General conditions fifthplay cube

(version 12/5/2017)

1. General

1.1. The Solution is offered by Fifthplay NV, which has its registered office at Industriepark-West 40, 9100 Sint-Niklaas, VAT/RPR number 0442.833.209, tel. 03/808.70.38, email hello@fifthplay.com.

1.2. By using the Solution you accept these Terms and Conditions.

1.3. We will not archive these Terms and Conditions. You are required to save these Terms and Conditions yourself.

2. Definitions

“Minimum Requirements” means the minimum requirements that Your Device must fulfil to be able to use the Solution – the Minimum Requirements are set out on https://cube.fifthplay.com/en/faq/;

“Solution” means the Fifthplay Smart Home Solution developed by Us, comprising the Hardware and the Software:

“Hardware” means one or more devices forming part of the Solution, such as the gateway, smart plug and detectors (such as the water leak detector, smoke alarm, CO detector);

“App” means the mobile application via which You can use the Solution;

“Web Portal” means the website via which You can use the Solution;

“User Account” means the on-line registration You must carry out and which links the Hardware to You as the user;

“Manual” means the manual for the use of the Solution;

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

“Party” means You or Us;

“Parties” means You and Us jointly;

“Software” means all computer software which we make available to You or allow You to use in the context of the Solution, including but not limited to the operating software of the Hardware, the programming software for the Solution, the programming software for the Web Portal, the App and the Third-Party Software, including any updates and upgrades and all associated documentation;

“Third-Party Software” means computer software from third parties that: (i) is integrated into the Hardware and/or the Software, (ii) with which the Solution is linked at Your request to other hardware or software of third parties, and/or (iii) software of third parties (such as an API) which renders the link under (ii) possible or controls it;

“You” and “Your” means the end user who purchases and/or uses the Solution;

“Your Device” means one or more devices that you have available and via which You can use the Solution, such as, among other things a PC and/or smartphone;

“Terms and Conditions” means this agreement, as modified in the interim and available via Your User Account or on our website;

“We” or “Our” means the party referred to in Article 1.1.

3. Solution

3.1. To be able to use the Solution You will need the following items:

3.1.1. Hardware

3.1.2. A User Account.

3.1.3. A working and secured internet connection at the location where the Hardware is installed. You are responsible for arranging this yourself and such a connection is not included in the Solution.

3.1.4. If You wish to use the Solution via the App and/or configure the Solution Yourself: the App and the Programming Software that You can install and use via your Device. The supply of Your Device is not included in the Solution. The Web Portal is available via the Internet or the URL that we will send You. The App is available in the IOS and Android app shop.

3.2. The Solution will work in accordance with that stated in these Terms and Conditions, the Manual or in the proposed specifications. For the remainder we do not grant or accept any explicit or implicit, regulatory or other guarantees or conditions with regard to the Software as to its condition, quality, performance or suitability for the intended purpose of the Solution, and such guarantees and conditions are excluded unless and to the extent that such an exclusion is unlawful.

3.3. The Solution can only be supplied in the countries listed on Our website.

3.4. If you have questions please contact Our customer services, whose contact details You can find on the website www.fifthplay.be.

4. Hardware

4.1. The Hardware is necessary for using the Solution.

4.2. The ordered Hardware will be delivered within the delivery period stated on Our website or in some other manner as notified by us. The Hardware does not include any maintenance and support, unless and insofar as stated otherwise.

4.3. The Hardware must only be used with the Software and vice versa.

4.4. If You are a consumer and You have bought the Hardware directly from Us via a distance agreement (e.g. online purchase), You are entitled to cancel the purchase of the Hardware without stating any reasons within 14 days following delivery of the Hardware to You or to a designated third party.

4.5. If You are not a consumer, or if You did not buy the Hardware directly from Us, or via a distance agreement (e.g. online purchase) not directly from us then you cannot cancel Your purchase with Us.

4.6. To exercise the right of withdrawal under Article 4.4, You must inform Us in an unambiguous manner in writing (by post or e-mail) (see Our contact details under Article 1.1) of Your decision to cancel the agreement. For this purpose You may use the model cancellation form that we have sent to You, but you are under no obligation to do so.

4.7. You must send Your request for withdrawal under Article 4.4 within the time limit of 14 days after delivery or it shall be rendered invalid.

4.8. Following a valid cancellation You are required to return or hand over the goods to Us without delay, but in any event not later than 14 days after the day on which You sent Us notice of your decision to cancel the agreement. You must return the goods before this 14-day time limit has expired. You are responsible for the costs of returning the goods.

4.9. If You validly cancel your order, we will refund You the full purchase price of the Hardware less any depreciation in value. You are liable for the depreciation in value of the Hardware as a consequence of any use of the Hardware that exceeds what is required to determine the nature, features and functioning of the Hardware.

4.10. The refund will be made without delay and in any event not later than 14 days after Your request for cancellation has been received. We can delay a refund to You until we have received the Hardware or You have demonstrated that You have returned the Hardware, whichever is sooner.

4.11. The refund will include the delivery costs, unless You have opted for a delivery method costlier than the cheapest standard delivery offered by Us. The refund will be made using the same payment method by which You performed the original transaction, unless We have expressly agreed otherwise. No costs are incurred for refunds.

5. Software

5.1. We grant You a non-exclusive right to the Software and Manual solely to use the Solution for your own purposes, in accordance with the Manual and any other user instructions.

5.2. To use the Software your Device must comply with the Minimum Requirements.

5.3. The Software is only for Your own use of the Solution.

5.4. You may not, either for yourself or through a group to which You belong, an affiliated or associated company, intermediary or any other third party:

5.4.1. use the Software for purposes other than those described in Article 5.3;

5.4.2. sell on, commercialise the Software or otherwise make this available to third parties;

5.4.3. change, disclose to the public, distribute, translate, decompile, disassemble or reverse-engineer the Software or combine it with other computer software, except if and insofar as necessary or permitted on grounds of mandatory statutory provisions;

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

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

5.5. The above-mentioned user right to the Software is limited to the machine code. Under no circumstances may the source code of the Software be transferred or made available.

5.6. Unless stated otherwise in product-specific documents or in the Manual, these Terms and Conditions do not entitle You to any upgrade/update of the Software and any provision of updates and upgrades on our part is optional. When we make updates and upgrades of the Software available, You are obliged to install, implement or arrange to implement these updates/upgrades. If You do not install, implement or arrange to implement updates/upgrades the proper functioning of the Solution cannot be guaranteed. We can arrange to implement updates/upgrades automatically if required due to safety or compatibility reasons, or to preserve the functionality of the Software.

5.7. If the Solution includes Third-Party Software it is possible that the use of this software will be subject to additional licensing conditions.

5.8. We cannot exclude the possibility that technical errors or defects could occur in the Software. We reserve the right to suspend or modify access to the Software in whole or in part for technical reasons, due to safety considerations or in connection with maintenance work. For these reasons we cannot guarantee that access to and use of the Software will never be disrupted or interrupted in some other way as a result of such problems, and we cannot accept any responsibility for this.

6. Your obligations

6.1. You undertake to use the Solution in accordance with these Terms and Conditions, the Manual and other user instructions.

6.2. You undertake to frequently review these Terms and Conditions online to ensure that You are fully aware of the most recent version, and You agree that the most recent version will replace all earlier versions, and that these are the sole terms and conditions governing the contract.

6.3. You will use the Solution with due care.

6.4. You will ensure that Your Device always meets the Minimum Requirements during the entire use of the Solution.

6.5. You will always implement all updates or upgrades that we make available for the Software.

6.6. The Solution works via a connection to the internet. This always entails a security risk. You must take sufficient security measures to limit this risk, such as, but not limited to:

6.6.1. keeping the password of Your User Account strictly secret and not disclosing it to anyone.

6.6.2. securing Your internet connection and Your Device against unauthorised access, such as by using a password, sleep mode, screen saver, etc.

6.6.3. equipping Your Device with effective anti-virus software.

6.6.4. If You become aware of, or You suspect that the security of Your Device may have been compromised, You must inform Us immediately and change the password of Your User Account (if this is still possible).

6.7. You must comply with these Terms and Conditions, the Manual and the user instructions. If we determine that You are not complying with these Terms and Conditions we have the right to suspend the provision of the Solution immediately, notwithstanding the exercise of Our other rights under common law.

7. Liability

7.1. Subject to the express terms of the Terms and Conditions, the Manual or the specifications, we do not grant or accept any explicit or implicit guarantees regarding the Solution as regards the condition, quality, performance or suitability for the intended purpose of the Solution, unless and insofar as such guarantees arise from law.

7.2. We are not liable for any damage in the following cases:

7.2.1. failure to make your Device compliant with the Minimum Requirements and/or if Your Device is insufficiently secured.

7.2.2. failure to implement all of the updates or upgrades for the Software that We have made available.

7.2.3. failure to comply with the instructions for the use of the Solution as stated in the Manual, user instructions, the Web Portal or Our website.

7.2.4. failure to comply with one of the obligations in the Terms and Conditions.

7.2.5. there is insufficient or no connection to the internet or the wireless components of the Solution.

There are faults or problems affecting the power grid not attributable to Us.

7.2.6. the Solution was connected to Third Party devices.

7.2.7. Insofar as permitted under the applicable law, the liability of each Party in connection with the use of the Solution is in any event limited to the value of the Hardware You have purchased, regardless of the legal grounds (contractual or non-contractual) and even in the event of gross mistake.

7.3. The exclusions and restrictions on liability in these Terms and Conditions do not affect the statutory two-year warranty that You enjoy as a consumer. If You wish to invoke the statutory warranty You must inform us within two months after the day on which You discovered the defect.

7.4. The exclusions and restrictions on liability included in these terms and conditions do not affect the legislation on product liability. We are not liable on the basis of the legislation on product liability if the damage is caused by both a defect in the Solution and by any fault on Your part or that of a person for whom You are responsible.

8. Duration and termination

8.1 These Terms and Conditions come into effect from the initial use of the Solution and for the duration of the use of the Solution, unless it ceases earlier on the basis of these Terms and Conditions.

8.2 These Terms and Conditions shall cease automatically if You stop using the Solution.

8.3 We can terminate the Agreement out of court at Your expense if You breach the Terms and Conditions in a serious manner and fail to rectify this failure within five working days after We have given You formal notice to do so.

8.4 We have the right at all times to cancel the order with a notice period of at least one month.

9. Intellectual Property Rights

9.1 We remain at all times the exclusive and sole owner and/or licensee of all Intellectual Property Rights to the Solution and all related know-how, brands, trading names, logos, documents, such as preparatory material, marketing material, etc. You are required to enforce and comply in full and unchanged with any instructions appearing on these subjects on any medium made available by Us.

9.2 You agree that:

9.2.1 You will inform Us in writing immediately of any claim brought by third parties against You on the grounds of an infringement or alleged infringement of any Intellectual Property Right to the Solution of which You become aware;

9.2.2 You must not make any admission regarding liability and you must not agree to any settlement or arrangement regarding any claim whatsoever regarding Intellectual Property Rights without Our prior written consent; and

9.2.3 You have the right, at your own request and expense, to take the lead and/or conclude amicable settlements as regards any negotiations and proceedings arising from any claim regarding Intellectual Property Rights to the Solution. You shall, at Our request and expense, grant Us all reasonable support regarding such negotiations and proceedings.

9.3 Nothing in these Terms and Conditions shall be interpreted as a transfer of any Intellectual Property Right from Us to You or to any third party.

10. Use of personal data

10.1 We will process Your personal data for the following purposes on the basis of the following legal grounds and arrangements:

10.1.1 The supply and management of the Solution on the grounds of the execution of the agreement to which You are a party. The provision of Your personal data for this purpose is necessary to implement this agreement; without Your personal data we cannot supply the Solution. The smart functionalities of the Solution make it necessary to create a profile on the basis of Your use and other personal data. On the basis of this profile we determine automatically which specific functions or events are triggered in the context of the supply of the Solution.

10.1.2 Research into and development and improvement of the Solution on the grounds of our legitimate interest. We take the view that research into and development of smart products for monitoring purposes can lead to product improvement and innovation, which will benefit both You (You get better and more user-friendly products) and society in general (increased energy savings and/or safety). The provision of Your personal data for this purpose is not strictly necessary and you can object to this (see Article 10.5.3). Research into and the development and improvement of the Solution is linked to drawing up a profile on the basis of Your user data, where identifying elements such as Your name, Your address etc. are omitted. This profiling has no consequences for You, other than for the potential improvements to the Solution.

10.1.3 Direct marketing on the basis of Our legitimate interest. We believe that it is important to keep You as the customer informed of Our products and services. The provision of Your personal data for this purpose is not strictly necessary and you can object to this (see Article 10.5.3).

10.1.4 Direct marketing of products or the services of other businesses subject to you granting us Your permission.

10.2 We may pass on Your personal data to businesses forming part of the group to which we belong, to businesses that process personal data on Our behalf and for Our account (processors), to academic institutions in the context of scientific research, to third parties in the event of a statutory obligation, to Our commercial partners and to the police or judicial authorities on request should they be entitled to the data.

10.3 We may pass on such personal data to countries outside the European Economic Area, including the United States. On each occasion this will be based on an adequacy decision of the European Commission.

10.4 Your personal data will be saved as long as Your User Account exists, and up to five years after this.

10.5 In certain situations and subject to the arrangements set down in law You can contact Us in order to exercise the following rights:

10.5.1 Withdrawal of Your permission for processing of personal data, insofar as that processing required Your permission.
10.5.2 Access to, correction, deletion and restriction of Your personal data.
10.5.3 Objection to direct marketing and/or for research, development and improvement of the Solution.
10.5.4 Transferability of Your personal data.

You can exercise some of these rights via the settings in Your User Account. You may exercise these rights by contacting Us at the postal address referred to in Article 1.1 or via legal@niko.be.

10.6 You may make a complaint to the Commission for the Protection of Privacy (Commissie voor de bescherming van de persoonlijke levenssfeer), Drukpersstraat 35, 1000 Brussel, commission@privacycommission.be, www.privacycommission.be.

11. Price and payment

11.1 The optional use of the Solution via the App, the Web Portal and the Programming Software is at this time not subject to the payment of a fee to Us, but it assumes the lawful possession of the Hardware and the Software.

11.2 As the functionality of the Solution or the Third-Party Software expands (if applicable) or new versions are issued, We will be entitled to make the use of the App, the Web Portal and the Programming Software subject to a fee.

12. Miscellaneous provisions

12.1 Unless expressly provided for in these Terms and Conditions You may not license Your rights or obligations under these Terms and Conditions, relinquish them or otherwise transfer them without Our prior written permission.

12.2 The invalidity, illegality or unenforceability of any of the provisions of these Terms and Conditions does not affect the validity, legality and enforceability of the other provisions of these Terms and Conditions.

12.3 We may revise these Terms and Conditions at any time and you will be notified via Your User Account about an updated version. If You do not agree to the changes, You are obliged to cease using the Solution.

12.4 These Terms and Conditions and the documents referred to together constitute the full agreement between the Parties concerning the subject of these Terms and Conditions and replace all earlier agreements between the Parties regarding this subject.

12.5 These Terms and Conditions are governed by Belgian law, without prejudice to Your right to the application of the mandatory law of the location of Your official residence or the registered office of Your company. Any disputes in connection with these Terms and Conditions, the purchase or use of the Solution, the use of the Software or the Hardware shall be settled by the competent courts of Ghent, Dendermonde division, without prejudice to Your right to seize the court in the legal district of Your official residence or the registered office of Your company seat under mandatory law.

12.6 If You are a consumer, You have the right in the event of a dispute to make use of the EU dispute settlement procedure which is available at https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.chooseLanguage

Stay informed

Get the utmost out of your fifthplay cube. Subscribe to our newsletter and receive updates and tips & tricks for your devices.

All fields are mandatory