Terms of Use for ViCare and Vitotrol Plus

Viessmann Werke GmbH & Co KG, Allendorf (Eder), Germany, as a manufacturer and a licensor (hereinafter referred to as “Licensor”) provides you, the User and Licensee (hereinafter referred to as “Licensee” or “You”), with the use of the ViCare or Vitotrol Plus App (hereinafter referred to as “App”) in accordance with these End Customer Terms of Use (hereinafter referred to as “Terms of Use”).

Article 1 Subject matter and scope of Application of the Terms of Use

The subject matter of these Terms of Use is the granting of rights of use for Licensor’s App to Licensee for Licensor’s heating system and the provisions of the use of the functions offered within the App. The App may be used as part of the operation of Licensee’s Viessmann heating system. The use of the App requires an internet connection of the heating system. Further technical requirements, suitable heating systems and installation details can be found in the product literature here. The App is free to install. Use of the App requires registration in accordance with Article 5 hereof and consent to the Privacy Policy for ViCare and Vitotrol Plus, which is available here.
The App consists of the object code of the App, as provided by Licensor for the relevant end user device (where Applicable, through a platform such as iTunes or Google Play) for download and installation.
Unless explicitly provided otherwise, these Terms of Use shall apply both to consumers and to entrepreneurs. A consumer means any natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession. An entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

Article 2 Updates

Licensor provides updates for the App and via the heating system for firmware of the communication components, i.e., the interface between Licensee’s heating system and the internet (hereinafter referred to as “Updates”) to be installed in order to guarantee the security of the App or to take into account the change in functions of the App and to adapt the App to progress in technical development. Licensor may, at its discretion, alter the scope of the function of the App without separate notification, without, however, significantly limiting the functionality of the App. Licensor shall notify Licensee of any such changes in advance. Licensor recommends that updates always be installed in a timely manner. Where Licensee fails to install updates even after a reminder in the App and to Licensee’s email address, Licensor may terminate this agreement and delete the associated user account.
Licensee shall not be entitled to have updates made available in order to extend the functions.
Licensee acknowledges and agrees that Licensor only maintains the current status of the App. Upon expiry of the warranty under the agreement on the purchase of the heating system or the retrofitting of the system with an internet interface, Licensor reserves the right to cancel the App and terminate this agreement.

Article 3 Granting of rights of use, Availability

At the time of registration, Licensor grants Licensee (see Article 5 on registration obligations) non-exclusive rights of use to the App in question. The rights of use shall be granted for use of the App in accordance with these Terms of Use for individual purposes in connection with Viessmann products.
The rights of use shall be granted under the following conditions subsequent:

- Licensee acknowledges the authorship of Licensor and in particular will not alter or remove any authorship notifications;

- Licensee will not alter and/or decompile the App (Licensee’s authorizations contained in Sections 69d and 69e German Copyright Act shall remain unaffected).
Where Licensor allows the passing on of rights of use by Licensee to third parties, Licensee shall ensure that any such third parties also acknowledge and agree to these Terms of Use and enter into all of the rights and obligations arising therefrom.
Some of the functions of the App require a connection to a system ("backend") via the internet belonging to Licensor. Viessmann guarantees 95% availability of the App on average annually. Prior notice of maintenance work given not less than seven (7) days in advance (maximum of five hours/week on average annually) shall not be taken into account. Viessmann shall make every effort to perform maintenance work during times in which the App is only infrequently used.

Article 4 Supported user devices and supported hardware and software

Licensor provides Licensee with the App for use in accordance with the provisions on a supported user device. Supported user devices and their minimum requirements are listed in the current version of the product literature here.
The system and software requirements set by Licensor in the current version of the product literature, which can be found here, for use of the App must be complied with. Software programs and services provided by third-party manufacturers, which are intended to work with the App may only be used after Approval by Licensor. Compliance with the system requirements is the responsibility of Licensee, only. Questions regarding interoperability should be forwarded to Licensor.

Article 5 Registration

Licensee shall be obligated to register for proper use of the App and to create a user account. Correct and complete information about Licensee’s identity, email address, and where Applicable, client number and other user data such as installation location are to be entered and updated in case of any changes. In addition, Licensee is to notify Licensor where Licensee is no longer entitled to use the system (e.g., in case of sale of the home in which the system operates to a new owner). Any breach of this obligation shall entitle Licensor to exclude Licensee from using the App.
Licensor may block a user account if there are signs that the user account has been used in an unauthorized manner and/or unauthorized access to the App or Licensor’s underlying systems is gained or attempted from the user account (“hacking”). In such cases, Licensor shall notify Licensee via the email address provided in the user account without undue delay and re-enable access by means of setting up a new user account, unless there are facts that suggest that Licensee has attempted to access Licensor’s systems without authorization.
Licensor shall be entitled to extraordinary termination of this agreement without notice and delete the user account if Licensor’s backend is unable to connect to Licensee’s system permanently (for more than 6 months) without this being the fault of Licensor and Licensee has been notified thereof by email to the email address provided and in the App without any remedy being provided within eight weeks of such notification.

Article 6 Warranty

Licensee shall be responsible for the configuration of the App in accordance with the current material accompanying Viessmann heating systems.
The functions made available via the App are considered to be free of material defects, if they fulfill the functions that are included in the currently valid product literature, which can be found here, or that were agreed separately. Licensor does not guarantee that the functions of the App will correspond to Licensee’s requirements.
It shall be a pre-requisite for functional defects regarding the App that the defect be reproducible. Licensee must describe such defects sufficiently. If the App provided by Licensor is defective, Licensor shall rectify the defect within an Appropriate of time by repairing the App where the expense of the repair is reasonable. If the repair fails, Licensee shall be entitled to a reduction in the price or to withdrawal.
Licensee must support Licensor in identifying the defect to the extent reasonable, for example by means of providing printouts, screenshots or error descriptions.
Occurrences of force majeure (including strikes, lockouts and similar occurrences, insofar as they cannot be foreseen, are severe, and are not the fault of Licensor), which make it significantly more difficult or impossible for Licensor to provide the service owed, shall entitle Licensor to postpone the performance of the obligations by the duration of the obstacle and an Appropriate start-up period.

Article 7 Disclaimer of Warranties and Limitation of Liability

THE APP, INCLUDING ALL CONTENT THEREIN, IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED AND YOU SHALL USE THE APP AT YOUR OWN RISK. LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP, INCLUDING ALL CONTENT THEREIN, IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION CONTAINED WITHIN THE APP. LICENSOR DOES NOT WARRANT THAT THE APP OR APP CONTENT OR THE FUNCTIONS CONTAINED IN THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APP OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU (AND NOT LICENSOR) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR AND CORRECTION.

LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE APP. IN NO EVENT SHALL LICENSOR, ITS PARENT OR ITS SUBSIDIARY OR AFFILIATED COMPANIES OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY, “RELEASED PARTIES”), BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSSES COSTS, OR EXPENSES WHATSOEVER, INCLUDING WITHOUT LIMITATION, RESULTING FROM (I) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE APP, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO, FROM OR VIA THE APP, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE APP BY ANY THIRD PARTY, (V) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY USE OF THE APP OR, (VI) OTHERWISE RESULTING FORM THE USE OF THE APP. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING, IF THE RELEASED PARTIES ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY CONNECTED WITH LINCENSEE’S USE OF THE APP OR ANY CONTENT CONTAINED THEREIN, RELEASED PARTIES’ LIABILITY SHALL IN NO EVENT EXCEED US $5.00.

Article 8 Extraordinary right of termination

Licensor shall be entitled to terminate this license agreement for good cause, in particular in case of serious breaches of these Terms of Use or the copyrights associated with the App.

Article 9 Final provisions

If individual provisions of these Terms of Use are or be come ineffective, they shall be replaced by provisions most closely resembling the economic intent of the ineffective provision. Should a provision of these Terms of Use be or become ineffective, the effectiveness of the remaining provisions of these Terms of Use or of this agreement as a whole shall remain unaffected.
The Terms of Use may be amended or supplemented at Licensor’s discretion to an extent that is reasonable for Licensee. In such event, registered licensees shall be notified in writing not less than six weeks prior to the change coming into effect (e.g., to the email address provided by Licensee or via the information service for the product). The amended or supplemented Terms of Use shall apply unless Licensee objects prior to the date when they come into effect, after Licensor has specifically notified Licensee of the consequences of remaining silent. If Licensee does object, Licensor may terminate this agreement with a notice period of one month after the notification of the objection.
Governing Law and Venue for Disputes.
This Terms of Use, and Licensee‘s relationship with us under this Terms of Use, shall be governed by the laws of the State of New York without regard to its conflict or choice of laws provisions. Any dispute with us, or our parents, subsidiaries, affiliates, officers, directors, employees, agents or affiliates, arising under or in relation to this Terms of Use shall be resolved exclusively through non-appealable arbitration with one arbitrator in accordance with the rules of the American Arbitration Association in New York, NY. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees).
No Class Actions.
You agree to resolve any disputes related to this Terms of Use as an individual and not as a class or join any class. You understand that, in return for agreement to this provision and the dispute provision above, we are able to offer the Service at the terms designated, and that your assent is an indispensable consideration to this Terms of Use.
You also acknowledge and understand that, with respect to any dispute with us, our officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Terms of Use:
YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.