These are RealWear’s terms of sale for the RealWear support services programs listed below (“Terms”). All other terms or conditions for support services are expressly excluded.
These Terms set forth the only obligations and agreements by RealWear concerning the Services. These Terms supersede and replace any prior or inconsistent statements, terms, or warranties. RealWear rejects any additional or inconsistent terms regardless of whether such terms were proposed by the Buyer in any bid request, quotation request, purchase order, or related document. If Buyer purchased the Services through a reseller or distributor who offered additional incentives or terms, Buyer shall look solely to that reseller or distributor for the performance of such additional incentives or terms, and RealWear shall have no liability therefore.
As used in this document, “RealWear” means RealWear, Inc., or any of its authorized resellers or distributors. “You”, “Your”, or “Buyer” means the end-user customer that purchased the Services covered by these Terms. “Hardware” means the RealWear Navigator™ 500 series, HMT-1Z1 and HMT-1 industrial wearables (excluding Software). “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) form embedded in or pre-installed on the Hardware, including any updates made available by RealWear. “Product” or “Products” means Hardware and Software, collectively. “Services” means the repair or replacement of the Hardware at RealWear’s sole discretion and the support services as defined below. The Services are offered and sold by RealWear exclusively for Buyer’s own internal professional, business or commercial use (including government agencies) and are not promoted or marketed for the purpose of resale to third parties or for any consumer, non-professional, or leisure use.
I. LIMITATION OF LIABILITY AND REMEDIES
REALWEAR EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITES, LOST DATA, AND LOSS OF BUSINESS EXPECTATIONS. REALWEAR’S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE PAID FOR THE SERVICES THAT GIVES RISE TO ANY LIABILITY. IN THE EVENT THAT LOCAL LAWS PROHIBIT DISCLAIMER OF IMPLIED WARRANTIES, THE DURATION OF ANY IMPLIED WARRANTY SHALL NOT EXCEED ONE (1) YEAR FROM THE DATE OF PURCHASE. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TERMS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR REALWEAR’S SALE OF SERVICES TO A BUYER, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF REALWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
J. GOVERNING LAW, DISPUTE RESOLUTION. Any dispute relating to this Agreement (“Dispute”) will be resolved through binding arbitration according to the then-current Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”). The existence, content (including all documents and materials submitted to the arbitrators), and results of any arbitration shall be deemed Confidential Information. The arbitrator will be a neutral practicing attorney or retired judge with experience in similar cases and appointed in accordance with the AAA Rules. The arbitrator must agree in writing to maintain the confidentiality of the arbitration. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. The substantially prevailing party will be entitled to recovery of arbitration expenses (including all costs and reasonable attorney’s fees) from the substantially non-prevailing party. The arbitrator’s award will include provisions for this recovery. The arbitrator’s award will be binding and final. Any court having jurisdiction may enter judgment upon the award. The arbitration will be conducted in English and held in Vancouver, WA. This Agreement is governed by, and the arbitrator will apply, the substantive laws of the State of Washington excluding its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods expressly will not apply to these Terms. Claims must be brought within one (1) year of the date the claim arose, otherwise the claim will be permanently barred.
K. CLASS ACTION WAIVER. All proceedings will be conducted solely on an individual basis. No arbitration will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. You will not seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which you act or propose to act in a representative capacity.
