These general Terms and Conditions (“Terms and Conditions”) govern the relationships between Essency, a company registered in France under number RCS B 852 785 559 La Roche-sur-Yon, whose registered office is at 2 rue Johannes Gutenberg 85500 LES HERBIERS – FRANCE (“Essency”, “We”), and each user (potential, past or current) (“User”, “You”) of Essency software applications for smart control of Essency water heater.
Applications of Essency (“App”,“Apps”) include mobile applications and web-based applications. The mobile apps are made available through the various stores for mobile applications (Windows Store, Android Play Store, iOS App Store, etc.) and applications are available on the website of Essency.
General provisions
You should read these Terms and Conditions carefully before viewing or using the App. By viewing and/or using the App, You (a) acknowledge that You have read, understood and agree to these Terms and Conditions, and (b) warrant that You have the right, authority and capacity to agree to these Terms and Conditions on behalf of Yourself or the entity You represent.
If You do not agree to be bound by these Terms and Conditions, then please disconnect Your Device from Your account, and do not access, view, enter information into the App or otherwise use the App.
Essency reserves the right to modify these Terms and Conditions from time to time. Our updated terms will be displayed on the App and by continuing to use the App following such changes, You agree to be bound by any modification made by us. If at any time You do not wish to accept the Terms and Conditions, You must not continue to access or use the App.
Your use of the App means that You must also comply with our Privacy policy found at www.EssencyHome.com/Legal. Please read this notice carefully for details relating to the collection, use, retention, and limitations of disclosing of Your personal information.
Services
Scope of Services
The App provides insight into and improves the control and monitoring of Essency Water Heater. It offers multiple services (“Services”) which must only be used in connection with, and solely for the purpose of controlling and monitoring YOUR OWN Essency Water Heater(s) registered on Your user account (“Device”). This includes: Activating or de-activating modes or temporary functions, receiving alarm and other notifications, consulting consumption information and water heater status information.
At any time and without notice, Essency may make changes or discontinue any features or functionality available in the Services. Subject to these Terms and Conditions, Essency grants You a non-transferable, non-exclusive, and personal right (without the right to sublicense) to access and use the Services for their explicit intended and agreed use, and for Your own Device(s).
- To access the App and use the Services, You must at all times comply with all technical requirements and have compatible and properly configured system elements, as indicated by Essency: internet access with sufficient bandwidth, working home wi-fi network well-positioned to communicate with the Device, compatible phone, etc. The equipment, communication costs and fees in connection with the use of the Device and/or the Service, are Your sole responsibility. You acknowledge that these requirements may change, especially for technical reasons.
Updates
Essency may provide from time to time such bug fixes, patches, updates, upgrades, and other error corrections to the Services and/or software embedded in the Device (“Updates”). You acknowledge and accept that Updates’ installation may be necessary for the continued use of the Services.
Provided that they are in connection with safety reasons or technological developments, Updates may be automatically installed by Essency, without providing any prior additional notice or receiving any additional consent. You are consenting to these automatic Updates. If You refuse to receive such Updates, You must immediately terminate Your User Account and stop using the App.
Limitations – Prohibited uses
The Services, including notifications and remote access, are not intended to be reliable or available 100% of the time. They may experience occasional disruptions and failures for various reasons, including beyond Essency’s control, such as issues with wi-fi and/or internet service providers. Essency is not liable for any damages caused by the failure or delay of the Services.
The Services are intended to be used for control of the Device but do not provide real-time critical information. Notifications regarding the Device are provided for information purposes only, and Essency does not guarantee that notifications are sent at any given time. You acknowledge and agree that (a) the Device and Services are not a monitored emergency notification system, and that (b) You will not rely on the Services for any critical situation or emergency. It is Your sole responsibility to respond to such situation appropriately and contact the emergency authorities.
The information regarding the Device (“Device Information”) accessible in the App is provided “as is” and “as available”. Essency does not guarantee that it is complete, up to date or correct. Essency does not guarantee any level of energy savings or other monetary benefits from the use of the Device and/or the Services.
- You must not use the App for any purpose that is unlawful or prohibited by these Terms and Conditions. In particular, You must NOT:
- conduct Yourself in an offensive, illegal, immoral, or offensive manner whilst using our App. You must not use our App in any way that may impair or damage our name, reputation, or third party’s rights;
- interfere (or attempt to) with the functionality or proper working of the App and/or the Services, by any means including uploading or otherwise using spyware, malware, virus, worm, or other malicious or harmful code;
- remove, disable, or otherwise interfere (or attempt to) with any security-related features of the Services and/or the Device;
- gain (or attempt to) unauthorized access to the Services, the Device, or any other accounts, systems, or networks connected to the Services, or information through any means not intentionally made available through the Services;
- alter, tamper with, or otherwise modify (or attempt to) the Services and/or the Device without Essency’s prior written agreement;
- use (or attempt to) any robot, automated means, or any third-party equipment to access the Services without Essency’s prior written agreement.
Registration – Account management
To access and use the App, We require You to register with us using the process defined on our App, which will generate a personal user account (“User Account”, “Account”, a unique username with associated information).
You must ensure that the information You provide, via the App or any other communication, including email, is accurate, current, and complete at all times. You must promptly inform us of any changes to this information (this can usually be done directly in the “Manage Your account” section). All personal information is governed by our Privacy Policy (https://essencyhome.com/legal). You can link multiple Devices to Your User Account by following the process defined on our App.
User Accounts are non-transferable, and You cannot assign, transfer, trade, or sell Your Account with Essency to any other party.
Password & Security
When You register on the App, You will be asked to create a password associated with Your User Account. It is Your responsibility to choose a secure password and, always keep it safe and confidential. You are solely responsible for all actions and activities that occur under Your Account.
You are solely responsible for maintaining Your account and password’s confidentiality and for restricting access to Your computer, tablet, or compatible phone, and You agree to accept responsibility for all activities that occur under Your account or password.
You must notify us immediately if You suspect or know that anyone has gained or may gain unauthorized access to Your User Account. For security purposes, We may ask for confirmation of Your details if You contact us to discuss Your account.
Proprietary rights
The Apps, the Services, and all intellectual property rights in it of any kind, registered or unregistered, including but not limited to, any content, text, illustration, information, design, trade names, logos, graphics, data, computer codes, software, are owned by Essency, unless licensed property (collectively “Essency Content”). Essency Content is protected by copyright laws and other relevant intellectual property and proprietary rights. No license to or right in any such Essency Content and other proprietary rights of Essency is granted to or conferred upon You.
You must not copy, download, print, publish, modify, edit, create derivative works from, distribute, reproduce in any means, or otherwise make unauthorized use of Essency Content.
Any data generated by Your use of the Services, the Device, and/or the App (“Usage Data”) are owned by Essency. To the extent required by applicable law, You hereby assign to Essency all right, title and interest in and to such Usage Data. You acknowledge that Essency may freely and without compensation to You, use, reproduce, modify, distribute and otherwise exploit, in any manner whatsoever, such Usage Data. Notwithstanding the foregoing, Usage Data containing personal data, shall be used by Essency strictly in accordance with the Privacy Policy.
Links
The Apps may include links to external websites. Any such hyperlinks or references are provided for Your convenience only. Essency has no control over third party websites and accepts no legal responsibility for any content, material or information contained in them. The display of any hyperlink and reference to any third-party website does not imply Essency’s endorsement of the websites or associated companies, their products, or services.
Limited Warranty – Disclaimer – Liability
The App, the Services, and any software, information, content, or applications made available in conjunction with or through the App, are provided “AS IS”. Essency, its affiliates, officers, employees, and partners, make no representations or warranties of any kind or nature whatsoever, either express or implied, including without limitation, (i) merchantability, (ii) fitness for a particular purpose, (iii) non-infringement of proprietary rights, and (iv) regarding the use and the results obtained through the use of the App and the Services, in terms of accuracy, reliability, or otherwise.
Moreover, Essency, its affiliates, officers, employees and partners, do not represent or warrant that the Services, the App, and their features will be uninterrupted or error-free, that defects will be corrected, or that they are free of viruses or other harmful components. You acknowledge that data transmissions over the Internet, including Usage Data, are inherently subject to error and interception. Essency will not be responsible for such errors or interceptions.
The App, including its functionalities, updates, and its usage, shall never be considered as giving additional or supplementary guarantees for the Device. The exclusive warranties of the Device remain the limited warranties provided in “ESSENCY RESIDENTIAL WATER HEATER LIMITED WARRANTY POLICY”. 7.2 Essency, its affiliates, officers, employees, and partners, shall not be liable for any indirect, consequential, incidental, special, punitive, or similar damages including without limitation, damages for loss of use, inconvenience, or loss of time. In no event, shall Essency, its affiliates, officers, employees, and partners’ total liability to You for all damages, losses, and causes of action, whether in contract, tort, or otherwise, exceed the amount paid by You for purchasing the Device registered on Your User Account.
- Some states do not allow limitations on warranties or for the exclusion of certain damages, so the above limitations and exclusions may not apply to You. You may have additional rights which vary upon location.
Indemnification
You agree, at Your expense, to indemnify, defend, and hold harmless Essency, its affiliates, officers, employees, and partners, from and against any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred, in connection with or arising from any claim, demand, suit, action, or proceeding arising out of Your breach of these Terms and Conditions or in connection with Your misuse of the App, the Services, and/or the Device.
Termination
In its sole discretion and for any reason, each party may terminate Your User Account and/or Your access and use of the Services, with or without notice.
Essency may also, in its sole discretion, with or without notice, (a) discontinue providing access to the Services, in whole or in part, (b) suspend or terminate Your User Account if You do not comply with any part of these Terms and Conditions, any applicable law, rules or regulations, including regarding privacy, data or intellectual property rights, without prejudice to any other rights or remedies.
Governing law – Jurisdiction and Venue
These Terms and Conditions are governed by and will be construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. You and Essency hereby consent and agree that state courts located in Harris County, Texas and the United States District Court for the Southern District of Texas (Houston Division) each shall have personal jurisdiction and proper venue with respect to any dispute between you and Essency arising in connection with the Terms and Conditions. In any such dispute, You and Essency agree not to raise, and do hereby expressly waive, any objection or defense to such jurisdiction as an inconvenient forum.
Miscellaneous
- Electronic Communication. You consent to receive communications from Essency electronically. All information, disclosures, agreements and notices We communicate to You via email or via the App are considered in writing and satisfy any legal requirement of such written communication.
- Waiver – Severability. No failure or delay by Essency to exercise any right or provision under these Terms and Conditions or by law shall constitute a waiver of that or any other right, nor shall it preclude or restrict the further exercise of that or any other right, in whole or in part. If any provision of these Terms and Conditions is unenforceable, illegal, or void, it shall not affect the other provisions hereof and the rest of these Terms and Conditions shall remain in force.
- Agreement to Mediate. You and Essency agree to first attempt a mediation of any dispute covered by this Agreement. Mediation is a non-binding process allowing the parties to resolve claims without extensive cost, time and emotion. This mediation shall be conducted pursuant to the Rules and Procedures of the American Arbitration Association for the resolution of contractual disputes, or as otherwise stipulated by the parties. The parties agree to make a good faith effort at mediating any dispute prior to filing a claim for arbitration.
- Waiver of Jury Trial. YOU AND ESSENCY BOTH WAIVE A TRIAL BY JURY OF ANY OR ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS, UNDER OR CONNECTED WITH THESE TERMS AND CONDITIONS, OR ANY OF ITS PROVISIONS.