Somfypro.com Terms and Conditions
IMPORTANT: SOMFYPRO.COM TERMS AND CONDITIONS (THE "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN INDIVIDUAL OR A SINGLE ENTITY ("YOU" OR "YOUR"), AND SOMFY SYSTEMS, INC. ("SOMFY") THAT SETS FORTH THE TERMS AND CONDITIONS FOR THE USE OF BY YOU OF THE SOMFYPRO.COM WEBSITE AND ASSOCIATED PROGRAMS, DATABASES AND ANY OTHER SERVICES, SUPPORT, OR DOCUMENTATION PROVIDED THEREWITH (THE "SERVICES"). SOMFY LICENSES THE SERVICES TO YOU UPON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING THIS WEBSITE AND UTILIZING THE SERVICES HEREIN, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH TIME YOU ACCESS THE SERVICES, WHETHER THROUGH THE WEBSITE, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT. SOMFY IS UNWILLING TO PROVIDE YOU WITH ACCESS TO THE SERVICES UNLESS YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DECLINE TO ACCEPT THESE TERMS, PLEASE EXIT THE WEBSITE AND DISCONTINUE USE OF THE SERVICES CONTAINED HEREIN.
1. Service Terms.
Your access and use of the Somfy.com website (the "Site") as well as your use of the account number assigned to You and, as applicable, temporary user name and password for online ordering and other data provided to You by Somfy (collectively, the "System"), is subject to the terms and conditions of this Agreement, as set forth below. Somfy may, in its sole discretion, change the terms of this Agreement as set forth in Section 19. Any changes in the terms of this Agreement will be updated on the Site, and you are encouraged to and responsible for retrieving a copy of the most current version of this Agreement. If you are dissatisfied with any changes to this Agreement, you may cancel your use of the Services as specified herein. The Services, consisting of access to and use of certain application software, content, and other information, and other content owned or licensed by Somfy and its suppliers, licensors or other third parties, including but not limited to Google, Cross Systems, and Claranet (collectively, the "Contributors"), is provided by Somfy, a New Jersey corporation, through the Site.
2. Registration Information.
You are required to provide Somfy with certain information in order to access the System. To register, you (i) must provide your full name, address, and phone number, (ii) must provide an e-mail address, which will serve as your user name, to the Somfy authorized dealer that installs Your equipment and sets up Your Services, (iii) must select a password to access the Services, and (iv) may be required to provide other information upon access to the Site (collectively, the "User Information"). You agree to provide accurate and complete User Information during the registration process. Somfy reserves the right to terminate the Services if you provide Somfy inaccurate or incomplete information. When you make use of the Services, the Services may collect certain other information about You and Your use of the Services and convey such information to the Contributors. You have the right to update your User Information at any time by contacting somfypartners_us@somfy.com.
3. The System and Services.
The Services consist of the Site and multiple web services thereon. The Services enable You to upload information regarding your business location, operation, capabilities and qualifications for display as a webpage within the Site ("Dealer Webpage"). By using the Services, you represent to Somfy that the information you have uploaded is true, complete and accurate, you have paid all applicable fees to Somfy, that you are an authorized "Somfy Expert" in good standing meeting all of the required criteria with respect to such status (for Somfy Expert criteria, see: www.somfypro.com/program-benefits), that You will not promote products or businesses that are in competition with Somfy on your Dealer Webpage. The Services shall also include updates, upgrades, additions, replacements and new releases of any software which has been embedded in or loaded onto the Site and any updates, upgrades, additions, replacements and new releases which are subsequently embedded in or loaded onto the Site. Somfy reserves the right to charge fees for the use of any new features of future upgrades to any Services provided.
4. Restricted License.
Subject to the terms and conditions of this Agreement, Somfy hereby grants to You (and you accept) a non-exclusive, non-transferable license to access and use the Services solely for the purposes intended. All rights not expressly granted to You are hereby reserved by Somfy and or any respective Contributor. Somfy and each Contributor shall have the right to assert and enforce the provisions of this Section 4 directly on its own behalf. You agree to (a) abide by this Agreement and any and all licensing agreements between a Contributor and You (collectively, the "Licensing Documents"); (b) to keep Your authorized Somfy account information confidential, including Your password, username and other User Information related to the Services; and (c) to inform Somfy promptly upon the unintended or undesired disclosure of any portion of such confidential account information. You agree not to disclose to third parties any passwords Somfy or its Contributors provide to You for Your use of the Services or enable access to the Services by any third parties, unless such disclosure is necessary for maintenance of the Services or required by law or court order and then only for the duration of such required maintenance or use as required by law. You acknowledge that the Dealer Webpage portion of the Services is managed by Somfy, and that any information submitted to Somfy via the Dealer Webpage tool is subject to Somfy approval before posting. You represent and warrant that any third party content submitted by You is owned by you or properly licensed by You, and you acknowledge that Somfy will not evaluate the ownership of any information submitted by you to the Dealer Webpage portion of the Services. The Dealer Webpage may be suspended at any time if Somfy determines that information provided by You is not owned by You or infringes on Somfy's or any third party's intellectual property rights. You also acknowledge that You will be responsible for any content that you provide Somfy for display on your Dealer Webpage. You acknowledge that every change submitted through the Dealer Webpage portion of the Services must be accepted by Somfy, and that Somfy is not obligated to update your Dealer Webpage upon your request unless you wish to terminate your use of the Services in accordance with Paragraph 9 below.
5. Intellectual Property Rights.
It is hereby understood and agreed that as between Somfy and You, Somfy is the owner of all rights, title and interest, including the Intellectual Property Rights (as defined below), to the Services and the Site. You grant Somfy a perpetual, royalty-free, transferable, non-exclusive license to use, copy, distribute, display, publicly perform, publish, adapt, modify, translate and sublicense any comments, suggestions, ideas, graphics, questions or other information submitted by You through the Site or the Services ("Submissions") in any medium worldwide, including incorporating the Submissions without any obligation to compensate You or any other third party in any way for any such use. Somfy shall be entitled to use such Submissions for any commercial or other purpose whatsoever worldwide without notice or compensation to You or anyone else. The foregoing rights shall include the right to exploit any Intellectual Property Rights in such Submissions. Somfy may grant other parties these same rights as to the Submissions. This does not restrict You from granting to others rights to use your Submissions. You hereby warrant that no Submissions shall violate any Intellectual Property Right of any third party. For the purpose of this Agreement, "Intellectual Property Rights" shall mean any and all of the following: (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including, but not limited to logos, "rental" rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing); and (g) data submitted during the Google Places Card activation process. All data submitted with respect to the Google card activation process shall be owned by Google Inc. and the card generated from such data shall remain property of Somfy. Unless otherwise specified, the content of this Site is protected under the U.S. Copyright Act, as amended, and the copyright laws of other countries. Copyright © 2013, Somfy Systems, Inc., All Rights Reserved. You are only permitted to use the content as expressly authorized by Somfy or the applicable Contributor. Except for a single copy made for personal use only or copies provided by Somfy and intended to be used as marketing materials, You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this Site in any form or by any means without prior written permission from Somfy or any applicable Contributor, and You are solely responsible for obtaining permission before reusing any copyrighted material that is available on this Site. Somfy respects the intellectual property rights of others. If You or any user of this Site believes its copyright, trademark or other property rights have been infringed by any content posted on this Site, You or the user should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed' (2) Identification of the copyrighted work claimed to have been infringed; (3) Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (4) Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit us to locate the materials; (5) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and (6) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing. Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Sec. 512(c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of users about whom repeat claims of copyright infringement are received will be terminated. The Designated Agent for Claimed Infringement shall be somypartners_us@somfy.com, or You may also write to us at the address provided in Section 17 with Attention to: DMCA Agent. ALL CLAIMS MUST BE IN WRITING AND MAY NOT BE MADE BY TELEPHONE. Except as expressly provided herein, You do not acquire any rights to the Services through the purchase of any equipment or any licenses to the Services or the Site. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code)("Source Code") of the components of the Services or Site, or create derivative works based thereon. You also may not download, republish, reproduce, copy, post, transmit, or in any way distribute any material from the Site unless such activities are in direct furtherance of Your permitted use of the Services and do not in any way violate this Agreement or any Licensing Documents. You further acknowledge and agree that the Services and the accompanying equipment contains the proprietary and confidential information of Somfy and its Contributors. You are not permitted to: (a) rent, lease, assign or transfer all or any part of the Services or your User Information to any person or entity without the prior written consent of Somfy; (b) remove any proprietary notices, labels, or marks on any component of the Services or its System (or the Services or Site generally), whether physically, in compiled machine language, or in the Source Code; (c) use the Services to provide a service bureau by which the Services can be accessed by third parties or by which information produced pursuant to the Services is sold or given to third parties; or (d) sublicense, assign, delegate or otherwise transfer this license or an of the related rights or obligations for any reason without the prior written consent of Somfy (any attempt to sublicense, assign, delegate or transfer this license, either by contract, statute, corporate merger of any sort, regulation or court order, without the prior written consent of Somfy shall be voidable at Somfy's sole and absolute discretion). Failure to comply with these restrictions will result in automatic termination of this Agreement.
6. Privacy.
Somfy will not disclose personal information about your use of the Services in violation of the Somfy Privacy Policy (the "Privacy Policy") located at
https://www.somfypro.com/privacy-statement. By completing the registration process, You agree to the terms and conditions of the Privacy Policy and affirm that You understand and consent to any Contributor's collection, storage, and use of Your User Information.
7. Payment.
You are responsible for paying any and all fees and charges (plus applicable taxes) associated with Your use of the Service (a "Service Fee") if and when any such fees are assessed and become due. Unless otherwise stated in writing from Somfy, You must make payment of any fees and charges by a valid, approved credit card or charge card when such Service Fee becomes due and payable. Somfy may, at its discretion, change the Service Fee from time to time and charge fees or additional fees for features and functionalities that are a part of the Services. Somfy will endeavor to notify You (by e-mail or such other method reasonably selected by Somfy) 30 days in advance of any new fees or fee changes. Somfy reserves the right to suspend or terminate Your access to the Services without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to Somfy for Somfy Services. You agree to pay a late charge on all amounts due which remain unpaid for 30 days. The late charge will equal 1.5% of the past due amount, or the highest rate allowed by law, whichever is less, per month, until paid. Such rights are in addition and not in lieu of any other legal right or remedies available to Somfy. Somfy reserves the right to refer your account to a third party for collection in the event of an ongoing default.
8. Term.
This Agreement shall continue until terminated pursuant to Section 9 below.
9. Termination.
You may terminate your web services account and Your right to use the Services, at any time without limitation. The Services will be terminated within 24 hours after your request. Any unused Service Fee is non-refundable. Notwithstanding the foregoing, Somfy may immediately terminate this Agreement and Your account upon (a) Your breach of any provision of this Agreement or (b) any action by You that Somfy determines, in its sole judgment, to interfere with the operation of use of the Services. In the event of immediate termination, Somfy shall be entitled to keep any Service Fee for the period in which such termination occurred and You shall not be entitled to any refund thereof. Any provision of this Agreement which may reasonably interpreted or construed as surviving the termination of this Agreement, shall survive such termination of this Agreement for any reason. Upon termination, You shall uninstall the Service and forfeit all of Your access thereto.]
10. Operation and Internet Connection.
You are solely responsible for acquiring and maintaining all computer hardware and software and other equipment, and all communications and other services needed for access to and use of the Services. Somfy reserves the right at any time and for any reason to modify or discontinue any aspect or feature of the Services, including, but not limited to, the content and functionality of the Services. You are solely responsible for providing, maintaining, and troubleshooting any internet connection required to use the Services. Further, You agree that neither Somfy nor any Contributor is responsible in any way for Your inability to use the Services due to problems attributable to such connection. Further, You are responsible for any service charges for your Internet connection incurred as a result of using or accessing the Services and acknowledge and agree that You shall be solely responsible to resolve all disputes with any Internet service provider related to the same. Firewall protections for Your Internet connection is strongly advised to protect Your equipment against viruses and all other harms.
11. Third Party Content and Sites.
In accessing the Services, You may be taken to a third party site. If at any point, you leave the Site to a separate third party site, You acknowledge and agree that Somfy has no control over any such third party sites. Somfy is not responsible for the availability of any such third party sites. Somfy does not endorse and is not responsible for any content, advertising, products, or other materials on or available from third party sites . Somfy will not be responsible or be liable, directly or indirectly, for any damage or loss whatsoever caused or alleged to be caused by or in connection with Your use of any third party sites, including any content, information, goods, or services available on or through third party sites. You acknowledge and agree to take full responsibility to comply with any and all terms of use for any third party sites visited in conjunction with Your use of the Services.
12. Somfy Warranties.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE SERVICES ARE FURNISHED "AS IS" AND WITH ALL FAULTS. SOMFY MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. SOMFY AND ITS CONTRIBUTORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ADEQUATE SUPPORT FOR THE SERVICES WILL BE PROVIDED. SOMFY DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM INACCURACIES, ERRORS, BUGS, INTERRUPTIONS OR OTHER PROGRAM LIMITATIONS. NOR DOES SOMFY WARRANT THAT THE SITE, OR SERVER THAT MAKES IT AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU, AND YOU AGREE TO ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICES, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS. YOU SPECIFICALLY AGREE THAT SOMFY SHALL NOT BE RESPONSIBLE FOR THE CONTENT UPLOADED TO THE SITE BY YOU, THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSMISSION(S) ENTERED IN THROUGH THE SERVICES, ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSIONS, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTIOUS BEHAVIOR, NEGLIGENCE OR FOR ANY OTHER CAUSE OF ACTION. YOU ALSO AGREE THAT SOMFY IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.
13. Limitation of Liability.
You acknowledge that Somfy shall not be liable to You for any direct, indirect, incidental, special, consequential, or exemplary damages (including damages for lost profits, use of user information, loss of data, business interruption and the like), whether in an action based in contract or tort, arising out of or in connection with the use of the Services and its accompanying equipment by You or by anyone who uses the Services through Your account. Notwithstanding the foregoing, the total amount of our liability to You will be limited to the amount You paid for the use of the Services (including any applicable fees for equipment). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. Additionally, this provision is not intended to limit Somfy's liability in the event of Somfy's willful or intentional misconduct. Moreover, if Somfy mistakenly or wrongfully overcharges Your account, this section does not limit Somfy's obligation to refund such mistakenly or wrongfully overcharged amounts.
14. Indemnification.
You agree to indemnify and hold harmless Somfy and each and every Contributor and their respective affiliates, officers, directors, employees, consultants, agents, licensees and licensors from any claim, demand, or damages, including reasonable attorneys' fees, asserted by any third party due to, arising out of, or in any way related to, the use of the Services under Your account. As used in this Agreement "affiliate" means any entity which controls, is controlled by, or is under common control with the named entity.
15. Export.
You may not download, use, or otherwise export or re-export the Services or any equipment associated therewith except in full compliance with this Agreement and all applicable laws and regulations. No Services on this Site may be downloaded or exported (a) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By downloading or using the Services, You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
16. Governmental Users.
If You are an agency, department, or other entity of the United States Government (the "Government"), Your use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The Services are commercial services provided for non-commercial use. Use of the Services by any Government agency, department, or other entity of the Government is further restricted in accordance with the terms of this Agreement, or any modification hereto.
17. Notice.
Any notice required by this Agreement or given in connection with it shall be in writing and shall be effective (a) one (1) business day after it is sent to the appropriate party by personal delivery, by email or by recognized overnight courier service or (b) seven (7) business days after being sent via first class certified mail postage prepaid, return receipt requested to Your address as provided in the User Information submitted to Somfy and to Somfy Systems, Inc. at 121 Herrod Blvd., Dayton, New Jersey 08810 (Atten: Director of Marketing) (Email: HYPERLINK "mailto:somfypartners_us@somfy.com" somfypartners_us@somfy.com), or to such other address as a party may provide by written notice to the other party from time to time.
18. Governing Law.
This Agreement shall be governed by and construed under the laws of the State of New Jersey, without reference to principles of conflict of laws, and any action brought by the parties to enforce or interpret any provisions of this Agreement shall be brought exclusively in an appropriate state court in Middlesex County, or federal court in the closest district of New Jersey. The parties hereby consent to such jurisdiction and waive any objection to such venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
19. Miscellaneous.
This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges and supersedes all prior agreements, writings, commitments, and discussions. Failure by Somfy to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. No waiver of any term of this Agreement shall be valid unless in writing and acknowledged in writing by both parties. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party. This Agreement shall be construed within its fair meaning and no inference shall be drawn against the drafting party in interpreting this Agreement. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Except as otherwise stated in this Agreement, Somfy reserves the right to modify this Agreement or policies regarding the use of the Services at any time and to notify you of such modification by posting a notice of such modification to the Site at least 30 days prior to such modification taking effect, and by posting the modified Agreement to the Site. You are responsible for periodically reviewing this Agreement. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. YOU HEREBY RECOGNIZE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE AGREEMENT'S TERMS AND CONDITIONS. {26436705;5} {26436705;5} {26436705;5}