Recon™ Instruments Inc.
End User License Agreement For Recon Engage™ Mobile Device Application
Last Updated: April 16, 2015.
PLEASE CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING THE RECON ENGAGE™ MOBILE DEVICE APPLICATION. THIS AGREEMENT IS A BINDING CONTRACT THAT GOVERNS USE OF THE RECON ENGAGE™ MOBILE DEVICE APPLICATION, EXEMPTS RECON AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES, AND CONTAINS OTHER IMPORTANT PROVISIONS.
BY CLICKING THE “AGREE/ACCEPT” BUTTON OR INSTALLING OR USING THE RECON ENGAGE™ MOBILE DEVICE 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 INSTALL OR USE THE RECON ENGAGE™ MOBILE DEVICE APPLICATION. UNAUTHORIZED INSTALLATION OR USE OF THE RECON ENGAGE™ MOBILE DEVICE APPLICATION OR ANY RELATED SERVICES IS STRICTLY PROHIBITED.
- Definitions: In this Agreement: (a) “Mobile Device” means a mobile phone or other mobile device that is owned or controlled by you and is compatible with the Software; (b) “Recon Device” means a heads-up display (HUD) technology product manufactured by or on behalf of Recon Instruments Inc. (“Recon”) that is compatible with the Software; (c) “Recon Services” means certain services provided by Recon, including Recon’s Engage™ service and device management services for Recon Devices; (d) “Software” means the mobile phone software application known as Recon Engage™ and all related documentation provided or made available to you by or on behalf of Recon.
- License / Permitted Uses: Subject to the provisions of this Agreement, Recon hereby grants to you a non-exclusive, personal, non-sublicensable, non-transferable, restricted and limited license during the term of this Agreement to download and install the object-code (machine-readable) version of the Software on a Mobile Device and use that installed copy of the Software solely in connection with one or more Recon Devices that you own and solely for your own personal, non-commercial purposes (the “License”). The License is limited to the intellectual property rights in the Software owned by Recon and its licensors, and does not include or relate to any other intellectual property rights.
- Restrictions/Prohibited Uses: You may not: (a) use the Software in any manner or for any purpose except as expressly permitted by this Agreement; (b) transfer possession of the Software to any other person; (c) copy or reproduce the Software, except to the extent required to install the Software in order to use the Software in accordance with this Agreement; (d) license, sublicense, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, or otherwise give or make available or permit access or use of the Software to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge; (e) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve, or translate the Software, create derivative works from or based on the Software, merge, embed or combine the Software with any other software or materials, or reverse engineer, disassemble, decompile, convert into human readable format, or otherwise attempt to access or derive the source code of the Software; (f) alter, attempt to circumvent, destroy, obscure, conceal, modify, or remove any notices, proprietary codes or locks, means of identification, rights management information, technological protection measures, or agreements on, in or in relation to, the Software; or (g) authorize, assist or encourage any other person to do any of the foregoing or to use the Software in a way that would constitute an infringement of Recon’s rights in the Software or a breach of this Agreement if it were done by you. You will protect the Software against unauthorized access, distribution or use. Regardless of the number of copies of the Software received by you or the means by which you receive them, each copy of the Software is subject to this Agreement. You will remove the Software from the Mobile Device before you transfer ownership or control of the Mobile Device to any other person.
- Application Store Rules: You will comply with all applicable restrictions, requirements and rules that govern applications downloaded through the application store through which you obtained the Software (for example, the Apple App Store or Google Play).
- Recon Services: Pursuant to the License, you may install and use the Software on your Mobile Devices to access and use certain Recon Services, provided that you have a valid and subsisting Recon Services account with Recon and you accept and agree to the terms of service and other agreements that govern use of Recon Services (the “Terms of Service”). If you do not have a valid and subsisting Recon Services account with Recon or you do not accept and agree to the Terms of Service, you may not access or use Recon Services and the functionality of the Software will be limited. Use of Recon Services requires Internet access and may be subject to additional fees.
- Embedded Third Party Components: The Software includes computer code and other materials licensed by third parties for use as part of the Software, and your use of those items is governed by this Agreement and the applicable third party licensing terms and conditions, which will be contained or referenced in the documentation for the Software or referenced in the applicable legal notices available at www.engage.reconinstruments.com/legal, each of which is incorporated into and forms part of this Agreement.
Third Party Services/Data:
(a) General: You may use the Software to access services (including location-based services, mapping services, ski resort trail maps and information, social networking, photo sharing, messaging and other web services and websites) provided or operated by third parties (each a “Third Party Service”). Your access to and use of those services and the data made available through those services is subject to the applicable third party service agreements or terms and conditions, and you will comply with all of those third party service agreements and terms and conditions and all applicable laws relating to your use of Third Party Services. You acknowledge that your use of a Third Party Service may provide access to content that is offensive or otherwise objectionable. You use Third Party Services at your own risk. Recon reserves the right to change, suspend, remove, restrict or disable access to any Third Party Service at any time without any notice or liability to you or any other person.
(b) Legal Notices: Your access to and use of certain Third Party Services are subject to the applicable legal notices available at www.engage.reconinstruments.com/legal, each of which is incorporated into and forms part of this Agreement.
- Materials: You may use the Software to access and use (including reproduce, communicate and distribute) materials (such as photographs, video, music and other data and information) only if and to the extent that you have the lawful right to do so under all applicable laws. Ownership and intellectual property rights in, to and associated with materials that you access and use through the Software belongs to the relevant third parties. Except as expressly set forth in this Agreement, this Agreement does not grant to you any rights to access or use materials through the Software.
- Technological Restrictions: The Software may contain technologies that restrict or limit the use or functionality of the Software and may deactivate, disable or lock the Software or restrict or limit the use or functionality of the Software on a periodic basis.
- Software Updates/Upgrades: Recon is not obligated to issue updates or new versions or releases to or of the Software, but Recon in its discretion may do so and each of those updates, versions or releases of the Software may have different features and functionalities than previous versions of the Software. This Agreement applies to each update or new version or release to or of the Software made available by Recon unless Recon indicates that the update or new version or release is subject to a different agreement, in which case the different agreement will govern.
- Technical Support: Recon is not obligated to provide technical support regarding the Software, but Recon in its discretion may do so. Your use of Recon’s technical support regarding the Software is governed by this Agreement.
- Usage Information/Feedback: If you give to Recon information or data (including diagnostic and analytics data) regarding your use of the Software, your Mobile Device, your Recon Device or Recon Services, or feedback (including any ideas or suggestions for corrections, enhancements or improvements) regarding any of those items, then Recon and its successors, assigns and licensees may use the information and feedback for any and all purposes (including to support, maintain and improve the Software, Recon Devices, Recon Services and other Recon products and services) without providing any compensation or attribution to you or any other person.
- Technical Requirements/Legal Compliance: You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including your Mobile Device), software, and services (including mobile Internet access) necessary for your use of the Software and all data used in association with the Software. You will comply with all applicable laws regarding your use of the Software.
- Ownership: Recon and its licensors own and retain all right, title and interest (including copyright and other intellectual property rights), throughout the world in, to and associated with the Software. The Software is licensed (not sold) to you for limited purposes as expressly set forth in this Agreement. The Software and related intellectual property rights are protected throughout the world by international laws and treaties. Except for the License, you will not acquire any right, title or interest in, to or associated with the Software pursuant to this Agreement or otherwise. Except as required by applicable law, under no circumstances will Recon be obligated to provide, nor will you be entitled to receive, obtain or access, any source (human readable) code for the Software. All rights not expressly granted under this Agreement are reserved to Recon and its suppliers and licensors.
- Confidentiality: You acknowledge that all non-public information concerning the Software (the “Confidential Information”) is the proprietary and confidential information of Recon and its licensors. Both during and after the term of this Agreement, you will hold all Confidential Information in confidence, you will use the Confidential Information only in connection with your use of the Software in accordance with this Agreement, and you will prevent any unauthorized use or disclosure of the Confidential Information.
- Termination: This Agreement is effective until terminated. You may terminate this Agreement at any time by uninstalling the Software from each of your Mobile Devices, permanently deleting all other copies of the Software in your possession or control and delivering a notice of termination to Recon. This Agreement will terminate immediately and automatically, without any notice to or from Recon, if you breach this Agreement. If the Software is a pre-release or early access version (a “Beta Version”), then this Agreement will automatically terminate upon expiration of the beta testing period prescribed by Recon. Recon in its discretion may terminate this Agreement for Recon’s sole convenience upon thirty (30) days’ notice to you. Upon termination of this Agreement, the License will immediately terminate and you will immediately cease using the Software, permanently uninstall the Software from each of your Mobile Devices and permanently delete and destroy all other copies (full or partial) of the Software in your possession or control. Notwithstanding any other provision of this Agreement, the following provisions of this Agreement, 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: sections 3, 6, 7(b), 12, 15, 16, 17, 18, 19, 20, 21 and 22.
(a) GENERAL DISCLAIMER: YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF THE SOFTWARE AND RECON SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL THE SOFTWARE AND USE THE SOFTWARE AND RECON SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE 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. WITHOUT LIMITING THE FOREGOING, RECON DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR RECON SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR RECON SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS IN THE SOFTWARE OR RECON SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE OR RECON SERVICES WILL BE COMPATIBLE OR OPERATE WITH ANY COMPUTER OR DEVICE, THIRD PARTY SOFTWARE OR SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF RECON OR ANY RECON REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE.
(b) BETA VERSION DISCLAIMER: IF THE SOFTWARE IS A BETA VERSION, THEN THE SOFTWARE IS STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION OF THE SOFTWARE IS INTENDED TO WORK. RECON RESERVES THE RIGHT TO NOT RELEASE A COMMERCIAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE.
(c) NO HIGH RISK USE: THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE OR RECON SERVICES) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”), INCLUDING THE OPERATION OF NUCLEAR OR CHEMICAL FACILITIES, AIRCRAFT OR OTHER MODES OF HUMAN MASS TRANSPORTATION, AUTOMOTIVE OR AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE-SUPPORT OR WEAPONS SYSTEMS OR MACHINES, OR MEDICAL DEVICES. HIGH RISK USE OF THE SOFTWARE IS STRICTLY PROHIBITED.
(d) DATA: LOCATION DATA PROVIDED BY A RECON SERVICE OR A THIRD PARTY SERVICE IS INTENDED FOR BASIC NAVIGATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE RELIED UPON IN SITUATIONS WHERE PRECISE LOCATION INFORMATION IS NEEDED OR WHERE ERRONEOUS, INACCURATE, TIME-DELAYED OR INCOMPLETE LOCATION DATA MAY LEAD TO DEATH, PERSONAL INJURY OR PROPERTY OR ENVIRONMENTAL DAMAGE. RECON DOES NOT GUARANTEE THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY OR TIMELINESS OF LOCATION DATA OR ANY OTHER DATA ACCESSED OR DISPLAYED BY THE SOFTWARE.
(e) THIRD PARTY SERVICES/MATERIALS: RECON DOES NOT CONTROL, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY SERVICES (INCLUDING THIRD PARTY SERVICES) OR ITEMS (INCLUDING APPLICATIONS, DATA, SOFTWARE OR OTHER CONTENT) PROVIDED BY A THIRD PARTY THAT YOU ACCESS THROUGH OR USE IN CONNECTION WITH THE SOFTWARE OR RECON SERVICES OR FOR ANY RESULTING LOSS, DAMAGE OR LIABILITY.
LIABILITY EXCLUSIONS/LIMITATIONS AND INDEMNITY:
(a) LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RECON GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY PERSONAL INJURY OR ANY DAMAGE OR LOSS OF ANY NATURE OR KIND WHATSOEVER (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 PRIVACY, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF PRODUCTIVITY, OR ANY OTHER COMMERCIAL DAMAGE OR LOSS) OR ANY LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO THE SOFTWARE (INCLUDING YOUR USE OR INABILITY TO USE THE SOFTWARE), RECON SERVICES OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING RECON GROUP IS LIABLE TO YOU 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 SOFTWARE (INCLUDING YOUR USE OR INABILITY TO USE THE SOFTWARE), RECON SERVICES OR ANY RELATED MATTER EVER EXCEED THE AMOUNT OF CDN$5.00. THIS SECTION 19(a) APPLIES TO LOSS , DAMAGE AND LIABILITY HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STRICT LIABILITY, AND STATUTORY 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 YOU FOR YOUR LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR RECON KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED.
(b) 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 THIS AGREEMENT MIGHT NOT APPLY TO YOU.
(c) INDEMNITY: YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS RECON GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING LEGAL FEES), CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, OBLIGATIONS AND LIABILITIES (INCLUDING LEGAL FEES AND EXPENSES AND SETTLEMENT PAYMENTS) ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF THE SOFTWARE, DOCUMENTATION OR RECON SERVICES, OR YOUR NEGLIGENCE, MISCONDUCT OR BREACH OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, RECON GROUP RETAINS THE RIGHT TO PARTICIPATE IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY THIRD PARTY CLAIM, COMPLAINT, DEMAND, ACTION, SUIT OR PROCEEDING WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE.
(d) DEFINITIONS: IN THIS SECTION 19, “RECON GROUP” MEANS RECON AND EACH OF RECON’S AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PARTNERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS, AND REPRESENTATIVES, JOINTLY AND SEVERALLY.
- Export/Import/Use Restrictions: The Software may include items or technologies that are subject to domestic and international export, import or use restrictions or controls imposed by applicable law. You will comply with all applicable export, import and use restrictions and controls under the laws of Canada, the United States of America, the jurisdiction in which you are located and any other applicable laws in effect from time to time, and you will not export, or permit or assist the export or re-export, import or use of the Software in violation of the laws of Canada, the United States of America, the jurisdiction in which you are located or any other applicable laws, including to any prohibited or restricted country or person. You represent and warrant that you are not located in, under control of, or a national or resident of, an embargoed country or a country that has been designated as a “terrorist supporting” country by any of the governments of Canada, the United States of America, the jurisdiction in which you are located or the United Nations, and that you are not listed on any list of prohibited or restricted persons issued by any of the governments of Canada, the United States of America, the jurisdiction in which you are located or the United Nations, and that your possession or use of the Software is not prohibited by any applicable law.
- Government Users: The Software and related documentation are “Commercial Items” (as defined at 48 C.F.R. §2.101) consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software and related documentation are licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users as expressly set forth in this Agreement. Unpublished-rights are reserved under the copyright laws of the United States, Canada and all other applicable jurisdictions. Recon Instruments Inc., 100 - 1050 Homer Street, Vancouver, British Columbia, V6B 3W9, Canada.
(a) Governing Law: This Agreement, the relationship between you and Recon, 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 its subject matter (including the Software) or any related matters 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 22(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 22(b), except that Recon in its discretion may commence 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 and protect Recon’s rights in, to and associated with the Software. You and Recon each waive all rights to trial by jury.
(c) Notices: Recon may deliver notices under this Agreement to you by email to any email address that you provide to Recon (including when you register your Recon Devices or subscribe for a Recon Services account). You are solely responsible for ensuring that your email addresses on file with Recon are and remain current and correct throughout the term of this Agreement, and you will promptly give notice to Recon of any change to your email addresses. You will give all notices under this Agreement to Recon in writing delivered by email to Recon at the following email address: firstname.lastname@example.org.
(d) Enforcement: You acknowledge and agree that your breach of any of sections 3, 6, 7(b), 16, 17, 19(b) and 20 of this Agreement will result in irreparable harm, loss and damage to Recon and its licensors and affiliates for which Recon and its licensors and affiliates could not be adequately compensated by an award of monetary damages; and in the event of any actual or threatened breach of any of those sections by you, and in addition to all remedies available to Recon and its licensors and affiliates under this Agreement or otherwise, 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 you will not oppose the granting of that judicial relief and hereby waive all defences to the strict enforcement of this Agreement.
(e) Miscellaneous: No consent or waiver by Recon to or of any breach of this Agreement by you 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 you. 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. 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 or any of your rights (including the License) or obligations under this Agreement. Recon in its discretion may assign this Agreement or any of Recon’s rights and obligations under 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.
(f) Interpretation: In this Agreement: (a) “this Agreement” and other similar terms refer to this End User License Agreement for Engage™ Mobile Device Application 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 of its provisions; (c) words importing the singular number only include the plural and vice versa; (d) words importing a gender include both genders; (e) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society, and any other legal entity; (f) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (g) “law” includes common law, equity, statutes, legal codes, regulations, ordinances and orders in council, and reference to a specific law includes all regulations, and ordinances and orders in council and mandatory guidelines and directives made or issued under the law; and (h) “discretion” or any variation thereof used with respect to a party mean the party’s sole, absolute and unfettered discretion. If there is a conflict or inconsistency between this Agreement and any Terms of Service, this Agreement will take priority and govern regarding the Software and the Terms of Service will take priority and govern regarding the Recon Services.
(g) 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. Subject to applicable law, any 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.