ODG R-7HL (Hazardous Location) Limited Warranty Terms and Release Agreement
This ODG R-7HL (Hazardous Location) Limited Warranty Terms and Release Agreement (“Agreement”) is by and between Osterhout Group, Inc. (“ODG”) and the undersigned customer (“Customer”) of ODG’s R-7HL Smartglasses and related ODG accessories and software used in connection therewith including HL designated accessories (collectively, the “R-7HL Smartglasses System”).
ODG’s R-7HL Smartglasses System is intended for use as a supplemental tool for purposes such as telepresence, tele-maintenance and other uses in potentially hazardous locations as such uses and locations are solely determined by the Customer and end users of Customer’s R-7HL Smartglasses System (“End User”). ODG is providing the R-7HL Smartglasses System to Customer and End Users as a potential benefit and cost saving device, but because of the nature of the uses to which they may be put, ODG shall not assume any liability whatsoever for any losses, claims, costs or expenses arising out of their use except as specifically set forth in this Agreement.
1. Limited Warranty – ODG sole warranties for the R-7HL Smartglasses System (notwithstanding to the contrary any warranties contained in any other agreement such as a distributor, reseller, sales representative agreement or ODG’s standard sales terms and conditions on its website or elsewhere) are the following:
a. The one-year limited warranty posted on the ODG website, as modified by this Agreement Exhibit A.
b. A representation and warranty that the R-7HL Smartglasses System have been reviewed by third party providers (“Standards Reviewers”) who have verified that the R-7HL Smartglasses System meet the standards set forth on Exhibit B. ODG does not warrant that the Standards Reviewers’ verifications, certifications, findings or reports are complete, accurate or correct in any respect, and it is the sole obligation of Customer and End User to investigate and determine which standards are best applicable to their intended use. Customer and End User shall be relying solely on the Standards Reviewers for such verification, certification or finding.
EXCEPT AS PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ODG IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, DEFECT, NEGLIGENCE, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED, INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY INJURY OR DEATH, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE R-7HL SMARTGLASSES SYSTEM OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION STORED ON THE R-7HL SMARTGLASSES SYSTEM.
2. Limited Liability/Customer Responsibility – ODG’s sole Liability to the Customer for any defect, failure, breach of warranty or any other Claims (as defined in Section 3 below) shall be for the return and/or replacement of any non-conforming R-7HL Smartglasses System on the terms set forth in Exhibit A. Customer is solely responsible for insuring and verifying that the R-7HL Smartglasses System is appropriate for the uses to which they will be put by Customer and/or any End User taking into consideration the Standards and any information contained in written materials provided by ODG to Customer. For the purposes of this Agreement, “Liability” shall mean any liability, damage, loss, claim, obligation, demand, judgment, fine, penalty, cost or expense, including attorneys’ fees and expenses, and the costs of investigation incurred in defending against or settling such liability, damage, loss, claim, obligation, demand, judgment, fine, penalty cost or expense.
3. Customer Release – Except as specifically set forth in Sections 1 and 2 hereof, Customer does hereby, for itself and on behalf of all End Users remise, release and forever discharge ODG and its directors, officers, employees, shareholders, agents, representatives and Affiliates (collectively with ODG, the “ODG Indemnitees”) from and against any and all Liabilities whatsoever, whether at law or in equity, whether arising under any contract or agreement, implied by operation of law or otherwise, whether or not associated with any negligence of any ODG Indemnitee, existing or arising in any manner in connection with the purchase, ownership, possession, use or operation by Customer or any End User of the R-7HL Smartglasses System (“Claims”). With respect to such release, Customer acknowledges and agrees that the release shall extend to (and Customer shall waive the benefit of any law regarding) claims which the Customer does not know or suspect to exist in Customer’s favor at the time of executing the release, which if known by Customer might have materially affected Customer’s settlement with ODG Indemnitees. For the purposes of this Agreement, “Affiliate” shall mean any legal entity that directly or indirectly controls, is controlled by or is under common control with ODG.
4. Indemnity – Customer hereby agrees to hold harmless, defend and indemnify (with counsel reasonably acceptable to ODG) the ODG Indemnitees from and against any and all Claims.
5. Governing Law – This Agreement shall be governed by and construed in accordance with the laws of the State of California as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto with venue in the courts of the City and County of San Francisco.
6. Counterparts – This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement.
7. Binding Effect/Assignment – This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives and successors. Neither party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other party, and any such assignment shall be void. 8. Severability. If any term or other provision of this Agreement or Exhibit A attached hereto is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement and Exhibit A shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement and Exhibit A so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible.
For ODG Products Only - BY USING YOUR ODG PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS ODG ONE (1) YEAR LIMITED WARRANTY (“WARRANTY”) AS SET OUT BELOW. DO NOT USE YOUR ODG PRODUCT UNTIL YOU HAVE READ THE TERMS OF THIS WARRANTY. IF YOU DO NOT AGREE TO THE TERMS OF THE WARRANTY, DO NOT USE THE ODG PRODUCT AND RETURN IT EITHER TO ODG IF PURCHASED DIRECTLY FROM ODG WITHIN THE RETURN PERIOD STATED IN ODG’S RETURN POLICY OR, IF PURCHASED FROM A RETICLECONNECT AUTHORIZED RESELLER, TO THE RETICLECONNECT AUTHORIZED RESELLER FROM WHOM YOU PURCHASED THE PRODUCT WITHIN THE RETURN PERIOD STATED IN THE RETICLECONNECT AUTHORIZED RESELLER’S RETURN POLICY. IF YOU HAVE QUESTIONS CONCERNING YOUR WARRANTY, PLEASE CONTACT ODG FOR PRODUCTS PURCHASED DIRECTLY FROM ODG OR SUCH RESELLER WITH RESPECT TO THE PROCESS FOR WARRANTY RETURNS.
TO THE EXTENT PERMITTED BY LAW, WITH RESPECT TO ODG THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. ODG DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, ODG LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT ODG’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED BELOW. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
Osterhout Group, Inc. (“ODG”) warrants the ODG-branded hardware product and the ODG-branded accessories contained in the original packaging (“ODG Product”) against defects in materials and workmanship when used normally in accordance with ODG’s published guidelines for a period of ONE (1) YEAR from the date of original purchase from ODG or a ReticleConnect Authorized Reseller (“Warranty Period”) as applicable (such purchaser the “Original Purchaser”). For ODG’s published guidelines include but are not limited to information contained in technical specifications, user manuals and service communications. Except as required by law, and notwithstanding anything to the contrary contained herein, the warranties hereunder shall not apply to any party other than the Original Purchaser (i.e. excluding parties that acquire the ODG Product from the Original Purchaser).
This Warranty does not apply:
Additionally, ODG does not warrant that the operation of the ODG Product will be uninterrupted or error-free. ODG is not responsible for damage arising from failure to follow instructions relating to the ODG Product’s use.
ODG may restrict warranty service for ODG Products to the country where the product was originally purchased if purchased directly from ODG. For purchases of ODG Products from a ReticleConnect Authorized Reseller, please contact your ReticleConnect Authorized Reseller for information about service restrictions.
With respect to ODG Products purchased directly from ODG: (i) before receiving warranty service, ODG or its agents may require that you furnish proof of purchase details, respond to questions designed to assist with diagnosing potential issues and follow ODG’s procedures for obtaining warranty service; and (ii) before submitting your ODG Product for warranty service, you should maintain a separate backup copy of the contents of its storage media, remove all personal information that you want to protect and disable all security passwords. For your responsibilities with respect to warranty repairs from a ReticleConnect Authorized Reseller, please consult with your ReticleConnect Authorized Reseller.
DURING WARRANTY SERVICE ODG RESERVES THE RIGHT TO REPAIR OR REPLACE THE UNIT UNDER WARRANTY WITH A NEW OR REFURBISHED UNIT. IF ODG CHOOSES TO REPAIR THE UNIT THE CONTENTS OF THE STORAGE MEDIA MAY BE DELETED AND REFORMATTED. ODG AND ITS AGENTS ARE NOT RESPONSIBLE FOR ANY LOSS OF SOFTWARE PROGRAMS, DATA OR OTHER INFORMATION CONTAINED ON THE STORAGE MEDIA OR ANY OTHER PART OF THE ODG PRODUCT SERVICED. UNITS PURCHASED THROUGH A RETICLECONNECT AUTHORISED RESELLLER MUST BE RETURNED TO THE AUTHORIZED RESELLER FOR WARRANTY ISSUES.
With respect to ODG products purchased directly from ODG: (i) following warranty service your ODG Product or a replacement device will be returned to you as your ODG Product was configured when originally purchased, subject to applicable updates; (ii) if applicable, ODG may install system software updates as part of warranty service that will prevent the ODG Product from reverting to an earlier version of the system software; (iii) third party applications installed on the ODG Product may not be compatible or work with the ODG Product as a result of the system software update; and (iv) you will be responsible for reinstalling all other software programs, data and information. Recovery and reinstallation of other software programs, data and information are not covered under this Warranty. For how these issues are addressed if you purchased your ODG Products from a ReticleConnect Authorized Reseller, please consult with your ReticleConnect Authorized Reseller.
DO NOT OPEN THE ODG PRODUCT YOURSELF. OPENING THE ODG PRODUCT MAY CAUSE DAMAGE THAT IS NOT COVERED BY THIS WARRANTY AND SHALL VOID THE WARRANTY. ONLY ODG OR AN OASP SHOULD PERFORM SERVICE ON THIS ODG PRODUCT.
If during the Warranty Period you submit a claim to ODG in accordance with this warranty for ODG Products purchased directly from ODG, ODG will, at its option:
For how these issues are addressed if you purchased your ODG Products from a ReticleConnect Authorized Reseller, please consult with your ReticleConnect Authorized Reseller.
ODG may request that you replace certain user-installable parts or ODG Products. A replacement part or ODG Product, including a user-installable part that has been installed in accordance with instructions provided by ODG, assumes the remaining term of the Warranty or ninety (90) days from the date of replacement or repair, whichever provides longer coverage for you. When an ODG Product or part is replaced or a refund provided, any replacement item becomes your property and the replaced or refunded item becomes ODG’s property.