Last Updated Date: December 5, 2019
IMPORTANT NOTICE: THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THE APP TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THESE TERMS ALSO INCLUDE A JURY WAIVER AND A CLASS ACTION WAIVER, THE LATTER OF WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
NOTE THAT THESE TERMS APPLY ONLY TO THE MYBROOKFIELD APP; OTHER THIRD PARTY APPLICATIONS OR SERVICES PROVIDED WITHIN OR THROUGH THE MYBROOKFIELD APP MAY HAVE SEPARATE TERMS AND CONDITIONS AND PRIVACY POLICIES THAT APPLY TO THE USE OF THOSE APPLICATIONS OR SERVICES.
We may terminate these Terms for any or no reason, and with or without notice to you. However, the portions dealing with intellectual property rights, indemnification, disclaimers, limitation of liability, governing law, and any other portions which by their nature would continue beyond the termination of these Terms, will survive the termination of these Terms. Your rights under these Terms will terminate automatically if you fail to comply with any provision of these Terms. Upon termination of these Terms, you shall cease all use of the App.
1. OWNERSHIP AND LICENSE
The App contains visual interfaces, graphics, designs, trademarks, images, information, data, computer code, software, services, materials, and other content (collectively, “Content”), all of which is protected under intellectual property and proprietary rights and other applicable federal, foreign, international, provincial, local and state laws. Content may be in the form of text, data, sound, graphics, images, software or other forms now known or later invented.
Subject to your complete and ongoing compliance with all terms and conditions set forth in these Terms, Brookfield grants you (a) a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the App downloaded directly from a legitimate marketplace (such as Apple’s iTunes store or Google Play), solely in object code format and solely for your own personal non-commercial use for lawful purposes, on a single compatible mobile device that you own or control, and (b) permission to access and use the App services, only for your own personal non-commercial use, through the use of a licensed copy of the App. Brookfield may, in its sole discretion, suspend, discontinue or terminate this license to you at any time for any reason.
Brookfield reserves the right at any time and from time to time to modify, suspend, discontinue, or cancel any or all of the App’s operation, or portions thereof, with or without notice to you. You acknowledge and agree that Brookfield will not be liable to you or any third party for any such modification, suspension, discontinuation, or cancellation of any or all of the App’s operation.
2. ACCOUNT REGISTRATION; PRIVACY
We shall have no liability associated with or arising from your failure to maintain accurate personally identifiable information in connection with your Account, including, but not limited to, your failure to receive critical information from Brookfield or the App.
Your selection and use of an Account username and password, and any other information required for access and authentication purposes, are subject to these Terms. You agree not to share your username, password and any security-related information with anyone. You are responsible for all uses of your Account and for ensuring that access to and use of your Account complies fully with these Terms. You acknowledge and agree that any use of your Account through your username, password and security information shall be deemed to be your actions that we may rely upon. You are solely responsible for protecting the confidentiality and security of your Account.
3. RESTRICTIONS ON ACCESSING AND USING THE APP
As a condition to accessing and using the App in accordance with the license granted to you under these Terms, you agree to comply with all applicable laws, rules, regulations and other legal requirements relating to your access to and use of the App. Further, you agree not to:
- use the App for any illegal purpose, or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
- interfere with security-related features of the App, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any Content, or (ii) reverse engineering or otherwise attempting to discover the source code of the App or any part thereof except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the App or any user’s enjoyment of the App, including without limitation by (i) disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the App, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the App, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, or accessing the App accounts of others without permission;
- sell or otherwise transfer the access granted herein or any Content or any right or ability to view, access, or use any Content; or
- attempt to do any of the foregoing in this Section, or assist or permit any persons in engaging in any of the activities described in this Section.
4. THIRD PARTY SERVICES
The App provides access or links to web sites, applications, resources, services, or products made available by third parties (collectively, “Third Party Services”). Brookfield has no control over such Third Party Services, and you acknowledge and agree that (a) Brookfield is not responsible for the availability of any such Third Party Services, and (b) Brookfield does not endorse and is not responsible or liable for any such Third Party Services, or for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such Third Party Services. Without limiting the generality of the foregoing, your access and use of any account with a Third Party Service is subject to any terms, conditions, and policies, including privacy policies, of the third party that makes such Third Party Service available through the App. Brookfield reserves the right to change the available Third Party Services or remove a Third Party Service from the App at any time for any reason.
Brookfield may use and disclose any comments, suggestions, bug reports, or feedback relating to the App (collectively “Feedback”) without any restriction. Without limitation, Brookfield will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback.
You agree to defend, indemnify and hold harmless Brookfield and its parent, subsidiaries, and affiliated companies, and their respective service providers, agencies, licensors, and contractors (including the Brookfield Service Providers), together with each of their respective employees, agents, directors, officers and shareholders (all of the foregoing, collectively, the “Brookfield Entities”), from and against all liabilities, claims, damages and expenses (including reasonable attorneys’ fees and costs) arising out of your use of the App or your breach or alleged breach of any of these Terms.
7. DISCLAIMERS; NO WARRANTIES
You understand and agree that your use of the App and any services of the App is solely at your own risk and that you will be solely responsible for any damage to your mobile device or computer or any other equipment or loss of data that may result from your use of the App.
The App, Content, and Third Party Services are provided on an “AS IS” and “AS AVAILABLE” basis without any warranty of any kind, expressed, implied or statutory. WE AND THE BROOKFIELD SERVICE PROVIDERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to you.
BROOKFIELD AND THE BROOKFIELD SERVICE PROVIDERS MAKE NO WARRANTIES THAT THE APP OR ANY CONTENT OR SERVICES OBTAINED THROUGH THE APP WILL MEET YOUR REQUIREMENTS, OR THAT THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, NON-INFRINGING OR ERROR-FREE. YOU UNDERSTAND AND AGREE THAT YOU ARE RESPONSIBLE FOR ANY AND ALL CHARGES, COSTS AND EXPENSES FOR ACCESS TO OR USE OF THE APP. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY PERFORMANCE DEGRADATION, INTERRUPTION OR DELAYS OF THE APP, OR ERRORS OR OMISSIONS IN ANY CONTENT ON OR THROUGH THE APP.
ANY DECISION OR ACTION TAKEN BY YOU ON THE BASIS OF INFORMATION, CONTENT, OR SERVICES PROVIDED IN OR THROUGH THE APP IS AT YOUR SOLE DISCRETION AND RISK. WE AND THE BROOKFIELD SERVICE PROVIDERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY SUCH DECISION, OR FOR THE ACCURACY, COMPLETENESS, USEFULNESS, OR AVAILABILITY OF ANY CONTENT DISPLAYED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE IN THE APP.
8. LIMITATION OF LIABILITY
YOU AGREE THAT THE ENTIRE LIABILITY OF ANY BROOKFIELD ENTITY TO YOU, AND THAT YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY DAMAGES SUFFERED BY YOU THROUGH USE OF THE APP IS LIMITED TO THE AMOUNT OF TEN DOLLARS ($10.00). NO BROOKFIELD ENTITY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF A BROOKFIELD ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE OR JURISDICTION DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH IN THIS PARAGRAPH, THE BROOKFIELD ENTITIES’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES OR JURISDICTIONS.
9. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS PROVISION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THESE TERMS AND YOUR USE OF THE APP TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS PROVISION ALSO INCLUDES A WAIVER OF JURY TRIAL.
There may be instances when you have a problem or dispute with respect to the App that needs special attention. In those instances, Brookfield is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Brookfield relating to these Terms and your use of the App, you acknowledge and agree that you will first give Brookfield an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute by e-mail to email@example.com. You then agree to negotiate with Brookfield in good faith about your problem or dispute relating to these Terms or your use of the App. This should lead to resolution, but if for some reason your problem or dispute relating to these Terms or your use of the App is not resolved satisfactorily within sixty (60) days after Brookfield’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
You agree that the sole and exclusive forum and remedy for any disputes and claims that cannot be resolved informally and that arise out of your use of the App and these Terms shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any of the Brookfield Entities’ or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that the Brookfield Entities may seek injunctive or other appropriate relief in court.
Arbitration under these Terms shall be conducted by the American Arbitration Association (“AAA”). The arbitration shall be administered by AAA pursuant to its Consumer Arbitration Rules. If the arbitration results in an award, then judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You and we agree to pay our own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. You agree that any claim for or award of attorneys’ fees is waived. An arbitrator may award on an individual basis any relief. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if your claims qualify for hearing by such court.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE APP, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED UNENFORCEABLE, THEN ANY PUTATIVE CLASS ACTION MAY ONLY PROCEED IN A COURT OF COMPETENT JURISDICTION AND NOT IN ARBITRATION.
WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND BROOKFIELD BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US. IN NO EVENT SHALL ANY CLAIM, ACTION OR PROCEEDING BY YOU RELATED IN ANY WAY TO THESE TERMS BE INSTITUTED MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES UNDER APPLICABLE LAW.
a. Assistance; Contact: If you have any issues with your use of the App, or issues with your requests or purchases made through the App that you are unable to resolve directly with the Third Party Vendor, our team will try to assist you where possible. You can contact our team by selecting the “Need help?”, ‘Help” or similar button in the App, or by calling the telephone number shown in the App. If you have any other questions, complaints or claims about the App, or if you are having any technical difficulties with the App, please email us at firstname.lastname@example.org.
b. Severability: If any provision of these Terms is unlawful, void or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
c. Applicable Law: These Terms and any disputes arising under or related to these Terms will be governed by the laws of the State of New York, without reference to its conflict of law principles.
d. Entire Agreement: These Terms constitute the entire, complete and exclusive agreement between you and us regarding the App and supersede all prior agreements and understandings with respect to their subject matter.
e. Waiver: The remedies of Brookfield set forth in these Terms shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. Any failure by us, at any time or from time to time, to enforce any of our rights under these Terms shall not constitute a waiver of such right.
f. Additional Terms Applicable to Platform Providers: The following applicable additional terms and conditions are applicable with respect to your use of a third party platform to access and download the App or any subsequent updates thereto, such as Apple, Inc., Amazon.com, Inc., Google, Inc., or any other similar third party “app store” or platform (each a “Platform Provider”):
ii. You acknowledge that the Platform Provider is not responsible for addressing any claims you have or any claims of any third party relating to the mobile application or your possession and use of the mobile application, including, but not limited to (A) product warranty or liability claims; (B) any claim that the mobile application fails to conform to any applicable legal or regulatory requirement; (C) claims arising under consumer protection or similar legislation; or (D) claims that the mobile application infringes a third party’s intellectual property rights, such that you will not hold such Platform Provider responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
iii. In the event of any failure of the Platform Provider version of the mobile application to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify such Platform Provider, and such Platform Provider will refund the purchase price for the mobile application (if any) to you; to the maximum extent permitted by applicable law, such Platform Provider will have no other warranty obligation whatsoever with respect to the mobile application, and, as between such Platform Provider and Brookfield, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Brookfield’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Brookfield’s liability in this regard.
iv. The Platform Providers are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, such Platform Provider will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof. There are no other third-party beneficiaries of the Terms.