IMPORTANT! Please read carefully these terms of use in their entirety before using the Portal and the Services (as defined below). These terms of use are a legally binding agreement between each user (“You” or “Your”) and Us (as defined in Section 1(c) below). Do not use the Portal or the Services if You do not agree to these terms of use.

For U.S. Users: Section 26.2(a) limits Our liability to the lesser of $1,000.00 or twelve (12) times the monthly services fee if You or anyone else suffers any harm (damage or loss of property, personal injury, or death) because the services or system failed to operate properly or We were careless or acted improperly. Section 26.2(b) requires You to indemnify Us and Our contractors and licensors if a claim or a lawsuit arising out of the Services is brought against Us or Our contractors or licensors. Read these provisions particularly carefully.

THESE TERMS OF USE ARE EFFECTIVE FROM December 1, 2019

1. ACCEPTANCE OF THESE TERMS

(a)          This document sets out the terms and conditions (“Terms”) on which You may access and use:

1.    the Swann Security app (“App”) and any other software or website provided by Us through which Your Content (as defined below) may be accessed by You (the “Portal”); and

2.    the Service Plans and Subscription Services defined and described in Section 4;

(collectively, the “Services”).

(b)          These Terms apply in addition to any other terms and conditions to which You are subject in relation to the Portal and Services, including:

1.    the terms of use for Our general website which are available at http://www.swann.com;

2.    terms of use relating to any compatible devices or appliances You register for use with the Portal or the Services (“Your Devices”); and

3.    any relevant third party terms and conditions, including any relevant terms for https://www.apple.com/au/itunes/, https://play.google.com/store or associated websites and any other third party websites to which the Portal may be linked,

(collectively, “Other Terms”). In the event of any inconsistency between these Terms and the Other Terms, these Terms will prevail to the extent of the inconsistency.

(c)           By accessing or using the Portal or the Services or both, You accept and agree to these Terms without any limitation or qualification. These Terms constitute a legally binding agreement between You and:

1.    if You are in Australia: Swann Communications Pty Ltd (ABN 86 289 780 584) of Units 5B & 2A, 706 Lorimer Street, Port Melbourne, Victoria, 3207;

2.    if You are in the United Kingdom: Swann Communications (Europe) Ltd of 2 Canon Harnett Court, Wolverton Mill, Milton Keynes, MK12 5NF; or

3.    if You or Your Property (as defined below) are in the United States: Swann Communications USA Inc. of 12636 Clark Street, Santa Fe Springs, CA 90670

(“Swann”, “We”, “Us” or “Our”).

d.            You warrant to Us that You have the authority to enter into these Terms.

2. CHANGES TO THE TERMS

(a)          We may change these Terms from time to time by posting the changed Terms through updates of the Portal, and bringing these changes to Your attention when You next log on to Your Account.

(b)          If We make any:

1.    changes to these Terms that do not alter Your rights, such changes will apply from the time that You continue using the Portal;

2.    reasonable changes to these Terms that alter Your rights, such changes will apply 7 calendar days after You have been notified of those changes in accordance with Section 2(a); and

3.    any other material changes to these Terms that alter Your rights and could cause You material detriment, such changes will apply on and from the next Billing Date if You are registered for a Subscription Service.

3. REQUIREMENTS FOR USING SWANN SUBSCRIPTION SERVICES

(a)          In order to access and use the Portal and Services, You will need to:

  1. acquire and correctly install Your Devices and ensure they are functional and operating;
  2. acquire and correctly install all hardware, software, broadband internet connection and bandwidth required to run the Portal and properly use the Services, and ensure they are functional and operating;
  3. register Your device(s) within the Swann Security mobile app with a unique “User ID” including a username and password; and
  4. register on https://subscriptions.swannsecurity.com with the same User ID, which involves accepting these Terms, providing certain personal information, and selecting the type of Services You wish to acquire. You will also be asked to provide details of a Payment Instrument in certain circumstances (see Section 8).

(b)          For the avoidance of doubt, You acknowledge that:

1.    at all times, You are solely responsible for acquiring and correctly installing Your Devices and ensuring they are functional and operating;

2.    at all times, You are solely responsible for providing all hardware, software, network connectivity, broadband internet connection and bandwidth required to run the Portal and properly use the Services; and

3.    You may not be able to access and use the Services unless You have successfully complied with, and continue to comply with, Section 3(a).

4. ACQUIRING SERVICE PLANS

(a)          The Portal has various functionalities available which We offer as service plans, which are described on the Swann Website and are updated or replaced from time to time (“Service Plans”). These Service Plans may vary by price, Minimum Term, Alert capabilities, recording and device features, and other matters, as described on the Swann Website.

(b)          Once You have successfully completed the set-up procedure outlined in Section 3 above, You will be automatically provided with the functionality of the ‘Free’ Service Plan for no monthly fee.

(c)           You can choose to enable increased functionality by following the prompts on the Portal and purchasing Service Plan upgrades on a subscription basis (“Subscription Services”).

(d)          Each Subscription Service commences on the date that You register for that Service (“Subscription Date”) and continues in full force and effect for the minimum term set out in the applicable Service Plan for that Service (“Minimum Term”). At the end of the Minimum Term, the Subscription Service will automatically renew on a month-to-month basis unless You terminate it in accordance with Section 12.

5. ACCESS AND USE; GUIDELINES FOR INSTALLATION AND USE

(a)          All right, title and interest in the Services and Our content provided through Our cameras, digital video recorders and other equipment and products (collectively, “Products”), and Services (including without limitation information, documents, logos, graphics, designs and images) are owned by Swann, its licensors, or designated third parties. Subject to these Terms, Swann grants You a limited, non-transferable, non-exclusive right to access and use the Services for the sole purpose of monitoring your property and controlling Your Products, and solely for Your personal, non-commercial use.

 

(b)          Privacy and other laws applicable in Your jurisdiction may impose certain responsibilities on You and Your use of the Products and Services. You agree that it is Your responsibility, and not the responsibility of Swann, to ensure that You comply with any applicable laws when You use the Products and Services, including but not limited to:

(c)           any laws or regulations relating to the recording or sharing of video or audio content, and/or (2) any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to Your use of the Products or Services.

In addition, You agree (a) that installation of any Product which takes visual and/or audio recordings will be installed at such an angle that it does not take any recordings beyond the boundary of Your property (including public pavements or roads); (b) to prominently display appropriate signage advising others that audio/visual recording is taking place; and (c) if You use Your property as a workplace, to comply with laws governing the monitoring of employees.

If Your use of the Services or any Products is prohibited by applicable laws, then You aren’t authorized to use the Services. We can’t and won’t be responsible for Your using the Services or any Products in a way that breaks the law.

You may be required to sign up for an account, and select a password and username (“User ID”). You promise to provide Us with accurate, complete, and updated registration information about yourself. You may not select as Your User ID a name that You don’t have the right to use, or another person’s name with the intent to impersonate that person. Also, You will not share Your Account or password with anyone, and You must protect the security of Your Account and Your password. You’re responsible for any activity associated with Your Account.

You represent, warrant, and agree that You will not capture or contribute any Content (as defined below) or otherwise use the Services or Products or interact with the Services or Products in a manner that:

1.      Infringes or violates the intellectual property rights or any other rights of anyone else (including us);

2.      Violates any law, ordinance, or regulation, including privacy and other laws referenced above and any applicable export control laws;

3.      Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

4.      Jeopardizes the security of Your Account or anyone else’s account with Us (such as allowing someone else to log in to the Portal as you);

5.      Attempts, in any manner, to obtain the password, account, or other security information from any other user;

6.      Violates the security of any computer network, or cracks any passwords or security encryption codes;

7.      Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while You are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

8.      “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); or

9.      Copies or stores any significant portion of the Content not owned by You.

A violation of any of the foregoing is grounds for termination of Your right to use or access the Products and Services.

6. TRADEMARKS AND COPYRIGHTS

Nothing on or in the Products or Services shall be construed as conferring any license under any intellectual property right, including any right in the nature of trademark or copyright, of Swann or any third party, whether by estoppel, implication or otherwise. All trademarks and trade names are the property of their respective owners.

Except as otherwise noted, Swann is the owner of all trademarks and service marks on or in the Products and Services, whether registered or not, including, without limitation, Swann. Swann expressly forbids the unauthorized use of its logos, trademarks or other graphics to create links. All registered trademarks are registered in the United States of America (and/or other applicable jurisdictions).

7. YOUR CONTENT

You may have the ability to post or upload materials (including, without limitation, video, images, audio, commentary) (Your “Content”), including, without limitation, Content captured through or in connection with Your use of the Products and Services.

You are solely responsible for all Content that You upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Products or Services). You represent and warrant that:

(a) You own the intellectual property rights in the Content posted by You or otherwise have the right to post the Content and grant the license set forth below, and (b) the posting and use of Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person.

You hereby grant Swann and its licensees an unlimited, irrevocable, fully paid and royalty-free, perpetual, worldwide right to re-use, distribute, store, delete, translate, copy, modify, display, create derivative works from Your Content in any media formats in any media channels without compensation to you in connection with Our provision of the Services.  You shall not use, reproduce, modify, upload, publish, transmit, distribute, display, or otherwise exploit for any purposes whatsoever any Content: (i) not owned by You without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.  Swann reserves the right, but shall not be obligated, to remove any Content from the Services at any time in its sole and absolute discretion.

(b) You must ensure that Your Devices:

1.    are used only for the purpose of maintaining security at the location at which Your Devices are installed (such location, “Your Property”); and

2.    are not used in a way which unreasonably infringes on the privacy of any individual (e.g. by placement in restrooms or toilets).

8. MAKING CLAIMS

(a)          To make an insurance claim You must complete the insurance claim form on Our website including but not necessarily limited to:

1.    your Account ID

2.    proof of purchase including model number/item code

3.    valid police report from Your local jurisdiction documenting details of the removal of the registered device(s) from Your property

(b)          To make a warranty claim You must complete the warranty claim form on Our website including but not necessarily limited to:

1.    your Account ID

2.    proof and date of purchase including model number/item code

3.    mac ID and/or device registration date

4.    detail of product defect or issue that has caused the warranty claim

5.    send the device(s) in question back to Swann as detailed in the claim form

9. USING THE PAYMENT PORTAL

9.1         Entering information using the Payment Portal

(a)          You must first set up Your account with us for the Services(Your “Account”) using the App. You may then subscribe for services by submitting the required Account and personal details in accordance with the visual and text prompts in the registration Section of the Swann Website, including:

1.    Your personal details;

2.    contact details of the people who You authorize the Portal or Us to contact in accordance with Your instructions and to act on Your behalf in the event of an Alert (“Your Assigned Contacts”);

3.    details of Your Devices which You require access to or control of using the Portal, and the location of Your Property where Your Devices are installed;

4.    rules in relation to the usage of Your Devices at Your Property; and

5.    rules in relation to the notifications You would like to receive regarding specified activities that occur at Your Property (“Alerts”) and how You would prefer those Alerts to be communicated to You and Your Assigned Contacts (e.g., by email or push notification).

(b)          Together, all information and details that You enter into Your Account, and any data that is not Our Materials (as defined in Section 6 below) including any video recordings which You make from the Portal or which are stored remotely using the Services (“Your Data”), are Your Content.

9.2         Accessing and recording information through the Portal

The Portal allows You to connect to Your Devices in accordance with the rules You establish using the Portal, so that You can access or record certain input being captured by Your Devices.

9.3         Communicating Alerts

(a)          We will send Alerts to You and Your Assigned Contacts in accordance with the rules You establish using the Portal.

(b)          You may also view Alerts in the ‘Alerts’ Section of the Portal.

9.4         Controlling Your Devices

You can input instructions into the App which are relayed to Your Devices directly, via the internet.

9.5         Storage of Your Data

(a)          You acknowledge and agree that a third party service provider engaged by Us will store Your Data in accordance with applicable local laws pertaining to data storage, privacy and GDPR concerns.

(b)          We only commit to storing Your Data for the limited time described in Your Service Plan, and may permanently delete Your Data after expiry of the relevant time.

(c)           You may access, download or delete Your Data via the App.

(d)          We acknowledge that You own the rights to Your Data and nothing in these Terms is intended to give Us any ownership rights in respect of Your Data.

(e)          You authorize Us to access and use Your Data for purposes related to providing the Services to You under these Terms.

(f)           You acknowledge that:

1.    Your Data is only intended to be a resource to assist You with the personal monitoring of Your Property. Your Data may not capture every incident or security breach or related occurrence in Your Property, and should therefore be used in conjunction with other appropriate measures for the personal monitoring of and protection of Your Property security and safety; and

2.    there are many things outside Our control which may affect the recording, live streaming and storage of Your Data, and Your ability to access Your Data using the Portal or the Services, and Your ability to access mobile alerts and notifications. We do not guarantee that Your access to the Portal, the Services, alerts and notifications will be uninterrupted or error free. In the unlikely event that any of Your Data is lost or corrupted such that it is not accessible, We will take reasonable steps to repair or recover Your Data at no cost to You. Subject to Section 17, it is Your responsibility to take all appropriate measures to minimize any loss or damage that may flow from any interruption, breakdown or failure of the Portal or Services, including ensuring that Your Devices which are required to record and transmit Your Data to the Portal, are operating and functional at all times.

10. FEES AND PAYMENT

10.1       Payment method

(a)          In registering Your Account, if You subscribe to a Subscription Service Plan You will be required to provide details of an approved credit or debit instrument (“Payment Instrument”). In providing Your Payment Instrument, You authorize Us to charge Your Payment Instrument with any fees or charges that apply in accordance with Your Service Plan (“Fees”).

(b)          You are responsible for keeping the details of Your Payment Instrument correct and up-to-date by making any relevant changes in the ‘Your Account’ Section of the Portal, for example if You want to use a different Payment Instrument or Your Payment Instrument has expired.

(c)           You acknowledge that if Your Payment Instrument expires or becomes invalid, and You do not edit Your Payment Instrument or cancel Your Subscription Service, You authorize Us to continue charging Your Payment Instrument with any fees or charges that continue to apply in accordance with Your Service Plan and that You remain responsible for any outstanding debts owed to Us.

10.2       Billing cycle and changes to Your Service Plan

(a)          If You have registered for a Subscription Service, You will pay the Fees monthly in advance. We will automatically charge the Fees to Your Payment Instrument each month on the calendar day corresponding to the Subscription Date (“Billing Date”).

(b)          You acknowledge that each Subscription Service has a Minimum Term. If You cancel Your Subscription Service before the end of the Minimum Term, You authorize Us to charge Your Payment Instrument the amount owing for the remainder of the Minimum Term.

(c)           After the Minimum Term, if You would like to cancel Your Subscription Service, You must cancel Your Service at least 7 calendar days before it renews on the next Billing Date in order to avoid being charged the following month’s Fees. If You cancel Your Subscription Service on or after it has renewed for the following month, the cancellation will take effect on the next Billing Date and You will still be charged that month’s Fees.

(d)          You may upgrade Your Service Plan to a more expensive level of Service at any time, including during the Minimum Term, by updating the relevant details in Your Account. Any changes will take effect immediately, and such date will then be Your new Billing Date.  If You were already registered for a Subscription Service, We will take into account any Fees You have already paid for the month in charging You any additional Fees that apply for that month to provide the upgraded Service; and

(e)          You may only downgrade Your Subscription Service to a lower cost of Service after the expiry of the Minimum Term for that Plan.

11. PAID SUBSCRIPTIONS

When You first set up Your Product through the Portal, or at any time after You begin using Your Product, You may enjoy Our Swann ExtraSecurity Plan or Swann CompleteSecurity Plan by enrolling in Our monthly or annual subscription plan, which will continue until You cancel Your subscription. These subscription plans entitle You to access Our Swann ExtraSecurity Plan or Swann CompleteSecurity Plan for each payment period until such subscription is cancelled. Your paid subscription will automatically commence on the first day following the end of Your trial period, on a monthly or annual basis depending on Your election when You first set up Your Product. By submitting Your payment details in conjunction with the trial, You agree to this charge. To avoid this charge, You must cancel Your Swann ExtraSecurity Plan or Swann CompleteSecurity Plan by either contacting Us before the end of Your trial period or discontinuing the Swann ExtraSecurity Plan or Swann CompleteSecurity Plan via the Swann website.

Subscription fees are billed or charged on the first day of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, We reserve the right to cancel Your Swann ExtraSecurity Plan or Swann CompleteSecurity Plan subscription and to collect any rejection or insufficient funds fee and to process any such payment by the payment method You have submitted to us.

12. AUTO-RENEWAL FOR PAID SUBSCRIPTIONS 

Unless You opt out of auto-renewal, which can be done through Your Account settings by removing Your payment information or by contacting us, any paid Services (for example, Your Swann ExtraSecurity Plan or Swann CompleteSecurity Plan) You have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or discontinue Your paid Services at any time, go to account settings or contact us. If You terminate a paid Service, You may use Your subscription until the end of Your then-current term and Your subscription will not be renewed after Your then-current term expires. However, You won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period, except as set forth in the Refund Policy below. Your non-termination or continued use of a paid Service reaffirms that We are authorized to charge Your payment method for that paid Service. We may submit those charges for payment and You will be responsible for such charges. This does not waive Our right to seek payment directly from you.

13. CANCELLATION OF PAID SUBSCRIPTIONS

You may cancel Your Subscription Plans through the Portal at any time, with or without cause. After Your cancellation, You will continue to enjoy access to the Swann ExtraSecurity or CompleteSecurity Plans and Your Content until the last day of Your subscription period. After such subscription period ends, Your Subscription Plans and Your Content will no longer be accessible to you through the Portal.

14. REFUND POLICY

(a)          Product Refund. If, for any reason, You decide to return a Product that You purchased from Us for a refund, You must notify Us and return the Product to Us within thirty (30) days from the date the Product was delivered. Unless the Product is faulty or not as described, You will be responsible for all costs associated with returning the Product to Us (including uninstallation and the cost of shipping the Product back to us). We will refund the price You paid for the Product (minus any credits applied or partial refunds issued) excluding original shipping charges.

(b)          Prorated Subscription Refund. If You cancel Your annual subscription at any time within the first ten (10) months of Your subscription period, You will be charged the monthly subscription fee (i.e., fee for the monthly subscription plan) for each month of Your annual subscription period prior to Your cancellation, and You will be eligible for a refund of the remainder of Your annual subscription fee (minus any credits applied or partial refunds issued). We will not issue a refund for any unused portion of Your monthly subscription after the first ten (10) months of Your subscription.

15. PRIVACY AND USE OF DATA

(a)          We may collect, use and disclose Your personal information, including Your Account and Your Content, to provide, administer, improve and personalize Our products and services (including the Portal), identify You, correspond with You, protect Our lawful interests and deal with Your concerns. We may not be able to do these things without Your personal information. For example, some functionality of the Portal may be limited without Our use of Your personal information.

(b)          Our Privacy Policy contains further details about how We handle and store personal information. The Privacy Policy (which is available at www.swann.com/au/privacy-policy or by contacting Us) also contains information about how You may access and seek correction of Your personal information, as well as how We respond to privacy concerns. By accepting these Terms, You warrant that You have read, understood and agree with the handling of Your personal information in accordance with Our Privacy Policy.

(c)           If You provide personal information to Us (including by inputting it into the Portal or allowing it to be captured by one of Your Devices) about any third party (including any Assigned Contacts), You must first ensure that they are aware that their personal information is being collected by Us and that it may be handled, stored and exchanged in accordance with these Terms and Our Privacy Policy.

16. YOUR USE OF OUR MATERIALS

(a)          All rights in the Portal and content on the Portal, including without limitation copyright in the software and data comprising the Portal and Our trademarks, are owned or licensed by Us (“Our Materials”). As between You and Us, We own all rights in and to Our Materials and the Portal. You must not remove, alter or conceal any copyright, trade mark or other proprietary rights notice incorporated in or accompanying Our Material and You must not reproduce, modify, adapt, perform, display or otherwise exploit Our Materials other than as permitted in paragraph (b) below.

(b)          We grant You a limited, non-exclusive, personal, royalty free license to use Our Materials for the purposes of using the Portal and the Services for which You have paid for, and to which You are otherwise entitled to use under these Terms.

17. USE OF THE PORTAL AND SERVICES

(a)          You must not:

1.    submit, or use the Portal to send, any unauthorized commercial communications (such as spam);

2.    access the Portal or App using automated means;

3.    violate or attempt to violate the security of the Portal or App;

4.    upload viruses or other malicious code to the Portal or App;

5.    bypass any measure We may use to prevent or restrict access to the Portal or App, any part of the Portal or App or any other software, systems; or networks connected to the Portal or App;

6.    decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying algorithms of any part of the Portal or App;

7.    create derivative works of any part of the Portal or App;

8.    rent, lease, lend, sell, transfer, redistribute, or sublicense the Portal or App;

9.    do anything that could disable, overburden, or impair the proper working of the Portal or App, such as a denial of service attack;

10.  disrupt or interfere with any Services, servers or networks connected to or accessible through the Portal or App;

11.  let anyone else access Your Account; or

12.  use the Portal or App, the Services or Your Devices in any manner or for any purpose that it is unlawful.

(b)          You acknowledge that:

1.    the Portal, App and the Services are not certified for emergency response;

2.    We do not certify that the Portal or the Services have been designed or programmed to comply with any laws relating to security systems, and

3.    You may opt out of the receipt of any messages and alerts from the Portal, App or the Service, but We do not recommend You do so.

18. TERMINATION AND SUSPENSION

(a)          Subject to Section 10.2, You may cancel, without receiving a refund:

1.    any of Your Subscription Services by updating Your Account; or

2.    Your access to all of the Services by deleting the Portal or App from Your Device without notice to Us.

(b)          We may terminate, disable, block or suspend Your access to the Portal or App:

1.    immediately, if You breach, or We suspect on reasonable grounds that You have breached, these Terms; or

2.    on 7 days’ notice to You, at any other time, acting reasonably.

If You have any outstanding debts to Us at the time of the termination or cancellation of Your Account, We reserve the right to pursue You for them in accordance with Our rights under these Terms.

(c)           All provisions which by their nature survive termination, including Sections 9, 10, 13, 14, 15 and 16, will survive termination of these Terms.

19. YOUR RESPONSIBILITIES

(a)          You are responsible for:

1.    all of the activity conducted using Your Account, whether or not they are conducted or authorized by You, and in connection with the Portal (including Your use of any Tools, as defined in Section 20 below);

2.    keeping Your password to Your Account safe, secure and confidential, and notifying Us if You become aware that access to Your Account has been compromised;

3.    ensuring that all of the information and details that You submit into the Portal or App are complete and correct at all times, including Your contact details and those of any Assigned Contacts;

4.    ensuring that Your Devices are connected to the internet so that they can receive all firmware and other updates and upgrades via the Portal or App as they become available from time to time;

5.    monitoring Your Content, including Your Alerts and deciding how often You monitor Your Content;

6.    how You interpret or use the Portal or App and Your Content;

7.    any actions (including making phone calls, sending text messages and emails, and contacting emergency services and law enforcement) that You take or not take as a result of the Portal, App or Your Content;

8.    obtaining and maintaining all appropriate insurance as is reasonably prudent to protect against risks at Your Property including burglary, theft, robbery and fire and consequential loss and damage; and

9.    providing such other assistance or permitting such other access to Your Property as We may reasonably require for the proper provision of the Services.

(b)          You remain responsible for any breach of contract or infringement of any intellectual property or other rights of any third party in connection with Your Content.

(c)           We reserve the right to access, read, preserve and disclose any of Your Content (including Your Data and personal information) as We reasonably believe is necessary to:

1.    satisfy any law or regulation;

2.    enforce these Terms, including investigation of potential violations of these Terms;

3.    detect, prevent or otherwise address fraud, security or technical issues; or

4.    respond to Alerts.

(d)          Since electronic services are subject to interruption, breakdown and failure, access to the Portal, App and the Services (including Your ability to receive Alerts and obtain remote access to and control of Your Devices) is offered on an ‘as is’ and ‘as available’ basis only. There are many things outside Our control which might mean that the Portal and the Services cannot function under all circumstances. You acknowledge that it is Your responsibility to take appropriate measures to minimize any loss or damage that may flow from any interruption, breakdown or failure of the Portal or Services.

20. THIRD PARTY TOOLS

Certain hardware, tools, devices, software programs or other features (“Tools”) that can be used with the Portal or App may be provided by third parties. These Tools are not operated by Us or any agent of Us, and We are not responsible for examining or evaluating the suitability or compatibility of their use with the Portal, App or their performance, reliability, content, availability, accuracy, adequacy, timeliness, validity, copyright compliance, legality, decency, quality, completeness or any other aspect of these Tools.

21. SOFTWARE UPDATES

From time to time, Swann may develop updates, upgrades, patches and other modifications to improve the performance of the Services and/or the Products or for other reasons in Our sole discretion (“Updates”). You agree that Swann may automatically install such Updates without providing any additional notice to You or receiving any additional consent from you.

22. PRODUCTS AND SOFTWARE

Downloading or using Our software (including the App) does not give You title to such software, including any files, data and images incorporated in or associated with the software. Your use of any such software shall be only in accordance with these Terms. Our software is copyrighted by Swann or its licensor(s), and may be protected by one or more patents owned by Swann or its licensor(s). Software may not be copied, redistributed or placed on any server for further distribution. You may not sell, modify, decompile, disassemble or otherwise reverse engineer the software. Products and Services offered through this website shall be warranted, if at all, through the written license or warranty provided in connection with such product or software. These Terms apply to Your use of all the Products and Services, including the App or any software downloaded to Your smartphone or tablet to access the Services. The App and Our software is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Products and Services for Your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Products and Services. You will only use the App on a device that You own or otherwise authorized to use. You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties.

23. NO LIFE AND SAFETY OR CRITICAL USES; BACKUPS

You acknowledge that Our Products and Services are not a third-party monitored emergency notification system and that We do not monitor emergency notifications and will not dispatch emergency authorities to Your home in the event of an emergency. We make no warranty or representation that use of the Products or Services will affect or increase any level of safety.  You acknowledge that the Products and Services are not intended to be 100% reliable and are not a substitute for a third-party monitored emergency notification system. We cannot and do not guarantee that You will receive notifications in any given timeframe or at all. All life threatening, safety and emergency events should be directed to the appropriate response services.

We strongly suggest that You backup any important Content (for example, by downloading and locally saving any such Content). You are solely responsible to backup Your Content on Your own computers or storage devices to avoid loss of Your Content.

24. PLATFORM TERMS

The following Section 24(a) applies for the Android version of the App available on Google Play.

(a)          We grant You a non-exclusive, worldwide and perpetual license to perform, display and use the Portal on Your device that is capable of accessing Google Play.

The following Sections 24(b) to 24(f) apply for the Apple version of the App available on the iTunes Store.

(b)          You acknowledge that these Terms are between Us and You, and that Apple Inc. (“Apple”) is not a party to these Terms.

(c)           We grant You a non-exclusive, revocable, royalty free, non-transferable license to use the App in accordance with these Terms on an iOS Product (that is, any Apple-branded product that runs the iOS operating system software provided by Apple) or any other product permitted by Apple from time to time that You use or control and as permitted by the “Usage Rules” set out in the “App Store Terms of Service”.

(d)          Both You and We acknowledge that in the event of any third party claim that the App or Your possession and use of the App infringes that third party’s intellectual property rights, as between Us and Apple, We (not Apple) will be solely responsible for the investigation, defense, settlement and discharge of such claim.

(e)          You acknowledge that Apple has (to the maximum extent permitted by law) no warranty obligations with respect to the App and that any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty implied or imposed by law will be Our responsibility (not Apple’s). Without limiting any other provisions of these Terms, both You and We also acknowledge that We (not Apple) are responsible for addressing any claims that You or a third party has relating to the App or Your possession or use of the App, including without limitation any product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation.

(f)           Where permitted under applicable laws, both You and We acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, on Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as a third party beneficiary of these Terms.

25. GENERAL

(a)          If any provision of these Terms is invalid under the law of any jurisdiction, that provision is enforceable in that jurisdiction to the extent that it is not invalid, whether it is in severable terms or not.

(b)          Subject to Section 25(c), these Terms are governed by the laws of Victoria, Australia and the courts of Victoria, Australia (and the courts of appeal from them) have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms.

(c)           If You are in:

1.    the United States, these Terms are governed by the laws of the State of California and the courts of the State of California (and the courts of appeal from them) have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms; or

2.    the United Kingdom, these Terms are governed by United Kingdom law and the courts of the United Kingdom have exclusive jurisdiction to resolve any disputes arising under or in connection with these Terms.

(d)          If We fail to enforce any of Our rights under these Terms, that does not mean We waive those rights. If You fail to enforce any of Your rights under these Terms, that does not mean You waive those rights.

(e)          These Terms are personal to You and You may not assign or otherwise transfer any rights under these Terms without Our prior written consent. We may assign or otherwise transfer Our rights and obligations under these Terms as We require.

(f)           We may sub-contract or delegate the performance of all or some of Our duties, obligations and powers under these Terms (including the provision of any Service) without Your prior approval. However, We will remain liable for the acts or omissions of any sub-contractor or delegate in the performance of any of Our duties, obligations and powers as if they were Our acts or omissions.

(g)          Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms or the Services provided to You.

(h)          These Terms govern any upgrades provided by Us that replace and/or supplement the original App, unless such upgrade is accompanied by separate terms, in which case those terms will govern the upgrade.

26. COUNTRY-SPECIFIC TERMS

26.1       For Users in Australia: Your Consumer Rights and Our liability

(a)          Nothing in these Terms is intended to exclude, restrict or modify rights which You may have under any law (including the Australian Consumer Law) which may not be excluded, restricted or modified by agreement (Your “Consumer Rights”). Your Consumer Rights include the right for services to be fit for their specified purpose and to be provided with care and skill. You can find out more about Your Consumer Rights from consumer organizations and bodies such as the Australian Competition and Consumer Commission and State/Territory fair trading authorities.

(b)          Where You suffer any loss in connection with the use of Our Services, Products or the Portal, You must take all reasonable steps to minimize Your loss, including notifying Us without delay if there are steps We can take to help minimize Your loss.

(c)           We limit Our liability for any loss or damage arising in connection with the Services or these Terms (other than Our liability in connection with Your Consumer Rights) to:

1.    supplying the Services again;

2.    refunding the cost of the Services; or

3.    paying the cost of having the Services supplied again.

(d)          Subject to Your Consumer Rights, We are not liable:

1.    for any loss that was not reasonably foreseeable to You and Us or any loss of Your Content or Data; and

2.    to the extent that Your loss was contributed to by You or any other matter outside Our reasonable control.

26.2       If You are in the United States: Our Limited Liability

(a)          LIMITATION OF LIABILITY. You understand that (i) We are not an insurer of Your Property or the personal safety of persons on Your Property; (ii) You should obtain insurance on Your Property and its contents; (iii) the amount You pay to Us is based only on the value of the Services we provide and not on the value of Your Property or its contents; (iv) alarm systems and Our Services may not always operate properly for various reasons, including, without limitation, loss of power, cyber security or data breaches; (v) it is difficult to determine in advance the value of the Your property that might be lost, stolen or destroyed if the Services or equipment fails to operate properly; (vi) it is difficult to determine in advance how fast the police or fire department or others would respond to an Alert; and (vii) it is difficult to determine in advance what portion, if any, of any property loss, personal injury or death would be proximately caused by Our failure to perform, Our negligence, or failure of Our contractors. Therefore, You agree that even if a court decides that Our breach of these Terms of Use or other obligations, or Our or Our contractors’ negligence (including sole negligence and gross negligence), or a failure of any equipment, website, installation, monitoring, repair service, or other services caused or allowed any harm or damage (whether property damage, personal injury or death) to You or anyone in or about Your premises, YOU AGREE THAT OUR LIABILITY SHALL BE LIMITED TO THE LESSER OF $1,000.00 OR TWELVE (12) TIMES THE MONTHLY SERVICES FEE, AND THIS SHALL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY (INCLUDING WITHOUT LIMITATION, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR PRODUCT LIABILITY) IS USED TO DETERMINE THAT WE WERE LIABLE FOR THE INJURY OR LOSS. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES. 

(b)          INDEMNIFICATION. SUBROGATION WAIVER. To the maximum extent permitted by applicable law, You agree that if anyone other than You asks Us to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from Your use of the Services, our Products or the Portal, including, without limitation (i) Our breach of these Terms of Use or a failure of the Services or Products, (ii) Our or Our contractors’ negligence, (iii) any other improper or careless activity of Ours in providing the Services, or (iv) a claim for indemnification or contribution, You will pay Us (a) any amount which a court orders Us to pay or which We reasonably agree to pay, and (b) the amount of Our reasonable attorneys’ fees and any other losses or costs that we may pay in connection with the harm or damages. Your obligation to pay Us for such harm or damages shall not apply if the harm or damages happens while one of Our employees or subcontractors is in or about Your Property, and that employee or subcontractor solely causes such harm or damages. Unless prohibited by Your property insurance policy, You agree to release Us from any claims of any parties suing through Your authority or in Your name, such as Your insurance company, and You agree to defend Us against any such claim. You will notify Your insurance company of this release.

(c)           LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL. Both You and Us agree that no lawsuit or any other legal proceeding connected with these Terms of Use or Services shall be brought or filed more than two (2) years after the incident giving rise to the claim occurred. IN ADDITION, EACH OF THE PARTIES HEREBY IRREVOCABLY GIVES UP AND WAIVES ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, DIRECTLY OR INDIRECTLY, AND/ OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG THE PARTIES HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO COVER ALL DISPUTES THAT MAY BE FILED IN COURT, INCLUDING WITHOUT LIMITATIONS CONTRACT, TORT, BREACH OF DUTY, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING AND APPLIES TO ANY FUTURE AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF OR TO THIS AGREEMENT. IN THE EVENT OF LITIGATION COVERED BY THE SCOPE OF THIS WAIVER, THIS AGREEMENT MAY BE FILED IN COURT AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

26.3 If You are in the United Kingdom: Our Limited Liability

(a)          To the maximum extent permitted by law:

1.    We shall not be liable to You for indirect, incidental or consequential loss or damage or for loss of data, loss of goodwill, loss of profits or revenues or loss of anticipated savings;

2.    Our liability to You for any loss or damage, including but not limited to, any and all claims, losses, liabilities, damages, actions, demands or expenses (including, but not limited to, all reasonable attorneys’ fees or costs of suit which We may incur as a result of or in connection with these Terms or in connection with the provision of Services), whether arising from negligence, breach of contract, or otherwise, shall in no event exceed a total of the Fees paid by You to Us during the period of one year preceding the occurrence giving rise to the claim or, in case the damage occurs during the first year of the Services, the amount of the projected Fees for the first year of the Services; and

3.    You shall indemnify and hold Us, our contractors and licensors harmless from and against any loss or damage (as described in Section 26.3(a)(2)) which We may incur or which may be launched against Us by any third party as a result of or in connection with the performance of the Services unless such loss or damage arises from any negligent act or omission on the part of Us or Our employees, agents or subcontractors.

(b)          The limitations of liability in Sections 26(a)(1) and 26(a)(2) do not apply to any liability for fraud, willful default or for death or personal injury arising from Our negligence or that of Our employees, agents or subcontractors.