Hmm, perhaps Nest should update their terms of service? This clause in particular should make someone think twice about buying a safety device from them:
(c) Reliability of Notifications. You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR NEST PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.
Worth repeating:
"YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES"
Don't buy a safety device from a company that claims this!
The word 'Service' is capitalised, implying that there's a definition elsewhere in the ToS. I found it at the end of the very first paragraph.
"The term 'Services' means the Site, Web App, Mobile Apps, and MyEnergy Service" (NB those terms are defined earlier in the same para).
In other words, don't rely on the above things for life safety. That sounds fine to me and I also note that the video does not show alarm messages being sent to phones (though I'm sure it's a feature).
A better question is in the absence of the above, will the alarm still go off if there's smoke/CO etc? In the UK, I doubt you'd be able to 'disclaim' your way out of it and there are probably minimum functionality/safety standards required before you could even market safety products. I'd expect the US to be similar.
It's still not clear. The services and the products seem to overlap, especially as it is all software (the smoke alarm certainly has firmware/software on it to make it operate more intelligenttly)
As the ToS also states:
"AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES."
The software, hardware and services are all closely tied together. The ToS has links to them all, and a failure in one part could easily be blamed upon the services and hence Nest could claim no responsibility.
Again, I am not seeking to blame Nest here, I think they just need to update the ToS to make it crystal clear that they do think their new smoke alarm is a safety system and can be relied upon as such. Terms Of Service are often horrendously written and users should complain about such things to fix them.
Product is also a defined word [1]. I do understand what you're getting at but I disagree about the overlap you allude to. The ToS does delineate the difference between Services and hardware (Product). Failure in the firmware or software on the Product following an automatic update is clearly not an issue with Services (note deliberate capitalisation).
I'd say the terms are pretty 'clear' about the differences in Services/Product but, as with all ToS, you need a fairly high reading level and sufficient time to properly understand them. That's why I put clear in quote marks. You may be arguing that they could be expressed in more human terms but that doesn't make them any more specific.
Where did you find this? The only place I could find it was on their terms of service page (http://nest.com/legal/terms), in which they explicitly are referring to the website & associated apps:
>> The term “Services” means the Site, Web App, Mobile Apps, and MyEnergy Service.
I don't think that this applies to the actual alarm... good thought though...
It is unclear at best. The ToS do mention that they are '...all for use in conjunction with Nest hardware products' so I'm not trying to be deliberately misleading in claiming that they relate to the operation of the smoke alarm.
I'm sure that Nest don't mean anything bad but the ToS and its legal reach is far from clear. This (to my knowledge) is the first safety device that Nest have produced, the ToS had been written earlier to make it plain that you shouldn't rely on their other products for safety. They need to update the ToS for the new product, basically.
Find a household safety device (smoke alarms and such) that doesn't have similar warning. If they did guarantee it worked 100% of the time and it malfunctioned for whatever reason, they would be opening themselves to a lawsuit.
I don't know what it's like in the US, but in Canada, if you try to sell a safety device and put in your TOS that the device should not be guaranteed to provide any safety (even when used properly), the courts will throw out your TOS.
You can't sell a safety product and then pretend it doesn't do anything.
(c) Reliability of Notifications. You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR NEST PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.
Worth repeating:
"YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES"
Don't buy a safety device from a company that claims this!