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End User License Agreement

Last Updated: August 2023

 

MOBILE SUMMARY

Breville PTY Ltd.  grants you a limited license to download, install and use the Licensed Application on an authorized device. Read the full EULA Terms below. By installing the Licensed Application, you agree to be bound by these Terms.

 

EULA Terms

This End User License Agreement ("Agreement") governs your download, installation and use of the mobile application (the "Licensed Application", “App”) provided by Breville PTY, Ltd.,   ACN 000 092 928 Suite 2, 170-180 Bourke Rd, Alexandria NSW 2015 Australia covering our various affiliates and brands, including in Europe especially Sage as well as Baratza, Beanz, Lelit, Sage Commercial and others (collectively, "Breville," "we," "our" or "us") IF YOU RESIDE OUTSIDE AUSTRALIA, ADDITIONAL TERMS AND CONDITIONS MAY BE APPLICABLE TO YOU THAT EITHER SUPPLEMENT OR REPLACE CERTAIN PROVISIONS IN THIS AGREEMENT. PLEASE REVIEW THE END OF THIS DOCUMENT TO DETERMINE WHETHER ANY ADDITIONAL TERMS AND CONDITIONS APPLY TO YOU.

 

This Agreement is between us and you, not Apple, Google, Amazon or any other application provider. Breville is solely responsible for the Licensed Application and the content thereof. If there are conflicts between this Agreement and the Apple Media Services Terms as of the Effective Date (which you acknowledge you have had the opportunity to review), the Apple Media Services Terms will apply.

 

Breville reserves the right to change or modify this Agreement at any time and in its sole discretion to the extent not prohibited by applicable law. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with us. If you are using the Licensed Application on behalf of any entity, you represent and warrant that you are authorised to accept this Agreement on such entity's behalf and that such entity agrees to be responsible to us if you or it violates this Agreement.

 

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE LICENSED APPLICATION. BY INSTALLING THE MOBILE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND OUR TERMS OF USE AND SALE WHICH ARE INCORPORATED. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND TERMS OF USE AND SALE, DO NOT INSTALL, ACCESS OR USE THE LICENSED APPLICATION.

 

Breville grants you a limited, revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, worldwide license to access and use the Licensed Application for your own personal purposes. Apple users may only use the Licensed Application on an Apple device that you own or control (including accounts associated with you via Family Sharing or volume purchasing) and as permitted by the Apple Media Services Terms. Except as expressly permitted by law or by Breville in writing, you will not reproduce, redistribute, sell, create derivative works or subsequent versions, decompile, reverse engineer, or disassemble the Licensed Application.

 

1. Consent to Electronic Communications. Breville may be required by law to send communications to you that pertain to the Licensed Application and your use thereof. You consent to receive these communications electronically (e.g., via email, through the Breville website or via the Licensed Application).

2. Ownership of the Licensed Application. The Licensed Application is the valuable property of Breville and its licensors and is protected by copyright and other intellectual property laws and treaties. Breville, and its affiliates and licensors, own all right, title and interest in and to the Licensed Application, including all copyright and other intellectual property rights therein. Breville reserves all rights not expressly granted to you.

3. Repeat Infringer Policy; Copyright Complaints. In accordance with applicable laws, we have adopted a policy of limiting access to the Licensed Application by or terminating the accounts of users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything in the Licensed Application infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent.

If you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying on such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

4. Scope of License to the Licensed Application. The Licensed Application may be accessed on certain authorised devices or products (each, a "Device") that you own or control and as permitted by any applicable terms and conditions provided by the mobile application store provider from whom you install the Licensed Application ("Usage Rules"). The Licensed Application will not operate another company’s appliance. The terms of this license will govern any upgrades provided by Breville that replace or supplement the original Licensed Application, unless an upgrade is accompanied by a separate license, in which case the terms of that separate license will govern.

5. License Restrictions. The preceding states the entirety of your rights with respect to the Licensed Application and we reserve all rights in and to the Licensed Application not expressly granted to you in this Agreement. This license does not allow you to: (a) operate an appliance purchased from any entity other than Breville or a Certified Reseller; (b) use the Licensed Application on any Device you do not own or control; (c) distribute, copy, license, rent, sell, resell, publish, lease or otherwise transfer the Licensed Application (except as expressly permitted by this Agreement or the Usage Rules) or any proprietary materials of Breville to any third party; (d) reverse engineer (except in cases where you have the right to do so under the applicable mandatory rights), decompile, disassemble or attempt to discover any source code or trade secrets related to the Licensed Application or any proprietary materials of Breville, unless and to the extent permitted under the applicable law; (e) modify, alter or create any derivative works or subsequent versions of the Licensed Application; (f) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Application; (g) work around any technical limitations in the Licensed Application; (h) use the Licensed Application for purposes other than your own personal, noncommercial use, or for which it was not designed; OR (i) violate any applicable laws, rules or regulations in connection with your access or use of the Licensed Application. Unless explicitly stated herein or otherwise by Breville, nothing in this Agreement shall be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication or otherwise. If you breach any of these restrictions, you may be subject to prosecution and damages. This license is revocable at any time, such as if you breach this Agreement.

6. Privacy. In accordance with Sage Privacy Notice we may collect, use and share information about you, including, but not limited to, information about your use of the Licensed Application, Device, system and application software, and peripherals, that is gathered in connection with your access to and use of the Licensed Application. For further information, please refer to our Sage Privacy Notice.

7. Maintenance. Breville does not provide any maintenance or support for the Licensed Application.  To the extent that any such maintenance or support becomes required by applicable law, Breville, not Apple, shall be obligated to furnish it.

8. Product Claims. Breville will use reasonable efforts to address questions, comments or claims relating to the Licensed Application or your possession and use of the Licensed Application, including, but not limited to, (a) product liability claims; (b) any claim that the Licensed Application fails to conform to the applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. If you have any questions, please contact Breville at 0808 178 1650.

9. Additional Terms. The Licensed Application may enable access to websites, mobile applications and other online products and services provided by Breville and third parties. Your access to and use of these websites, mobile applications or other online products and services may require your acceptance of, and compliance with, additional terms and policies provided by Breville and/or third parties, as applicable. You must also comply with applicable third-party terms of agreement when using the Licensed Application.  Apple and its subsidiaries are third-party beneficiaries of this Agreement.  Upon your acceptance of it, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you.

10. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT (A) THE LICENSED APPLICATION MAY CONTAIN BUGS, ERRORS AND DEFECTS WE ARE NOT AWARE OF; (B) DOWNLOAD, INSTALLATION AND USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ACCORDINGLY, THE LICENSED APPLICATION IS PROVIDED "AS IS," "AS AVAILABLE," WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BREVILLE DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED APPLICATION AND ITS PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. BREVILLE SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE LICENSED APPLICATION OR FOR ANY LOSS OF DATA. BREVILLE DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS, INACCURACIES, INCOMPLETENESS, OR ERRORS. (COLLECTIVELY, "FAULTS") OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BREVILLE OR ITS AUTHORISED REPRESENTATIVES SHALL CREATE ANY WARRANTY. IN THE EVENT THAT THE LICENSED APPLICATION IS DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  APPLE IS NOT RESPONSIBLE FOR ANY CLAIMS RELATED TO THE LICENSED APPLICATION OR YOUR POSSESSION AND/OR USE OF IT, INCLUDING BUT NOT LIMITED TO (1) PRODUCT LIABILITY CLAIMS; (2) ANY CLAIM THAT THE LICENSED APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (3) CLAIMS ARISING UNDER CONSUMER PROTECTION, PRIVACY OR SIMILAR LEGISLATION.  IF THERE IS A FAILURE OF THE LICENSED APPLICATION, YOU MAY NOTIFY APPLE, WHO WILL REFUND THE PURCHASE PRICE FOR THE LICENSED APPLICATION.

 

The laws of some jurisdictions do not allow the exclusion of implied warranties. To the extent that those laws apply, the exclusions set forth above may not apply to you.

 

11. Limitation of Liability. Breville liabilities do not include (a) defects occurring as a result of installation, remedy or development performed by other than Breville or as a result of customer's use of the Licensed Applications in conjunction with third party accessories/software that directly or indirectly affect the functionality of the applications, (b) errors occurring as a result of alterations to or interference with the Licensed Applications not carried out in accordance with Breville´s written instructions or acceptance, (c) errors occurring as a result of customer's lack of training, as a result of the use of the Licensed Applications in any other way than set out in the provided documentation, in accordance with good IT practice or due to customer’s negligence, its staff or any third-party and (d) failure to meet requirements or requests for functionality not expressly and clearly specified in the Agreement.

In no event and no matter the circumstances shall Breville be liable for any loss of anticipated profit, loss of data, damage to records or data or any indirect, special, incidental or consequential damages or loss (including the loss of goodwill, or loss as a consequence of any kind of business interruption) arising out of or in connection with the Agreement, performance of the Licensed Applications and the results connected thereto.

Breville aggregate liability in respect of any matters arising out of or in connection with the Licensed Applications and this EULA, incl. with regard to art. 82(5) of the general data protection regulation, shall be limited to an amount corresponding all payments made under the Agreement for the period of six (6) months prior to the event(s) having given rise to the claim (the 'Liability Cap'). The Liability Cap shall in all circumstances be limited to a maximum of € XXX.

Breville assumes product liability in accordance with applicable mandatory legislation. Beyond this, Breville assumes no product liability.

 

Certain Limitations. Some jurisdictions do not allow the exclusion or limitation or exclusion of certain types of warranties, damages, or liabilities, so the above exclusion and limitation may not apply to you but in such case the exclusions and limitations set forth shall be applied to the greatest extent enforceable under applicable law. Compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds including tort, the following provisions shall apply the following provisions apply:

 

Breville is liable in case of intent, gross negligence as well as in case of claims according to the Product Liability Act in accordance with the statutory provisions. If you purchased the software in Germany, Breville is also liable for injury to life, limb, or health in accordance with the health in accordance with the statutory provisions. Breville is not liable for slight negligence. However, if you purchased the software in Germany Breville is also liable for slight negligence, if Breville has a material contractual obligation. In such cases, Breville liability is limited to typical and foreseeable damages. In all other cases, including tort, Breville is not liable for slight negligence, even in Germany.

 

12. Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Breville and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, insurers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (together with Breville, the "Breville Parties") from all third-party claims of any kind, whether in tort, contract or otherwise (collectively, "Claims"), including damages to property or personal injury, that arise from or relate to:

  • your download, installation, access, use or misuse of the Licensed Application;
  • your violation of this Agreement, any applicable law or any third-party right of any nature;
  • your violation of the Terms of Use and Sale;
  • any Feedback (as defined in the Terms of Use and Sale) that you provide;
  • any User Content (as defined in the Terms of Use and Sale) that you create, post, share or store on or through the Licensed Application or our pages or feeds on third-party social media platforms; or
  • use or misuse of the Licensed Application by any third party you authorise to use the Licensed Application provided to you.

In the event of any Claim that the Licensed Application, or your possession or use thereof, infringes any third-party intellectual property rights, Breville, not Apple, will be responsible for the investigation, defence, settlement and discharge of any such claims.  If such claims are made against you, you agree to contact Breville promptly and directly. You agree to cooperate with the Breville Parties in defending such Claims. You further agree that the Breville Parties shall have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any indemnities set forth in any other written agreement between you and Breville.

This indemnity obligation also includes paying for any of the Breville Parties' attorneys' fees and other costs of investigating and defending Claims, and the costs of enforcing the indemnity obligation.

13. No Export. You may not use or otherwise export or re-export the Licensed Application or any content contained therein, except as authorised by the laws of the jurisdiction in which the Licensed Application or any content was obtained. To the extent required by applicable law, the Licensed Application and the content contained therein may not be exported or re-exported to (a) any U.S. embargoed countries; or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.

14. Legal Compliance. To the extent required by applicable law, by downloading, installing and using the Licensed Application, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You will comply with all applicable laws, rules, and regulations, including, but not limited to, U.S. export control laws.

15. Termination. Notwithstanding anything contained in this Agreement, to the fullest extent permitted by applicable law, Breville reserves the right, without notice and in our sole discretion, to modify or terminate the Licensed Application or your right to access or use the Licensed Application at any time with or without notice, and to block or prevent your future access to and use of the Licensed Application. Breville shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.  You are also entitled to terminate the Agreement without notice, in your sole discretion and at any time, by uninstalling the Licensed Application. If we terminate your right to use the Licensed Application, these Terms will terminate and all rights you have to access the Licensed Application will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, and as applicable, those which by their nature ought to survive. Termination of your account may also include, at our sole discretion, the deletion of your account and/or User Content, and you will not be able to retrieve any information related to your account except as required by applicable law. If you transfer an Appliance that links to the Licensed Application to a new owner, your right to use the Licensed Application with respect to that Appliance automatically terminates. The new owner will have no right to use the Licensed Application under your account and will need to register for a separate account with Breville.

16. Severability. If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.

17. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of New South Wales, Australia, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. If you acquired this Licensed Application in the European Union, Iceland, Norway, or Switzerland, the laws of the country in which you acquired the Software. Otherwise, this EULA is governed by the laws of the State of New South Wales, Australia.