PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY AS IT GOVERNS YOUR USE OF THE WEBSITE WWW.EPHCONTROLS.COM AND/OR YOUR USE OF OUR ONLINE HEATING SYSTEM APPLICATION AND ACCOMPANYING PRODUCTS AND SERVICES KNOWN AS “EMBER” (“together, the “APPLICATION”).
IF YOU DO NOT AGREE TO ACCEPT THIS AGREEMENT AND THE TERMS AND CONDITIONS OF USE SET OUT BELOW, PLEASE DO NOT USE THE SERVICE.
WE WOULD ADVISE YOU TO PRINT OFF A COPY OF THESE TERMS AND CONDITIONS OF USE FOR YOUR OWN RECORDS.
TERMS AND CONDITIONS:
- Provision of the Service
- The Service is provided by E.P.H. Controls Limited (Company Registration Number: 261542) an Irish company whose registered address is situated at Sitecast Industrial Estate, Pouladuff, Co. Cork, Ireland and, as applicable, within the United Kingdom, our affiliated company is named EPH Controls Limited (Company Registration Number: 07162534) whose registered address is situated at 79 College Road, Harrow, HA1 1BD, England (together, the “Company”).
- You acknowledge that You have provided the Company with accurate and complete registration information on subscription to the Service (“Subscription”) and that it is Your responsibility to update the Company with any changes to that information (including your e-mail address) by e-mailing the Company at: firstname.lastname@example.org. You acknowledge and agree that the Services are being provided to You for residential use only within Your home(s) and You agree to not resell the Services to any third party.
- Following registration, You will have the facility to provide Yourself with your own user name and password (“ID”) to access and use the Service. You are responsible for keeping your ID secure and safe and for all use of the Service by You or anyone authorised by You (together, “Users”). If You believe that there has been a breach of security such as the disclosure, theft or unauthorised use of Your ID, You must notify the Company immediately by e-mailing: email@example.com
- If the Company reasonably believes that Your ID or you name, email address or other credentials are being used in any way which is not permitted by this Agreement, the Company reserves the right to immediately suspend access rights on giving notice to You and to block access to Your ID and your account until the issue has been resolved to the satisfaction of the Company.
- The Company is continually seeking to improve the Service and the content that it provides on the Application (“Our Content”). The Company reserves the right, and at its sole discretion, and without notice or liability, to make changes to any part of the Service, provided that it does not materially reduce the functionality of the Application.
- The Company reserves the right to add, amend or vary the terms of this Agreement by publishing notice of such changes on the Application and/or our website, and the continued use of the Service will signify Your acceptance of such changes.
- In the event of any conflict between any terms on the Application and/or our website, the terms of this Agreement shall take priority. In the event of any conflict between what the English language version of this Agreement states and what any translation of this Agreement states, then the English version shall take priority.
- Licence and limited rights to use our Intellectual Property
- The Company grants you a non-exclusive, non-transferable, non-assignable, revocable licence to use Our Content subject to the terms and conditions of this Agreement.
- Our Content and all copyright (which for the avoidance of any doubt means, in particular, our software), database rights, trade and service marks or names, patents, design rights and all other intellectual property rights, in each case whether registered or not, in our Content, the Service and the Application (“Intellectual Property”) belong to the Company or its licensors.
- You may not (without the prior written consent of the Company):
- redistribute any of our Content or any of the other Intellectual Property (including by using it as part of any library, archive or similar service);
- use the Service on behalf of any other person or allow access to the Service to any other person using Your ID;
- create a database in electronic or structured manual form by systematically downloading and storing all or any of our Content or other Intellectual Property;
- except as expressly set out above, modify, reproduce or in any way commercially exploit any of our Content;
- attempt to download any part of the Application including in particular any underlying software which You are not expressly entitled to access under this Agreement, nor attempt to reverse engineer, alter or edit any such item, nor to store it other than as necessary in the normal use of the Service; or
- use any of the Intellectual Property for any purpose not expressly or impliedly permitted by this Agreement.
- If You have support issues while using the Application, You may email the Company at firstname.lastname@example.org at any time and the Company shall use its reasonable endeavors to respond back to You within Working Hours (as defined below). Our team phone number in the Republic of Ireland is: 00353 (0)21 434 6238 and in the United Kingdom our team phone number is: 0044 (0)1933 626396. Please also note that the Company also accepts support requests through its Facebook page found at: https://www.facebook.com/EPHEMBER
- The Company shall use its reasonable endeavors to investigate urgent problems on the same day as notification of the problem and shall investigate non-urgent problems within 24 Working Hours of notification of the problem. “Working Hours” are 9am to 5pm GMT, Monday to Friday excluding public holidays.
- In no event will the Company be forced at any cost to correct a problem reported, and the Company reserves the right to abandon attempts to fix a problem where the costs are likely to be excessive or the general benefits to You (in our sole and reasonable opinion) are likely to be negligible.
- You should be aware that you will incur charges for the purchase and installation of the EMBER products (but not the Application) and, as the Service accesses the internet you will be the subject of third-party charges from an internet service provider, and that such charges and the accompanying services are your sole responsibility as between You and the third party provider(s).
- Warranties, Data Protection, Direct Marketing and Indemnity
- The Company warrants that it will use all reasonable skill and care in making the Service available to You and in ensuring its availability during Your Subscription.
- Notwithstanding clause 4.1 above, there may be times when the Service is temporarily unavailable due to (inter alia) routine or emergency maintenance, upgrades, uploads of new material or Software improvements (“Downtime”) as well as problems with the internet. The Company shall use its reasonable endeavors to minimise Downtime and any disruption to the Service to You wherever possible.
- The Company makes no warranty that the Application is free from viruses or anything else that has contaminating and/or destructive properties.
- All other express or implied warranties and any representations are excluded from this Agreement to the extent that they may be fully excluded as a matter of applicable law.
- You warrant and represent that You are the owner or licensee of any content that You upload, record or otherwise transmit through the Services (“Your Content”). You warrant and represent that You shall not publish, post, upload, record or otherwise transmit any of Your Content that: (i) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law or statute, (iii) is defamatory, unlawfully threatening or unlawfully harassing; (iv) is profane, indecent, obscene, harmful to minors or pornographic; (v) contains any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; or (vi) is materially false, misleading or inaccurate.
- We fully adhere to and respect your right to privacy under the General Data Protection Regulation 2016/679 – please see our Privacy Notice here. Where personal information is submitted, it will be used for the stated purpose and any reasonable incidental purposes such as marketing, administration and statistical purposes only. You agree to the use, storage and processing of such information for these purposes. If You wish us to stop such processing of Your personal information then please contact us and we shall cease from the same, albeit that there may be a “limit” to how much we can desist and still be able to provide the Services – we are happy to discuss the same with You at any time.
- If the Company is required by a lawful authority to assist them with their inquiry or investigation then the Company will provide that lawful authority with the information that it may lawfully require. By Your acceptance of this Agreement, and for the purposes of the General Data Protection Regulation 2016/679, You agree to Your use of Your personal information for this purpose.
- You agree to fully indemnify the Company against all claims, liabilities, costs and expenses (including but not limited to all legal fees) arising out of or related to any breach of this Agreement or Your use of the Service.
- Limitation of liability
- You agree that Your exclusive remedy against the Company for the provision of the Services shall be limited to damages in the amount equivalent to the charges You paid for the EMBER products.
- The Company shall not be liable in any case whether in contract, tort (including negligence) or otherwise, for:
- any indirect, consequential or special loss or damage whatsoever, to include any loss suffered as a result of a fitting of our products or Services by a third party;
- any loss of profit, loss of anticipated savings, loss of business, loss of goodwill, loss of data or other such financial or business loss or damage; or
- any other loss or damage (such as for example, failure of the internet, or electricity power supply or damage to property as a result of the failure of the Services).
- The Company’s liability will not be limited in the case of death or personal injury caused by the Company’s negligence.
- Please note that technology is constantly improving and changing and so do our products and software, and therefore we make no representation or warranty that access to our application will continue indefinitely via Your mobile device or other technology. It is Your responsibility to ensure that You have adequate technology to access and interface with our Services, and, to ensure that you have adequate virus and other standard security protections in place.
Each party agrees not to disclose to any other person or use other than for the performance of this Agreement any confidential information of the other party. This clause shall not apply to the extent that the other party’s confidential information is in the public domain or is required to be disclosed by law or a competent authority.
All notices shall be given to the Company via e-mail at email@example.com by post to the Company’s address as set out in clause 1.1 of this Agreement, or to You at either the e-mail or postal address You provide in Your registration information.
- Dispute Resolution
- Should there be any dispute arising out of this Agreement the parties shall use every effort to agree it informally, however, if that fails to resolve the matter then on the written request of any party it can be referred to an independent mediator, the identity of whom shall be agreed between the parties. In the event the mediator cannot be agreed by the parties within 14 days of one party’s written request to appoint a mediator, the Dublin office of the International Centre for Dispute (“ICDR”) Resolution shall appoint a single independent mediator in accordance with the rules of the ICDR. The costs of the mediation shall be shared equally and the place of conduct of the mediation shall be Dublin, Ireland. In the event that within a period of 30 days of the appointment of a mediator, the mediator is unable to resolve the dispute, the parties may submit the matter to the exclusive jurisdiction of the Irish Courts.
- Termination and Your Right to Cancel this Agreement
- This Agreement and Your access to the Service may be terminated for convenience by the Company upon the provision of 60 days prior notice in writing.
- This Agreement can also be terminated by the Company on 5 days notice if (in the sole and reasonable opinion of the Company) You are in material breach of this Agreement and the breach is not remedied within the period of 5 days after written notice of the breach has been given to You.
- You agree to not make any unauthorised changes to any products and/or Services that have been provided to you, and, in the event that You do so, we reserve the right to immediately terminate this Agreement and the provision of any Services to You.
- Either party may terminate this Agreement by giving to the other 5 days written notice if the other suffers an event of insolvency, including, but not limited to an inability to pay its debts as they fall due, bankruptcy, administration, receivership, liquidation, winding up, creditors’ arrangement or ceasing to do business, or any similar or analogous event in any jurisdiction.
- If the Company reasonably believes that You are in breach of this Agreement for any reason or that it suspects that You are in breach of this Agreement, it may suspend Your access to the Service immediately and without notice whilst it carries out a review of the breach of suspected breach and the Company’s ultimate decision on the matter shall be final.
- You have the right to cancel this Agreement and Your access to the Service via the Application at any time.
- The Company may transfer and/or assign its rights and/or obligations under this Agreement – this will not affect Your rights under this Agreement.
- No failure or delay on the part of the Company relating to the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any proceeding or succeeding breach by the other party to this Agreement.
- If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful, void or unenforceable, such provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect the validity or enforcement of the remainder of this Agreement.
- The Company shall be under no liability to You in respect of anything, which notwithstanding this provision, may constitute a breach of this Agreement, arising by reason of force majeure which includes third party telecommunications failures.
- This Agreement contains the full and complete understanding between the parties and supersedes and replaces all prior arrangements, terms, representations and understandings whether written or oral relating to the subject matter of this Agreement.
- This Agreement, and any disputes arising out of it, shall be governed by and construed in accordance with the laws of Ireland and be subject to the exclusive jurisdiction of the Irish courts.