Use of the Application is conditional on the terms specified below. The Application is only offered to You on the condition that You read and accept all the terms of this Licence. Acceptance will bind You and all of Your employees and agents to the terms of this Licence. By clicking “I Accept”, You will be deemed to have accepted the following terms. If You do not wish to accept the terms of this Licence, You must not click “I Accept” and You must not use the Application. Brooks may vary the terms of this Licence from time to time and by continuing to use the Application You accept and agree to comply with the varied terms of this Licence.
Unless the contrary intention appears:
Application means the Brooks software allowing remote access to Brooks devices and data on such devices, Brooks mobile device applications and software, including computer and application software and any future versions, releases, updates, patches, error fixes and bug fixes of the same.
Confidential Information means information that is by its nature confidential, including without limitation this Licence, but does not include:
(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain,
other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Licence or otherwise;
Information means any data, information or documentation supplied or made available to You via the Application or otherwise, including but not limited to any operating or user manuals or online help documentation relating to the Application;
Intellectual Property includes all copyright, and all rights in relation to registered and unregistered trademarks (including service marks), designs, patents and confidential information (including trade secrets and know-how), and all other rights resulting from intellectual or creative activity;
You means any person who installs or uses the Application and any person on whose behalf the Application is installed or used; and
Brooks means Brooks Australia Pty Ltd.
- You agree that Your use of, or inability to use, the Application is at Your sole risk. In consideration of the grant of the Licence and by downloading and/or using the Application You agree to the terms of this Licence and to comply with the terms of this Licence.
- Brooks grants to You a revocable, non-exclusive, non-transferable Licence (without the right to sublicense) to install and use the Application on Your personal computer and/or mobile device and/or server(s), and to use the Information strictly in accordance with the terms of this Licence.
- You acknowledge and agree that the Application is intended to be accessed and used for non-time-critical information and control of devices. You must not and agree You will not rely on the Application for any life safety or critical purposes. Utilisation of the Application is not an alternative to monitoring the fire system panel and complying with Your obligations at law.
- use the Application and Information only to monitor and carry out maintenance activities on Brooks devices. While Brooks aims for the Application to be reliable and available, it will not be available 100% of the time. Access to the Application and receipt of data from the Application, is subject to sporadic interruptions and failures for a variety of reasons beyond Brooks’ control, including Wi-Fi intermittency, cyber-attacks, service provider uptime, mobile notifications, carrier issues and restriction to servers, among others. You are responsible for the functionalities of Your computers, mobile devices and servers;
- make hardcopies of reasonable portions of the Information for Your internal use during the term of this Licence; and
- make one backup copy of those parts of the Application that are supplied in electronic form, but only as strictly required for Your backup and security purposes, during the term of this Licence.
- train yourself in how to properly use the Application;
- not sell, reverse engineer, disassemble, decompile, copy, modify, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, sub-license or otherwise distribute all or part of the Application or Information, or any adaptation, modification or derivative of all or part of the Application or Information. Except as set forth herein, You may not make access to the Application available to any third party, nor are You authorised to make the output generated by or the results of any performance or functional evaluation of the Application available to any third parties. Unauthorised use, reproduction and/or distribution of the Application is not permitted by You and is in violation of copyright law;
- not disclose the Application or Information to any third party without the consent of Brooks;
- not use the Application for any unlawful purpose;
- supervise and control the use of the Application in accordance with the terms of this Licence;
- ensure Your employees, sub-contractors and other agents who have authorised access to the Application are made aware of the terms of this Licence;
- not allow any employees, agents and any other third parties to do anything inconsistent with the terms of this Licence;
- not remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers incorporated in or otherwise applied in connection with the Application or Information; and
- use the Application and Information only for Your personal use. You may grant Your employees full or partial access to the Application, including, but not limited to, the ability to view and change fire panel automation settings and programming. You acknowledge and agree that Brooks has no responsibility to You with respect to the actions of such persons.
- Intellectual Property
- All Intellectual Property rights in the Application (including without limitation in the software object code and source code as well as all systems, ideas and concepts associated with the Application), in the Information, in all information and documentation produced by Your use of the Application, in Brooks’ devices, businesses, trademarks and branding, are all owned by Brooks and/or its licensor(s). You agree you have no claim or right in any of the same.
- You must notify Brooks immediately if You know or suspect any unauthorised use, or violation of Brooks’ Intellectual Property rights.
- Brooks may, but is not required to, in its sole discretion provide You with firmware updates, enhancements, changes, modifications, additional functionality or bug fixes to the Application and/or Information (referred to as “new versions”). Brooks may charge You an additional fee for the provision of any new versions of the Application or Information, which will otherwise be provided on the terms and conditions of this Licence.
- It is Your obligation always to use the latest available version of the Application and Information applicable to the relevant Brooks device(s). You are responsible for and accept all liability in relation to assessing whether the Application is appropriate for You to use and for installing the correct and newest version of the Application to suit Your requirements or devices.
- You acknowledge and agree that Brooks and its affiliates, service providers, suppliers, and dealers are permitted at any time and without prior notice to remotely push new versions.
- You hereby consent to the foregoing and release and continue to release Brooks and its affiliates, related bodies corporate, related entities, associated entities, employees, agents, contractors, officers, directors, service providers, suppliers, licensors and dealers (referred to in this Licence as “Brooks and its affiliates”) from any and all liability for loss and damage arising from such action to the extent permitted by law.
- Brooks provides the Application and Information ‘as is’, ‘as available’ and to the extent permitted by law, Brooks excludes all representations and warranties and has no liability in respect of the Application and Information including, without limitation, with respect to any implied warranty or condition as to non-infringement, merchantability, fitness for a particular purpose, satisfactory quality, non-interference, or arising from a course of dealing, law or trade practice. In respect of any representations, warranties or liability that cannot be excluded by law, Brooks’ liability is limited, at its option, to replacement of the Application and/or Information, supply of equivalent Application and/or Information or refund of the purchase price. You hereby consent to the foregoing and release Brooks and its affiliates from any and all liability for loss and damage arising from such action.
- There is no guarantee that the Application will provide adequate warning in any given situation, or that it will not be compromised or circumvented before it communicates with any person that is responsible for monitoring and responding to messages sent from any fire alarm control panel or from similar equipment designed to warn of possible harm or impairment to persons or property, or that it will prevent any personal injury, property loss and loss and damage caused by fire or otherwise.
- You acknowledge that the availability of the services is dependent on Your computer, mobile device, network, Your internet service provider, Your satellite provider in the case of geolocation services, and Your mobile device carrier, and You acknowledge that You are responsible for all fees associated with such use and for compliance with any agreements related to such use. You further acknowledge that Brooks and any network service providers cannot guarantee the security of any transmission and will not be liable for any lack of security relating to the use of any service or the Application. Brooks makes no guarantee that the Application will be compatible with all computers, mobile devices or servers. You should first test those devices for compatibility before using them.
- Limitation of Liability
- You agree Brooks and its affiliates have no responsibility or liability to You or any third party for any loss of profit or revenue or business, business interruption, loss of business opportunity, lost or damaged data, loss of capital, damages whether aggravated or indirect or consequential or incidental or punitive or otherwise of any kind, complaints, death, injury, claims, proceedings, litigation, causes of action, demands, breaches of laws or regulations, fines and penalties however so arising, including without limitation in contract, tort (including without limitation negligence) (referred to in this Licence as “loss and damage”) whether or not arising out of Your use of or inability to use the Application or Information or the services enabled by them.
- To the extent permitted by law, You agree that the total aggregate liability of Brooks and its affiliates (including without limitation liability for negligence) for any and all loss and damage however so arising under or in connection with this Licence or the use of the Application or Information is hereby limited to the replacement of the Application and/or Information, supply of equivalent Application and/or Information or refund of the purchase price.
- You agree that Brooks and its affiliates bear no responsibility for or liability in respect of any loss and damage incurred in relation to: (i) the accuracy, completeness, legality, reliability, operability, or availability of and content or information or material provided or accessible through the Application; (ii) the deletion, failure to store, accidental disclosure, loss, mis-delivery, or untimely delivery of any information or material pursuant to this Licence; or (iii) unauthorised access to Your fire alarm systems and other systems.
- Nothing in this Licence will exclude or limit the liability of Brooks and its affiliates that cannot be excluded under an applicable law.
- Brooks is not responsible for any data or other charges You may incur in connection with Your use of the Application or Information.
- Release and indemnity
- You release and continue to release Brooks and its affiliates in respect of all liability for all and any loss and damage which may be suffered by You or any third party arising from Your use or any third party’s use of the Application or Information.
- You will indemnify and continue to indemnify Brooks and its affiliates in respect of all liability for any and all loss and damage which may be suffered by any person arising or in connection to that person’s use of the Application or Information and for any and all loss and damage which may be suffered by any person arising from or in connection to Your use of the Application or Information or otherwise arising under this Licence.
- Term and Termination
- The term of this Licence commences on the day You first download or otherwise access or use the Application and/or Information and will continue for so long as You continue to use the Application.
- Brooks may terminate this Licence with immediate effect if You breach this Licence or become subject to any form of insolvency administration.
- Either You or Brooks may terminate this Licence by giving the other party 14 days’ notice in writing.
- Upon termination of this Licence, You must immediately cease using the Application and Information and erase or return all copies under Your control. Brooks reserves the right at any time and from time to time to charge for the use of the Application and Information, and modify or discontinue, temporarily or permanently, the Application (or any part thereof) with or without notice. You agree that Brooks and its affiliates will not be liable to You or to any third party for any modification, suspension or discontinuance of the Application or Information or any loss and damage arising from the same.
- Accrued rights or remedies of either party, subject to the terms of this Licence, are not affected by the termination of this Licence.
- All releases, indemnities, limitations of liability and exclusions of liability specified in this Licence survive the termination or expiry of this Licence or if it otherwise ends.
Application and technical information delivered under this Licence may be subject to a number of laws. You agree to strictly comply with all such laws and You will be solely responsible for obtaining any approvals and licences required for such Application and any technical information and retaining documentation to support compliance with those laws.
- You are responsible for compliance with all applicable data protection laws and regulations applicable to data which is stored and accessed utilising the Application.
- Subject to compliance with all applicable data protection laws and regulations, Brooks is granted and retains the right to utilise any and all data and information that is collected, generated, processed or transmitted by or through Brooks devices and the Application, including without limitation Information, and all data and information provided or transmitted to Brooks regarding the operation or performance of fire detection devices in an aggregated or anonymized form for any business purpose, including product, software or service development, marketing or sales support or other analytics. To the extent that Brooks does not own any such information or data, You grant Brooks and its affiliated companies (or will procure for Brooks and its affiliated companies the grant of) a perpetual right without charge to use and make derivative works from such information and data for any lawful purpose.
- In order to facilitate Brooks’ investigation of any cybersecurity event involving the Application, You agree to cooperate with Brooks in any investigation, litigation, or other action, as deemed necessary by Brooks to protect its rights relating to a cybersecurity event.
- Brooks does not represent that the Application is compatible with any specific third-party hardware or software other than as expressly specified by Brooks. You are responsible for providing and maintaining an operating environment that meets the minimum standards specified by Brooks.
- You understand and warrant that You have an obligation to implement and maintain reasonable and appropriate security measures relating to the Application, the information used therein, and the network environment. This obligation includes complying with applicable cybersecurity standards and recommended industry practices including those recommended by any national institution in Your territory.
- If a cybersecurity event occurs, You must promptly notify Brooks of the cybersecurity event. You must promptly use Your best efforts to detect, respond and recover from such a cybersecurity event. You must take reasonable steps to immediately remedy any cybersecurity event and prevent any further cybersecurity event at Your expense in accordance with applicable laws, regulations, and standards. You further agree that You will use Your best efforts to preserve forensic data and evidence in Your response to a cybersecurity event. You will provide and make available this forensic evidence and data to Brooks.
- Brooks and its affiliates will not be liable for any loss and damage caused by a cybersecurity event suffered by You or any third party.
- You agree to comply with all applicable data security laws and standards, and will make no attempts to circumvent or interfere with any of Brooks’ security controls integrated within its devices. You will indemnify and continue to indemnify and hold Brooks harmless and continue to hold Brooks harmless for Your failure to comply with the terms of this clause.
Failure or delay by either party to enforce at any time any of the rights, powers or remedies of this Licence will not be construed or deemed to be a waiver of that party’s rights under this Licence. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
- Entire Agreement
This Licence records the entire agreement between You and Brooks, and supersedes all earlier or contemporaneous agreements and representations about its subject matter.
- Applicable Law
This Licence is governed by the laws of New South Wales, Australia and each party irrevocably submits to the jurisdiction of New South Wales, Australia.
A term or a part of a term of this Licence that is illegal or unenforceable may be severed from this Licence and the remaining terms or parts of the terms of this Licence continue in force.
- Assignment and novation
Brooks may assign and/or novate its rights and obligations under this Licence to any third party and You hereby provide Your consent for Brooks to do so. You must not assign or novate Your rights and obligations under this Licence without Brooks’ prior written consent.
No rules of construction will apply to the disadvantage of the party that has prepared this Licence or any part thereof.
- Further action
Each party will do all things and execute all further documents necessary to give full effect to this Licence.
- Personal Property Securities Act 2009 (Cth)
You will not create or permit to exist a security interest over the Application or Information. For the purposes of the foregoing, "security interest" means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.
- You will not, without the prior written approval of Brooks, disclose Brooks’ Confidential Information to anyone and You will take all reasonable steps to ensure that Your employees, agents, contractors and anyone You engage does not make public or disclose Brooks’ Confidential Information.
- This clause will survive the termination of this agreement.
- Legal advice
You warrant that You have been given the opportunity to seek independent legal advice in relation to this Licence, and that You have either received such advice or declined to receive it, and in either event freely enter into this Licence in complete understanding of all of its terms and the effect of its terms.
- Notices and complaints
- Any notices or correspondence which either party may give or be required to give to each other under this Licence may be delivered by e-mail, hand or post, unless a different method of service is required by law.
- A notice under this Licence is deemed to be served: if hand delivered, on delivery; if sent by prepaid post, three business days after the date of posting; and if sent by email, when the sender’s system generates a message confirming successful transmission of the entire message, but if the delivery, receipt or transmission is not on a business day or is after 5.00pm on a business day, the notice is taken to be received at 9.00am on the next business day.
- Notices and complaints should be emailed to Brooks at: BrooksPrivacy@brooks.com.au