NxEco, Inc. ("NxEco") provides (1) a website, www.nxeco.com (the "Site"), (2) services accessible through the Site (the "Web Apps"), (3) software that may be downloaded to your computer, smartphone or tablet to access the Web Apps (the "Mobile Apps") and (4) other software embedded in the hardware products sold by NxEco (the "Products"), all for use in conjunction with the Products. The Site, Web Apps, Mobile Apps and software embedded in the Products shall be referred to collectively as the "Services".
The Terms of Service ("Terms") set forth below, together with other terms or rules that may be posted by NxEco on the Site, from time to time, constitute a legal agreement governing your access to and use of the Services. It is important that you read the entire agreement. By accessing and using the Services (including the Site), you are accepting and agreeing to the terms of the agreement on behalf of yourself or the entity you represent. You represent and warrant that you have the authority and capacity to accept and agree to the terms of the agreement on behalf of yourself or the entity you represent. You further represent you are of sufficient legal age in your jurisdiction to use or access the Services and to enter into the agreement. If you do not agree with any of the terms of the agreement, you should cease using the Products and the Services.
As described below, you are consenting to automatic software update of the Services and the Products connected to the Services. If you do not agree, you should not use the Services.
1. General and Other Terms
(a) These Terms govern your use of the Services. The purchase of any Product is governed by the limited warranty provided with the Product ("Limited Warranty") and by the terms & conditions of sale of its sale. The software embedded in the Product (and any updates thereto) ("Product Software") is licensed and governed by the End User Licensing Agreement. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Site. All additional guidelines, terms, or rules pertaining to any feature of the Services, and NxEco's Privacy Statement ("Privacy Statement"), are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.
(b) These Terms shall remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, NxEco may suspend or terminate your rights to access or use the Services. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with NxEco.
(c) Upon termination, your Account and your right to use the Services will automatically terminate.
2. Your User Account
To use the Services, you must create a user account ("Account") and provide certain information about yourself to do so. You represent and warrant that: (a) all required information you submit to create an Account is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You may not use another user's account without the express permission of the account holder. You agree to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify NxEco of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. NxEco is not liable for any loss or damage arising from your failure to comply with the above requirements.
3. Use of Services
(a) Under these Terms, NxEco grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Products installed on your property or otherwise accessing a service explicitly provided by NxEco for your use (the "Permitted Purpose"), and (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose.
(b) NxEco may develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software ("Updates"). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates NxEco provides. Your continued use of the Services and the Product is your agreement – (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software.
(c) NxEco may allow you to interface the Products and Services to one or more third party products and services ("Third Party Products and Services"), at your election, through and using the Services. Your explicit consent and authorization will be required for this interface, and will be revocable by you at any time. Once your consent is given for a particular Third Party Product and Service, you agree that NxEco may exchange information and control data regarding you and your products, including your personally identifiable information, in order to enable the interface you have authorized. This information will be secured and subject to the Privacy Statement, but NxEco makes no representation as to the Third Pary's use of your information. You further agree that your use of any Third Party Products or Services is at your own risk, and NxEco shall not be responsible for any damage or loss caused by your use of the Third Party Products or Services.
(d) You must abide by the following restrictions. You agree not to: (i) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) access the Services in order to build a similar or competitive service; (iv) copy, reproduce, distribute, republish, download, display, post or transmitted in any form or by any means any part of the Services, except as explicitly authorized ; (v) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) access (or attempt to access) any of the Services by means other than through the interface provided by NxEco; and (viii) remove, obscure or alter any proprietary rights notices which may be contained in or displayed in connection with the Services. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of anyone, and that NxEco is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
(e) Certain items of independent, third party code may be included in the Web App and/or Mobile Apps that are subject to the GNU General Public License ("GPL") or other open source licenses ("Open Source Software"). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
(f) You acknowledge you have read and understood NxEco's Privacy Statement describing practices regarding the information that NxEco may collect from users of the Products and Services.
(g) NxEco cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(h) NxEco reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that NxEco will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(i) Although the Site is accessible worldwide, the Products and Services provided or accessed through or on the Site are not available to all persons or in all countries. If you choose to access the Site from outside a country in which NxEco supports the Product and Services listed here ("Target Country"), you do so on your own initiative and you are solely responsible for complying with applicable local laws in the country from which access is made. You understand and accept that the Site is not designed for use in a non-Target Country and some or all of the features of the Site may not work or be appropriate for use in such a country. To the extent permissible by law, NxEco accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Site in a non-Target Country. You will be bound by these Terms wherever you access or use the Site or use the Services.
(j) The Services are intended to be accessed and used for non-time-critical information and control of the Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond NxEco's control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, electromagnetic interference of power line communications, among others. You acknowledge these limitations and agree that NxEco is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
(k) The Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. NxEco cannot and does not guarantee you will receive notifications in any given time or at all. You agree you will not rely on the Services for any life safety or critical purposes. Mobile notifications regarding the status and alarms on the Products are provided for informational purposes only – they are not a substitute for a third-party monitored emergency notification system. The information provided by NxEco on what to do in an emergency is based on authoritative safety sources, but there is no way for NxEco to provide specific information relating to a situation in your home. You agree it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(l) The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. NxEco does not offer any specific uptime guarantee for the Services.
(m) The Services will not be accessible and/or may not work properly without: (i) access to an Ethernet port in your broadband router or a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by NxEco, including but not limited to proper configuration and compatibility of any of the above elements. You are responsible for making sure have all required system elements.
(n) NxEco does not guarantee or promise any specific level of water savings or other monetary benefit from the use of the Products or Services or any feature of them. Actual water savings and monetary benefits vary with factors beyond NxEco's control or knowledge. From time to time, NxEco may use the Services to provide you with information that is unique to you and your water usage and suggests an opportunity to save money on water bills if you adopt suggestions or features of the Product or Services. You agree these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from NxEco if your savings differ.
(o) All information of any kind about the Products is provided "as is" and "as available". We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product information through the Services is not a substitute for direct access of the information in the home.
4. Limitations Of Services Due to Third Parties.
(a) The Services rely on or interoperate with third party products and services. These third party products and services are beyond NxEco’s control, but their operation may impact or be impacted by the use and reliability of NxEco's Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the NxEco Services operate, and (iii) NxEco is not responsible for damages and losses due to the operation of these third party products and services.
(c) You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an "App Store"). You acknowledge that these Terms are between you and NxEco and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(d) The Site may contain links to other web sites operated by third parties ("Third Party Sites") and referrals to third party vendors ("Referred Vendors"). Such Third Party Sites and Referred Vendors are not under our control. NxEco provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. You acknowledge and agree NxEco is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third party materials or web sites. NxEco does not assume and will not have any liability or responsibility to you or any other person for any third-party services, materials or web sites. You further acknowlege may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. You agree to use the Services at your sole risk and that NxEco shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. Your use of these Third Party Sites is at your own risk.
(e) NxEco is not responsible for third parties or their products and services, including the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. You hereby release NxEco and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. If you are a California resident, you agree to waive California Civil Code Section 1542 in connection with your use of the Services. This California statute states: "a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Your use of the Services constitutes an express waiver of this California statute.
5. Intellectual Property
You agree that all intellectual property rights, including copyrights, patents, trademarks and trade secrets in the Product, Product Software, and Services (i.e., the Site, Web App, and Mobile Apps) are owned by NxEco or its affiliates and/or licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. NxEco and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of NxEco. You must have a license from us before you can post or redistribute any portion of the Services. NxEco retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
You may choose to, or NxEco may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services ("Ideas"). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place NxEco under any fiduciary or other obligation. NxEco may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that NxEco does not waive any rights to use similar or related ideas previously known to NxEco, developed by its employees, or obtained from other sources.
You agree to defend, indemnify and hold Nest and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys' fees) made by any third party due to or arising out of (i) your use of the Products or Services, (ii) your violation of these Terms, (iii) any Feedback you provide; or (iv) your violation of any law or the rights of any third party. NxEco reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NxEco and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without NxEco's prior written consent. NxEco will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Warranty Disclaimers
(a) The warranty for the Product and Product Software are set forth in the Limited Warranty.
(b) The Services (i.e., the Site, Web App, Mobile Apps) are provided for your convenience, "as is" and "as available" and NxEco and its licensors and suppliers expressly disclaim any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, accuracy, and non-infringement.
(c) NxEco and its licensors and suppliers make no warranty that defects will be corrected or that the Services: (i) will meet your requirements; (ii) will be compatible with your home network, computer or mobile device; (iii) will be available on an uninterrupted, timely, secure, or error-free basis; or (iv) will be accurate or reliable. No advice or information, whether oral or written, obtained by you from NxEco or though the services shall create any warranty.
8. Limitation of Liability
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
To the maximum extent permitted by applicable law, in addition to the above warranty disclaimers, in no event will (a) NxEco be liable for any consequential, exemplary, special, or incidental damages, including any damages for lost data or lost profits, arising from or relating to the Services or Products, even if NxEco knew or should have known of the possibility of such damages, and (b) NxEco's total cumulative liability arising from or related to the Services and Products, whether in contract or tort or otherwise, exceed the fees actually paid by customer to NxEco or NxEco's authorized reseller for the Products at issue in the prior 12 months (if any). This limitation is cumulative, and will not be increased by the existence of more than one incident or claim. NxEco disclaims all liability of any kind of NxEco's licensors and suppliers.
9. Dispute Resolution
(a) You and NxEco agree, subject to Paragraph 10 (c) below, to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration exclusively. Further, you agree arbitration is final and binding, and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, to the fullest extent allowed by law. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to Paragraph 10(c) below, any dispute or claim made by you against NxEco or vice versa arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that you may take claims to small claims court if they qualify for hearing by such a court.
(b) You must first present any claim or dispute to us by contacting NxEco to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to NxEco. NxEco may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with Paragraph 10(f) below. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration shall be exclusively Orange County, California, USA, and shall be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor NxEco nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
(c) There shall be no right or authority for any claims subject to the arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
(d) All administrative fees and expenses of arbitration will be divided equally between you and NxEco. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(c) These Terms shall remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, NxEco may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if NxEco in good faith believes that you have violated of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with NxEco.
(e) You must contact NxEco within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute, or you waive the right to pursue any claim based upon such event, facts, or dispute.
This arbitration clause shall survive termination of these Terms.
10. Other Terms
(a) NxEco reserves the right to make changes to these Terms. Continued use of the Services following notice of changes to the Terms shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
(b) These Terms are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the exclusive personal jurisdiction of the state and federal courts in or for Orange County, California for the purpose of litigating all such claims or disputes, which courts shall also be the exclusive venue for the litigation such claims and disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
(c) Notwithstanding the foregoing, NxEco may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) These Terms constitute the entire agreement between you and NxEco regarding the use of the Services. Any failure by NxEco to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without NxEco's prior written consent. These Terms may be assigned by NxEco without restriction. These Terms are binding upon any permitted assignee.
(f) NxEco may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, hard copy, or posting of such notice on the Site. NxEco is not responsible for any automatic filtering you or your network provider may apply to email notifications. NxEco recommends that you add @nxeco.com URLs to your email address book to help ensure you receive email notifications from NxEco.
(g) Please see here for NxEco's address: 1300 Bristol Street North, Suite 100, Irvine, CA 92660. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
NxEco reserves the right to change product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.