Brookfield Inventory Home Access License

Brookfield Residential Properties Inc. (“Brookfield Residential”) has a number of fully built spec homes and homes in inventory (“Inventory Homes”) for viewing and/or sale to potential homebuyers (“Customers”). As part of the buying process, Customers will be allowed to visit Inventory Homes without being escorted by a representative of Brookfield Residential. Brookfield Residential will only permit a Customer unescorted access to an Inventory Home if Customer agrees to the limited license and terms listed below (“License”) on behalf of himself or herself, and Customer’s Guest (as defined below). Customer can gain access to Inventory Homes by accepting this License and providing the requested information, including credit card information. Upon Brookfield Residential’s receipt of Customer’s submission and verification of his/her credit card information (including through the charging of a nominal amount of money to his/her credit card solely for verification purposes as may be specified in the checkout process), Brookfield Residential will provide Customer with an access code to use to gain access to the Inventory Home. By his/her submission, Customer agrees to the following terms:

1.       LIMITED, REVOCABLE LICENSE. Brookfield Residential grants Customer and one (1) Customer guest (“Guest”) the limited, non-exclusive, revocable, and non-transferable license to enter the Inventory Home premises and tour the interior and exterior of Inventory Home for an up-to two-hour period selected by Customer through the booking tool, solely for Customer and Guest’s personal, non-commercial purposes. Admission to the Inventory Home, or any portion of the Inventory Home, may be refused or withdrawn to Customer and/or Guest at any time in Brookfield Residential’s sole discretion. Customer and Guest must be respectful of the Inventory Home and its contents at all times and are not permitted to remove, re-arrange, damage, or modify any articles, furniture, or fixtures in and around the Inventory Home. Customer and Guest may not access any areas of the Inventory Home that are marked by Brookfield Residential as “private”, “off limits” or similar, or that are physically secured or restricted and cannot be accessed by means of the access code. Customer and Guest must follow any notices or instructions that Brookfield Residential may provide in respect of the Inventory Home.

Any re-entry into the Inventory Home after the initial visit shall require an additional access code, and any use or access of the Inventory Home not specifically authorized herein, including access of the Inventory Home for more than two (2) hours or any unauthorized re-entry, shall be considered trespassing and shall be prosecutable to the full extent of the law. Brookfield Residential shall be entitled to exercise all legal and equitable remedies for any such unauthorized visit.

2.        CONSENT TO BE RECORDED. Customer and Guest understand and acknowledge that security cameras have been placed throughout the interior and exterior of the Inventory Home and Customer, on behalf of Customer and Guest, consents to being recorded during the visit. This recording may be used and disclosed by Brookfield Residential to protect the security and integrity of the Inventory Home, and to enforce this License. Customer and Guest understand that personal information collected by or on behalf of Brookfield Residential in connection with this License will be used as described in the Brookfield Residential privacy policy available at https://www.brookfieldresidential.com/privacy-policy.

Customer and Guest understand and acknowledge that the Inventory Home offers various smart home devices, to aid in Customer’s tour of the Inventory Home. By using a smart home device, Customer and Guest understand and agree to such device’s terms of use and understand that your information will be used according to the privacy policy governing the device, which are listed below. Specifically, Customer and Guest understand and agree that if Customer or Guest use and/or speak to the smart home devices, the device will automatically save the voice recording. Voice recordings saved by the smart home device are accessible to Brookfield Residential. If Customer or Guest do not consent to such terms or do not wish for Customer’s or Guest’s voice recordings to be saved by the device and accessible by Brookfield Residential, do not use the smart home device:

3.        RISK OF LOSS; AGREEMENT TO BE CHARGED; AND WAIVER. Customer shall be liable for any damage, loss, or theft (“Loss”) that occurs during Customer’s visit to the Inventory Home. Customer agrees that Brookfield Residential may charge Customer’s credit card to cover any costs Brookfield Residential incurs resulting from any such Loss that occurs during or arises out of any visit to the Inventory Home, or Customer’s or Guest’s breach of this License.

In no event shall Brookfield Residential, its parents, affiliates, and subsidiaries, and each of their employees, contractors, officers, directors, shareholders, agents, successors, licensees and assigns (“Released Parties”) be liable for any special, consequential, incidental, indirect, or exemplary damages of any kind, including, without limitation, any losses incurred by Customer and/or Guest in the event that Brookfield Residential revokes this License or Customer and/or Guest are otherwise unable to or denied access an Inventory Home. The Released Parties are not responsible for any personal items left in the Inventory Home.

Customer assumes all risks and all liability for himself/herself and Guest that may occur as a result of Customer’s or Guest’s visit to the Inventory Home. The Released Parties assume no liability or responsibility for any damages or injuries suffered by Customer or Guest while visiting the Inventory Home. Customer, for himself/herself and Guest, irrevocably and voluntarily releases, discharges, waives, and relinquishes the Released Parties of and from any and all present and future claims, demands, damages, expenses, liabilities (including, without limitation, personal injury, property damage or loss) and causes of action, that arise out of or in any way relate to Customer’s and/or Guest’s use, access, or visit to the Inventory Home, or for any charges to Customer’s credit card authorized by this License (“Customer Claims”).

To the maximum extent allowed by law, Customer, for himself/herself and Guest, hereby releases and waives (and is hereby estopped to assert) any and all claims to the contrary. Customer further agrees to indemnify the Released Parties and hold each of them harmless from any and all claims, losses, damages and/or costs (including, without limitation, attorney’s fees and court costs) incurred by the Released Parties as a result of any Customer Claims made, or attempted to be made by Customer and/or Guest. All defenses to the aforesaid obligation by Customer are hereby waived.

4.        BINDING ARBITRATION.

A. If you are a resident of the United States, to the fullest extent permitted by the applicable law, any controversy or claim arising out of or relating to this License or Customer’s and/or Guest’s use of an Inventory Home shall be settled by binding arbitration, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply New York law consistent with the United States Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. Customer and Guest will not be responsible for professional fees for the arbitrator’s services or any other JAMS fees. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Brookfield Residential shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within 60 days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, CUSTOMER, ON BEHALF OF CUSTOMER AND GUEST, AGREES THAT THEY ARE WAIVING THE RIGHT TO A JURY TRIAL AND LIMITING THE RIGHT TO APPEAL.

 

BY USING ACCEPTING THESE TERMS, CUSTOMER, ON BEHALF OF CUSTOMER AND GUEST, AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE INVENTORY HOME WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL CUSTOMER OR GUEST BE PERMITTED TO OBTAIN ANY AWARD FOR, AND CUSTOMER AND GUEST HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT-OF-POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) CUSTOMER’S AND GUEST’S REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND CUSTOMER AND GUEST IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY.

 

This License is governed by New York law and is subject to all applicable federal, state and local laws and regulations. All issues and questions concerning the construction, validity, interpretation and enforceability of these terms, or the rights and obligations of either party in connection with the Inventory Home(s), shall be governed by, and construed in accordance with, New York law, without giving effect to the conflict of laws rules thereof, and any matters or proceedings that are not subject to arbitration as set forth above and/or for entering any judgment on an arbitration award, shall take place exclusively in New York, U.S.A.

 

 

B. If you are a resident of Ontario or Alberta, to the fullest extent permitted by the applicable law, any controversy or claim arising out of or relating to this License or Customer’s and/or Guest’s use of an Inventory Home shall be settled by binding arbitration, in accordance with the procedural rules for commercial disputes set forth in the Arbitration Rules of the Canadian Arbitration Association (“Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the Rules and Procedures. The arbitrator shall apply Ontario law for Ontario residents, and Alberta law for Alberta residents, consistent with the Arbitration Act of the applicable province and applicable statutes of limitations, and shall honor claims of privilege recognized at law. Customer and Guest will not be responsible for professional fees for the arbitrator’s services or any other arbitrator fees.

 

If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by Canadian Arbitration Association, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Brookfield Residential shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within 60 days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, CUSTOMER, ON BEHALF OF CUSTOMER AND GUEST, AGREES THAT THEY ARE WAIVING THE RIGHT TO A JURY TRIAL AND LIMITING THE RIGHT TO APPEAL.

 

BY USING ACCEPTING THESE TERMS, CUSTOMER, ON BEHALF OF CUSTOMER AND GUEST, AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE INVENTORY HOME WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL CUSTOMER OR GUEST BE PERMITTED TO OBTAIN ANY AWARD FOR, AND CUSTOMER AND GUEST HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT-OF-POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) CUSTOMER’S AND GUEST’S REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND CUSTOMER AND GUEST IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY.

 

This License is governed by the law of the province in which Customer or Guest resides, and is subject to all applicable federal, provincial and local laws and regulations. All issues and questions concerning the construction, validity, interpretation and enforceability of these terms, or the rights and obligations of either party in connection with the Inventory Home(s), shall be governed by, and construed in accordance with, the law of the province in which Customer and Guest reside, without giving effect to the conflict of laws rules thereof, and any matters or proceedings that are not subject to arbitration as set forth above and/or for entering any judgment on an arbitration award, shall take place exclusively in the province in which Customer or Guest resides.