“Australian Consumer Law” means the Australian Consumer Law as contained in the Competition and Consumer Act 2010(Cth);
“theBrolly platform” means the hosted social media capturing, archiving and retrieval application known as Brolly, as further described on the Website and as may be licensed via the Website;
“Confidential Information” includes all information marked or indicated as confidential to a party to these Terms or any of its related bodies corporate or which the other party knows or ought reasonably to be aware is confidential to the first mentioned party (regardless of its form and whether the other party becomes aware of it before or after the date of these Terms);
“Defined Abuse” means misuse of the Website including: (a) giving an unauthorized person the User’s account and password details, (b) deliberately or recklessly disrupting Our service, (c) engaging in the practice known as spamming, (d) using the Website in an unlawful manner, (e) using the Website to menace or harass others, (f) Denial-of-service attacks on other users or networks, (g) using the Website to unlawfully obtain access to other networks, or (h) as otherwise reasonably determined by Us;
“Denial-of-service attacks” includes behaviour of the User that results in disruption of Our service, disruption of other people’s use or enjoyment of the Website, which includes but is not limited to computer viruses, IRC harassment, e-mail bombardment, damage to internet-connected resources and channel flooding;
“GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Implied Term” means a term implied into these Terms by consumer protection legislation and which such legislation prohibits from being excluded, restricted or modified, including for example guarantees provided under the Australian Consumer Law;
“Impugned Content” means content that:
is false or misleading according to the Australian Consumer Law or any other law;
is obscene, threatening or defamatory;
is invasive of privacy;
infringes any persons’ intellectual property rights;
harasses another User or any other person or group, or encourages such harassment;
is verifiably untrue;
constitutes commercial solicitation, or involves the transmission of unsolicited mass mailing (including spamming);
identifies the author as someone other than the true author of the post;
is pornographic or sexually explicit in nature;
or would otherwise reasonably be considered illegal, objectionable or offensive;
“Login Details” means a unique login identification code, password, and/or other login information to enable connection to Your account;
“Order” means an offer to purchase a licence to use Brolly from Us via the Website;
“Our IP” means our intellectual property, including all intellectual property rights (including present and future intellectual property rights) in and relating to the Website, Brolly and all intellectual property created pursuant to or in contemplation of these Terms;
“User” means a person who uses the Website, even if that person does not place an Order. Where the context permits, references in these Terms to a “User” also include a person who registers with the Website and/or who places an Order;
“We, Us, Our” means Brolly Australasia Pty Ltd ABN 66 633 439 577;
“Website” means our website at www.brolly.com.au;
“You, Your” means a person who registers with the Website and/or who places an Order and may include an individual, a partnership, an association, an organization or an agency or department;
“Your Data” means data owned or generated by or on behalf of You or Your People, where such data relates solely to You, Your business or operations or Your People (as the case may be). Your Data expressly excludes any material comprising a good or service supplied by Us, Our data and Our IP;
“Your People” means people whom You permit or authorize to use Brolly (subject to the Licence), such as Your members, employees and customers.
These Terms apply to Users. These Terms will commence when a User first uses the Website and shall continue to govern that User’s use of the Website. These Terms also govern an Order by You and Your relationship with Us.
Use of the Brolly platform (app.brolly.com.au)
Upon You registering with Us to use Brolly under a free trial or a paid plan, We will provide You with Login Details and a unique user account. Login Details are personal to You; if You are other than an individual, We may permit Your People to have separate user accounts and You shall be responsible for managing those user accounts. You must ensure that Login Details are not disclosed to any other person (other than Your People). You must immediately notify Us if another person becomes aware of Your Login Details.
Brolly is designed and compliant for use in Australia. You must comply with all applicable laws and regulations of the country in which you intend to use Brolly. We will not be responsible for any breach of any such laws.
Brolly is designed and compliant for use in Australia. You must comply with all applicable laws and regulations of the country in which you intend to use Brolly. We will not be responsible for any breach of any such laws.
Use of the Brolly website (www.brolly.com.au)
A User must not use any information obtained from the Website, or in respect of any of our products, for commercial purposes.
The Website and its contents are subject to copyright and are protected by Australian and international copyright laws. The compilation (including the collection, organisation and display of all content on the Website) is the exclusive property of Us and must not be reproduced without the prior written consent of Us. All trade marks, signs, logos and get-up (“marks”) contained on the Website and relating to Our business are owned by Us. The User must not use such marks without Our prior written consent.
Any articles, comments, news items, other web sites and hyperlinks referred to on the Website are included for information purposes only. Third party sites are not under the control of Us and therefore We are not responsible for the condition or content of them. The User accesses these sites and/or use their products and services at its own risk. We make no representations as to: any affiliation with any other organization; the quality, veracity or accuracy of information contained in other web sites; or any endorsement of any other organization.
We are unable to guarantee that any file made available for download from the Website is free from viruses or other conditions which could damage or interfere with data, hardware or software. The User assumes all risk of files downloaded and used from this site and releases Us from all responsibility and liability arising from their use.
Subject to clause 39, We do not warrant that the Website will be uninterrupted or error-free, or that any content is accurate, complete, reliable, current, or error-free.
The User may post comments, reviews, suggestions or other information on the Website’s forums or discussion threads. However, the User must not represent expressly or impliedly that such content is endorsed by Us or reflects the views of Us.
The User must not post or submit any Impugned Content to the Website or using Brolly.
The User is solely responsible for any content they submit to the Website, and the User represents the User owns or otherwise controls all of the rights to the content that he or she posts; that the content is accurate; that use of the content the User supplies or posts does not violate these Terms and will not cause injury to any person or entity. The User fully indemnifies Us for all claims resulting from content the User supplies or posts.
By posting content to the Website, the User grants, and represents that it has the right to grant Us a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media.
Placing an order
The promotion of any good or service (including the Brolly platform) by Us is an invitation to treat and not an offer to sell any goods or services. We reserve the right to accept or reject any Order for any reason. Once You place an Order, that Order cannot be cancelled, rescinded or revoked.
We will send an e-mail to You to acknowledge an Order (as long as the correct e-mail address is provided). This is not an order confirmation or acceptance of an Order.
We may accept an Order by debiting Your bank account or credit card for the amount of the applicable licence fee.
Upon Our acceptance of an Order, You agree to purchase and We agree to supply a licence to use Brolly in consideration for the price specified on the Website and otherwise subject to these Terms.
You must pay Us in full and in advance for all goods and services purchased (including applicable taxes, duties and delivery charges, where applicable). Once We accept an Order, We will debit Your bank account or credit card through a secure payment facility or gateway. You authorize Us to debit money from Your bank account or credit card for the purposes of such transaction. Where Your chosen plan includes automatic renewals or recurring payments, You authorize us to debit Your bank account or credit card accordingly.
Payments made by credit card may be subject to a surcharge to cover merchant fees, which fees will be notified at the time of check out.
Unless expressly stated otherwise, all references to consideration (including charges) relating to these Terms are in AUD and include 10% GST.
Subject to applicable laws, all charges are non-refundable. You shall pay the charges in full without any deduction or set-off whatsoever.
Intellectual property rights and Licence
We own all intellectual property rights in Our IP
You acknowledge and agree that:
You acquire no right, title or interest in any of Our IP, or any intellectual property used or supplied by us to you or any other party during the operation of these Terms, at any time regardless of whether the intellectual property was created prior to or during the term of these Terms;
nothing in these Terms has the effect of granting, transferring to or vesting in you any right, title or interest in such intellectual property;
you shall do all things reasonably required by Us, and to procure that the your representatives do so also, to enable us to obtain, defend and enforce Our rights in such intellectual property; and
you shall not do or fail to do any act or thing which would or might prejudice our rights under this clause.
Notwithstanding anything to the contrary in these Terms, no clause will operate to assign or provide for the assignment of any intellectual property to You or to any third person.
We grant to You a worldwide, non-transferable, non-exclusive and personal licence to use the Brolly platform for the duration of Your Brolly subscription (the “Licence”). The Licence includes a sub-licence in favour of Your People, subject to these Terms. The Licence shall be subject to full compliance with these Terms and payment in full of all applicable licence fees. For the avoidance of doubt, the Licence shall not be deemed a sale, a sale of a copy of a program, a lease, a rental or a loan.
We warrant that we have the authority to grant the Licence.
You must not (directly or indirectly, whether for personal gain, commercial gain, training purposes or otherwise), nor attempt to (and You must ensure that each of Your People does not, or attempt to):
reverse engineer, disassemble, decompile or re-create the source code relating to Our IP;
copy, translate, modify or create derivative works based on Our IP or accompanying written materials;
distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer or grant access to Our IP nor permit any other person to do any of the foregoing;
remove from Our IP any of the trademarks, trade names, logos, patent or copyright notices or marking or add any other notices or markings or add any other notices or markings to Our IP.
As licensee, you only own the magnetic or other physical media on which Our IP is recorded or fixed, and we shall retain ownership of all patents, copyrights, trademarks, trade names, trade secrets and other proprietary rights relating to or residing in Our IP.
Claims of copyright infringement
If a person (“Claimant”) claims that their copyright or other rights have been infringed by content posted or otherwise provided by another person using the Website or Brolly, the Claimant may provide Us with a statutory declaration signed by or on behalf of the Claimant, setting out the alleged infringement, including the following information:
the Claimant’s contact details (including address, telephone number, and email address);
the alleged infringer’s contact details (including address, telephone number, and email address), if available;
a description of the material that is alleged to have been infringed, what rights are alleged to have been infringed and what acts constitute the alleged infringement;
a description of allegedly infringing material and its location on the Website; and
a statement that the Claimant is the copyright owner or is authorized to act on the copyright owner’s behalf.
Without any obligation to do so, we may use reasonable efforts to provide reasonable notice to the third party of the allegation. If the third party responds with a valid counter-notification, we will provide the Claimant with a copy so that the Claimant may take any other steps he/she/it may consider appropriate.
We have no obligation or responsibility to determine any dispute between a Claimant and any other person and it is the Claimant’s sole responsibility to do so. By engaging in the process set out in this clause, the Claimant agrees to fully indemnify and defend Us in relation to any claim, loss, injury, damage, liability, costs and expenses arising from or relating to any such claim.
Warranties and liability
You warrant to Us that:
all information supplied by You is true and correct;
You have made all necessary enquiries and satisfied Yourself regarding the suitability of the Brolly platform for Your purposes;
You will not use the Website or Brolly in breach of any law or any person’s rights (including intellectual property rights);
in the case of an individual, You are over 18 years of age;
in the case of an individual entering into these Terms on behalf of a partnership, an association, an organization or an agency or department, you are authorized to enter into these Terms in that capacity; and
You will use Brolly only for the purposes stated in these Terms, and in the product description for Brolly.
You are responsible for all purchases made via the Website (including being vicariously responsible for purchases made by any other person using Your account).
You must indemnify and save harmless Us and Our related bodies corporate and Our suppliers and their respective officers, employees, contractors and agents (the “Indemnified Persons”) from any loss, injury, damage, liability, costs or expenses whatsoever suffered or incurred by an Indemnified Person arising from or in connection with:
any information provided by or on behalf of You or Your People;
the use of the Website or Brolly by You or Your People;
any alleged breach of a person’s rights (including, but not limited to, defamation, intellectual property and privacy rights) in respect of the use of Brolly or the Website by Your or Your People; and
any breach of these Terms by You or Your People.
All Implied Terms are expressly included in these Terms. All other terms which might otherwise be implied into these Terms, are excluded.
Subject to the Australian Consumer Law, each User agrees that Our maximum aggregate liability in relation to any claim, loss or damage, whether arising under or in relation to these Terms, any tortious act or omission (including negligence) or under common law or statute, is excluded and (if it cannot be excluded) is otherwise limited to the amount that you have actually paid Us in the two months prior to the event giving rise to the claim.
Subject to sub-sections 259(4) and 267(4) of the Australian Consumer Law in relation to an Implied Term, in no event will We be liable to a User or to any other person for any indirect, special, incidental, consequential, punitive or other like loss or damage whatsoever, loss of profit or loss of data, whether or not such person was advised of the possibility of such loss or damage, in relation to these Terms.
Nothing in the Website constitutes advice of any type. Information contained on the Website is provided on an “as is” basis. We are not required to provide such advice or information under these Terms and the User shall make its own enquiries as to the appropriateness and correctness of such. Subject to these Terms, We shall not be responsible for loss or damage occasioned by the User in reliance thereof.
We disclaim, to the maximum extent permitted by law, all responsibility and liability arising directly or indirectly from any use of material contained or referred to in the Website, including any errors, omissions or harmful components.
We do not warrant that the Website or Brolly will be compatible with any hardware and software which You may use.
Data backup and security
We aim to comply with peer industry practice in relation to data backup and security, including the use of trusted hosting partners. However, You acknowledge that servers connected to a network, and particularly those connected to the internet, are subject to security threats and no data is entirely secure and safe from a breach or failure of data backup and security. Accordingly, whilst We take reasonable steps in relation to data backup and security, We exclude all warranties and disclaim to the full extent permitted by law all liability in relation to data backup and security.
You must ensure that appropriate data backup and security measures are taken in relation to Your Data, having regard to the criticality of the data, including using appropriate firewall and encryption technologies, applying latest security patches, disabling any unnecessary ports, routine backup, having multiple backups and/or redundant backups, archiving Your Data, and conducting regular security audits.
You must (and You must ensure that Your People):
ensure that the Website and Brolly are used solely for their intended purpose;
not permit any other person (other than Your People) to use Brolly and must not re-sell or purport to re-sell Brolly.
ensure there is no unauthorized access, or harm caused, to Our computer system or network or those of Our suppliers;
not commit, cause or allow any breach (or do anything which might put Us in breach) of any law, regulation, government direction or industry standard or code;
not use the Website or Brolly to breach a person’s rights (including committing defamation or infringing a person’s intellectual property rights);
not post or submit any Impugned Content to the Website or using Brolly;
not commit Defined Abuse;
notify Us immediately of any security breach (suspected or otherwise) of the Website or Brolly, or Your Login Details;
initiate, operate and manage Brolly on Your own behalf;
be solely responsible for arranging, maintaining and configuring all communications services, system resources and other equipment and services needed to access the Website and Brolly in accordance with Your requirements, including without limitation:
adequate infrastructure specification and configuration, including data storage and capability to handle the data load and integration with Brolly; and
maintenance of firewalls to ensure integration with Brolly is possible and available;
promptly inform Us of any change to Your billing or address details;
be responsible for the timely and accurate notification to Us of any defect in the Website or Brolly or other issue which may give rise to a warranty or consumer claim;
maintain an up-to-date copy of all of Your Data at all times, suitable for restoring services in the event of loss or corruption of data on Your or Our systems.
You must ensure that each of Your People complies with each term in these Terms that is applicable to them. You shall be vicariously liable and responsible to (and You fully defend and indemnify) Us in respect of each of Your People’s use of any good or service (including the Website and Brolly and including in circumstances where Your People have the benefit of any such good or service) and compliance with such terms.
Your data and use of information
For the avoidance of doubt, Your Data (including all intellectual property rights in Your Data) shall be owned by You (or Your People, as applicable). Once Your Brolly subscription ends, if requested by You We will return (and if required We will facilitate the return of) a copy of Your Data to You, subject to: (a) all of Your accounts first being paid in full; and (b) You paying Our reasonable charges for doing so. You will have 3 months to request the return of Your Data; after that time, we are unable to guarantee that Your Data will be available. We may offer to provide a data retention feature as part of Your Brolly subscription, in which case the terms of that feature will be set out as part of Your Order and will be in addition to this clause.
Consent to Use of Data: You agree that We may collect and use technical data and related information (including but not limited to technical information about Your device, system and application software, and peripherals) that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Website and Brolly. We may use this information, as long as it is in a form that does not personally identify You, to improve Our products and services or to provide services or technologies to You.
Usage data (including metadata and customer usage) may be generated by the use of the Website or Brolly, in which case:
where applicable, all right, title and interest in such usage data is retained by You (or Your People, as applicable);
You grant Us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use such data; and
You consent to Our use of such data (and to provide such data to others) for our internal business purposes, for marketing purposes, for market analysis, to analyse customer trends and where required by law.
We are not obliged to review or monitor any of Your (or Your People’s) use of the Website or Brolly (including Your Data), although We may do so if such use violates any clause contained in these Terms, or if required by law.
You authorize Us to use and provide personal information to Our suppliers to the extent necessary to fulfil Our obligations under these Terms.
We may also collect a User’s personal information and use it for the following purposes:
for marketing purposes, including to provide information about goods or services which We or any of Our suppliers or related bodies corporate or affiliates may offer;
to disclose to credit reference associations and credit reporting agencies for the purpose of providing services or other credit providers providing services;
for the purpose of engaging with, assisting and fulfilling Our obligations to third party suppliers;
for purposes related to or arising out of Our provision of services and credit or commercial credit.
The User gives its consent to the types of use of information described in these Terms. The User gives its consent to Us sending electronic messages (including commercial electronic messages) within the meaning of the Spam Act 2003 (Cth), to the User.
These Terms and Our policies regarding the Website are subject to change by Us from time to time. Any such change shall be uploaded to the Website. Users should re-check these Terms before placing each and every Order. In the event that your use of Brolly is substantially limited by such changes, You shall be entitled to terminate these Terms by written notice to Us, provided You must pay Us for any goods supplied or services performed up to the time of termination.
Notwithstanding any provision in these Terms, all or part of the agreement governed by these Terms may immediately be terminated by Us for any reasonable reason.
We will not be responsible for any delay or failure to perform Our obligations under these Terms caused by any act beyond Our control including without limitation acts of God, wars, strikes, natural disasters, delay or default of any person.
Any provision which by its nature would survive termination or expiry of these Terms (including without limitation any exclusion or limitation of liability or indemnity in these Terms) shall survive termination or expiry of these Terms.
If any clause or part of these Terms is held to be void, illegal or unenforceable for any reason, it shall be deemed to be severed from these Terms without affecting any other clause or part of these Terms.
These Terms contain the entire agreement of the parties with respect to its subject matter. They set out the only conduct relied on by the parties and supersede all earlier conduct and negotiations by the parties with respect to their subject matter.
Any right under these Terms may not be waived or varied except in writing signed by the person to be bound.
We may assign or novate any of Our rights or obligations under these Terms and You give Your consent to such assignment or novation.
The agreement governed by these Terms is governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
The Website and Brolly may be accessed throughout Australia and internationally. We make no representations that the content of the Website or Brolly complies with the laws, including intellectual property laws, of any country other than Australia. Users who access this site or use Brolly from outside Australia do so at their own risk and are responsible for complying with all applicable laws.
Brolly understands that your social media activity may spike occasionally, particularly in emergency situations. In these instances, Brolly will continue to archive your interactions, even when you temporarily exceed your plan. As part of your subscription, Brolly will conduct quarterly account reviews. During these reviews account record numbers will be measured to ensure that they fall within the allocated plan. Record numbers will be measured as a 90 day average.
Brolly aims to support you through unexpected periods of record spikes, and as such concessions for excessive storage will provided. These concessions will be aligned with the contract term.
If you are contracted for 12 months, Brolly will support 60 days of excessive usage before re-evaluating the appropriate plan / additional data pack.
If you are contracted for 24 months, Brolly will support 90 days of excessive usage before re-evaluating the appropriate plan / additional data pack.
If you are contracted for 36 months, Brolly will support 120 days of excessive usage before re-evaluating the appropriate plan / additional data pack.
Brolly also appreciates that some organisations are heavily impacted by seasonal variability. For these organisations, record numbers can/will be considered as an annual average. This will be documented during the account reviews.