1 About the Service
- 1.1 During the Term of Service, Brother or its designated staff or contractor shall connect the production management system developed and provided by Brother (“System”) to a certain number of designated industrial sewing machines in your factory separately agreed between you and Brother (“Eligible Machines”) at the location agreed with you. Upon installation, you shall provide Brother or its designated staff or contractor with sufficient workspace and access to power and other infrastructure, to the extent necessary to provide you with the Service.
1.2 The Service shall last for a period separately agreed between you and Brother (“Service Period”). Following the Service Period, Brother’s sales representative shall provide you with a summary report analyzing the sewing machine utilization at your factory).
2 About the System
- 2.1 System includes certain software program developed by Brother (“Brother Software”). You acknowledge that all intellectual property rights in the Brother Software belong to Brother or its suppliers, that rights in the Brother Software are licensed (and not sold) to you, and that you have no intellectual property rights in, or to, the Brother Software other than the right to use the Brother Software in accordance with this Terms.
2.2 You shall not (i) make access to the Brother Software in source code form other than as expressly provided in this Terms; or (ii) use the System in conjunction with any machines other than the Eligible Machines without prior approval from Brother.
3 Provisions for Use
- 3.1 You must comply with all applicable laws, regulations and codes of practice with respect to your use of System.
3.2 Except as expressly set out in this Terms or as permitted by any applicable local law, please note that you may not or permit another person to:
- a) make a copy of the Brother Software;
- b) rent, lease, sublicense, assign or transfer the Brother Software, or authorize use or access of all or any part of System to any third party without Brother’s prior written consent;
- c) be involved directly or indirectly in the development, sale, or provision of any products or services which compete with System or any services Brother may provide relating to the System, unless separately agreed between the parties;
- d) modify, adapt or translate the Brother Software, or reverse engineer, decompile, disassemble, or create derivative work of the Brother Software;
- e) e) use the Brother Software or System for the development of a competing product or service, or any other purpose that is to Brother’s commercial disadvantage; or
- f) remove or alter any proprietary notices or marks appearing in System.
4 Data Collection
- 4.1 In course of the Service, you acknowledge and agree that Brother may collect any information regarding your sewing machines generated, measured, analyzed, evaluated, or otherwise recorded at your premises (“Machine Data”), including, but not limited to, (i) production management data of the sewing machines such as rejection rates and productivity rates, (ii) information on optional devices and/or attachments to your sewing machines; (iii) device information of your sewing machines, such as model name, serial numbers and other machine identification information; (iv) statistics of your use of your sewing machines, such as cumulative operation time, error logs, and commonly used functions; (v) login ID of the users of your sewing machines; and (vi) any other information related to your sewing machines and use of them by you.
4.2 Brother and its Affiliates will use the Machine Data for purposes including, but not limited to, identifying and analyzing the usage trends of your sewing machines to better understand and improve our products and services, promoting and providing information about our products and services, and providing, at our discretion, any technical, product, and other support services to improve user experience of our products.
4.3 Machine Data will be transmitted to and stored on our server (which may include any third party cloud server that Brother or its Affiliates secures contractually with such third party).
5 Statistical Data
- 5.1 Brother may convert the Machine Data into statistical or aggregated data, which cannot be used to identify your company, your employees, or any other information that relates to your business. (“Statistical Data”).
5.2 The Statistical Data shall be solely owned by Brother. During the Service Period and thereafter (notwithstanding the termination or expiration of this Terms), provided that the Machine Data is used only in an aggregated, fully de-identified form, the Statistical Data may be used by Brother or its Affiliates, without restriction for any lawful business purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication or sale to you or any third parties. You hereby irrevocably waive, release and give up any claim arising from any use of such Statistical Data by Brother.
5.3 Where Brother provides the Statistical Data to you, you agree to only use the Statistical Data for your own business purpose. You shall not identify the sources of the Statistical Data, attempt to de-anonymize any Statistical Data, or sell, transfer, disclose, or share the Statistical Data with third parties.
6 Limited Warranty and Liability
- 6.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SYSTEM IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE“ BASIS. BROTHER DOES NOT MAKE AND HEREBY DISCLAIMS ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND. BROTHER DOES NOT WARRANT THAT THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SYSTEM.
6.2 You acknowledge that the use of the System is at your own risk. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT WILL BROTHER BE LIABLE FOR ANY LOSS AND/OR DAMAGE ARISING OUT OF THE USE OF THE SYSTEM AND/OR DATA TRANSMISSION /RECEIVING ON THE THIRD PARTY’S SERVER. IN ADDITION, BROTHER IS NOT LIABLE TO ANY DAMAGES OR LOSSES INCURRED FROM ANY ERRORS, MALFUNCTIONS, NEGLIGENCE, OR OTHER PROBLEMS AROSE FROM ANY RELATED SOFTWARE OR HARDWARE.
6.3 NOTHING PROVIDED IN THIS CLAUSE SHALL AFFECT BROTHER’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM BROTHER’S NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- 7.1 You shall not disclose, publish or disseminate the Confidential Information to any other third party. “Confidential Information” means any software, functions or contents included in System, devices provided for the Service by Brother and any other information disclosed and designated as confidential by Brother.
7.2 Brother shall not disclose, publish or disseminate the Machine Data to any other third party; provided, however, that Brother may disclose the Machine Data to its Affiliates and any of our subcontractors given that each of them are subject to a strict obligation of confidentiality as set forth in this clause. For the avoidance of doubt, Statistical Data shall not constitute the Machine Data treated as confidential under this clause and Brother and its Affiliates may use or disclose such Statistical Data as set forth in clause 5.2.
7.3 The preceding obligation of confidentiality shall not apply to any information that; (i) was known to the receiving party before receipt from the other; (ii) is or becomes a matter of public knowledge through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is disclosed by the disclosing party to a third party without imposing a duty of confidentiality; or (v) is independently developed by the receiving party without access to the Confidential Information or the Machine Data.
7.4 You or Brother may disclose the Confidential Information or Machine Data if you or Brother is required to disclose such information in order to comply with the order of a court or other governmental body, or as other necessary to comply with applicable law, provided that you or Brother making the disclosure pursuant to the order shall promptly give the other the notice of such requirement and make a reasonable efforts to obtain a protective order.
8 Third Party Software