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Recon™ Instruments Inc.
HUD Application Distribution Agreement

 

Last Updated: May 15, 2015.


IMPORTANT NOTICE: This Agreement is between Recon Instruments Inc. and the Developer referenced in the applicable online submission form, and governs the potential selection and distribution of Developer’s software application referenced in the applicable online submission form through the Recon App Center and related matters. This Agreement limits and excludes warranties and remedies, exempts Recon and other persons from liability or limits their liability, specifies the jurisdiction for resolution of disputes, and contains other important provisions that you should read.


By submitting an online submission form to Recon, you acknowledge and signify Developer’s acceptance and agreement, without limitation or qualification, to be bound by this Agreement, and you represent and warrant that you have the legal authority to accept and agree to this Agreement on behalf of Developer. If Developer does not agree with each provision of this Agreement, or you are not authorized to agree to this Agreement on behalf of Developer, then Developer may not submit an online submission form.




Introduction

Recon Instruments Inc. (“Recon”) manufactures and distributes various heads-up display (HUD) devices (each a “Recon Device”) that can be used with compatible software applications developed by Recon or authorized third party developers.

Recon licenses proprietary software development kits (each a “Recon SDK”) that can be used by independent developers to develop software applications to run on compatible Recon Devices. Recon operates a publicly available online marketplace (the “Recon App Center”) that may be used by independent developers to distribute their applications to the public for use on Recon Devices. Recon in its discretion decides whether or not an application developed by an independent developer may be distributed by the developer through the Recon App Center.

This Agreement is for independent developers who wish to distribute copies of their application through the Recon App Center without any fee or charge to end users. Recon is not obligated to charge or collect any fee for copies of an application distributed through the Recon App Center unless this Agreement is supplemented with additional written terms and conditions (a “Paid Distribution Addendum”) prescribed by Recon and agreed to by the developer.


  1. This Agreement

    1.1  Purpose and Effect of this Agreement: This Agreement is between Recon and the Developer referenced in the applicable online submission form (collectively the “Parties” and each a “Party”), and governs Developer’s submission of the application referenced in the online submission form (the “Submitted Application”) for review by Recon and, if selected by Recon, the distribution of the Submitted Application through the Recon App Center, and related matters. In this Agreement, “Recon Services” means Recon’s operation of the Recon App Center and all related matters (including the distribution of applications through the Recon App Store).

    1.2  Accepting this Agreement: By submitting an online submission form to Recon, Developer accepts and agrees, without limitation or qualification, to be bound by this Agreement. If Developer does not accept and agree with each provision of this Agreement, then Developer may not submit a submission form.

    1.3  Changes to this Agreement: Recon in its discretion may amend this Agreement at any time by posting the amended Agreement on the Recon website. Amendments are effective immediately upon posting. It is Developer’s responsibility to check the Version Date at the top of this Agreement and review any amendments since the last version. By continuing to use the Recon App Center or Recon Services after this Agreement has been amended, Developer signifies Developer’s acceptance and agreement to the amended Agreement. Developer may not change, supplement or amend this Agreement in any manner.

    1.4  SDK License Agreements: This Agreement is in addition to, and supplements, the agreements that govern Developer’s use of a Recon SDK (collectively the “SDK License Agreements”). If there is a conflict or inconsistency between a SDK License Agreement and this Agreement, then the SDK License Agreement will take priority and govern regarding the relevant Recon SDK and this Agreement will govern regarding the subject matter of this Agreement.

    1.5  Recon Guidelines: Developer will comply with the Recon Developer Guidelines (available online: www.reconinstruments.com/developers/). Recon in its discretion may change the Recon Developer Guidelines at any time by posting the changed Recon Developer Guidelines on the Recon website. The changed Recon Developer Guidelines are effective immediately upon posting. It is Developer’s responsibility to check the “Last Updated” date at the top of each of the Recon Developer Guidelines and review any changes since the last version. By continuing to use the Recon App Center and Recon Services after the Recon Developer Guidelines have been changed, Developer signifies Developer’s acceptance and agreement to the changed Recon Developer Guidelines. Developer may not change, supplement or amend the Recon Developer Guidelines in any manner. If there is any inconsistency or conflict between this Agreement and the Recon Developer Guidelines, then this Agreement will take priority and govern unless the Recon Developer Guidelines expressly state that they take priority over specific provisions of this Agreement, in which case the Recon Developer Guidelines will take priority over the specified provisions but only to the extent of the inconsistency or conflicts.

  2. Submission/Selection of Application

    2.1  Restrictions/Requirements: Developer may not submit an application to Recon if: (a) Developer is not an accredited member in good standing of Recon’s Developer Program; or (b) Recon has previously prohibited Developer from doing so.

    2.2  Process/Procedure: Subject to the provisions of this Agreement, Developer may submit the Submitted Application to Recon by completing and submitting an online submission form to Recon using the processes and procedures established and revised by Recon in its discretion from time to time. Developer will fully cooperate with Recon regarding its review of the Submitted Application, including answering questions and providing information (collectively the “Developer Information”) reasonably requested by Recon. Developer authorizes Recon to install and use a reasonable number of copies of the Submitted Application for the sole purpose of determining whether to select the Submitted Application for distribution through the Recon App Center.

    2.3  Representations/Warranties: Developer represents and warrants to Recon as follows: (a) Developer has tested and reviewed the Submitted Application and reasonably believes that it complies with the requirements of this Agreement, the applicable SDK License Agreements and the Recon Developer Guidelines; (b) the applicable online submission form accurately discloses and describes all features, content, functionalities, operations and services of and provided by the Submitted Application, and is true, accurate, current and complete; and (c) the quality of the Submitted Application is consistent with generally accepted industry standards for similar software products.

    2.4  Selection: Recon will in its discretion determine whether to select the Submitted Application for distribution through the Recon App Center. Recon in its discretion may reject the Submitted Application for any reason or no reason whatsoever, and even if the Submitted Application meets all of the requirements set forth or referenced in this Agreement. If Recon selects the Submitted Application for distribution through the Recon App Center, then the Submitted Application (after it is converted by Recon to Recon’s proprietary RIF format as described in section 3.1 will be the “Selected Application”.

    2.5  Changes and New Releases/Versions: If Developer wishes to change the Submitted Application after it has been submitted to Recon, then Developer will be required to resubmit the changed Submitted Application to Recon for review pursuant to a supplemental online submission form. If Developer wishes to distribute a new release or version of the Selected Application (including new releases or versions that provide bug fixes, enhancements or updates and upgrades) through the Recon App Center, then Developer will be required to submit the new release or version of the Selected Application to Recon for review and selection pursuant to a supplemental online submission form.

  3. Distribution of Selected Application

    3.1  General: Subject to the provisions of this Agreement, during the term of this Agreement Recon will facilitate Developer’s distribution of the Selected Application by: (a) converting the Submitted Application into the Selected Application (which is the Submitted Application in Recon’s proprietary RIF format); (b) allowing members of the public in any and all countries throughout the world (as determined by Recon in its discretion) to download one or more copies of the Selected Application from the Recon App Center; and (c) publishing on the Recon App Center information regarding Developer (including Developer’s name, contact information and website domain name and other Developer Information) and the Selected Application.

    3.2  Role of the Parties in Transactions: By operating the Recon App Center, Recon merely facilitates Developer’s marketing and distribution of the Selected Application, and Developer is and will remain fully responsible and liable for the distribution of copies of the Selected Application through the Recon App Center. Recon is not the agent of Developer or any end user and is not a party to any end user license agreement governing the downloading, installation or use of the Selected Application.

    3.3  No Fees/Charges by Recon: Except as expressly set forth in an applicable Paid Distribution Addendum offered by Recon and accepted by Developer (if any), Recon is not obligated to charge or collect any fee or other amount of any kind from any person for or in connection with any copy of the Selected Application downloaded from the Recon App Center.

    3.4  No Malicious/Harmful Content or Use: Developer represents and warrants that the Selected Application will not, and cannot be used to, damage, harm, detrimentally interfere with or disrupt the integrity, security, performance or normal operation of, or otherwise adversely affect, facilitate unauthorized access to or use of, the Recon App Center, Recon Services, Recon Devices, the Selected Application or any related computer system, network, hardware, software, equipment, services or data. Without limiting the generality of the foregoing, Developer represents and warrants that the Selected Application: (a) does not contain any code, design or routine (including any virus, trojan horse, worm, backdoor, spyware, time bomb, logic bomb, drop-dead device, or other code or routine that manifests contaminating or destructive properties) that may damage, harm, detrimentally interfere with, or otherwise adversely affect the Selected Application or any Recon Device, computer system, hardware, software, equipment or services on or in connection with which the Selected Application may be installed, operated or used, or any related data; and (b) will not, and cannot be used to, disable, override or otherwise interfere with any alert, warning, notice, consent request or other communication normally displayed or communicated by a Recon Device.

    3.5  Prohibited Features/Functionalities/Software: Developer represents and warrants that the Selected Application does not: (a) provide, unlock or enable additional features or functionalities through any distribution mechanism other than the Recon App Center; (b) advertise any software application or other product or service except for Developer’s own software applications available through the Recon App Center; (c) download or install any software application or computer code (including updates or upgrades to the Selected Application) to a Recon Device or any computing device; (d) collect data from a Recon Device or any other computing device without the knowledge and consent of an authorized user of the Recon Device or other computing device; (e) interfere with an authorized user’s use or control of a Recon Device or any other computing device; (f) change or interfere with any settings, preferences or commands already installed or stored on a Recon Device or any other computing device without the knowledge of an authorized user of the Recon Device or other computing device; (g) change or interfere with data stored on a Recon Device or any other computing device in a manner that obstructs, interrupts or interferes with lawful access to or use of the data by an authorized user of the Recon Device or other computing device; (h) cause a Recon Device or any other computing device to communicate with another computer system or device without the knowledge and consent of an authorized user of the Recon Device; (i) allow any person other than an authorized user of a Recon Device to access or activate the Recon Device or any other computing device or any application (including the Selected Application) installed on the Recon Device or any other computing device.

    3.6  EULA:

    (a)  General: Developer will include in the applicable online submission form a reasonable and lawful end user license agreement, between Developer and each person that downloads the Selected Application from the Recon App Center, which governs the person’s downloading, installation and use of the Selected Application (the “EULA”). Developer is solely responsible and liable for the form and content of the EULA.

    (b)  Mandatory Provisions: Developer will ensure that the EULA is consistent with this Agreement and includes the following provisions: (i) a provision that expressly grants to the person who downloads a copy of the Selected Application from the Recon App Center a non-exclusive, worldwide, royalty-free and perpetual license to install and use the Selected Application on any and all compatible Recon Devices owned or used by the person; and (ii) a provision that expressly states that Recon is not a party to the EULA and that Recon is not responsible or liable for the Selected Application or any act or omission by or on behalf of Developer.

    (c)  Standard Form EULA: Recon in its discretion may include in an online submission form a simple, standard form EULA that Developer in its discretion may use for the Selected Application (the “Standard Form EULA”). Developer acknowledges and agrees that: (i) the Standard Form EULA is provided by Recon as a courtesy convenience only; (ii) Recon makes no representations, warranties, conditions or guarantees regarding the Standard Form EULA, including any representation, warranty, condition or guarantee that the Standard Form EULA is legally valid or enforceable, compliant with applicable laws or adequate or sufficient for its intended or any purpose; and (iii) Developer is solely responsible for obtaining appropriate legal advice from qualified lawyers regarding the Standard Form EULA before Developer completes and submits the online submission form.

    3.7  User Reviews/Ratings: The Recon App Center may allow users to post publicly accessible reviews and ratings of the Selected Application, including critical reviews or ratings with which Developer might not agree. Recon may use user ratings to determine the placement of applications on the Recon App Center, and may give better placement to applications with higher ratings. Recon is not responsible or liable for any user reviews or ratings. Recon is not required to review, authenticate, edit or delete any user reviews or ratings, but Recon may do so in its discretion. Developer will not directly or indirectly (through Developer personnel or other persons) post any user reviews or ratings of the Selected Application. Developer may contact Recon if Developer has any questions or concerns regarding user reviews or ratings of the Selected Application.

    3.8  Changes to Recon App Center/Suspension of Distribution: Recon in its discretion may change, suspend or cancel any or all aspects of the Recon App Center (including the distribution of copies of the Selected Application) from time to time without any notice to Developer.

    3.9  Developer Accounts: Recon in its discretion may provide Developer with access to certain administrative features of the Recon App Center using one or more accounts specific to Developer (each an “Account”) and accessible using a user name and password specific to Developer (collectively “Credentials”). Developer is fully responsible and liable for maintaining the confidentiality of its Account information and Credentials and for any and all use and misuse of its Accounts and Credentials. Developer will not disclose its Credentials to any other person or permit any other person to use its Accounts or Credentials. Developer will immediately notify Recon if Developer discovers any unauthorized use of any Account or Credentials, or Developer knows or suspects that its Credentials have been lost or stolen or become known to or used by any other person. Recon is not under any obligation to verify the actual identity or authority of any person using an Account or Credentials. Recon may act upon any communication that is given through an Account or by using Credentials. Credentials do not restrict access by Recon to password-protected information. Credentials may not prevent unauthorized access to data or other information. Recon in its discretion may cancel or suspend Accounts or Credentials, or change Credentials, at any time without any notice to Developer. Recon in its discretion may require proof of the identity of any person seeking to access and use an Account or Credentials, and may deny access to and use of an Account or Credentials or refuse to accept or act upon any communication if Recon is not satisfied with the proof.

    3.10  Reports: Recon in its discretion will make available to Developer information regarding the distribution of the Selected Application through the App Center. Developer will not use any information regarding end users or other potential customers obtained directly or indirectly from Recon or through the Recon App Center (including in any reports or correspondence provided by Recon) to sell or distribute any applications or other products outside of the Recon App Center.

    3.11  Usage Data: Recon in its discretion may collect, retain, use and disclose information regarding the operation and use of the Recon App Center and Recon Devices, including information regarding how the Recon App Center is used and details regarding the downloading of applications (including the Submitted Application) from the Recon App Center, for the purposes of operating and improving the Recon App Center and Recon Devices and advertising, marketing and promoting the Recon App Center, Recon Devices and the applications (including the Selected Application) available through the Recon App Center.

  4. Cancellation

    4.1  By Developer: Subject to the provisions of this Agreement, Developer in its discretion may at any time submit a written request to Recon (in accordance with procedures established and revised by Recon from time to time) to remove the Selected Application from the Recon App Center (and thereby cease Developer’s distribution of the Selected Application through the Recon App Center), and Recon will use commercially reasonable efforts to promptly comply with the request.

    4.2  By Recon: Recon in its discretion may remove the Selected Application from the Recon App Center (and thereby cease Developer’s distribution of the Selected Application through the Recon App Center), on either a temporary or permanent basis as Recon in its discretion considers appropriate, at any time and without any notice or liability to Developer or any other person. By way of example only and without limitation, Recon may remove the Selected Application from the Recon App Center if: (a) Developer ceases to be an accredited member in good standing of Recon’s Developer Program; (b) Recon has reason to believe that Developer has breached this Agreement or a SDK License Agreement; (c) Recon has reason to believe that the Selected Application fails to comply with the restrictions or requirements set forth in this Agreement, the relevant SDK License Agreement or the Documentation; (d) Recon has reason to believe that the Selected Application violates, misappropriates or infringes the rights (including intellectual property rights) of any person (including Recon) or violates any applicable law; (e) the Selected Application is subject to a claim or compliant; (f) Recon has reason to believe that any of the information (including information in an online submission form or other Developer Information) provided by or on behalf of Developer is not entirely true, accurate, current and complete; (g) Recon has reason to believe that Recon is required by applicable law to cease distribution of the Selected Application; or (h) Recon believes that it is prudent or necessary to cease distribution of the Selected Application.

    4.3  Consequences: Removal of the Selected Application from the Recon App Center will not: (a) affect the license rights of end users to retain and use copies of the Selected Application previously downloaded from the Recon App Center; (b) remove, delete or disable any copies of the Selected Application from any Recon Device; or (c) affect Developer’s obligations or liabilities under this Agreement.

  5. Branding and Marketing

    5.1  Recon Marketing Materials:

    (a)  General: Recon in its discretion may from time to time expressly authorize Developer to use certain of Recon’s trademarks and other branding that Developer may use in connection with the advertising and marketing of the Selected Application (the “Recon Branding”) and in addition Recon in its discretion may from time to time provide to Developer advertising and marketing materials regarding the Recon App Center and Recon Devices (the “Recon Marketing Materials”). If Recon expressly authorizes Developer to use Recon Branding or provides Recon Marketing Materials to Developer, then subject to the provisions of this Agreement Recon grants to Developer a limited, restricted, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free, revocable, worldwide license during the term of this Agreement to use (including reproduce, distribute and publish) the Recon Branding and the Recon Marketing Materials for the sole purpose of advertising and promoting the availability of the Selected Application through the Recon App Center, and strictly in accordance with provisions of this Agreement and any additional restrictions and requirements specified by Recon from time to time. Recon in its discretion may change or modify the Recon Branding and the Recon Marketing Materials from time to time, and upon request by Recon Developer will use commercially reasonable efforts to promptly comply with and implement the changes.

    (b)  Good Faith Covenant: Developer acknowledges that Recon and its licensors solely own all right, title and interest in, to and associated with the Recon Branding and the Recon Marketing Materials and the goodwill relating thereto, and Developer will not acquire any right, title or interest in, to or associated with any of the Recon Branding or the Recon Marketing Materials. Developer acknowledges and agrees that all of the benefit and goodwill associated with Developer’s use of the Recon Branding and the Recon Marketing Materials will enure entirely to Recon.

    5.2  Developer's Branding:

    (a)  General: If Developer includes in an online submission form or otherwise provides to Recon copies of Developer’s trademarks and other branding (the “Developer Branding”) or marketing or promotional information or materials regarding the Selected Application (the “Developer Marketing Materials”), then subject to the provisions of this Agreement Developer grants to Recon a limited, restricted, non-exclusive, transferrable, assignable, sublicensable, royalty-free, worldwide license during the term of this Agreement to use (including reproduce, distribute and publish) the Developer Branding and the Recon Marketing Materials and screen shots from the Selected Application (the “Screen Shots”) for the purposes of advertising and marketing the Recon App Center and the availability of the Selected Application through the Recon App Center and as otherwise required to perform Recon’s obligations under this Agreement, including using some or all of the Developer Branding, Developer Marketing Materials and Screen Shots: (i) within the Recon App Center; (ii) on Recon’s websites; (iii) in advertising and marketing materials regarding the Recon App Center; (iv) in presentations; and (v) in published lists of app developers. Developer in its discretion may change or modify the Developer Branding and Developer Marketing Materials from time to time, and upon written request by Developer Recon will use commercially reasonable efforts to promptly comply with and implement the changes.

    (b)  Good Faith Covenant: Recon acknowledges that Developer and its licensors solely own all right, title and interest in, to and associated with the Developer Branding and the Developer Marketing Materials and the goodwill relating thereto, and Recon will not acquire any right, title or interest in, to or associated with any of the Developer Branding or the Developer Marketing Materials. Recon acknowledges and agrees that all of the benefit and goodwill associated with Recon’s use of the Developer Branding and the Developer Marketing Materials will enure entirely to Developer.

    5.3  Reservation of Rights: Except as expressly set forth in this Agreement, nothing in this Agreement or done pursuant to this Agreement gives either Party the right to use the trademarks, trade names, service marks, logos, domain names or other distinctive branding of the other Party. Without limiting the generality of the foregoing, Recon™, ReconOS™, Engage™, Jet™, Snow2™, MOD Live™, MOD™, Transcend™, Uplink™ and related logos are registered or unregistered trademarks, service marks and trade names owned or licensed by Recon, and except as expressly set forth in this Agreement Developer will not use any of those trademarks without Recon’s express prior written consent.

  6. Additional Obligations

    6.1  App Center: Developer will access and use the Recon App Center using only those processes and procedures made available by Recon to Developer and solely for the purposes and in the manner expressly set forth or referenced in this Agreement and in accordance with all applicable laws. Developer will not interfere with or disrupt the integrity, performance or normal operation of, or otherwise adversely affect, the Recon App Center or any computer system, network, hardware, software, equipment or services used in connection with the Recon App Center or any related data.

    6.2  Responsibility/Liability: Without limiting the generality of any other provision of this Agreement or any SDK License Agreement, and notwithstanding Recon’s selection of the Selected Application for distribution through the Recon App Center, Developer is and will remain fully and solely responsible and liable for all of Developer’s obligations, responsibilities and liabilities arising from, connected with or relating to the Selected Application under this Agreement, the relevant SDK License Agreements and applicable law. Without limiting the foregoing, Developer is and will remain fully and solely responsible and liable for the Selected Application, the distribution of the Selected Application through the Recon App Center, the use of the Selected Application, all data, content, services and resources that the Selected Application creates, transmits or displays, and for all resulting consequences (including all damage or loss caused to users of the Selected Application, Recon or any other person); and Recon will not be responsible or liable to Developer or any other person (including any users of the Selected Application) for any of the foregoing. Developer is and will remain solely responsible and liable for ensuring that the Selected Application is and remains free of defects in design and operation and complies with the restrictions and requirements set forth in this Agreement, the relevant SDK License Agreements and applicable law.

    6.3  End Users: Subject to the provisions of this Agreement, Developer is solely responsible and liable for all dealings with end users regarding the Selected Application, including resolving all complaints by end users and providing end users with warranty support, assistance and technical support regarding the Selected Application. The Recon App Center will display Developer’s contact details for end user support purposes.

    6.4  Developer Personnel: Developer is fully responsible and liable for all acts and omissions of all persons (including Developer’s employees, consultants and contract workers) that Developer authorizes to use the Recon App Center and Recon Services on Developer’s behalf, and Developer will ensure that each of those persons uses the Recon App Center and Recon Services in accordance with the restrictions and requirements set forth in this Agreement and fully complies with all of Developer’s obligations under this Agreement.

    6.5  Representations/Warranties: Developer represents and warrants to Recon as follows:

    (a)   if Developer is an individual, then Developer is over the age of majority in the jurisdiction in which Developer is located (at least 18 years of age in many countries);

    (b)   Developer has the right, power, capacity and authority to enter into and perform Developer’s obligations and exercise Developer’s rights under this Agreement;

    (c)   Developer’s entering into this Agreement and performance of this Agreement does not and will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) now or in the future owed by Developer to any other person;

    (d)   Developer has all rights and licenses (including rights and licenses under all relevant intellectual property rights) and the full power and authority under all applicable laws to develop, possess, use, advertise, market, promote, publish, disclose, sell, license and distribute the Submitted Application, the Selected Application, the Developer Information, the EULA, Developer Branding and Developer Marketing Materials as contemplated by this Agreement, including authorizing and licensing Recon to facilitate Developer’s distribution of the Selected Application through the Recon App Center and granting licenses to end users to use copies of the Selected Application downloaded from the Recon App Center; and

    (e)   the design, development, possession, use and distribution of the Submitted Application, the Selected Application, the Developer Information, the EULA, Developer Branding and Developer Marketing Materials as contemplated by this Agreement will not violate, misappropriate or infringe the rights (including intellectual property rights and privacy rights) of any person or violate any applicable laws (including any applicable Canadian and U.S. export laws concerning the installation of computer programs or the transmission of technical data and other regulated materials).

    6.6  Information: Developer will ensure that all information (including all Developer Information and Information in an online submission form) provided by or on behalf of Developer to Recon is true, accurate, current and complete. Developer will promptly notify Recon of any changes to that information. Developer consents to Recon’s disclosure of that information to third parties for purposes relating to this Agreement and Recon’s performance of its obligations and exercise of its rights under this Agreement.

    6.7  End User Privacy: Developer will design and administer the Selected Application in a manner that respects and protects the privacy and legal rights of each end user of the Selected Application. Without limiting the generality of the foregoing: (a) Developer will ensure that the Selected Application does not collect, or permit the collection of, information regarding use of the Selected Application or an end user’s personal information (including user name, password or other login information) without the end user’s express prior consent and subject to a legally adequate privacy notice and sufficient protection for the collected information, and that the collected information is used, retained and disclosed in accordance with the end user’s consent and applicable law; (b) Developer will ensure that the Selected Application securely stores all personal information or other sensitive information provided by or otherwise collected from an end user; and (c) Developer will deal with all information about or relating to end users in accordance with all applicable privacy and data protection laws.

    6.8  Notifications: Developer will promptly give notice to Recon, in the manner specified by Recon from time to time, of any: (a) defects or other problems with the Selected Application of which Developer becomes aware; or (b) notices received by Developer that might adversely affect Recon, including any formal or informal notices of potential or actual claims or complaints regarding the Submitted Application, the Selected Application, Developer Information, the EULA, Developer Branding or Developer Marketing Materials.

    6.9  Technical Requirements: Developer is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment, software and services necessary for Developer’s use of the Recon App Center and Recon Services and the performance of Developer’s obligations under this Agreement.

    6.10  Applicable Laws:

    (a)  General: Developer will comply with, and ensure that the Submitted Application, the Selected Application and Developer’s use of the Recon App Center and Recon Services complies with, all applicable local, state, provincial, national, and foreign laws, including all laws (including laws relating to data privacy, personal information protection, international communications and the exportation, importation, use and transmission of data, computer program installation and operation, regulated materials [including computer software], business practices and advertising) in all relevant jurisdictions (including Canada, the United States of America, and the jurisdictions in which Developer or end users are located).

    (b)  Export/Import/Use Restrictions Without limiting the generality of any other provision of this Agreement, Developer represents and warrants as follows: (i) the possession, use and distribution of the Submitted Application and the Selected Application by Developer, Recon, or any end user are not prohibited by any applicable law, including any domestic or international export, import or use restriction, limitation or control imposed by applicable law, including any law relating to a prohibited or restricted country or person; (ii) Developer does not have offices or operations in any embargoed country or any country that has been designated by the Canadian or U.S. government or the United Nations as a “terrorist supporting” country; and (iii) Developer and its directors, officers and employees are not listed on any Canadian or U.S. government or United Nations list of prohibited or restricted persons.

    6.11  Indemnity: During and after the term of this Agreement, Developer will defend, indemnify and hold harmless Recon and its affiliates, licensors and suppliers and their respective directors, officers, employees, contractors, agents, shareholders, distributors and representatives, jointly and severally (collectively the “Recon Indemnified Persons”) from and against any and all claims, complaints, demands, actions, suits, proceedings, liabilities and obligations (including damages, expenses, and costs), settlement payments and lawyer’s fees and expenses (collectively “Claims/Proceedings/Liabilities”) by any person (including an end user of the Selected Application) directly or indirectly arising from, connected with or relating to any of the following: (a) Developer’s use of the Recon App Center and Recon Services; (b) the creation, possession, use or distribution of the Submitted Application, the Selected Application, the Developer Information, the EULA, Developer Branding and Developer Marketing Materials by Developer, Recon, end users or any other person, including any claim or allegation that the creation, possession, use or distribution of the Submitted Application, the Selected Application, the Developer Information, the EULA, Developer Branding or Developer Marketing Materials violates, misappropriates or infringes the rights (including intellectual property rights and privacy rights) of any person or violates any applicable laws (including applicable Canadian and U.S. export laws concerning the transmission of technical data and other regulated materials) and any claim or complaint (including a breach of express or implied warranty and product liability claim) by any end user of the Selected Application; (c) any negligence, misconduct, or breach of this Agreement, a SDK License Agreement or the EULA by Developer or any person for whom Developer is responsible pursuant to this Agreement or at law. Developer will not enter into any settlement or other agreement on behalf of any Recon Indemnified Person or which affects the rights or interests of any Recon Indemnified Person without Recon’s express prior written consent, which consent may be withheld in Recon’s discretion. Notwithstanding anything contained in this Agreement to the contrary, Recon Indemnified Persons retain the right to participate in the defense of and settlement negotiations relating to any Claims/Proceedings/Liabilities with counsel of their own selection at their sole cost and expense.

    6.12  Compliance: Upon request by Recon not more than once a year, Developer will deliver to Recon a duly executed certificate of compliance certifying that Developer has complied with Developer’s obligations under this Agreement.

  7. Ownership/Proprietary Rights, Confidentiality and Other Matters

    7.1  Developer’s Application: Subject to section 7.2, Recon acknowledges that Developer and Developer’s licensors own and retain all rights, title and interests (including intellectual property rights) throughout the world in, to and associated with the Submitted Application and the Selected Application, and nothing in this Agreement or done pursuant to this Agreement gives Recon any right, title or interest (including intellectual property rights) in, to or associated with the Submitted Application or the Selected Application. All title, risk of loss, responsibility for, and control over the Selected Application will at times remain with Developer.

    7.2  Recon App Center/Services and RIF Format: Developer acknowledges that Recon and Recon’s licensors own and retain all rights, title and interests (including intellectual property rights) throughout the world in, to and associated with the Recon App Center, Recon Services and Recon’s proprietary RIF format. Developer will not acquire any right, title or interest in, to or associated with the Recon App Center, Recon Services or Recon’s proprietary RIF format pursuant to this Agreement or otherwise. Without limiting the generality of the foregoing, and except as expressly set forth in this Agreement or otherwise expressly agreed in writing by Recon, Developer will not use Recon’s proprietary RIF format or create any applications in Recon’s proprietary RIF format.

    7.3  Licence Grant: Developer hereby grants to Recon a non-exclusive, worldwide, royalty-free, assignable, transferrable and sublicensable right and licence to: (a) facilitate Developer’s distribution of the Selected Application by allowing members of the public in any and all countries as Recon in its discretion considers appropriate to download one or more copies of the Selected Application from the Recon App Center for free (no fee or charge), unless expressly specified otherwise in a Paid Distribution Addendum; and (b) use (including copy, reproduce, communicate to the public, distribute to the public, publicly display and publicly present) and authorize other persons to use the Submitted Application, the Selected Application, the EULA and the Developer Information for the purpose of administering, operating, marketing and promoting the Recon App Center, facilitating the distribution of the Selected Application as contemplated by this Agreement, testing the Selected Application, improving Recon Devices and performing Recon’s obligations and exercising Recon’s rights under this Agreement. The foregoing license will subsist during the term of this Agreement and for a reasonable period thereafter to allow Recon to remove the Selected Application and related information and materials from the Recon App Center. In addition, after termination of this Agreement Recon may retain and use a reasonable number of copies of the Selected Application and the Developer Information for Recon’s internal administrative and legal compliance purposes, including administration of the Recon App Center and dealing with end users of the Selected Application.

    7.4  Confidentiality: Developer acknowledges and agrees that all non-public information regarding the Recon App Center, Recon Services and this Agreement (collectively “Confidential Information”) constitutes the trade secrets and confidential, proprietary information of Recon and its licensors. Developer will use Confidential Information only in connection with Developer’s use of the Recon App Center and Recon Services in accordance with this Agreement. Both during and after the term of this Agreement, Developer will: (a) maintain the strict confidentiality of Confidential Information using the same degree of care as Developer affords to Developer’s own confidential information of a similar nature that Developer desires not to be accessed, used, disclosed or disseminated, and in no event less than reasonable care, to prevent the unauthorized access to or use or disclosure of Confidential Information; (b) not disclose or make Confidential Information available to any other person in any manner or form without Recon’s express prior written consent, except for bona fide disclosures required by applicable law; and (c) ensure that all persons to whom Developer discloses Confidential Information comply with the restrictions and requirements set forth in this section 7.4. Upon termination of this Agreement, Developer will either deliver to Recon or permanently delete and destroy all paper and electronic documents and other records containing Confidential Information in Developer’s possession or control.

    7.5  Recon Applications: Developer acknowledges that Recon develops and distributes its own applications and third party applications through the Recon App Center and through other distribution channels, and will continue to do so. Nothing in this Agreement or done pursuant to this Agreement will in any way prevent, restrict or limit Recon’s right and ability to develop and distribute its own applications and third party applications, including applications that are similar to or compete with one or more of Developer’s software applications (including the Submitted Application and the Selected Application).

    7.6  Feedback: If Developer or Developer’s personnel give to Recon feedback (including ideas or suggestions for corrections, enhancements or improvements) about a Recon SDK, the Recon App Center, Recon Services, Recon Devices or Recon’s software applications, then Developer and Developer’s personnel grant and agree to grant to Recon and its successors, assigns and licensees a perpetual, worldwide, royalty free, transferable and sublicensable license to use the feedback for any and all purposes as Recon in its discretion considers appropriate and without providing any compensation or attribution to Developer or any other person.

    7.7  Developer’s Disclosed Information and Materials Not Confidential: To avoid potential misunderstandings, Recon will not agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information or materials (including Developer Information) that Developer or its representatives may provide or disclose to Recon in connection with this Agreement, the Recon App Center or Recon Services, including information about any of Developer’s software applications (including the Submitted Application and the Selected Application) and even if the information is expressly identified as confidential (collectively “Disclosed Information”). Unless Recon expressly agrees in writing otherwise, Disclosed Information is not confidential and Recon and its successors, assigns and licensees will be free to use and disclose any and all Disclosed Information without any restriction or limitation or any notice, compensation or attribution to Developer or any other person. Any physical materials submitted by or on behalf of Developer to Recon will become Recon’s property and Recon will have no obligation to return those materials to Developer or to certify their destruction.

  8. Disclaimers and Liability Limitations/Exclusions

    8.1  GENERAL DISCLAIMER: DEVELOPER USES THE RECON APP LIBRARY AND RECON SERVICES AT DEVELOPER’S OWN RISK, AND DEVELOPER IS SOLELY RESPONSIBLE FOR ALL RESULTING DAMAGE AND LOSS TO DEVELOPER OR ANY OTHER PERSON. THE RECON APP LIBRARY AND RECON SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO DURABILITY; FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; NON-INFRINGEMENT OF THIRD PARTY RIGHTS; LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE; PERFORMANCE; QUALITY; RESULTS; SUITABILITY; TIMELINESS; TITLE; QUIET ENJOYMENT; OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY RECON TO THE FULLEST EXTENT PERMITTED BY LAW. DEVELOPER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF THE RECON APP LIBRARY AND RECON SERVICES TO ACHIEVE DEVELOPER’S INTENDED RESULTS.

    8.2  DISCLAIMER OF COMPENSATION: EXCEPT AS MAY BE EXPRESSLY SET FORTH IN AN APPLICABLE PAID DISTRIBUTION ADDENDUM: (A) RECON IS NOT OBLIGATED TO PAY TO DEVELOPER ANY FEE, PAYMENT OR OTHER COMPENSATION FOR OR RELATING TO THE DISTRIBUTION OF COPIES OF THE SELECTED APPLICATION THROUGH THE RECON APP CENTER OR THE PERFORMANCE OF DEVELOPER’S OBLIGATIONS UNDER THIS AGREEMENT; AND (B) DEVELOPER IS AND WILL BE SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES INCURRED BY DEVELOPER IN CONNECTION WITH THE PERFORMANCE OF DEVELOPER’S OBLIGATIONS UNDER THIS AGREEMENT.

    8.3  DISCLAIMER FOR END USERS: RECON IS NOT RESPONSIBLE OR LIABLE FOR THE USE OR MISUSE OF THE RECON APP CENTER OR THE SELECTED APPLICATION BY ANY END USER OR ANY WRONGFUL ACT OR OMISSION BY OR ON BEHALF OF ANY END USER, INCLUDING ANY BREACH BY AN END USER OF THE EULA.

    8.4  LIMITED REMEDY: IF DEVELOPER IS DISSATISFIED WITH THE RECON APP CENTER OR RECON SERVICES, DEVELOPER’S SOLE REMEDY IS TO TERMINATE THIS AGREEMENT AND CEASE USING THE RECON APP CENTER AND RECON SERVICES.

    8.5  COSTS AND ACKNOWLEDGMENT: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR OTHERWISE EXPRESSLY AGREED BY THE PARTIES, DEVELOPER WILL BEAR ITS OWN COSTS AND EXPENSES IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING COSTS AND EXPENSES RELATING TO THE CREATION, MARKETING, ADVERTISING, PROMOTION, MAINTENANCE AND SUPPORT OF THE SELECTED APPLICATION), AND DEVELOPER WILL NOT BRING A CLAIM AGAINST RECON OR ANY OTHER PERSON FOR ANY EFFORT EXPENDED BY DEVELOPER IN DEVELOPING THE SUBMITTED APPLICATION OR THE SELECTED APPLICATION, ADVERTISING, MARKETING OR PROMOTING THE SELECTED APPLICATION, OR DEVELOPING A MARKET FOR RECON DEVICES OR SERVICES. DEVELOPER ACKNOWLEDGES THAT THE BUSINESS ARRANGEMENT CONTEMPLATED BY THIS AGREEMENT INVOLVES CERTAIN RISKS, AND RECON HAS NOT MADE ANY REPRESENTATION, WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, AS TO THE POTENTIAL SALES VOLUME, FEES, PROFITS OR SUCCESS OF THE BUSINESS ARRANGEMENT.

    8.6  LIABILITY EXCLUSION/LIMITATION: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

    (a)  EXCLUSION/LIMITATION: IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RECON GROUP BE LIABLE TO DEVELOPER OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA OR INFORMATION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH OR RELATING TO THE RECON APP LIBRARY, RECON SERVICES OR THIS AGREEMENT (INCLUDING THE TERMINATION OF THIS AGREEMENT) OR ANY RELATED MATTER. IF NOTWITHSTANDING THE FOREGOING RECON GROUP IS LIABLE TO DEVELOPER OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RECON GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH OR RELATING TO THE RECON APP LIBRARY, RECON SERVICES, THIS AGREEMENT OR ANY RELATED MATTER EVER EXCEED THE AMOUNT OF CDN$5.00.

    (b)  APPLICATION/DEFINITIONS: SECTION 8.6(a) APPLIES TO LIABILITY UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STATUTE AND STRICT LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY RECON OR ANY PERSON FOR WHOM RECON IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE DEVELOPER OR ANY OTHER PERSON FOR THE LOSS AND DAMAGE OR RECON KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE BEING INCURRED. IN SECTION 8.6(a), “RECON GROUP” MEANS RECON AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS AND REPRESENTATIVES, JOINTLY AND SEVERALLY.

    8.7  EXCEPTIONS: SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS SECTION 8 MIGHT NOT APPLY TO DEVELOPER.

  9. Term and Termination

    9.1  Term of Agreement: This Agreement is effective as of the date on which Developer submits the relevant online submission form and will continue in full force and effect until terminated in accordance with this Agreement.

    9.2  Termination: Either Party may terminate this Agreement for the Party’s sole convenience effective upon thirty (30) days’ notice of termination to the other Party. Recon may terminate this Agreement effective immediately upon notice to Developer if: (a) Developer breaches this Agreement, an SDK License Agreement or any other agreement with Recon; (b) Recon is required to do so by applicable law; (c) Recon decides, in its discretion, to cease distributing third party applications through the Recon App Center; (d) Developer ceases to be an accredited member in good standing of Recon’s Developer Program; (e) Developer becomes bankrupt or insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Developer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy is appointed in respect of all or substantially all of Developer’s business and undertaking; or (f) Developer engages, or authorizes, assists or encourages any other person to engage in, any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement, the Recon App Center or the Selected Application.

    9.3  Consequences of Termination: If this Agreement is terminated for any reason, then: (a) Recon will use commercially reasonable efforts to promptly remove the Selected Application from the Recon App Center (and thereby cease Developer’s distribution of the Selected Application through the Recon App Center); (b) Recon will no longer provide or make available any Recon Services to Developer pursuant to this Agreement; (c) Recon may retain copies of the Submitted Application, the Selected Application, the Developer Information, the EULA, Developer Branding and the Developer Marketing Materials and may use each of those items for Recon’s internal administrative and legal compliance purposes; and (d) each Party will remain responsible and liable for all obligations and liabilities (if any) arising prior to the termination of this Agreement.

    9.4  No Compensation on Termination: Notwithstanding any other provision of this Agreement, upon termination of this Agreement for any reason Developer will not be entitled (under this Agreement or otherwise) to any compensation, damages, repayment of monies paid, payments in respect of goodwill established or otherwise, or any other compensation, damages, or reimbursement of or in relation to commitments, expenditures or investments suffered, made, or incurred before the termination of this Agreement or as a result of the termination of this Agreement.

    9.5  Survival: Notwithstanding any other provision of this Agreement, each of sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.11, 3.12, 4.3, 5.1(b), 5.2(b), 5.3, 6.1, 6.2, 6.3, 6.4, 6.6, 6.7, 6.11, 7, 8, 9.3, 9.4, 9.5 and 10, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable.

  10. General

    10.1  Governing Law and Disputes: This Agreement, the relationship between the Parties and all related matters are and will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of the laws of any other jurisdiction and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising from, connected with or relating to this Agreement, the Recon App Center, Recon Services, the Submitted Application, the Selected Application, Recon Branding, Recon Marketing Materials, Developer Branding, Developer Marketing Materials or any related matter will be resolved before the Supreme Court of British Columbia sitting in the City of Vancouver, and each Party hereby irrevocably submits and attorns to the original and exclusive jurisdiction of that court in respect of all disputes, except that Recon in its discretion may commence legal proceedings against Developer in any court of competent jurisdiction seeking injunctive relief (or similar urgent legal remedies) to enforce this Agreement and protect Recon’s rights in, to and associated with the Recon App Center, Recon Services, Recon Branding, Recon Marketing Materials and Confidential Information.

    10.2  Enforcement: Developer acknowledges and agrees that the restrictions and requirements regarding the Recon App Center, Recon Services, Recon Branding, Recon Marketing Materials, Confidential Information, and the Selected Application set forth in this Agreement are of fundamental importance to Recon, and a breach of those restrictions and requirements will result in irreparable harm, loss and damage to Recon for which Recon could not be adequately compensated by an award of monetary damages. In the event of any actual or threatened breach by Developer of those restrictions and requirements, and in addition to any and all remedies available to Recon under this Agreement or at law, Recon will be entitled as a matter of right to judicial relief by way of a restraining order, interim, interlocutory or permanent injunction, or order for specific performance, and Developer will not oppose the granting of that judicial relief and Developer hereby waives any and all defences to the strict enforcement of this Agreement and the judicial relief.

    10.3  Notices: Developer will give all notices to Recon under this Agreement in writing delivered by courier to Recon (Attention Legal Department) at Recon’s head office address specified on Recon’s website (www.reconinstruments.com). Developer is solely responsible for ensuring that Developer’s contact details with Recon are accurate, current and complete.

    10.4  Miscellaneous: The Parties are non-exclusive independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. Upon request by Recon, Developer will execute all further documents and instruments and do all further things as may be reasonably necessary to implement and carry out the provisions and intent of this Agreement. Time is of the essence in this Agreement. No consent or waiver by Recon to or of any breach of this Agreement by Developer will be effective unless in writing and signed by Recon or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by Developer. Except as expressly set forth in this Agreement, Recon’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which Recon may be lawfully entitled under this Agreement or at law, and Recon will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. The provisions of this Agreement will enure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. The Parties have each requested and required that this Agreement and all related documents be written in the English language.

    10.5  Assignment/Subcontractors: Developer will not, by operation of law or otherwise, assign, transfer, delegate, license, sub-license or grant this Agreement or Developer’s rights, duties and obligations under this Agreement without Recon’s express prior written consent, which consent may be withheld in Recon’s discretion. Recon may, without Developer’s consent, assign this Agreement or any of Recon’s rights, duties or obligations under this Agreement. Developer will not engage subcontractors to perform any of Developer’s obligations under this Agreement or exercise any of Developer’s rights and licenses under this Agreement. Recon may engage subcontractors to perform any or all of Recon’s obligations under this Agreement and to exercise any or all of Recon’s rights and licenses under this Agreement.

    10.6  Interpretation: In this Agreement: (a) a reference to “this Agreement” refers to this Agreement as a whole, and not just to the particular provision in which those words appear; (b) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any provision in this Agreement; (c) words importing the singular number only include the plural and vice versa; (d) words importing a gender include both genders; (e) reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise (f) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (g) “including” or “includes” means including or includes (as applicable) without limitation or restriction; (h) “discretion” mean a person’s sole, absolute and unfettered discretion; (i) “law” includes common law, equity, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation in force from time to time, as applicable; (j) “use” in relation to computer software or an application includes copying, reproducing, loading, installing, accessing, configuring, implementing, executing, running, operating, hosting, supporting, maintaining, modifying, enhancing, translating, adapting, storing, backing-up and archiving; and (k) “intellectual property rights” includes copyright, moral rights, rights of authorship and attribution, patents, trademarks, trade dress and rights protected by trade secrets and confidentiality obligations.

    10.7  Entire Agreement: This Agreement (including applicable online submission form) sets forth the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between the Parties with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of this Agreement other than as expressly set forth in this Agreement. This Agreement may not be modified except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by both Parties.