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Recon™ Disclaimer and Liability Exclusion Agreement

 

Last Updated: May 15, 2015.


PLEASE CAREFULLY READ THIS DISCLAIMER AND LIABILITY EXCLUSION AGREEMENT BEFORE DOWNLOADING, INSTALLING OR USING AN APPLICATION. THIS AGREEMENT IS A BINDING CONTRACT THAT EXEMPTS RECON AND OTHER PERSONS FROM LIABILITY AND CONTAINS OTHER IMPORTANT PROVISIONS.


BY CLICKING THE “AGREE/ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR USING AN APPLICATION, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE ANY APPLICATION.




  1. Introduction/Definitions: Recon™ Instruments Inc. (“Recon”) operates the Recon™ App Center (the “Center”), which is used by independent software developers (each an “Application Provider”) to distribute software applications (each a “Licensed Application”) for use on Recon™ heads-up display devices. You must accept and agree to this Disclaimer and Liability Exclusion Agreement before you download a Licensed Application from the Center.
  2. DISCLAIMER FOR LICENSED APPLICATIONS: RECON HAS NO CONTROL OVER, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY LICENSED APPLICATION OR ANY SERVICE, DATA OR MATERIALS AVAILABLE THROUGH THE USE OF A LICENSED APPLICATION OR ANY RESULTING LOSS, DAMAGE OR LIABILITY. RECON DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR PROMISE REGARDING ANY LICENSED APPLICATION OR ANY SERVICE, DATA OR MATERIALS AVAILABLE THROUGH THE USE OF A LICENSED APPLICATION. YOU INSTALL AND USE EACH LICENSED APPLICATION AT YOUR OWN RISK.
  3. DISCLAIMER FOR APPLICATION PROVIDERS AND SERVICES: RECON HAS NO CONTROL OVER, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY APPLICATION PROVIDER OR ANY SERVICE, DATA OR MATERIALS PROVIDED BY ANY APPLICATION PROVIDER OR ANY ACT OR OMISSION BY OR ON BEHALF OF ANY APPLICATION PROVIDER OR ANY RESULTING LOSS, DAMAGE OR LIABILITY. RECON DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR PROMISE REGARDING ANY APPLICATION PROVIDER OR ANY SERVICE, DATA OR MATERIALS PROVIDED BY ANY APPLICATION PROVIDER. YOUR DEALINGS WITH APPLICATION PROVIDERS, AND YOUR USE OF SERVICES, DATA OR MATERIALS PROVIDED BY APPLICATION PROVIDERS, IS AT YOUR OWN RISK.
  4. RELEASE OF CLAIMS: YOU WILL NOT MAKE ANY CLAIM AGAINST ANY OF THE RECON GROUP ARISING FROM, CONNECTED WITH OR RELATING TO ANY OF THE FOLLOWING: (A) YOUR DOWNLOADING OR USE OF ANY LICENSED APPLICATION OR ANY SERVICE, DATA OR MATERIALS AVAILABLE THROUGH THE USE OF A LICENSED APPLICATION; (B) YOUR DEALINGS WITH APPLICATION PROVIDERS; AND (C) ANY SERVICE, DATA OR MATERIAL PROVIDED BY AN APPLICATION PROVIDER.
  5. LIABILITY EXCLUSION: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RECON GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PERSONAL INJURY, EMOTIONAL DISTRESS, OR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE OR KIND (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE AND EXEMPLARY DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH, OR RELATING TO ANY OF THE FOLLOWING: (A) YOUR DOWNLOADING OR USE OF ANY LICENSED APPLICATION OR ANY SERVICE, DATA OR MATERIALS AVAILABLE THROUGH THE USE OF A LICENSED APPLICATION; (B) YOUR DEALINGS WITH APPLICATION PROVIDERS; AND (C) ANY SERVICE, DATA OR MATERIAL PROVIDED BY AN APPLICATION PROVIDER.
  6. DEFINITION: IN THIS AGREEMENT, “RECON GROUP” MEANS RECON AND EACH OF RECON’S AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS AND REPRESENTATIVES, JOINTLY AND SEVERALLY.
  7. EXCEPTIONS: THE LAWS IN 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 THESE TERMS OF SERVICE MIGHT NOT APPLY TO YOU.
  8. General Matters:

    (a)  Governing Law: This Agreement and all related matters 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 any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transaction Act.

    (b)  Disputes: All disputes, controversies and claims arising under, out of, in connection with, or in relation to this Agreement or any related matter or any legal relationship associated therewith or derived therefrom (collectively “Disputes”) will be referred to and finally resolved by binding arbitration under the Domestic Commercial Arbitration Rules of the British Columbia International Commercial Arbitration Centre (the “BCICAC”) by one arbitrator appointed in accordance with those rules. The arbitration will be private and confidential, and will be administered by the BCICAC in accordance with its rules. If the BCICAC is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act (British Columbia). The place of arbitration will be the City of Vancouver, British Columbia and the language used in the arbitration will be the English language. Any award rendered in an arbitration is final and binding and judgment on the award may be entered in any court having jurisdiction for its enforcement. Notwithstanding the foregoing in this section 8(b), you and Recon each hereby irrevocably submit and attorn to the original and exclusive jurisdiction of the Supreme Court of British Columbia sitting in Vancouver, British Columbia in respect of all matters that are not properly subject to arbitration pursuant to this section 8(b), except that Recon in its discretion may bring legal proceedings against you in the Supreme Court of British Columbia or the competent courts of any other jurisdiction seeking injunctive relief (or similar urgent legal remedies) to enforce this Agreement. You and Recon each irrevocably waive all rights to trial by jury.

    (c)  Miscellaneous: You and Recon are non-exclusive, independent contracting parties. 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. You may not assign this Agreement. Recon in its discretion may assign this Agreement. The provisions of this Agreement will enure to the benefit of and be binding upon you and Recon and your respective successors, permitted assigns and personal representatives. In this Agreement: (i) “this Agreement” and other similar terms refer to this Agreement as a whole and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iii) words importing the singular number only include the plural and vice versa; (iv) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (v) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vi) “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 made under the law in force from time to time; and (viii) “discretion” or any variation thereof means the relevant party’s sole, absolute and unfettered discretion.

    (d)  Complete Agreement/Governing Language: This Agreement sets forth the entire agreement between you and Recon regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of 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 Recon. You and Recon have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s'y rapportent soient rédigés en anglais. Subject to applicable law, any non-English translation of this Agreement provided by Recon is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of this Agreement will take priority and govern.