v1.0 Jul 2011 VAN01: 2953024: v1
THIS LIQUIVISION Kaon USER AGREEMENT AND WARRANTY (THIS “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU AND LIQUIVISION PRODUCTS INC. (“LIQUIVISION”). YOUR USE OF THE LIQUIVISION Kaon DIVE COMPUTER (INCLUDING SOFTWARE) AND THE OPTIONAL XEN/XEO/Kaon PC INTERFACE (TOGETHER, THE “Kaon”) IS SUBJECT TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. THIS AGREEMENT ALSO SETS OUT LIQUIVISION’S WARRANTY OF THE Kaon EXCLUSIONS, LIMITATIONS OF LIQUIVISION’S LIABILITY TO YOU, PROVISIONS GOVERNING THE RESOLUTION OF DISPUTES, AND OTHER IMPORTANT PROVISIONS. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MUST NOT USE THE Kaon AND YOU MAY RETURN THE Kaon TO LIQUIVISION OR THE AUTHORIZED LIQUIVISION DEALER FROM WHICH YOU PURCHASED THE Kaon FOR A FULL REFUND WITHIN 30 DAYS AFTER YOUR DATE OF PURCHASE. IF YOU USE THE Kaon, YOU ARE DEEMED TO HAVE AGREED TO THIS AGREEMENT.
INCORRECT USE OF THE Kaon OR ITS ACCESSORIES WILL INVALIDATE YOUR WARRANTY AND CAN CAUSE PERMANENT DAMAGE TO THE Kaon OR ITS ACCESSORIES.
1. Important Warning
THE Kaon IS NOT INTENDED TO BE USED AS A PRIMARY DECOMPRESSION PLANNING TOOL OR A DEFINITIVE SOURCE OF DECOMPRESSION INFORMATION. THE Kaon IS INTENDED TO BE ONLY A SECONDARY SOURCE OF DECOMPRESSION INFORMATION, TO BE USED IN CONJUNCTION WITH OTHER DECOMPRESSION PLANNING TOOLS. THE Kaon CAN STOP FUNCTIONING OR PROVIDE INACCURATE INFORMATION, WITHOUT WARNING, DUE TO VARIOUS FACTORS (INCLUDING DEFECTS OR SOFTWARE BUGS). YOU MUST ALWAYS HAVE A PLAN TO HANDLE A Kaon FAILURE DURING YOUR DIVE. DO NOT RISK YOUR LIFE ON ONLY ONE SOURCE OF INFORMATION.
YOU SHOULD ALWAYS CHECK FOR SOFTWARE UPDATES (www.liquivision.com/downloads/KaonSoftwareHistory.php), AND INSTALL ALL APPLICABLE UPDATES, EVERY TIME YOU PREPARE TO USE THE Kaon.
THE DECOMPRESSION SOFTWARE INCLUDED WITH THE Kaon IS BASED UPON THE B‹HLMANN DECOMPRESSION ALGORITHM, WITH OPTIONAL GRADIENT FACTORS. YOU MUST READ THE Kaon USER MANUAL AND FULLY UNDERSTAND THE B‹HLMANN DECOMPRESSION ALGORITHM AND GRADIENT FACTORS BEFORE YOU SET UP YOUR Kaon OR USE IT FOR THE FIRST TIME. USE OF THE Kaon DOES NOT GUARANTEE THAT YOU WILL NOT SUFFER DECOMPRESSION SICKNESS OR DEATH.
NEVER ATTEMPT TO PLAN OR UNDERGO A DECOMPRESSION DIVE WITHOUT PROPER TRAINING.
2. Your Risks and Responsibilities
Scuba diving, free diving and any other form of underwater diving (all of which are referred to in this Agreement as “diving”) are inherently dangerous and risky activities. Even with the best training, planning and equipment, participants may be injured or may die. If you choose to participate in diving, you accept the risk of injury or death and the responsibility to take all necessary steps to reduce those risks. Without limiting the foregoing, it is your sole responsibility to:
* obtain appropriate training;
* obtain, maintain and conduct appropriate pre-dive tests and checks of appropriate diving equipment, including redundant and back-up equipment to compensate for equipment failures while diving;
* plan your dive in advance and prepare and keep with you a dive plan;
* dive only within your abilities and experience and in accordance with your dive plan; and
* practice safe diving techniques, including not diving alone.
You also have the responsibilities set out in this Agreement.
3. Liquivision and the Kaon
When purchased by you, the Kaon consists of: (i) the Kaon Dive Computer hardware unit (the “Kaon Unit”) encased in a protective waterproof shell, (ii) the optional Xen/Xeo/Kaon PC Interface computer hardware unit encased in a protective shell (the “PC Interface Unit”), (iii) a copy of Liquivision’s decompression software and the Xen/Xeo/Kaon PC Interface software (collectively, the “Software”), (iv) a wrist strap, bungee cord, USB cable, and any other accessories that may be included. When you purchase the Kaon, you become the owner of the Kaon hardware components and a license to use the Software, but you do not acquire any intellectual property rights in the Kaon, including in the Software, all of which remain the sole and exclusive property of Liquivision. The optional Xen/Xeo/Kaon PC Interface, its Software and accessories are sold separately from the Kaon Dive computer. In the event that you have not purchased the Xen/Xeo/Kaon PC Interface, its Software and accessories, all references in this Agreement to the “Kaon” refer only to the Kaon Dive Computer, its Software and accessories.
4. License to the Software
4.1. License: Subject to the provisions of this Agreement, Liquivision grants you a license to use the Software in accordance with this Agreement. The license is non-exclusive, personal to you, non-sublicensable, non-transferrable (except pursuant to section 7) restricted and limited, and subject to the provisions of this Agreement. The license to use the Software applies only to the specific Kaon Unit bearing the serial number registered by you on www.liquivision.com, and the specific Xen/Xeo/Kaon PC Interface you have purchased and for which you can produce a valid receipt. The Software license commences on the date that you activate the Software on www.liquivision.com.
4.2. Restrictions and Requirements: You will not, directly or indirectly: (i) use, disclose, or provide or permit access to or use of the Software except as expressly permitted in this Agreement; (ii) copy, reproduce, translate, modify, enhance or improve the Software; (iii) create derivative works from the Software or merge, embed or combine the Software with any other software or materials; (iv) reverse engineer, disassemble, decompile, convert into human-readable form, or otherwise attempt to access or derive the source code of the Software; (v) license, sublicense, sell, resell, lend, lease, loan, rent, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, or otherwise give or make available per permit access to or use of the Software or its functionality or any results of its use to or for the benefit of any other person, with or without charge; (vi) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, or agreements on, in or in relation to the Software; or (vii) permit or assist any person to use the Software in a way that would constitute an infringement of Liquivision’s rights or a breach of this Agreement if done by you.
4.3. Ownership: You acknowledge and agree that Liquivision retains all rights, titles and interests (including intellectual property rights) throughout the world in, to and associated with the Software, including all copies of the Software provided to you. The Software is licensed (not sold) for limited purposes to you. The Software and related intellectual property rights are protected by intellectual property laws and treaties throughout the world. You will not acquire any right, title or interest in, to or associated with the Software pursuant to this Agreement or otherwise. Notwithstanding any other provision of this Agreement, under no circumstances will Liquivision 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 Liquivision.
4.4. Disclaimer: Liquivision is not responsible for any problems you may experience as a result of use ofthe Software, including death, personal injury or loss or damage to your data or other personal property.
5. Limited Warranty
5.1. Warranty: Liquivision warrants that the hardware components of the Kaon will be free from defects in materials or workmanship during the applicable Warranty Period (the “Warranty”).
5.2. Warranty Periods: The Warranty Periods are as follows:
* two (2) years for the hardware components of the Kaon Unit;
* two (2) years for the hardware components of Xen/Xeo/Kaon PC Interface (whether included in the original Kaon sales package or sold separately); and
* one (1) year for parts and accessories including wrist straps, bungee cords, and USB cables
. In each case, the Warranty Period begins on the date that you first register your Kaon through the Liquivision website. If you make a warranty claim, you must provide Liquivision with proof of the date of purchase of your Kaon to establish the Warranty Period, and failure to do so will result in denial of your warranty claim.
5.3. Remedy: In the event of any breach of the Warranty, Liquivision’s sole liability and obligation to you, and your sole right and remedy against Liquivision, is for Liquivision, at its option, to either: (i) repair or replace the defective component of the Kaon; or (ii) replace the defective Kaon in its entirety; or (iii)†refund the purchase price for the defective Kaon. If Liquivision repairs or replaces your Kaon, the repaired or replacement Kaon is subject to the Warranty for the remainder of the original Warranty Period of the repaired or replaced Kaon or three months from the date of repair or replacement, whichever is longer. Any part removed from a Kaon during repair and any Kaon that is replaced or for which a refund is given by Liquivision, or by a Dealer on behalf of Liquivision, under the Warranty becomes the property of Liquivision. In fulfillment of the Warranty, Liquivision and its Dealers may use parts that are new, equivalent to new or reconditioned in the repair of a Kaon, and may provide a new, equivalent to new or reconditioned Kaon in replacement of another Kaon. Neither Liquivision nor any of its Dealers will be liable to compensate you for any loss of use of the Kaon as a result of any warranty claim, including as a result of any delay in the repair or replacement of your Kaon.
5.4. Warranty Limitations and Exclusions: The Warranty is subject to the following limitations and exclusions:
* The Warranty applies only if the Kaon is purchased from Liquivision or an authorized Liquivision dealer (a “Dealer”) or is transferred to you by a person who originally purchased the Kaon from Liquivision or a Dealer.
* The Warranty applies only if the Kaon Dive Computer is used while worn by a human being diving to a depth not exceeding 200 metres (656 feet). The Warranty is void in the event of any other use.
* The Xen/Xeo/Kaon PC Interface and its USB cables are not intended for use underwater, and any submersion of those items in water will void the Warranty in respect of those items.
* The Kaon must be used in accordance with the Kaon User Manual. The Warranty does not apply to defects or damage caused by: (i) misuse, neglect or improper or rough handling (including punctures, bending, compressing or dropping of the Kaon); (ii) any use of the Kaon not in accordance with the Kaon User Manual; (iii) use of the Kaon with or connection of the Kaon to any product, accessory, software and/or service not manufactured, supplied or approved by Liquivision, including USB cables not provided by Liquivision; (iv)†normal wear and tear; (v) accidents, fire, power changes, other hazards, acts of God and other causes beyond the reasonable control of Liquivision; or (vi) modification of the Software by any person other than Liquivision.
* The Warranty will be void if: (i) the Kaon has been opened, modified or repaired by any person other than Liquivision, with the exception of the opening of the battery compartment of the Kaon Dive Computer solely for the purpose of replacing the battery in accordance with the User Manual and this Agreement; (ii) the Kaon Dive Computer’s serial number has been removed, erased, defaced or altered in any way or is illegible, as determined by Liquivision in its sole discretion; or (iii) the Kaon has been exposed to chemical products, including mosquito repellents.
* The Warranty does not cover changes to the Kaon Dive Computer display as a result of aging or use, including display burn-in or decreased brightness over time, which are a natural result of the use or aging of the Kaon Dive Computer display and are not a defect. Liquivision recommends using the Kaon display on the lowest required brightness setting to reduce the results of display aging and use.
* The Warranty does not cover loss or damage to the Kaon Dive Computer as a result of improper maintenance of the Kaon Dive Computer’s O-rings, including dry, cracked, dirty or dusty O-rings. Liquivision may agree in its sole discretion to repair such loss or damage, entirely at your cost.
* The Kaon Dive Computer is mounted to the wrist strap using spring pins. You acknowledge and agree that spring pins may break or lose hold. You also acknowledge and agree that the wrist strap may break, and the Kaon Dive Computer could become detached from the wrist strap. During the Warranty Period, Liquivision will repair or replace broken wrist straps or spring pins, but Liquivision will not be liable for any loss of the Kaon Dive Computer as a result of a broken or defective wrist strap or spring pin.
* The Kaon Dive Computer may be mounted to your wrist using the bungee cord provided. You acknowledge and agree that the bungee cord may break, and that the Kaon could become detached from the bungee cord. During the Warranty Period, Liquivision will replace broken bungee cords, but Liquivision will not be liable for any loss of the Kaon Dive Computer as a result of a lost, broken or defective bungee cord.
5.5. Warranty Procedure: If you believe you have a warranty claim in respect of your Kaon, please consult the online help resources available at www.liquivision.com/contact.php or referred to the Kaon User Manual before submitting your warranty claim and requesting warranty service. If you still believe you have a warranty claim, then contact the Dealer from which you purchased your Kaon, or Liquivision at email@example.com if you purchased your Kaon through the Liquivision website. You are responsible for all shipping costs (including insurance) incurred when sending your Kaon to Liquivision or a Dealer and returning the repaired or replacement Kaon to you. Before returning or sending your Kaon to Liquivision or a Dealer, you must remember to make back-up copies of any content or data that is installed or stored on the Kaon, as these may be lost during repair of the Kaon and will not be transferred to a replacement Kaon. Neither Liquivision nor its Dealers will be liable for any loss of, damage to or corruption of, any settings, content or data that is installed or stored on the Kaon during repair or replacement.
6. Battery - Replacement and Disclaimers
6.1. The Battery: The Kaon Dive Computer is fitted with a specific brand and model of battery (the “Battery”), details of which are contained in the Kaon User Manual . You may replace the Battery in your Kaon Dive Computer as required, in accordance with the Kaon User Manual and this Agreement.
6.2. Disclaimers: The following disclaimers relate to the Battery and your replacement of the Battery:
* IT IS YOUR RESPONSIBILITY TO MONITOR BATTERY VOLTAGE AND ENSURE THE Kaon DIVE COMPUTER HAS ENOUGH BATTERY LIFE TO COMPLETE YOUR PLANNED DIVE. LIQUIVISION IS NOT RESPONSIBLE AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THE Kaon DIVE COMPUTER POWERING OFF AS A RESULT OF INSUFFICIENT BATTERY LIFE.
* LIQUIVISION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE TO THE Kaon DIVE COMPUTER ARISING FROM OR IN CONNECTION WITH THE REPLACEMENT OF THE BATTERY NOT IN ACCORDANCE WITH THE Kaon USER MANUAL, INCLUDING THE INCORRECT OR FORCEFUL INSERTION OF THE BATTERY CAP, WHICH CAN DAMAGE THE SCREW THREADS ON THE CAP OR IN THE Kaon UNIT. LIQUIVISION MAY AGREE TO REPAIR ANY SUCH DAMAGE AT LIQUIVISION’S SOLE DISCRETION, AND ENTIRELY AT YOUR COST.
* LIQUIVISION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE TO THE Kaon DIVE COMPUTER ARISING FROM OR IN CONNECTION WITH A FLOODED BATTERY COMPARTMENT, WHETHER OR NOT THE BATTERY HAS BEEN REPLACED.
* RE-CHARGING A NON-CHARGEABLE BATTERY, OR SHORTING OUT THE BATTERY, CAN CAUSE A FIRE OR EXPLOSION. LIQUIVISION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THE RECHARGING OR SHORTING OUT OF THE BATTERY.
7. Transfer of Your Kaon
You may sell, give, rent or lend your Kaon to another person, provided that you give that person this Agreement at the same time and they agree to this Agreement. You will not sell, give, rent or lend your Kaon, or otherwise permit any person to use your Kaon, unless that person has agreed to this Agreement. If you purchased your Kaon from a Dealer, you must also give that person proof of your date of purchase of your Kaon, without which they will not be entitled to submit a claim under the Warranty.
8. No Other Representations, Warranties, Conditions or Guarantees
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITED WARRANTY PROVIDED UNDER SECTION 5 ABOVE ARE YOUR SOLE AND EXCLUSIVE RIGHTS AND REMEDIES, AND LIQUIVISION’S SOLE AND EXCLUSIVE LIABILITIES AND OBLIGATIONS TO YOU, IN CONNECTION WITH YOUR PURCHASE AND USE OF THE Kaon, AND ARE IN LIEU OF EVERY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND 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 ACCURACY; CAPACITY; COMPLETENESS; DELAYS; DURABILITY; ERRORS; FITNESS FOR A PARTICULAR PURPOSE; LACK OF NEGLIGENCE, VIRUSES OR OTHER HARMFUL COMPONENT, ERRORS, OR INTERRUPTED SERVICE; MERCHANTABILITY; NON-INFRINGEMENT; PERFORMANCE; RESULTS; SUITABILITY; QUALITY; TIMELINESS; TITLE; SIMILARITY OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY LIQUIVISION TO THE FULLEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIQUIVISION MAKES NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE THAT: (A) THE Kaon WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED; (B) DATA PROCESSED BY THE Kaon WILL BE ACCURATE, COMPLETE, SEQUENTIAL, OR TIMELY; (C)†CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH THE USE OF THE Kaon; (D) THE USE OF THE Kaon WILL BE FREE OF ERRORS, VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; (E) THE USE OF THE Kaon WILL NOT INFRINGE THE RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; OR (F) YOUR Kaon WILL RESEMBLE OR OPERATE IN AN IDENTICAL FASHION TO ANY OTHER Kaon (INCLUDING WITH RESPECT TO DISPLAY BRIGHTNESS, TAP SENSITIVITY, BATTERY LIFE, OR COLOUR); AND LIQUIVISION DISCLAIMS ANY AND ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
9. Exclusions and Limitations
9.1. EXCLUSIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND EXCEPT FOR THE LIMITED WARRANTY CLAIM REMEDIES EXPRESSLY SET FORTH IN PARAGRAPH 5.3 ABOVE, IN NO EVENT WILL LIQUIVISION BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE Kaon, THE USE OF THE Kaon, THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT, OR OTHERWISE, OR FOR LOSS OF DATA, INFORMATION, BUSINESS, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, OR GOODWILL, ANTICIPATED OR OTHERWISE, OR ECONOMIC LOSS.
9.2. NO LIABILITY FOR INJURY OR DEATH: YOU AGREE THAT YOU UNDERSTAND AND ACCEPT ALL RISKS ASSOCIATED WITH DIVING, AND THAT LIQUIVISION IS NOT LIABLE TO YOU OR ANY OTHER PERSON, INCLUDING YOUR HEIRS, EXECUTORS OR PERSONAL REPRESENTATIVES, FOR ANY LOSS, DAMAGE, COST, EXPENSE OR CLAIM ARISING OUT OF, CAUSED BY OR RELATING TO YOUR PERSONAL INJURY OR DEATH WHILE DIVING, EVEN IF YOUR PERSONAL INJURY OR DEATH IS CAUSED, IN WHOLE OR IN PART AND DIRECTLY OR INDIRECTLY, BY THE Kaon OR YOUR USE OF THE Kaon, AND REGARDLESS OF WHETHER OR NOT THE Kaon FUNCTIONED PROPERLY OR WAS DEFECTIVE IN ANY WAY. YOU HEREBY IRREVOCABLY WAIVE AND RELEASE LIQUIVISION FROM ANY LIABILITY OR OBLIGATION TO YOU OR YOUR HEIRS, EXECUTORS OR PERSONAL REPRESENTATIVES FOR ANY LOSS, DAMAGE, COST, EXPENSE OR CLAIM ARISING OUT OF, CAUSED BY OR RELATING TO YOUR PERSONAL INJURY OR DEATH WHILE DIVING, EVEN IF YOUR PERSONAL INJURY OR DEATH IS CAUSED, IN WHOLE OR IN PART AND DIRECTLY OR INDIRECTLY, BY THE Kaon OR YOUR USE OF THE Kaon, AND REGARDLESS OF WHETHER OR NOT THE Kaon FUNCTIONED PROPERLY OR WAS DEFECTIVE IN ANY WAY.
9.3. NO LIABILITY FOR DECOMPRESSION SICKNESS OR DEATH: WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT YOU UNDERSTAND AND ACCEPT THAT THE Kaon SIMULATES THE ABSORPTION OF NITROGEN INTO THE BODY BY USING A MATHEMATICAL MODEL ONLY, AND DOES NOT GUARANTEE THAT YOU WILL NOT SUFFER DECOMPRESSION SICKNESS OR DEATH, AND THAT LIQUIVISION IS NOT LIABLE TO YOU OR ANY OTHER PERSON, INCLUDING YOUR HEIRS, EXECUTORS OR PERSONAL REPRESENTATIVES, IF YOU SUFFER DECOMPRESSION SICKNESS OR DEATH.
9.4. LIMITATION OF LIABILITY: IF NOTWITHSTANDING SECTION 8 OR THE OTHER PARAGRAPHS OF THIS SECTION 9 LIQUIVISION HAS ANY LIABILITY TO YOU OR ANY OTHER PERSON IN RESPECT OF ANY MATTER REFERRED TO IN THOSE SECTIONS OR ANY OTHER MATTER, LIQUIVISION’S TOTAL CUMULATIVE LIABILITY TO YOU, YOUR HEIRS, EXECUTORS AND PERSONAL REPRESENTATIVES AND TO ANY OTHER PERSON ARISING FROM, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, THE Kaon, YOUR USE OF THE Kaon OR OTHERWISE, FROM ANY AND ALL CAUSE OR CAUSES, WILL NOT IN THE AGGREGATE EXCEED THE PURCHASE PRICE THAT YOU PAID FOR THE Kaon, AND YOU HEREBY RELEASE LIQUIVISION FROM ANY AND ALL OBLIGATIONS, LIABILITIES, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION.
9.5. APPLICATION/DEFINITIONS: THIS SECTION 9 WILL APPLY TO ALL LOSSES, DAMAGES, COSTS, EXPENSES, CLAIMS, LIABILITIES AND OBLIGATIONS REFERRED TO THEREIN, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) OR OTHER FAULT OR WRONGDOING BY LIQUIVISION OR ANY PERSON FOR WHOM LIQUIVISION IS RESPONSIBLE, AND EVEN IF LIQUIVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED. IN THIS SECTION 9, REFERENCES TO LIQUIVISION INCLUDE LIQUIVISION’S PAST, PRESENT AND FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
9.6. EXCEPTIONS: THE EXCLUSION OF CERTAIN WARRANTIES AND THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES IS PROHIBITED BY LEGISLATION IN SOME JURISDICTIONS. SUCH LEGISLATIVE LIMITATIONS MAY APPLY TO YOU.
10.1. Interpretation: In this Agreement: (a) a reference to “this Agreement” and other similar terms refers to this Agreement as a whole (including the Schedules), and not just to the particular provision in which those words appear; (b)†“including” means including without limitation; (c)†headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (d)†“persons” includes individuals, corporations, partnerships, joint ventures, associations, trusts, unincorporated organizations, societies, and all other legal entities; (e)†words importing the singular number only include the plural and vice versa; (f)†words importing either gender include both genders; (g)†reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; (h)†“discretion” means a Party’s sole, absolute and unfettered discretion; and (i)†reference to a law or statute includes all regulations and ordinances made thereunder and all amendments to, or replacements of, the law, statute, regulations and ordinances in force from time to time. The Parties have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Les Parties conviennent et exigent expressement que ce Contrat et tous les documents qui s’y rapportent soient rediges en Anglais.
10.2. Governing Law and Disputes: This Agreement and all related matters will be governed, and construed in accordance with, the laws of British Columbia, Canada and applicable federal laws of Canada, excluding the United Nations Convention for the International Sale of Goods and any rules of private international law or the conflict of laws which would lead to the application of any other laws. Any dispute arising from, connected with, or relating to this Agreement or any related matters will be resolved by the courts of British Columbia sitting in the City of Vancouver, British Columbia, Canada, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of any and all such matters.
10.3. Miscellaneous: The provisions of this Agreement will enure to the benefit of and be binding upon Liquivision and its successors and assigns, and you and your heirs, executors, personal representatives and permitted assigns. You may not assign this Agreement except with your Kaon in accordance with section 7 above. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable or invalid for any reason, then that provision will be deemed to be 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.
10.4. Entire Agreement: This Agreement sets forth the entire agreement between Liquivision and you regarding the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between you and Liquivision or between you and any Dealer with respect to the subject matter of this Agreement. This Agreement may be modified only by a written document that expressly states that it is an amendment to this Agreement and is signed by Liquivision or its successors or assigns. A Dealer does not have authority to modify this Agreement.
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