TERMS AND CONDITIONS

1.1

These Terms & Conditions are applicable to the use by end buyers and users of products and services of Thinka B.V., a limited liability company under the laws of the Netherlands (“Thinka”). Use of the products and services of Thinka implies acceptance of these Terms & Conditions.

1.2

These Terms & Conditions are (i.a.) applicable to the use of the Thinka box by the end buyer / user (“User”), which box acts as an interface between the user’s KNX home automation system and the user’s Apple* communication device to enable voice controlled operation of the user’s KNX home automation system (“Thinka for KNX”).

2.1

Thinka for KNX is a combination of hardware and software. All intellectual property rights of Thinka for KNX shall remain with Thinka or its licensors. No intellectual property rights shall transfer to User and User shall not perform acts that may breach, limit or otherwise hinder intellectual property rights to which User is  not entitled.

2.2

The software part of Thinka for KNX (“the Software”) is licensed to User under the following terms and conditions:

2.3

The Software is licensed to User on a non-exclusive basis for use only under the terms of this License Agreement.  Thinka reserves all rights not expressly granted herein. User acknowledges that the Software is copyrighted and protected under copyright law.  User further acknowledges the proprietary nature of the Software.

2.4

User may use the Software only in object code form and only on the original Thinka for KNX with which it was  bundled. Using the Software on other devices than the original Thinka for KNX is prohibited.

2.5

User may not copy, distribute, disclose or otherwise make the Software available to any third party. User may not alter, modify, adapt or create derivative works based on any part of the Software in any way, including translating, reverse engineering, disassembling or decompiling the Software. User may not alter or remove the technical protection of the Software.

2.6

User is allowed to make one copy of the Software for backup purposes.

2.7

User may not sell, distribute, loan, rent, lease, license, sublicense or otherwise assign or transfer this license or the Software unless in combination with the original Thinka Device with which it was bundled.

2.8

This License Agreement is effective from the date User opens the package containing the Thinka for KNX and / or use the Software, and shall remain in force unless otherwise specified in writing by Thinka.  This License Agreement shall terminate immediately if User fails to comply with any of the terms or conditions of this License Agreement. Upon termination, User shall immediately return all copies of the Software to Thinka. User may terminate this License Agreement at any time by returning all copies of the Software to Thinka.

3.1

Thinka warrants to User that, for a period of two years from the initial date of purchase by the first buyer of Thinka for KNX, Thinka for KNX will be free from defects in material and workmanship and that, to the best of its efforts, will perform in substantial conformity to the description of the product in article 1.2 of these Terms & Conditions*.

* Thinka for KNX is dependent on interaction with Apple technology. In case of any changes by said third party in the interaction mechanisms, Thinka shall provide its best effort to maintain compatibility of Thinka for KNX with the changed mechanisms. Inability to maintain such compatibility despite said best effort shall not be considered a breach of warranty. Error free operation of Thinka for KNX and the Software is strived for but cannot be guaranteed.

3.2

If the product is found to be defective in material or workmanship, or if the product does not perform as warranted above during the warranty period, Thinka will either repair it, replace it, or refund the purchase price, at its option, upon receipt of Thinka for KNX, with proof of the date of purchase and an explanation of the defect or error. The repair, replacement, or refund that is provided for above shall be the full extent of Thinka’s liability with respect to Thinka for KNX.

3.3

This warranty shall not apply (i) to defects or errors caused by misuse or neglect, (ii) to defects or errors caused by power surges, lightning strikes or malfunctioning of power lines, (iii) in case the Thinka for KNX is opened.

3.4

Thinka disclaims all other warranties, whether oral or written, express or implied, including any warranty or merchantability or fitness for a particular purpose, and insofar these warranties cannot be disclaimed, these shall be limited to the two-year period of the warranty above. No other representation or claim of any nature by any person shall be binding upon Thinka or modify the terms of the above warranty and disclaimer.

3.5

Home automation devices have the risk of incorrect operation or failure to operate. Home automation devices should be viewed as a convenience, but not as a sole method of controlling a home. This is especially the case for Thinka for KNX which, by its nature, functions as an interface between User’s home automation installation and devices and appliances on the one side and the (voice control) capabilities of User’s communication device on the other side. All these systems and components are susceptible to errors and unavailability. Physical inspection and verification of the state of devices and appliances is advisable. Thinka is not responsible for the availability, accessibility or proper operation of systems outside its direct sphere of influence, such as User’s home automation system or the systems of third parties such as servers and services of or used by the manufacturer of User’s communication device.

3.6

Thinka for KNX and the Software are not intended for controlling doorlocks and alarm systems, use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of Thinka for KNX or the Software could lead to death, personal injury or physical or environmental damage.

3.7

In no event shall Thinka be liable for loss of profits, loss of goodwill, or missed opportunities, or any form of indirect or consequential or other damages resulting from the use of Thinka for KNX and / or any faults in the operation of Thinka for KNX, including without limitation damage to property and, to the extent permitted by law, personal injury, even if Thinka knew or should have known of the possibility of such damages.

4.1

The Thinka Device will periodically connect with Thinka’s servers to verify the legitimate use of the Software and to check for available updates of the Software. Available updates will be installed automatically. In addition Thinka may read and store the KNX configuration for the purpose of improving the Software. We will not sell this data to third parties. Insofar personal data is copied, stored or transmitted,  use of the Thinka for KNX and/or the Software implies User’s consent thereto. Thinka shall comply with applicable data protection legislation and shall, with respect to Users located in the European Union, not make use of datacentres or servers located outside the European Union.

5.1

The relationship between Thinka and User is exclusively governed by Dutch law.

5.2

Regardless whether Thinka for KNX is bought directly from Thinka or from an installer or reseller, applicability of the Convention on International Sale of Goods (CISG, Weens Koopverdrag 1980), is excluded.

5.3

The Dutch courts shall have exclusive competence to judge any disputes between the Thinka and User arising from or relating in any way to the use of Thinka for KNX. In first instance disputes shall be submitted exclusively to the District Court of Amsterdam.