Last Revised: July 8, 2022
This End-User License Agreement (“EULA”) applies to
(i) the software provided or embedded on an Amana-branded smart thermostat, and
(ii) information or services provided by, or the data or information collected or generated by, the software provided or embedded on the Amana-branded smart thermostat
—with items (i) and (ii) being collectively referred to as “Amana-branded Software.”
This EULA—which governs yo
T use of the Amana-branded Software—is a binding legal agreement between you and any entity you represent (collectively “you” or “your” or “yourself”), on the one hand, and Daikin Comfort Technologies North America, Inc., and its subsidiaries (collectively “Daikin” or “us” or “we” or “our”), on the other hand.
But this EULA does not govern your purchase of an Amana-branded smart-thermostat hardware (“Amana-branded Thermostat”) that employs the Amana-branded Software and any limited warranties that may be provided with that Amana-branded Thermostat. (The Amana-branded Software is excluded from the definition of Amana-branded Thermostat.) Limited warranties for various Amana-branded Thermostats and other Amana-branded equipment are available here at https://www.amana-hac.com/warranty-lookup. Nor does this EULA govern your use of software that is not embedded or provided on the Amana-branded Thermostats.
Some Amana-branded Software may require you to enter into a separate written agreement with us. To the extent there is a conflict, terms of the separate written agreement will control over this EULA—so long as such separate written agreement expressly notes that it is controlling over this EULA.
BY ACCESSING OR USING THE AMANA-BRANDED SOFTWARE, YOU AGREE TO BE BOUND BY THIS EULA—WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS EULA, YOU MUST NOT ACCESS OR USE THE AMANA-BRANDED SOFTWARE OR THE ASSOCIATED AMANA-BRANDED THERMOSTAT—AND YOU MAY CHOOSE TO I) PROMPTLY RETURN THE AMANA-BRANDED THERMOSTAT TO THE PERSON YOU PURCHASED IT FROM FOR A REFUND OF THE PURCHASE PRICE OR II) PROMPTLY CONTACT DAIKIN AT AMANA.SUPPORT@DAIKINCOMFORT.COM OR ALTERNATE INSTRUCTIONS ON HOW TO RETURN THE AMANA-BRANDED THERMOSTAT.
AND BY AGREEING TO THIS EULA, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND YOURSELF AND ANY ENTITY THAT YOU MAY REPRESENT.
1. Accessing and Using the Amana-branded Software
1.1 License, Ownership
While you may own an Amana-branded Thermostat, you do not own any of the Amana-branded Software on that Amana-branded Thermostat. Subject to this EULA and if you comply with it, we grant you a personal, revocable, non-exclusive, non-transferable (and non-sublicensable) license to access and use the Amana-branded Software solely in object code form and solely on one instance of your Amana-branded Thermostat.
Except for the limited license rights expressly provided above, you obtain no other rights (express or implied) in or to the Amana-branded Software or to any intellectually property held by us, any of our corporate affiliates (“Daikin Group”), or our licensors. The Amana-branded Software, and any intellectual property rights therein, are and will remain the exclusive property of Daikin or its licensors.
You agree and understand that if you sell, transfer, or otherwise dispose of the Amana-branded Thermostat associated with the Amana-branded Software, your license to the Amana-branded Software does not extend to the party that obtained that Amana-branded Thermostat. That party will need to independently get and agree to the terms of a license.
1.2 Prohibitions
You will access and use the Amana-branded Software solely to the extent provided by the limited license to you in Section 1.1 above. You will not use or access the Amana-branded Software for any other purpose, including any unlawful or malicious purpose. For example, you will not
Last Revised: July 8, 2022
• attempt to gain unauthorized access to the Amana-branded Software,
• attempt to remove the Amana-branded Software from the Amana-branded Thermostat it is embedded on,
• use the Amana-branded Software on any other device other than that Amana-branded Thermostat we embedded the Amana-branded Software on,
• use the Amana-branded Software to submit false or misleading information to us (including representing that you are somebody that you are not or have authority that you do not),
• use automated systems to monitor or copy content from the Amana-branded Software,
• interfere with the normal operations of the Amana-branded Software,
• use the Amana-branded Software to upload infringing, disparaging, malicious, or inappropriate content,
• use the Amana-branded Software to upload, transmit, or distribute any computer virus, malware, spyware, or any other malicious or inappropriate computer code, or
• use the Amana-branded Software to consume a disproportionate or unreasonable amount of Daikin’s resources.
1.3 Limitations on Use
The Amana-branded Software supplies tools to help you understand and manage your indoor environment and to help you control and understand various HVAC products in an approximate, noncritical, and non-sensitive manner. And you acknowledge there are limitations to what the Amana-branded Software can do and limitations to the information and services it provides.
ALL INFORMATION PROVIDED BY THE AMANA-BRANDED SOFTWARE IS MERELY INFORMATIONAL, IS NOT GUARANTEED, AND IS NOT TO BE RELIED UPON FOR MAKING ANY DECISIONS OR FOR ANY OTHER PURPOSE. Indeed, Daikin does not guarantee that the Amana-branded Software can be relied upon for any particular purpose.
You acknowledge and agree that Daikin (or any member of the Daikin Group) is not liable to you for any reliance or actions taken by you or for any information provided or failed to be provided by the Amana-branded Software; nor is Daikin (or any member of the Daikin Group) liable to you for any damages caused by the failure, delay, or unavailability of the Amana-branded Software.
YOU AGREE THAT YOU WILL NOT RELY ON THE AMANA-BRANDED SOFTWARE FOR ANY PURPOSES RELATED TO SAFETY OR HEALTH, OR FOR ANY CRITICAL OR SENSITIVE FUNCTIONS OR PURPOSES. ALL NOTIFICATIONS PROVIDED BY THE AMANA-BRANDED SOFTWARE ARE SOLELY FOR INFORMATIONAL PURPOSES AND ARE NOT TO BE RELIED ON FOR CRITICAL NOTIFICATIONS OR FOR MAKING IMPORTANT DECISIONS ABOUT YOUR HEALTH, SAFETY, OR WELL-BEING.
FOR EXAMPLE, YOU UNDERSTAND AND AGREE THAT THE AMANA-BRANDED SOFTWARE AND THE AMANA-BRANDED THERMOSTAT
(i) ARE NOT SMOKE DETECTORS, CARBON-MONOXIDE DETECTORS, OR ANY OTHER TYPE OF SAFETY OR EMERGENCY DEVICE AND, AS SUCH, DO NOT SERVE AS REPLACEMENTS OR SUBSTITUTES FOR ANY SUCH DEVICES, AND
(ii) ARE NOT EMERGENCY-MONITORING OR -NOTIFICATION DEVICES AND, AS SUCH, WILL NOT CONTACT OR DISPATCH ANY EMERGENCY SERVICES, MAINTENANCE OR REPAIR SERVICES, OR AUTHORITIES.
YOU AGREE THAT ANY AIR-QUALITY INFORMATION PROVIDED BY THE AMANA-BRANDED SOFTWARE IS MERELY INFORMATIONAL, IS NOT GUARANTEED, AND IS NOT TO BE RELIED UPON IN MAKING ANY DECISIONS REGARDING YOUR HEALTH, SAFETY, WELL-BEING, OR THE SUITABILITY OF YOUR ENVIRONMENT. THE AMANA-BRANDED SOFTWARE SHOULD NOT BE USED IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS, AND SHOULD NOT BE USED IN THE RENDERING OF OR AS REPLACEMENT FOR MEDICAL ADVICE OR AID FROM A QUALIFIED PROFESSIONAL.
YOU ALSO AGREE THAT ANY INFORMATION ABOUT THE INDOOR-AIR QUALITY OF YOUR ENVIRONMENT (E.G., PARTICLE COUNT, MEASURED VOC) MAY BE AFFECTED BY ANY NUMBER OF FACTORS THAT DAIKIN CANNOT ACCURATELY ASSESS. ACCORDINGLY, THE AMANA-BRANDED SOFTWARE DOES NOT GUARANTEE THAT THE PROVIDED INFORMATION CAN BE RELIED UPON FOR HEALTH BENEFITS OR TO DETERMINE IF YOUR ENVIRONMENT IS SAFE OR HARMFUL. FOR EXAMPLE, ANY INDICATION BY THE AMANA-BRANDED SOFTWARE THAT YOUR AIR-QUALITY OR ENVIRONMENT IS “GOOD” OR “MODERATE” OR “ACTION NEEDED” OR “ACTION RECOMMENDED” IS MERELY PROVIDED TO GIVE YOU TOOLS TO HELP YOU BETTER UNDERSTAND YOUR ENVIRONMENT—BUT IS NOT PROVIDED TO BE RELIED UPON FOR ANY PARTICULAR PURPOSE. YOU SHOULD SEEK THE ADVICE OF A QUALIFIED PROFESSIONAL IN DETERMINING AND ASSESSING YOUR HEALTH NEEDS OR THE CONDITION OF YOUR ENVIRONMENT.
YOU FURTHER AGREE THAT ANY INFORMATION, SUGGESTIONS, OR PROGRAMING PROVIDED BY THE AMANA-BRANDED SOFTWARE REGARDING ENERGY SAVINGS, POTENTIAL MALFUNCTIONS, SUGGESTED MAINTENANCE, OR OTHER BENEFITS OR SUGGESTIONS ARE MERELY INFORMATIONAL, ARE NOT GUARANTEED, AND ARE NOT TO BE RELIED ON FOR CRITICAL NOTIFICATIONS OR FOR MAKING ANY DECISIONS.
For example, the Amana-branded Software may suggest operation in an “away” mode or may suggest alternative operation of your HVAC system. As another example, the Amana-branded Software may suggest that a particular component of your HVAC system is reporting an “alert” or may provide “reminders” regarding various components. But energy usage, operation, maintenance of your HVAC system, and costs therefor, are affected by many factors that Daikin cannot accurately assess. Accordingly, the Amana-branded Software does not guarantee that the provided information can be relied upon for any particular savings, action or inaction, or efficient operation. Any such information is merely provided to give you tools to help you better understand your HVAC and its operation—but is not provided to be relied upon for any particular purpose.
YOU SHOULD SEEK THE ADVICE OF A QUALIFIED PROFESSIONALS IN DETERMINING AND ASSESSING THE CONDITION OF YOUR HVAC SYSTEM AND FOR PERFORMANCE OF MAINTENANCE ON YOUR HVAC SYSTEM. IT IS ENTIRELY YOUR RESPONSIBILITY TO OBTAIN AND COORDINATE THAT PROFESSIONAL.
1.4 Resources
To access or use aspects of the Amana-branded Software, you may need resources—e.g., internet connection, cellular connection, operating platforms, electricity, or networking and computer hardware and software—provided by you and by third parties.
For example, aspects of the Amana-branded Software will not work or cannot be accessed without your provision of (i) a wireless or, in some cases a wired, network that provides reliable communication for Amana-branded Software with the internet, (ii) certain hardware (e.g., computer, mobile device, laptop) that enables communication with or to the Amana-branded Software or the Amana-branded Thermostat through your network and/or the internet, or (iii) resources that are reasonably expected to be required (e.g., electricity).
You are entirely responsible for obtaining, operating, maintaining, and paying for such resources. And you agree that we (or any member of the Daikin Group) are not liable to you for such third-party resources, including any costs related to them, their availability, or the security of data or other information transmitted to or by them; nor are we (or any other member of the Daikin Group) responsible or liable to you for obtaining, configuring, or providing such resources.
1.5 Use in Your Location
The Amana-branded Software and Amana-branded Thermostat are not available in all locations and, as such, may not be available to you or may be prohibited by law.
If you choose to access or use the Amana-branded Software and its associated Amana-branded Thermostat outside the United States and Canada, you do so at your own risk and are solely responsible for complying with all applicable laws in your location. You agree that Daikin (or any member of the Daikin Group) will not be responsible, or liable to you, for your use of the Amana-branded Software outside of the U.S. or Canada or in a location where the Amana-branded Software is prohibited by law.
1.6 Feedback
We appreciate that many of you are innovative and may have ideas to improve Amana-branded Software, Amana-branded Thermostats, or our other products and services. But, as a leader in the industry, we are working on numerous research and development projects. Accordingly, unless you have a separate written agreement with us to the contrary,
DO NOT SEND US IDEAS FOR PRODUCTS OR SERVICES before first contacting Daikin’s Legal department (IP@DaikinComfort.com) for express instructions on how to do so. If you choose to disregard these instructions, and you send us any comments, suggestions, improvements, inventions (whether patentable or not), ideas, or enhancements (collectively “Feedback”), you agree that such Feedback was provided by you voluntarily and without an obligation of confidentiality and that we shall be free to use the Feedback without any compensation to you. And you hereby grant to Daikin Comfort Technologies Manufacturing, L.P. a world-wide, royalty-free, irrevocable, perpetual, fully transferable (and sublicensable) non-exclusive license to use, incorporate, sell, manufacture, and import products and processes embodying the Feedback and to display, reproduce, and make derivatives works of any Feedback.
1.7 Communications with You
Daikin may need to communicate with you regarding various aspects of the Amana-branded Software, this EULA, or the Amana-branded Thermostat, or to inform you about Daikin or Amana-branded products and services. As examples, you agree that Daikin may use the Amana-branded Thermostat to communicate with you, or may use an email or physical address associated with any account you may have with us to accomplish any of the foregoing.
2. Disclaimers, Limitation of Liability, and Indemnity
PLEASE READ THIS SECTION 2 CAREFULLY, AS IT ADDRESSES DISCLAIMERS, LIMITATIONS OF LIABILITY, AND INDEMNITY.
2.1 Disclaimers
You access and use the Amana-branded Software at your own risk, and you agree we (or any member of the Daikin Group) are not liable in any way for your access or use of the Amana-branded Software.
TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, ALL OF THE AMANA-BRANDED SOFTWARE IS PROVIDED AS-IS, AS-AVAILABLE, WITH ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND—EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE—INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, OF ACCURACY, OR OF NON-INFRINGEMENT. INDEED, WE SPECIFICALLY DISCLAIM ANY WARRANTIES AND REPRESENTATIONS OF EVERY KIND.
That means that we, as examples and not limitations, do not warrant (and specifically disclaim) that the Amana-branded Software or your use of the Amana-branded Software will
Last Revised: July 8, 2022
(i) provide any specific results,
(ii) provide any specific notification that is entirely reliable or timely,
(iii) provide or continue to have any specific features or functionality (including our removal or modification of features or functions that have been provided in the past),
(iv) be free from any defects, viruses (or other malicious code), corruption, hacking, content losses, errors, or omissions, or
(v) be secure.
Any reliance you place on or from the Amana-branded Software is strictly at your own risk. And we (or any other member of the Daikin Group) will not be liable to you and disclaim liability arising from or based on your use of the Amana-branded Software, including any damages or loss to your home (including the HVAC system and its supporting infrastructure), computer, mobile device, or network.
LIMITATIONS ON DISCLAIMERS: SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR OTHER DISCLAIMERS OF WARRANTY. TO THE EXTENT SUCH LAWS APPLY TO YOU, THE PROVIDED EXCLUSIONS OF IMPLIED WARRANTIES OR OTHER DISCLAIMERS OF WARRANTY IN THIS EULA WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Physical Product Hardware Warranties: Nothing in this EULA is intended to affect any individual product limited warranties for hardware expressly provided for a particular physical Amana-branded Thermostat.
2.2 Limitations of Liability
NOTHING IN THIS EULA, INCLUDING THIS LIMITATION OF LIABILITY SECTION, LIMITS OR EXCLUDES (OR WILL BE CONSTRUED OR INTERPRETED TO EXCLUDE OR LIMIT) ANY LIABILITY THAT CANNOT BE SO LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
IN NO CASE WILL WE (INCLUDING DAIKIN’S OR A MEMBER OF DAIKIN GROUP’S OFFICERS, AGENTS, DIRECTORS, AFFILIATES, SUPPLIERS, CONTRACTORS, EMPLOYEES, AND LICENSORS) BE LIABLE TO YOU FOR—WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (NEGLIGENCE OF ANY KIND OR DEGREE), PRODUCTS OR STRICT LIABILITY, OR ANY OTHER FORM OF ACTION—ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR ACCESS OR USE OF ANY OF THE AMANA-BRANDED SOFTWARE, EVEN IF DAIKIN KNEW, SHOULD HAVE KNOWN, OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL DAIKIN’S (AND THE DAIKIN GROUP’S) TOTAL LIABILITY TO YOU—UNDER ANY THEORY OF ANY KIND, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, WARRANTY, TORT (NEGLIGENCE OF ANY KIND OR DEGREE), STRICT LIABILITY, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF LIFE OR ANY OTHER DAMAGES OR BASES—BASED ON YOUR USE OR ACCESS OF THE AMANA-BRANDED SOFTWARE EXCEED US$150.00.
LIMITATION OF LIABILITY: SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. FOR EXAMPLE, SOME JURISDICTIONS DO NOT ALLOW FOR LIMITATIONS ON LIABILITY FOR PERSONAL INJURY CAUSED SOLELY BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT SUCH LAWS APPLY TO YOU, THE PROVIDED LIMITATIONS OF LIABILITY IN THIS EULA WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
SECTION 2 WILL SURVIVE AND BE GIVEN FULL EFFECT EVEN IF IT DOES NOT FULLY COMPENSATE YOU FOR YOUR LOSSES, FAILS FOR ITS ESSENTIAL PURPOSE, OR IS OTHERWISE DEEMED UNENFORCEABLE. TO THE EXTENT ANY PORTION OF THIS SECTION 2 IS HELD TO BE INVALID, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
2.3 Indemnity
YOU AGREE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO INDEMNIFY AND HOLD HARMLESS US (INCLUDING DAIKIN’S OFFICERS, AGENTS, DIRECTORS, AFFILIATES, SUPPLIERS, DEALERS, DISTRIBUTORS, CONTRACTORS, EMPLOYEES, AND LICENSORS) AGAINST ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING OUR REASONABLE ATTORNEYS’ FEES AND COSTS) FOR ANY THIRD-PARTY CLAIMS—WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (NEGLIGENCE OF ANY KIND OR DEGREE), PRODUCTS OR STRICT LIABILITY, OR ANY OTHER FORM OF ACTION—ARISING OUT OF OR BASED ON YOUR ACCESS TO OR USE OF THE AMANA-BRANDED SOFTWARE OR YOUR BREACH OF THIS EULA.
BUT SECTION 2.3 WILL NOT BE INTERPRETED OR CONSTRUED TO REQUIRE ANY INDEMNIFICATION BY YOU THAT WOULD MAKE THIS SECTION 2.3, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. AND YOUR INDEMNIFICATION OBLIGATION WILL NOT APPLY TO ANY WILLFUL OR RECKLESS MISCONDUCT OR GROSS NEGLIGENCE BY US IN THOSE STATES OR JURISDICTIONS THAT DO NOT PERMIT INDEMNIFICATION FOR WILLFUL OR RECKLESS MISCONDUCT OR GROSS NEGLIGENCE.
3. Disputes
PLEASE REVIEW THIS SECTION 3 CAREFULLY, AS IT ADDRESSES BINDING ARBITRATION, CLASS-ACTION WAIVERS, AND WAIVERS OF JURY TRIALS.
Our hope is that there is never a dispute between you and us. But if there is, this section describes aspects of how that dispute will be resolved.
3.1 Arbitration
ANY DISPUTE OR CLAIM RELATED TO THIS EULA OR TO YOUR ACCESS OR USE OF THE AMANA-BRANDED SOFTWARE MUST BE SUBMITTED TO BINDING ARBITRATION—and not to a court—unless that dispute or claim (i) is submitted to a small-claims court, (ii) only seeks temporary injunctive relief (e.g., a restraining order or preliminary injunction), or (iii) relates to a claim of patent or trade secret infringement or misuse.
The arbitration—which shall be binding and confidential—shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, including the rules for Emergency Measures of Protection and Interim Measures and the AAA’s Consumer Arbitration Rules. (Information about the AAA and its rules can be found at www.adr.org.) The judgment of the arbitrator may be entered by any court having jurisdiction. And both you and Daikin agree to the jurisdiction of the federal and state courts located in Harris County (Texas) for the purposes of entering such judgement.
At least 30 days prior to commencing an arbitration, you must send to us—or us to you—written notice of the intent to commence an arbitration. Your notice to us will provide at least the following information: (i) your name and physical address; (ii) an email address that is monitored by you and that we can use to communicate with you; (iii) a description of the dispute and the basis for your claim; and (iv) a description of the relief you are requesting.
Notice to Daikin must be sent to:
Daikin Texas Technology Park
Attn: Legal
19001 Kermier Rd.
Waller, TX 77484.
Payment of the AAA’s fees (e.g., filing fees, arbitrator fees) related to the arbitration will be governed by the AAA’s rules. However, if the value of your claim totals less than US$5,000,
(i) we will, after the conclusion of the arbitration, pay for your share of the AAA’s fees for arbitration, unless the arbitrator determines your claims and/or the relief request were frivolous, so long as you provided us notice of your intent to arbitrate at least 60 days prior to your commencing arbitration; and
(ii) you may choose to have the arbitration conducted (a) solely based written documents, (b) telephonically, or (c) in-person at an agreed location in the U.S. state or Canadian province where you purchased the Amana-branded Thermostat(s) underlying the dispute.
This EULA relates to interstate commerce and are governed by the Federal Arbitration Act, which governs the interpretation and enforcement of the arbitration provisions herein.
3.2 Class Action Waiver
Any dispute or claim related to this EULA or to your access or use of the Amana-branded Software will not be joined with any claim of another person or entity, whether through participation in a class-action proceeding or otherwise. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO PROCEEDING BROUGHT UNDER THIS EULA OR IN RELATION TO THE ACCESS OR USE OF THE AMANA-BRANDED SOFTWARE SHALL BE JOINED TO ANOTHER PROCEEDING INVOLVING ANY OTHER PARTY SUBJECT TO THIS EULA, WHETHER THROUGH CLASS-ACTION PROCEEDINGS OR OTHERWISE.
3.3 Waiver of Jury Trials, Jurisdiction
If for some reason a dispute or claim related to this EULA or to your access or use of the Amana-branded Software proceeds before a court rather than arbitration, you agree, and Daikin agrees, to waive any right to a jury trial. And you agree that all such disputes and claims that are before a court will be exclusively brought in the state or federal courts located in Harris County, Texas—with you and us agreeing to the personal jurisdiction of such state and federal courts and to waive any claims regarding the lack of convenience of such courts.
3.4 Opting Out
If you do not wish to be bound by the arbitration (Section 3.1) and class-action (Section 3.2) sections of this EULA, then you must provide Daikin written notification of your decision within 30 days of your first acceptance of these this EULA. Your written notification must be sent to Daikin at:
Daikin Texas Technology Park
Attn: Legal
19001 Kermier Rd.
Waller, TX 77484.
4. The Amana-branded Software
4.1 Updates
We may, from time to time, need to make or provide updates or modifications (“Updates”) to or for the Amana-branded Software. If your device is connected to an external network (e.g., cellular network, the internet), you agree that we may provide Updates automatically and without notice to you; your agreement to this EULA is your consent. Furthermore, you agree that if we provide any Updates to you, you will promptly install such Updates at no cost to us. You agree installation of an update may be required for your continued use of an Amana-branded Thermostat.
You also agree that through an Update we may add new features or functionality, or removal or modify features or functions that have been provided in the past.
All Updates are governed by this EULA.
4.2 Open Source
The Amana-branded Software may include software that is often described as “Open-Source Software” (“OSS”). Nothing in this EULA will be construed to affect any rights you may have in the OSS pursuant to the license the OSS is subject to. To the extent the Amana-branded Software employs OSS, a listing of the OSS can be found at here at www.amana-hac.com/legal.
5. Third-Party Content, Links, and Services
The Amana-branded Software may allow you to access products, websites, applications, content or services from third parties or you may choose to use third-party services or products in conjunction with the Amana-branded Thermostats or Amana-branded Software (collectively “Third-Party Services”). As one example of a Third-Party Service, you may hire a dealer or distributor of Amana-branded Thermostats to install, configure, maintain, or operate the Amana-branded Thermostats.
This EULA—except to the extent expressly provided otherwise—does not address the policies or practices of these third parties.
These Third-Party Services selected by you are the sole responsibility of such independent third parties, and your use thereof is solely at your own risk. We (or any member of the Daikin Group) are not responsible for, cannot guarantee, and will not be liable to you for the content, accuracy, availability, reliability, security of any such Third-Party Services. Daikin disclaims all liability arising from or related to your use of Third-Party Services.
Moreover, to the extent you use Third-Party Services in relation to the Amana-branded Thermostats or Amana-branded Software, you agree that we may exchange relevant information (including personal information) with the third party providing the Third-Party Services.
6. Privacy
Your privacy is important to us. Our Privacy Policy is here. Please review it to better understand how Daikin collects and uses personal information about you.
In particular, consistent with our Privacy Policy, by using the Amana-branded Software and coupling the Amana-branded Thermostat to the internet, you agree that Daikin may collect technical information both internal and external to the Amana-branded Thermostat, and we may collect information in an automated manner, manually, or both. Collecting information about you, your environment, and your interactions with the environment helps the Amana-branded Software automatically adjust, for example, the temperature settings of your indoor space to a setting that may be more comfortable to you. And we may make these adjustments or suggestions by making inferences about your activity based on information from the Amana-branded Thermostat and/or from other information we may have.
For example, we may collect information about
Last Revised: July 8, 2022
i. the Amana-branded Thermostat’s or Amana-branded Software’s setup, network connections, location, performance, resource consumption, and operation,
ii. adjustments made to the Amana-branded Thermostat or Amana-branded Software,
iii. the Amana-branded Thermostat’s or Amana-branded Software’s usage information,
iv. any faults or errors detected by the Amana-branded Thermostat or Amana-branded Software, and
v. technical information related to the Amana-branded Thermostat or Amana-branded Software.
In addition, we may collect information about the environment surrounding the Amana-branded Thermostat using sensors in or connected to the Amana-branded Thermostat. For example, we may collect information about
Last Revised: July 8, 2022
i. the occupancy, activity, temperature, air quality, humidity, illuminance, decibel levels, or other parameters of the environment the Amana-branded Thermostat is used in or with, and
ii. you and your activity within the environment.
7. Termination
This EULA and the licenses granted under it are effective upon your first use of the Amana-branded Software and continues for as long as you use the Amana-branded Software on your Amana-branded Thermostat pursuant to this EULA—except that the term for any license related to the use of “Cloud Services” (see Section 8) will be as defined in Section 8 of this EULA. However, without limiting any rights Daikin may have elsewhere in this EULA, you agree that Daikin may, at any time terminate this EULA if Daikin believes, in good faith, that you have violated this EULA. And this EULA will automatically terminate if you transfer or otherwise dispose of the Amana-branded Thermostat.
Sections 1.3 to 1.7 and Sections 2 to 10 (except 8.1) will survive expiration or termination of this EULA.
8. Cloud Services
In certain instances, the Amana-branded Software may contain functionally that—when activated by a third-party provider of Amana-brand equipment authorized by Daikin (“Authorized Provider”) or by Daikin—enables you to connect with and transmit data to and from an Authorized Provider via the Amana-branded Thermostat (“Cloud Services”).
For example, using the appropriate menus in the Amana-branded Software, activated Cloud Services allows you to grant an Authorized Provider
• “no access” by declining an invite to use the Cloud Services. If you wish to withdraw access that was previously granted to an Authorized Provider, please email Daikin at Amana.support@daikincomfort.com;
• permission to remotely “monitor” the Amana-branded Software, i.e., see information about the Amana-branded Thermostat, your HVAC system connected to the Amana-branded Thermostat, and other information collected or generated by the Amana-branded Thermostat and Amana-branded Software; or
• “adjust settings” of the Amana-branded Software, i.e., perform all of the functions provided by the “monitor” setting plus the ability to remotely manipulate settings of or the configuration of the Amana-branded Thermostat, your HVAC system connected to the Amana-branded Thermostat, and the Amana-branded Software, including heating or cooling mode settings, set-point temperature, operating and testing configurations, and system operation.
To use the Cloud Services, you must download the Amana Home mobile app, which is available on the Apple App Store and Google Play Store. And you must create an account using the mobile app. And to enable the Cloud Services to communicate with a particular Authorized Provider, you must authorize such connection through your account on the Amana Home mobile app. The terms and conditions for the Amana Home mobile app and any account accessed using such app are available here at www.amana-hac.com/legal.
The licensed Cloud Services are subject to the terms and conditions of this EULA, and are also subject to the specific license conditions of this Section 8. To the extent there is a conflict, the provisions of this Section 8 control with respect to the Cloud Services.
8.1 License to the Cloud Service Features of the Amana-branded Software
You do not own any of the Cloud Services aspects of the Amana-branded Software on an Amana-branded Thermostat; rather, it is licensed to you—and you must obtain activation of the licensed Cloud Services from an Authorized Provider or Daikin. To activate a license to the Cloud Services, you must, and hereby do, represent and warrant that the instance of the Cloud Services licensed to you will only be used at one location and for one household. Your “original” activated license will be bound (via serial number) to the first Amana-branded System connected to your first Amana-branded Thermostat at your location and for your household. The Amana-branded Thermostat bound to the Amana-branded System collectively create a “Bound HVAC System.” Each “Amana-branded System” consists of either, (1) a single outdoor HVAC unit connected to one or more indoor HVAC units and one or more Amana-branded Thermostats; or (2) for HVAC systems that do not include an outdoor unit of any kind, each Amana-branded System consists of an Amana-branded communicating furnace connected to one or more Amana-branded Thermostats.
If you have obtained such “original” activation, then, subject to this EULA and if you comply with it, we grant you a personal, revocable, non-exclusive, non-transferable (and non-sublicensable) license to access and use the Cloud Services solely in object code form and solely on your Amana-branded Thermostat(s) that operates the Bound HVAC System.
If you purchase or have multiple Amana-branded Thermostats that are connected to the original Bound HVAC System at that same location and for the same household as the Bound HVAC System, then you may obtain additional activations for the licensed Cloud Services aspects of the Amana-branded Software on the additional Amana-branded Thermostats by contacting Daikin at Amana.support@daikincomfort.com (or an alternative mechanism as announced by Daikin) and accepting the EULAs for those additional Amana-branded Thermostats. Each Cloud Services license applies to one entire Bound HVAC System which may or may not include multiple Amana-branded Thermostats.
If you purchase or have additional Amana-branded Thermostats that are associated with a secondary Amana-branded System (i.e., not part of the original Bound HVAC System) at that same location and for the same household as the original Bound HVAC System, then you may obtain a new “original” activated license to create a secondary Bound HVAC System at that same location and for the same household as the original Bound HVAC System. Your secondary “original” activated license will be bound (via serial number) to the secondary Amana-branded System connected to your additional Amana-branded Thermostat(s) at your location and for your household.
If you have obtained additional “original” activations for additional Amana-branded Systems, then, subject to this EULA and if you comply with it, we grant you a personal, revocable, non-exclusive, non-transferable (and non-sublicensable) license to access and use the Cloud Services solely in object code form and solely on your Amana-branded Thermostat(s) that operates the additional Bound HVAC System.
Except for the limited license rights expressly provided above, you obtain no other rights (express or implied) in or to the Cloud Services or to any intellectually property held by us, the Daikin Group, or our licensors. The Cloud Services aspects of the Amana-branded Software, and any intellectual property rights therein, are and will remain the exclusive property of Daikin or its licensors.
8.2 You are Directing Us to Send Information to the Authorized Service Provider
If you enable the “monitor” or the “adjust settings” features of the Cloud Services, you are directing us to send information collected by your Amana-branded Thermostat(s) or the Amana-branded Software thereon (see Section 6) to that connected Authorized Provider, and that connected Authorized Provider may have full or partial access to your account associated with your Amana-branded Thermostat(s) or the Cloud Services. You understand that we have no control over how that Authorized Provider may use your information, access your account, or adjust the settings on or otherwise control your Amana-branded Thermostat(s) or an HVAC system connected to your Amana-branded Thermostat(s). That Authorized Provider’s receipt and use of information will be subject to any privacy policy that the Authorized Provider may or may not have—not Daikin’s Privacy Policy. You should request a privacy policy from any Authorized Provider that you wish to connect to Cloud Services, and if you are not comfortable with such you should ensure, through the Amana-branded Software, that the “monitor” and “adjust settings” features of Cloud Services are disabled on all of your Amana-branded Thermostats.
8.3 No Liability for Third-Party Action, Inaction
I you enable the “monitor” or the “adjust settings” features of the Cloud Services, you agree that neither Daikin nor any member of the Daikin Group shall have any responsibility or liability with respect to any actions or inactions on the part of such Authorized Provider. As stated in Section 1.3 above, all information provided by the Amana-branded Software—including any notices generated by the Amana-branded Software and sent to you or the Authorized Provider—is
merely informational, is not guaranteed, and is not to be relied upon for making any decisions or for any other purpose. YOU SHOULD SEEK THE ADVICE OF A QUALIFIED PROFESSIONALS IN DETERMINING AND ASSESSING THE CONDITION OF YOUR HVAC SYSTEM AND FOR PERFORMANCE OF MAINTENANCE ON YOUR HVAC SYSTEM
8.4 Term of Cloud Services
8.4.1 To the extent you have obtained a lifetime duration “original” or “additional” activation(s) of the Cloud Services (a “Lifetime Duration Cloud Services License”) from an Authorized Provider or Daikin, the term of this EULA with respect to any Lifetime Duration Cloud Services License granted herein,
• begins when your first Amana-branded Thermostat with the activated Lifetime Duration Cloud Services License first connects to the internet, and
• ends when the Bound HVAC System covered by the Lifetime Duration Cloud Services License no longer remains in operation.
8.4.2 To the extent you have obtained a limited duration “original” or “additional” activation of the Cloud Services (a “Limited Duration Cloud Services License”) from an Authorized Provider or Daikin, the term of this EULA with respect to any Limited Duration Cloud Services License granted herein,
• begins when your Amana-branded Thermostat with the activated Limited Duration Cloud Services License first connects to the internet, and
• ends one year after the date on which your Amana-branded Thermostat with the activated Limited Duration Cloud Services License first connects to the internet; however,
• to the extent there are additional Limited Duration Cloud Services License activated for a single Bound HVAC System, the term for the Limited Duration Cloud Services License associated with the Bound HVAC System shall be extended until one year after the date on which the last Limited Duration Cloud Service License was activated.
8.4.3 To the extent you have obtained one or more Limited Duration Cloud Services License(s) from an Authorized Provider or Daikin, you may renew the Limited Duration Cloud Services License for additional one-year terms. The term of this EULA with respect to any renewed Limited Duration Cloud Services License granted herein,
• begins on the date on which the previous Limited Duration Cloud Service License associated with the Bound HVAC System expires, and
• ends one year after the date on which the renewed Limited Duration Cloud Service License begin; however,
• to the extent there are multiple Limited Duration Cloud Services License activated for a single Bound HVAC System, the term for each Limited Duration Cloud Services License associated with the Bound HVAC System (whether renewed, original, or additional) shall be extended until one year after the date on which the last Limited Duration Cloud Service License was activated.
8.4.4 To the extent you have obtained a “Transferee” Lifetime Duration Cloud Services License from an Authorized Provider or Daikin, the term of this EULA with respect to any Transferee Lifetime Duration Cloud Services License granted herein,
• begins when your first Amana-branded Thermostat with a Transferee Lifetime Duration Cloud Services License first connects to the internet, and
• ends when the Bound HVAC System no longer remains in operation.
8.4.5 To the extent you have obtained a “Transferee” Limited Duration Cloud Services License from an Authorized Provider or Daikin, the term of the Transferee Limited Duration Cloud Services License granted herein,
• begins when your first Amana-branded Thermostat with a Transferee Limited Duration Cloud Services License first connects to the internet, and
• ends one year after the date on which the underlying Limited Duration Cloud Service License begins; however,
8.4.6 However, any and all Cloud Services License(s) will automatically terminate, without any compensation to you and without notice, if
• the serial number of the Bound HVAC System does not match the serial number provided by the Authorized Provider to activate the Cloud Services license;
• the Bound HVAC System is installed or operated at a location other than the location where the Bound HVAC System was first installed; or
• the Cloud Services are used in relation to any Daikin or Amana-branded Products not installed at the same location and for the same household (except as provided by Section 8.4.7) as the Bound HVAC System.
8.4.7 Without limiting any rights Daikin may have elsewhere in this EULA, you agree that Daikin may, at any time terminate this EULA with respect to the Cloud Services if Daikin believes, in good faith, that you have violated this EULA.
8.4.8 This EULA, with respect to the Cloud Services License associated with any individual Amana-branded Thermostat, will automatically terminate if you transfer or otherwise dispose of the Amana-branded Thermostat. However, so long as you have not violated this EULA, a subsequent transferee of both the Amana-branded Thermostat and the Bound HVAC System may obtain a “transferee” activation for the remaining term of the Lifetime Duration Cloud Services License for the Bound HVAC System by contacting Daikin at Amana.support@daikincomfort.com and by entering into a new EULA.
8.4.9 If you have obtained an “original” or “additional” Lifetime Duration Cloud Services License, You agree that Daikin may, three months after the start of the term of the Lifetime Duration Cloud Services License, terminate your Lifetime Duration Cloud Services License under this EULA to the Cloud Services—for convenience, for any reason or no reason at all, and without compensation to you—by providing you 10 days’ written notice to any email or physical address associated with the Cloud Services.
8.4.10 If you have obtained a Transferee Lifetime Duration Cloud Services License, You agree that Daikin may terminate your license under this EULA to the Cloud Services—for convenience, for any reason or no reason at all, and without compensation to you—at any time during the term of the Transferee Lifetime Duration Cloud Services License by providing you 10 days’ written notice to any email or physical address associated with the Cloud Services.
8.5 Authorized Service Providers
You agree that Daikin may, from time to time and without notice to you, amend its list of Authorized Service Providers. In doing so, Daikin may cease providing a given Authorized Service Provider access to the Amana-branded Software or other software or system developed by Daikin. If the Authorized Service Provider you have selected is deauthorized, you may contact Amana.support@daikincomfort.com to obtain more information about a new Authorized Service Provider you may select.
You may also elect to change Authorized Service Providers from time to time for any reason at all as you see fit. If you would like to change Authorized Service Providers, please contact Amana.support@daikincomfort.com to obtain more information about electing a new Authorized Service Provider.
9. Government End Users
The Amana-branded Software and its related documentation are “commercial items” as defined in 48 C.F.R. § 2.101, and in particular are “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 to 227.7202-4, the Amana-branded Software is provided to U.S. Government end users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
10. About this EULA
You agree that any dispute arising out of or based on the Amana-branded Software or this EULA will be governed by applicable federal law (e.g., the Federal Arbitration Act) and the laws of the State of Texas, without regard to Texas’s conflict-of-laws principles.
Our failure to enforce—or any delay in our enforcing—any provision of this EULA will not be deemed a waiver of our rights to enforce them.
If any provision of this EULA is found to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this EULA, and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. In such cases, you agree that we may substitute for each invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the objectives and intentions of the invalid or unenforceable provision.
This EULA constitutes the entire agreement between you and us in relation to the Amana-branded Software, and this EULA supersedes any prior agreement between you and us regarding the Amana-branded Software, including prior versions of this EULA.
You may not assign or otherwise transfer your rights or obligations in this EULA without Daikin’s consent. But Daikin may assign or otherwise transfer its rights and obligations without your consent and without restriction.
If you have any questions or comments about this EULA, please feel free to submit them to us by emailing IP@DaikinComfort.com.
Last Modified: July 8, 2022