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Developer Licence Agreement for Brother Programs

IMPORTANT-PLEASE READ CAREFULLY:

This Licence Agreement (“Agreement”) is a legal agreement between Brother Industries, Ltd., 15-1 Naeshiro-cho, Mizuho-ku, Nagoya 467-8561 Japan (“Brother”) and any natural person or legal entity (“Developer”) with respect to certain programs and information which are developed and/or generated for Brother single-function, multi-function printer, or scanner products  (“Brother Products”).  
By press the “Yes” button on this dialog box or sign the Agreement, Developer shall be deemed accepted to be legally bound by the terms and conditions of this Agreement.  If Developer does not agree to be legally bounded by the terms and conditions of this Agreement, Brother is unwilling to licence the Programs to you and you must immediately discontinue installation of the Programs and delete all copies you have already made.
An individual who accepts or signs this Agreement on behalf of an entity represents to Brother that he or she has the legal right to enter into a binding legal agreement for that entity.

1. Background
Developer is desiring to develop its own application software having; a) functions and features to direct various printing and/or scanning commands to Brother Products, and/or b) other functions and features to interoperate with Brother Products (“Developer Software”) for distribution to its clients.
In order to create Developer Software having foregoing functions and features, Developer needs to acquire certain computer programs and related information from Brother including in whole or in part any of the protocol specification, sample command, script, check program, simulation tool, electronic documents and printed material such as manuals (“Programs”).  
And furthermore, Developer needs to acquire activation tool including PJL file and solution provider ID from Brother in order to set up BSI functions of Brother Products (“Activation Tool”).   
Therefore, Brother hereby grants a royalty-free licence to the Developer to use the Programs and Activation Tool to develop and create Developer Software which will interoperate with Brother Products, provided that, Developer shall comply with all terms and conditions of this Agreement.

2. Ownership.
a. All right, title and interest in and to the Programs and Activation Tool (including all copyright and other intellectual property rights therein) are owned by Brother or licensed to Brother by third party.  The Programs and Activation Tool are protected by applicable laws and international treaties.  The licence granted under this Agreement is not a sale, transfer or assignment of any rights in the Programs and Activation Tool.
b. Brother does not grant Developer any rights other than as expressly provided in this Agreement.

3. Grant of Licence.
To the extent Developer complies with all terms and conditions hereof, Brother grants Developer a non-assignable, non-exclusive, royalty-free licence to:

a. install, record and use the Programs on one or more of Developer’s computer(s), only for the purpose of developing Developer Software interoperating with Brother Products at the Developer’s premises.  For the purpose of this Section 3.a, “Developer’s computer(s)” may include network servers or storages: provided that Developer must not install or record the Programs on any network servers or storages from which the Programs would be available for downloading to the client and/or any other third parties located out of the above Developer’s premises, and
b. use the Programs only for the internal purpose of design, engineering, development, test and evaluation of printing function of such Developer Software.
c. grant end users of the Developer Software sublicenses to use certain portions of the Programs incorporated in the Developer Software, to the extent that the license is necessary to use the Developer Software.  The sublicense granted under this Subsection 3.c is always subject to the Customer's observance of Section 4..
d. install and store the Activation Tool on Developer’s one particular computer, and distribute the Activation Tool only to end users of the Developer Software to activate the  BSI function of Brother Products.
 
4. Prohibition
Developer shall not:
(a) distribute the Programs alone without incorporating them into the Developer Software;
(b) distribute firmware, PJL (printer job language), simulation tool and technical manual, which may be provided by Brother, to client and/or end-user without prior written consent of Brother;
(c) use any trademarks or logos, including without limitation “brother” logo and other logos and trademarks owned by Brother, directly or indirectly to, its Developer Software without prior written consent of Brother,
(d) make any patent application, publication, or any other disclosures with respect to the Programs without prior written consent of Brother,; and
(e) distribute the Activation Tool to any other third parties who don’t use Brother Products.

5. Additions and Amendments.
At Brother’s absolute discretion, Brother may upgrade or amend the Program or amend this Agreement.  This Agreement shall apply to any upgrade or amendment of the Program. Any amendment to this Agreement shall be notified on the Brother’s website and continued use of the Program by Developer thereafter shall constitute acceptant of Developer to such amendment.

6. Transfer.
Developer shall not sell, assign, rent, lease or otherwise transfer the Programs and Activation Tool to any third party.

7. Reverse Engineering.
Except and to the limited extent as may be otherwise specifically provided by any laws or rules applicable in certain country, state or region Developer resides, Developer may not reverse engineer, disassemble or decompile the Programs and Activation Tool nor otherwise transform the same into human-readable forms.

8. Term and Termination
a. This Agreement will become effective upon Developer’s acceptance thereof and shall continue in effect, unless the parties agree to terminate this Agreement.
b. Notwithstanding Section 8a above, Brother may, at any time in its sole discretion, terminate this Agreement upon the occurrence of the following cause:
(a) Developer materially breaches or is in material default of any obligation hereunder, which breach or default is incapable of cure or, which, being capable of cure, has not been cured within thirty (30) days after receipt of written notice of default of Brother,
(b) Developer becomes a party to a merger or consolidation, or an event of a change of control of Developer, or transfers all or substantially all of its business and assets to a third party,
(c) Developer becomes insolvent, makes an assignment for the benefit of creditors, files a voluntary bankruptcy petition, is adjudicated bankrupt or ceases to do business, or
(d) Developer will commit acts which violate the public order and morality, violate generally-accepted standards of society, or are judged to be inappropriate by Brother.
In case of such termination, all provisions of this Agreement which impose obligations continuing in their nature shall survive termination of this Agreement.  Upon termination of this Agreement, Developer shall immediately erase any and all copies of the Programs (and any components thereof) and Activation Tool completely.

9. Developer’s Information.
a. Developer warrants that all information provided to Brother for the purpose of this Agreement is true, accurate and complete.  In addition, Developer must meet all the requirements for applying.
b. Developer may at its sole discretion provide Brother with its suggestions, feedbacks or other technical information relating to the Programs.  Developer agrees and acknowledges that such information will be provided voluntarily, and that Brother and Brother group companies may freely use such information at its sole discretion without any payments or compensation and without any other business or technical restrictions.  Brother agrees not to disclose or divulge Developer’s name or other identification as the source of such information provided by the Developer.

10.Export Regulations.
Developer may not export or re-export the Programs or any portion thereof and Activation Tool in violation of any applicable laws, rules, regulations, or treaties.

11. Support.
a. For the Programs.  Brother will at its sole discretion provide support services for the Programs, including support for inquiries about function or usage thereof or advice for programming technique using the Programs.  In no way Brother shall be obliged to provide such support services.
b. For Developer Software.  Developer shall at its own costs and liabilities provide the client any and all support services relating to Developer Software.  Brother has no obligation to provide Developer and client any support services for any Developer Software nor any Programs.

12. NO WARRANTY.
THE PROGRAMS ARE PROVIDED “AS IS” AND NO WARRANTY EITHER EXPRESS OR IMPLIED STATUTORY OR OTHERWISE AS TO CONDITION, QUALITY OR PERFORMANCE, INCLUDING BUT NOT LIMITED TO, WARRANTIES AS TO SATISFACTORY QUALITY OR FITNESS FOR PURPOSE OF THE PROGRAMS OR WITH RESPECT TO NON-INFRINGEMENT OF ANY RIGHTS OF ANY THIRD PARTY ARE GIVEN OR ASSUMED BY BROTHER. ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED EXCEPT TO THE EXTENT THAT SUCH EXCLUSION IS PROHIBITED BY LAW.  WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, BROTHER DOES NOT WARRANT THAT THE PROGRAMS WILL BE ERROR FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET DEVELOPER’S REQUIREMENTS. EACH DEVELOPER AND END USER ASSUME THE ENTIRE RISK AS TO THE RESULTS, PERFORMANCE OR USE OF THE PROGRAMS.  BROTHER SHALL HAVE NO LIABILITY TO ANY DEVELOPER, END-USERS OR OTHER THIRD PARTIES FOR DAMAGES RESULTING, OR ALLEGED TO HAVE RESULTED, FROM ANY ERROR OR OMISSION IN THE PROGRAMS OR ANY ACTION TAKEN OR NOT TAKEN BASED ON, OR MATERIALS PREPARED FROM, THE LICENSED PROGRAMS.

13. EXCLUSION AND LIMITATION OF LIABILITY.
a. BROTHER SHALL HAVE NO LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY INTERRUPTION OF USE, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE, OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, GOODWILL OR ANTICIPATED SAVINGS, THAT ARISES UNDER, OUT OF, OR IN CONTEMPLATION OF THIS AGREEMENT OR OTHERWISE ARISES DUE TO ANY ERROR, INACCURACY OR DEFECT IN THE PROGRAMS, EVEN IF BROTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

b. Developer shall indemnify and hold Brother and its affiliates harmless from any and all claims, suits, costs and damages (including reasonable attorneys’ fees) arising out of or in connection with any claim that Developer Software or any use or distribution thereof infringes any rights including but not limited to intellectual property rights such as patents, copyrights or rights to trade secret of third parties.
c. Notwithstanding the Section 12. or 13.a hereof, this Agreement does not purport to exclude or restrict Brother's liability for death or personal injury resulting from negligence or limit the statutory rights of a consumer.

14. Site Movement.
(If this Agreement and the Programs are provided from website owned by Brother or its affiliates,) Brother may at any time i) remove the Programs from the website, and ii) move, alter or remove the website providing this Agreement.

15. Confidentiality.
a. Developer shall maintain Programs and Activation Tool, technical documentation and any information disclosed by Brother with conspicuous designation as ‘confidential’ (hereinafter referred to as “Confidential Information”) in strict confidence, and shall not disclose such Confidential Information in any form to any third party.
b. Section 15a. shall not apply to any information which:
(a) is or becomes known to the public without any default of the Developer,
(b) is known to the Developer prior to the disclosure,
(c) is legally received by the Developer from any third party without any confidential obligation, or
(d) is independently developed by the Developer without access to the information disclosed from the other.

16. Miscellaneous.
a. Force Majeure.  Neither party shall be liable for delay or failure to perform any of its obligations hereunder, if such delay or failure occurs because of force majeure, including but not limited to, fire, flood, earthquake, act of God, war, rebellion, civil commotion, epidemics, or other similar occurrences which are beyond the control of the party affected.  The party affected by such cause shall give prompt notice thereof, and upon cessation of such cause, take all reasonable steps to resume compliance with its obligations hereunder.
b. No Waiver.  No failure or delay by a party to exercise any right or remedy provided under this agreement or by law  shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
c. Assignment.  Developer shall not assign all or any part of this Agreement to any third party, or any interest therein, without prior written consent of Brother.  A change of control or reorganization of Developer pursuant to a merger, sale of assets or stock shall be deemed to be an assignment under this Agreement.
d. Severability.  If any provisions of this Agreement shall be declared or determined as void or unenforceable by a court of competent jurisdiction, such provisions shall be severable and independent from the other provisions of this Agreement and the validity of the other provisions and of the entire Agreement shall not be affected thereby.
e. Entire Agreement.  This Agreement, together with all exhibits or other attachments referenced herein, constitutes the entire agreement between the parties on the subject matter hereof, and supersedes all proposals, oral and written, between the parties on this subject.
f. No Partnership / Agent.  Nothing contained in this Agreement shall be construed as:
(a) Constituting a partnership or joint enterprise between the parties hereto in any way,
(b) Authorizing either party hereto to act as agent or representative of the other party, or
(c) Authorizing either party hereto to assume or create any obligations on behalf of the other party.
g. Governing Laws; Jurisdiction.  This Agreement is governed and controlled in all aspect in accordance with the Laws of Japan.  All disputes relating to or arising out of this Agreement which either of the parties considers cannot be resolved through amicable negotiation between the parties shall be brought to courts in Nagoya, Japan.

As an authorized representative of the Developer, I have read and agree to the terms of this Agreement and will sign and submit one originally signed copy in its entirety to Brother.

Terms and conditions
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