1. License. Subject to the terms and conditions of this Agreement and until this Agreement is otherwise terminated in accordance with its provisions, Developer grants User a perpetual, non-exclusive, non-transferable, revocable, worldwide license to use the Brookfield App software (the “Software”) on the number of mobile computing devices owned or controlled by User, in accordance with all applicable terms and conditions of the platform and the device to which such use applies.
If User obtained or accessed the Software through the Google Play App Store (the “Software App”), such license shall extend to any Google Devices owned or controlled by User as permitted by the Google Play Terms of Service.
The Software is licensed to User, not sold, and User must pay the applicable licensing fees to Developer or Developer’s authorized agent before using the Software.
The terms of this license shall apply to any upgrades provided by Developer that replace or supplement the original version of the Software, unless such upgrade is covered by a separate license, in which case the terms of that license shall govern.
2. Title. The Software is owned by Developer and will remain the sole and exclusive property thereof, including without limitation any copyright, trade-mark and patent rights in the Software.
3. Permitted Uses. The User may: a. install the Software on the mobile computing devices owned or controlled by User in accordance with Section 1; and b. make a copy of the Software for archive and backup purposes.
4. Prohibited Uses. The User may not: a) copy the Software, except as expressly provided under this Agreement; b) make copies of documentation or manuals provided by Developer; c) modify the Software; d) translate, reverse engineer, decompile, disassemble or otherwise modify the Software in any way; e) rent, lease, assign or transfer the Software; f) remove any proprietary notices that are provided with the Software; or g) re-sell the Software or services provided by the Software.
5. User Content and Third Party Content. User gives the Developer permission to use any content provided by User in a request for technical support (“Technical Support Content”): (1) to administer, maintain, update, improve, test, access and use the Software; or (2) to comply with any applicable law or governmental request.
User agrees that any content provided to User on the Software which does not expressly identify Developer or relate to technical support of the Software is provided by third parties and not by Developer (“Third Party Content”). User agrees and acknowledges that: a) the Software provides a platform for third parties to deliver Third Party Content, and Developer does not deliver Third Party Content to User, directly or indirectly or in any manner whatsoever; b) any agreement to receive Third Party Content is made strictly between User and such third parties, and not Developer; and c) to the maximum extent permitted by law, Developer shall have no responsibility whatsoever in respect of delivery of Third Party Content to User without authorization or consent.
6. Warranty of User, Limited Warranty of Developer and Disclaimer. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED ON AN “AS-IS” BASIS AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND OTHER THAN THE LIMITED WARRANTY. DEVELOPER HEREBY DISCLAIMS ALL WARRANTIES OTHER THAN THE LIMITED WARRANTY AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THOSE ARISING OUT OF USAGE OF TRADE OR COURSE OF DEALING. DEVELOPER DOES NOT WARRANT AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR THE SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET USER’S REQUIREMENTS.
WITHOUT LIMITING THE FOREGOING:
A. DEVELOPER DOES NOT WARRANT THAT USER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; AND
B. DEVELOPER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT ANY OTHER PRODUCT, WILL WORK WITH OR CONFORM TO THE SOFTWARE PROVIDED TO USER UNDER THIS AGREEMENT.
THE DEVELOPER IS NOT OBLIGATED TO PROVIDE USER WITH ANY SUPPORT FOR THE SOFTWARE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEVELOPER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
7. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL DEVELOPER BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION:
A. DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES, ARISING OUT OF OR RELATED TO USER’S USE OR INABILITY TO USE THE SOFTWARE OR ANY AUTHORIZED PERSON’S USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE); AND
B. ANY DAMAGE FOR STRESS, HARM OR INJURY TO ANY INDIVIDUAL;
EVEN IF DEVELOPER HAS BEEN ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.
IN CASE OF A BREACH OF ANY TERM OF THIS AGREEMENT, USER’S EXCLUSIVE REMEDY SHALL BE A REPLACEMENT COPY OF THE SOFTWARE OR A FULL REFUND OF THE PURCHASE PRICE OF THE SOFTWARE. IN NO EVENT SHALL DEVELOPER’S TOTAL LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
8. Indemnity. User agrees to indemnify, defend and hold Developer harmless from any and all liability of any kind or nature whatsoever to third parties which may arise from use of the Software by User, or the acts of User under this Agreement, including the negligence of User.
9. Term and Termination. This Agreement is effective until terminated by User or the Developer. User’s rights under this Agreement shall terminate immediately upon breach of the Agreement by User. In the event that Developer or Google becomes aware of any claim, lawsuit, action, allegation, proceeding or suit against Developer, Google, or any of their business partners, affiliates, employees or contractors in respect of the Software and content provided in respect of the Software, Developer and Google shall have the right, at their sole discretion, to either: a) terminate this Agreement and return the license fee to User; or b) provide User with replacement Software that is non-infringing. User agrees, upon termination, to destroy the Software and accompanying written materials, together with all copies of the Software.
10. Google Terms. In addition to the foregoing terms, User agrees the following terms and conditions shall apply in respect of the Software App: a) User agrees that: (i) this Agreement is concluded between User and Developer only, and not Google; and (ii) as between Developer and Google, Developer is solely responsible for the Software App. b) User acknowledges that Google shall serve as Developer’s agent for the purposes of delivery of the Software App and for any other purpose set forth in Google Play Developer Distribution Agreement. c) User’s use of the Software App shall comply with the Google Play Terms of Service. d) User agrees Google has no obligation to provide any maintenance and support services with respect to the Software App, under this Agreement or otherwise under applicable law. e) Within 48 hours of User’s purchase of the Software App, User may notify Google and Google may refund the purchase price for the Software to User. Google shall have no other warranty obligation whatsoever with respect to the Software App. f) User agrees to comply with any and all applicable third party terms of agreements when using the Software App. g) If you have questions, complaints or claims regarding the Software App, please contact Developer by e-mail at: email@example.com.
11. Governing Law and Forum. This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario, Canada. Developer and User hereby irrevocably attorn to the exclusive jurisdiction of the Superior Court of Justice in Toronto, Ontario Canada, and that court shall be the exclusive forum for any dispute arising out of this Agreement or the performance of the obligations hereunder. For greater certainty and notwithstanding the choice of venue or law provisions above, Developer and User hereby waive a jury trial in any suit, action or claim arising from or in connection to this Agreement.
12. Severability. It is intended that all provisions of this Agreement are fully binding and effective between the parties, but in the event that any particular provision or provisions or a part of one is found to be void, voidable or unenforceable for any reason whatsoever, then the particular provision or provisions are deemed severed from the remainder of this Agreement and all other provisions remain in full force and effect.
14. Entire Agreement. This Agreement constitutes the entire agreement concerning this license between the parties and supersedes all prior agreements and representations between them. Developer reserves the right, at its discretion, to change, modify, add or remove portions of this Agreement at any time. User agrees that, upon being notified of such changes, User’s continued use of the Software shall be deemed to be acceptance of those changes.