under this Agreement including the Domotz website, cloud services, mobile and web applications and other services and functionality are provided by Domotz INC, a company incorporated in Delaware (EIN 32-0467127). Our office at 120 East 13065 South, Suite 102, Draper, UT. 84020-8616, USA. You can contact us by emailing [email protected].
OUR AGREEMENT WITH YOU
You may use the Services only if you are 18 years or older, capable of forming a binding contract with Domotz and are not barred from using the Services under applicable law, and are not in breach of this Agreement.
It is a requirement of use of the Domotz Services, Software or Hardware that you accept these terms and conditions. Once you have created a Domotz account and accepted this Agreement, you will be able to access our products and Services.
1. DEFINITIONS
1.1 Capitalized words in this contract have the following meaning:
"Agent Software" = the agent software which Subscribers can deploy in IP connected devices in remote locations for the purpose of monitoring and interacting with such devices remotely. This includes but it is not limited to the Domotz Network Collector and the Domotz Endpoint Collector.
"App" = the mobile, computer and web applications which interface with the Agent Software via the cloud allowing Subscribers to access the Services. This includes but it is not limited to the Domotz App.
“Asset” = also at times referred to as “Device”. A physical or virtual digital object which has obtained or is trying to obtain an IP address on a network.
"Business Day" = a day other than a Saturday, Sunday or public holiday when banks are open for business in the United States.
“Contract Term” = the duration of a Domotz Subcription as specified in an order form or on the Portal under Initial Term or Subsequent Term.
"Documentation" = the official published service description and other documentation made available to Subscribers by Domotz via the Domotz websites, which sets out a description of the Services and the user instructions for the Services.
"Domotz App" = the mobile, and computer applications which interface with the Agent Software via the cloud allowing Subscribers to access Domotz related Services in order to monitor remote devices and networks. Different versions of the Domotz App are available depending on the intended use.
"Domotz Endpoint Collector" = the Agent Software which Subscribers can download onto an End User’s compatible Asset to enable data collection from that Asset and two-way communication with the Portal which is functional to the Domotz Service.
"Domotz Hardware" = hardware which may be purchased from Domotz in order to run the Domotz Network Collector (which may include products from Domotz such as the Domotz Box or Domotz-enabled hardware from third parties).
“Domotz Network Collector" = the Agent Software which is pre-installed in customized products (such as the Domotz Box) or which Subscribers can download onto a compatible device for the purpose of monitoring and interacting with multiple Assets in a remote computer network and enable Domotz related Services.
"End Users" = Individuals, also referred to as "Data Subjects", whose network or IP device is monitored by Subscribers.
"Portal" = the website which Domotz provides to make use of the Domotz Services, located at portal.domotz.com or such additional or replacement website as may be notified to Subscribers by Domotz from time to time. The Portal interacts with the Agent Software and/or the Apps to provide remote visibility over all of the Subscriber’s remote networks and endpoints.
"Privacy Policies" = Domotz's Products and Services Privacy Policy, which describes how Domotz and its affiliates collect, use, share and store Subscriber information in the course of providing the Services, available at https://www.domotz.com/product-privacy-policy.php and the Web Site Privacy Policy, available at https://www.domotz.com/privacy-policy.php, as each may be amended and updated from time to time.
"Service Credits", also at times referred to as “Vouchers” = Pay-as-you-go credits purchased by Subscribers from the Portal which may enable Subscribers to access and use the Services flexibly in accordance with this Agreement.
"Services" = the subscription services provided by Domotz to Subscribers under this Agreement including the Domotz website, cloud services, mobile and web applications and other services and functionality, and related Software made available as part of the Services as more particularly described in the Documentation. These include but are not limited to the Domotz network monitoring and management product as further described at paragraph 2 of this Agreement.
"Software" = all software used by Domotz and/or made available to Subscribers in connection with the provision of the Services, including the Agent Software, Apps, the Portal and any online software applications provided or made available by Domotz as part of the Services.
"Subscriber" = all authorized licensees of the Services.
"Subscriptions" = A time limited active subscription (also referred to as “License” or “Subscription License”) purchased by Subscribers to allow them to access and use the Services in accordance with this Agreement.
"Support Policy" = Domotz's policy for providing support in relation to the Services as made available at the Domotz website or such other website address as may be notified to Subscribers from time to time.
“Trial Period” = a period of time, authorized by Domotz, where the Subscriber may use the Services free of charge to trial the Services. Domotz expressly reserves the right to terminate any use of the Services during a Trial Period at its sole and exclusive discretion, with no liability to Subscriber whatsoever.
"User Data" = the data and information input into or collected by the Agent Software, the Apps, the Portal in the course of using the Services.
"Virus" = any software, code, file or program which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2. SERVICES
2.1 Subscribers are permitted to use the Services provided that the Subscriber is in an approved Trial Period or has purchased and activated Service Credits or purchased a relevant Subscription.
2.2 Rights granted to Subscribers are non-exclusive. Subscribers obtain no preferential rights to specific territories, markets, customers, pricing or otherwise. Domotz reserves the right to engage additional Subscribers.
2.3 Packaging. The Services can be accessed by the Subscriber following the purchase of a Domotz Subscription Package (“Package”), either online or via contacting a Domotz sales representative. Different commercial Packages will have different allowances for the use of the Services. Packages are described in the Documentation. Allowance in each Package, if any, may refer to the following variables:
2.4 Domotz may offer additional products, services or enhanced functionality for Subscribers or End Users to purchase in accordance with the terms of this Agreement ("Additional Services"). At the Subscriber's or End User's option, the parties may agree in writing for the provision of Additional Services during the term of this Agreement by completing a specified order form.
2.5 The fee for providing Additional Services under this Section will be agreed by the parties prior to the performance of such Additional Services.
2.6 Fair Use Policy. Under this Fair Use Policy, we establish—in our sole discretion—“outer-bound” parameters intended to maintain the quality, availability, stability, uniformity, and performance of the Service (the “Parameters”). Nearly all Users (99%+) regularly fall well within the Parameters. Exceeding the Parameters may result in (i) throttling or limitation of access to the Service, with or without warning; and/or (ii) additional costs as may be set forth in an applicable Order Form; or (iii) cancellation of Service by Domotz with no recourse by You.
3. MAINTENANCE
3.1 Domotz generally intends to use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for:
Subscribers will not be entitled to any refund or rebate for such suspensions, and Domotz does not guarantee any specific level or availability or that the Services will be free from interruptions.
3.2 Domotz will, as part of the Services, provide Subscribers with Domotz's standard customer support in accordance with Domotz's Support Policy in effect at the time that the Services are provided. Domotz may from time to time amend the Support Policy in its sole and absolute discretion.
3.3 Subscribers may provide Domotz with permission to remotely access their network for the sole purpose of maintenance and support and, in such case, Subscribers hereby expressly consent to such access by Domotz, its affiliates or its contractors. For the avoidance of doubt Domotz will never access the Subscriber remote network without explicit Subscriber’s permission.
3.4 Domotz may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the Software and Services ("Updates"). These may be automatically installed on some versions of Domotz Hardware without any additional notice or consent from Subscribers or End Users. For other versions of Domotz Hardware you may be required to install and download Updates. If you do not want such Updates, your remedy is to terminate your account and stop using the Services immediately. Your continued use of the Services is your agreement to receive Updates from Domotz.
4. USER DATA
4.1 Domotz does not have a direct contractual relationship with the End User. Domotz acts as a data processor on behalf of the Subscriber who retains ownership and control of the User Data.
4.2 Subscribers shall own all right, title and interest in and to all of their User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality thereof.
4.3 Subcribers shall provide Domotz a royalty free license to use User Data in accordance to the Privacy Policies.
4.4 In the event of any loss or damage to User Data, the Subscriber's sole and exclusive remedy shall be for Domotz to use reasonable commercial endeavors to restore the lost or damaged User Data from the latest back-up of such data maintained by Domotz in accordance with the archiving procedure described in its Privacy Policies. Domotz shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party.
5. HARDWARE, AGENT SOFTWARE AND MOBILE APPLICATION
5.1 In order to make use of the Services, Subscribers will require certain hardware, software and/or applications.
5.2 Where Subscribers purchase Domotz Hardware, the additional terms set out in Annex 1 attached hereto and incorporated herein to these terms shall apply.
5.3 The use of the Agent Software and/or App may be subject to additional terms and conditions imposed by third parties and/or open-source license terms which may be notified at the time of download (and which take precedence over this Agreement in relation to their use). Subscribers agree to comply with any such terms and acknowledge that use of Domotz Software does not limit or curtail Subscribers' rights under the applicable open-source license terms. A list of the open-source licenses relevant to users of the Services is available on the Domotz website.
5.4 The Services may interoperate with variousthird-party products and services. You acknowledge that such interoperation features are reliant on proper operation of the third-party product and that Domotz is not responsible for the third-party product’s integration features. Subscriber further agrees that: (i)Subscriber is responsible at all times for any data which passes to a third-party product or service; (ii) Subscriber is solely responsible for any agreements required with the provider of the third-party service; (iii) Domotz may, at any time and without liability to Subscriber, revoke any integration with any third-party product or service. Subscriber represents and warrants that they have either provided the owner of any User Data notice or received permission from the owner of such User Data, as required by applicable law, for Domotz to: (i) disclose the User Data in accordance with Domotz Privacy Policy; and (ii) provide the User Data to the third-party product or service in accordance with this agreement. Once the information is shared with any third party, it will be subject to their privacy policy and Domotz will have no control over its use, transmission or storage. Domotz disclaims any and all liability for any data security breaches or misuse of data caused by third parties.
6. DOMOTZ'S OBLIGATIONS
6.1 Domotz undertakes that the Services will be performed using commercially reasonable efforts substantially in accordance with the Documentation.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Domotz's instructions, or modification or alteration of the Services by any party other than Domotz or Domotz' duly authorized contractors or agents. Notwithstanding the above, Domotz:
7. SUBSCRIBER OBLIGATIONS
Non adherence to any obligations by the Subscriber will be considered a Breach. Subscribers shall:
7.1 provide Domotz with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Domotz in order to provide the Services, including but not limited to User Data, security access and configuration information;
7.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
7.3 ensure that they use the Services, Software, Hardware and Documentation in accordance with the terms and conditions of this Agreement and remain responsible for any breach of this Agreement;
7.4 ensure that its network and systems comply with the relevant specifications provided by Domotz from time to time where required for use of the Services; and
7.5 be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Subscribers' network connections or telecommunications links or caused by the internet.
7.6 Subscriber shall provide Domotz with accurate, complete and up-to-date information with regard to their account, and they must update such information, as needed, to keep it accurate, complete and up to date.
7.7 Subscribers shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Domotz. Subscribers are liable for all unauthorized access to or use of the Services and/or the Documentation that occurs through their account.
7.8 Subscribers shall not, except to the extent expressly permitted under this Agreement or as may otherwise be allowed by any applicable law which is incapable of exclusion by this Agreement: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Hardware in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except bona fide End Users of a Subscriber who have purchased Service Credits as permitted under this Agreement; (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Agreement; (f) attempt to obtain, access or derive in any fashion the underlying source code of the Software used in the Services, recognizing that this Agreement does not convey any rights to source code and that all such rights in and to the source code of the Software are reserved to Domotz.
7.9 Subscribers shall not access, store, distribute or transmit any Viruses, or any material, or otherwise use the Services in any manner that: (a)is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (f) is otherwise illegal or causes damage or injury to any person or property. Domotz reserves the right, without liability or prejudice to its other rights to Subscribers, to disable Subscriber's or an individual End User's access to the Services in the event that Domotz determines, in its sole and exclusive discretion that Subscriber or an End User has breached the provisions of this clause.
8. CHARGES AND PAYMENT
8.1 To access the Services, Subscribers must be in a Trial Period, or purchase Subscriptions to a Package or a sufficient number of Service Credits.
8.2 Subscriber’s access to the Services commences upon the Subscriber’s acceptance of the contractual terms as displayed on the Domotz website if Services are purchased online, or on completion and signature of an order form. Access continues uninterrupted for the relevant period contracted (“Initial Term”).
8.3 At the end of the Contract Term, any subscripton automatically renews for a subsequent term (“Subsequent Term”) equal in duration to the Initial Term unless terminated by either party according to the modalities specified on the website (if any) when the Subscription is purchased online, or in an order form, if the Subscription is purchased via a Domotz sales representative.
8.4 When you provide your credit card details to Domotz, you authorize Domotz to bill such credit card.
8.5 All amounts and fees stated or referred to in this Agreement:
8.6 Subscriber agrees that timely payment is of the essence. Any amount unpaid by Subscriber due under this Agreement or an order form (as applicable) which is not cured within 7 days of the payment due date as specified by Domotz shall be considered a material breach (“Breach”) of this Agreement and may lead to suspension of the Service. Any Breach not cured within 30 days may, at Domotz’ sole and exclusive discretion, lead to the termination of this Agreement. In the event of such early termination because of Breach, Subscriber understands and accepts they are liable in full for all unpaid charges related to the Initial Term or Subsequent Term, as applicable, and authorizes Domotz for the collection of such charges.
8.7 Domotz shall be entitled to vary the fees for the Service and other charges at any time by providing at least 30 days’ notice. Such price changes will not affect existing Subscriptions already purchased, until the terms of expiration of such Subscriptions.
8.8 No set-off: The Customer shall not be entitled to set off or deduct any amounts payable to the Domotz under this Agreement against any amounts that may be owed or claimed to be owed by Domotz to the Customer, whether arising under this Agreement or otherwise.
9. CONFIDENTIALITY
9.1 Subscriber and Domotz may disclose information to one another, and Subscriber may access information in connection with the Services, that is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electronic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. User Data is not considered Confidential Information for purposes of this Section and is subject to the terms of Section 4 of this Subscription Services Agreement.
9.2 All Confidential Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in these Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.
9.3 The restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law (but solely for the purposes of and extent of such disclosure). Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will, to the extent legally permitted, promptly notify the disclosing party of such order or requirement.
9.4 Subscriber understands that Domotz implementation and support personnel may need to access Subscriber’s account to assist in implementation of the Services, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. Subscriber permits Domotz’s implementation and support personnel to access Subscriber’s account with the understanding that all information in Subscriber’s account (other than User Data) shall be considered Confidential Information by Domotz personnel.
10. PROPRIETARY RIGHTS
10.1 You acknowledge and agree that Domotz and/or its licensors own all intellectual property rights in the Software, the Services, Hardware and the Documentation. Except as expressly stated herein, this Agreement does not grant Subscribers any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, the Services, Hardware or the Documentation.
10.2 Subscriber is granted a limited, revocable, non-transferable license during the term of its subscription to use the Domotz brand and trademarks (collectively the “Company’s Trademarks”) and use of the phrase "powered by Domotz" in the marketing of services to End Users provided such use complies with any branding guidelines available at the Domotz website. Domotz reserves all other rights in its brands, Company’s Trademarks and other intellectual property. Subscribers acknowledge and agree that they will not, at any time, whether during or after termination of this Agreement:
10.3 Subscribers acknowledge that the Company’s Trademarks are the property of Domotz, and that Subscribers do not have any right, title or interest in or to such Company’s Trademarks and that any goodwill arising out of Subscribers' use of Company’s Trademarks shall accrue to the benefit of Domotz. Insofar as any goodwill or other rights may have accrued to a Subscriber by reason of the use of Company’s Trademarks by a Subscriber and/or by the Subscriber being connected with Company’s Trademarks in the course of trade, a Subscribers shall hold all such goodwill and other rights on trust for Domotz and shall, if requested by Domotz, execute such assignments of such goodwill and other rights to Domotz (or its nominee) as Domotz may direct.
11. INDEMNITY
11.1 Subscribers shall defend, indemnify and hold harmless Domotz, its affiliates and their respective officers, directors, employees, contractors, agents and customers against any claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees, and any claims) arising out of or in connection with Subscribers' use of the Services, Software, Hardware or Documentation (other than those which arise from a breach of this Agreement by Domotz).
11.2 Domotz shall defend Subscribers, their officers, directors and employees against any claim to the extent that the Services or Documentation infringes any United States patent and shall indemnify Subscribers for any amounts finally awarded against them in a non-appealable judgment by a court of competent jurisdiction.
11.3 In the defense or settlement of any claim, Domotz may procure the right for Subscribers to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement without further liability.
11.4 In no event shall Domotz, its employees, agents and sub-contractors be liable to Subscribers to the extent that the alleged infringement is based on:
11.5 The foregoing and clause 12.1.2 state the sole and exclusive rights and remedies of Subscribers and Domotz (including Domotz's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
The foregoing indemnification obligations are contingent upon satisfaction of the following conditions: (i) the indemnified party must promptly notify the indemnifying party in writing of the third party claim or action (but failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent it has been prejudiced thereby); (ii) the indemnified party will reasonably cooperate with the indemnifying party in the defense of the matter, at the indemnifying party’s request and expense; and (iii) the indemnifying party will have sole control of the defense of the action and negotiations for its settlement and compromise, but shall not settle or compromise any underlying claim without the indemnified party’s prior written consent unless such settlement does not (a) admit liability on behalf of the indemnified party; and (b) require the indemnified party to take, or refrain from taking, any action other than the payment of Losses. The indemnified party may, at its own cost, obtain separate counsel to represent its interests.
12. LIMITATION OF LIABILITY; DISCLAIMER
12.1 This clause sets out the entire liability of Domotz (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Subscribers.
12.2 Except as expressly and specifically provided in this Agreement:
12.3 Nothing in this Agreement excludes the liability of Domotz that is prohibited by applicable law from being disclaimed.
13. TERMINATION
13.1 This Agreement will terminate at the end of the Contract Term as specified in the Package, or the Portal, or an order form signed by the Subscriber.
13.2 We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. In such case You will only be liable for fees until the date of termination.
13.3 You may cancel your Subscription at any time from your profile area of the Portal, or by emailing us at [email protected] provided that in such occurrence any outstanding fees shall be payable until the end of the full Contract Term.
13.4 Upon any termination, discontinuation or cancellation of Services, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
13.5 Termination for Breach: Subscriber expressly agrees that Domotz may, at its sole and exclusive discretion, unilaterally terminate this agreement at any time upon the occurrence of a Breach and take all remedies to recover from Subscriber any unpaid amount due, including for the avoidance of doubt recovering any unpaid amount for the remainder of the Initial Term or Subsequent Term as appropriate.
14. FORCE MAJEURE
Domotz shall have no liability to Subscribers under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Domotz or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, acts of third parties, provided that Subscribers are notified of such an event and its expected duration.
15. CONFLICT
If there is an inconsistency between this Agreement and the Documentation, this Agreement shall prevail.
16. CHANGES TO THESE TERMS
DOMOTZ RESERVES THE RIGHT TO CHANGE THESE TERMS AT ANY TIME BY POSTING REVISED TERMS ON THIS WEBPAGE OR BY SENDING AN EMAIL TO ADMINISTRATIVE USERS ON THE SUBSCRIBER’S ACCOUNT. ALL SUCH CHANGES WILL APPLY TO DOMOTZ’ SUBSCRIBERS AND END USERS GENERALLY. THE CHANGES WILL BE EFFECTIVE UPON THE (i) EXECUTION OF A NEW ORDER AFTER THE DATE OF SUCH POSTING OR EMAIL OR (ii) 60 DAYS AFTER THE DATE OF SUCH POSTING OR EMAIL FOR EXISTING SUBSCRIBERS. A SUBSCRIBER’S USE OR CONTINUED USE OF THE SERVICES FOLLOWING SUCH NEW ORDER OR RENEWAL WILL CONSTITUTE SUBSCRIBER’S ACCEPTANCE OF THE CHANGED TERMS.
17. VARIATION
Other than as specified in paragraph 16, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
18. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20. SEVERANCE
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. ENTIRE AGREEMENT
21.1 This Agreement, and any documents referred to in it, such as an order form, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
21.2 The parties acknowledges and agree that in entering into this Agreement, neither rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
22. ASSIGNMENT
22.1 Subscribers shall not, without the prior written consent of Domotz, whether by operation of law or otherwise assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 Domotz may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
23. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Furthermore, nothing in this Agreement creates or establishes a dealership or franchise relationship between the parties. The subscriber expressly waives any dealership or franchise rights and agrees not to assert dealership or franchise relationship exists. This Agreement shall not prevent Domotz from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
24. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25. NOTICES
25.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax or e-mail to the other party's fax number or e-mail address as set out in this Agreement.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not within business hours, at 9.00 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). [An e-mail will be deemed to have been received in real time.]
26. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of New York, USA. The parties expressly disclaim application of the United Nations Convention on the International Sale of Goods.
27. ARBITRATION
27.1 Scope, governing rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”); or in the case where the either party is extraterritorial to the United States, under the International Commercial Arbitration Supplementary Procedures.
27.2 Authority of tribunal, judicial review. The award rendered by the arbitrator[s] shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction.
27.3 Selection of tribunal. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent[s] of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
27.4 Consolidation, joinder. If more than one arbitration is commenced under this Agreement and any party contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrator[s] selected in the first-filed proceeding shall determine whether, in the interests of justice and efficiency, the proceedings should be consolidated before that arbitrator. The Parties are bound to each other by this arbitration clause, provided that they have signed this Agreement. Each related party may be joined as an additional party to an arbitration involving other parties under this Agreement.
27.5 Seat of arbitration, languages. The seat or place of arbitration shall be Draper, Utah. The arbitration shall be conducted, and the award shall be rendered in the English language.
27.6 Remedies. The arbitrator will have no authority to award punitive damages, consequential damages, lliquidated damages, or compensatory damages exceeding an amount equal to the trailing 12 months payments from you to Domotz.
28. ELECTRONIC COMMUNICATIONS & NOTICES
Domotz may communicate with you by means of electronic communications, including (i) sending electronic mail to the email address you provided during registration or (ii) posting notices or communications through the Services. You agree that Domotz may communicate with you by means of electronic communications concerning this Agreement (including revisions or amendments), notices or disclosures regarding the Services, invoicing and payment and any other matter relating to this Agreement. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Electronic communications shall be deemed received by you when Domotz sends the electronic communication to the email address you provided at the time of registration or as appropriately revised by you thereafter, or when Domotz posts the electronic communication through the Services. For those communications or records that Domotz is otherwise required under applicable law to provide in a written paper form to you, you agree that we may provide such communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (1) you may contact us to request another electronic copy of the electronic communication without a fee; (2) you may request a paper copy of such an electronic communication, and Domotz reserves the right to charge a fee to provide such paper copy; (3) you may contact Domotz to update your registration information used for electronic communications or to withdraw consent to receive electronic communications. Notwithstanding the foregoing, statements, notices and other communications to you may be made by mail, email, postings or other reasonable means. Notice to Domotz may be made by mail to: [email protected]
29. ELECTRONIC CONTRACTING
Through your downloading, installation of, use of, or payment for the Services, Hardware or other act of assent, you acknowledge that you have read and accept this Agreement and that this Agreement is a legally binding contract between you and Domotz. You agree that this means of contracting is acceptable and is as enforceable as a written paper agreement signed by the parties hereto. If you are entering into the Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. If you do not have such authority or do not agree with the terms of this Agreement, then you must not accept this Agreement and may not use the Services, Software or Documentation.
30. USE OF SUBSCRIBER'S NAME
Subscriber hereby agrees that Domotz may list Subscriber as an existing or prior Subscriber of Domotz' in literature and publications distributed by or on behalf of Domotz.
31. EXPORT COMPLIANCE
Subscriber acknowledges that the Software, Hardware and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations. Subscriber covenants and agrees to comply with all import and export control regulations of the United States with respect to the Software and Hardware. Without limiting the foregoing, Subscriber acknowledges that it may not re-export or divert the Software, Hardware or any related technical information, document or material, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce's list of T-7 countries, including any future changes to the government's list of T-7 countries.
32. THIRD PARTY SOFTWARE
To the extent the Software or Hardware contains any third-party software code, such third-party software may be subject to additional third-party terms and conditions which shall control and govern Subscriber's use of the third-party software. Domotz makes no representation or warranty regarding third party software and assumes no liability for any claims arising from third party software, all of which claims Subscriber hereby waives and agrees not to pursue against Domotz.
ANNEX 1
ADDITIONAL HARDWARE TERMS
1. REJECTION OF ADDITIONAL OR DIFFERENT TERMS. The terms of this Agreement and Annex 1 are the exclusive terms upon which Domotz is willing to sell its own 'D' branded Hardware. These terms supersede and replace any prior agreement, undertaking, representation or warranty whether in writing or oral. Any different or additional terms and conditions on Subscriber's purchase order or other documentation shall not be binding on Domotz and are hereby expressly objected to and rejected. For avoidance of doubt, these Terms apply only to Domotz Hardware branded with the 'Domotz' or 'D' logo and sold by Domotz either directly or through its authorized resellers.
2. DELIVERY AND ACCEPTANCE. Risk of loss or damage to Hardware shall pass to Subscriber upon Domotz's delivery to a carrier. Any delivery dates shown are approximate only and Domotz shall have no liability for any delays in delivery. Subscriber shall inspect Hardware for any damage within three (3) days after receipt. Failure to identify any damage and reject Hardware in writing within the three (3) day period shall constitute acceptance of the Hardware.
3. LIMITED WARRANTY. Domotz warrants that Domotz Hardware will conform in all material respects to the Documentation and be free from defects in material or workmanship for a period of 12 months from the date of purchase ("Warranty Period"). If, during the Warranty Period, the Subscriber notifies Domotz in writing of any fault or defect which prevents any Domotz Hardware from functioning in accordance with the Documentation, Domotz will, at its sole option and free of charge to Subscriber, repair, replace or refund the purchase price paid.
DOMOTZ MAKES NO OTHER EXPRESS REPRESENTATIONS OR WARRANTIES AND MAKES NO IMPLIED REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, USAGE IN TRADE, COURSE OF CONDUCT, NON-INFRINGEMENT OR INTEGRATION. DOMOTZ'S LIABILITY ON ANY WARRANTY CLAIM SHALL BE LIMITED TO THE ACTUAL PURCHASE PRICE PAID. DOMOTZ SHALL NOT BE RESPONSIBLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, REVENUES, SALES, BUSINESS, GOODWILL OR USE.
The foregoing warranty expressly excludes and Domotz will not repair, replace, or provide refunds to Subscribers in the following instances:
This warranty does not cover the cost of shipping the defective hardware to Domotz for repair, or the cost of shipping the repaired or replacement hardware to Subscriber. The above represents the Subscriber's sole and exclusive remedy and is contingent on the Subscriber providing all necessary information to assist Domotz in attempting to resolve the alleged fault or defect.
Last Updated: March 4, 2025