BREAKING NEWS: REALWEAR ACQUIRES ALMER TECHNOLOGIES

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BREAKING NEWS: REALWEAR ACQUIRES ALMER

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Terms of Sale

Updated: July 1st 2023

By placing this and any future order(s), you accept RealWear’s limited warranty and software license for business customers below and acknowledge that no other terms or conditions apply. All other terms or conditions are expressly excluded. Orders are subject to approval by RealWear. Accepted orders are final and may not be changed. RealWear may fill your order(s) directly or through its designated sales entity or reseller for your region.

Limited Warranty and Software License for Business Customers

The following terms and Conditions (“Terms”) give you specific legal rights. You may also have other rights that vary depending on local law.

These Terms set forth the only obligations and agreements by RealWear concerning the Products. 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 a RealWear Product through a reseller, and said reseller offered additional incentives or terms as part of the Product sale, Buyer understands and agrees that they must look solely to that reseller for the performance of such additional incentives or terms. RealWear shall have no liability for such additional incentives or terms, and the performance thereof.

Definitions

As used in this document, “RealWear” means RealWear, Inc., or any of its authorized resellers. “You”, “Your”, or “Buyer” means the original purchaser from RealWear of a Product covered by these Terms. “Hardware” means the RealWear Navigator® 500 Series and HMT head-mounted tablets (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. “Documentation” means the Product related media, printed materials, online and electronic documentation provided by RealWear, including copies. “Product” or “Products” means Hardware, Software, and Documentation collectively. The Products 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, unless through a executed reseller agreement, or for any consumer, non-professional, or leisure use.

Software and Documentation

The Software and Documentation are licensed not sold, and are provided “AS IS”, without any warranty. RealWear and its licensors retain all rights in the Software and Documentation, and grant Buyer only the following limited, personal, non-transferrable licenses:

  1. Documentation. Buyer may reproduce a reasonable number of copies of the Documentation for Buyer’s internal use.

  2. Software.  Buyer may run and execute the Software only on the specific Hardware on which it was delivered to Buyer, and Buyer may not copy, extract, or decompile the Software. The Software contains certain open source software components. The applicable open source license (indicated in the header files), and not this license, applies to those open source components.

  3. No Other Rights or Licenses.  No other rights or licenses are granted or implied, and the licenses expressly granted in this Section are Buyer’s only licenses. Except as expressly permitted by applicable law, Buyer may not decompile, attempt to derive source code from, or otherwise reverse engineer any Software. The licenses granted to Buyer by these terms will automatically terminate if Buyer violates or authorizes others to violate any of the license terms.

LIMITED HARDWARE WARRANTY FOR BUSINESS CUSTOMERS

HARDWARE (BUT NOT SOFTWARE OR DOCUMENTATION) IS WARRANTED BY REALWEAR AGAINST DEFECTS IN WORKMANSHIP OR MATERIALS WHICH CAUSE HARDWARE TO MALFUNCTION UNDER NORMAL USE CONDITIONS WHEN USED IN PROFESSIONAL, BUSINESS, OR COMMERCIAL APPLICATIONS (INCLUDING GOVERNMENT AGENCIES) FOR A PERIOD OF ONE (1) YEAR FROM DATE OF ORIGINAL PURCHASE. AS USED HEREIN, “NORMAL USE CONDITIONS” SHALL MEAN HARDWARE WHICH HAS BEEN USED AND MAINTAINED IN ACCORDANCE WITH THE APPLICABLE REALWEAR INSTRUCTION MANUAL, INCLUDING ANY UPDATES OR TECHNICAL ADVISORIES PROVIDED BY REALWEAR WITH RESPECT TO THE HARDWARE, AND HAS NOT BEEN USED IN ANY ABNORMAL SETTINGS OR IN EXTREME WEATHER CONDITIONS.  THE EXCLUSIVE REMEDY UNDER THIS LIMITED HARDWARE WARRANTY FOR ANY HARDWARE THAT IS DETERMINED BY REALWEAR TO BE DEFECTIVE IN WORKMANSHIP OR MATERIALS SHALL, AT REALWEAR’S SOLE OPTION, BE REPAIR OR REPLACEMENT OF THE DEFECTIVE HARDWARE, OR REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE HARDWARE.

THE HARDWARE IS NOT DISTRIBUTED, SOLD OR INTENDED FOR USE BY ANY PERSON OR ENTITY DEFINED AS A “CONSUMER” UNDER THE MAGNUSON-MOSS WARRANTY ACT OF 1975, AND THIS LIMITED WARRANTY IS NOT OFFERED, MADE OR EXTENDED TO ANY SUCH PERSON OR ENTITY.

WARRANTY DISCLAIMERS AND EXCLUSIONS

NO WARRANTY, PRODUCT DESCRIPTION, OR AFFIRMATION OF FACT, EXPRESS OR IMPLIED, OTHER THAN AS SET FORTH IN THE LIMITED WARRANTY STATEMENT ABOVE, IS MADE OR AUTHORIZED BY REALWEAR AS TO ANY HARDWARE OR PRODUCT. REALWEAR DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF HARDWARE OR PRODUCT MISUSE, IMPROPER HARDWARE OR PRODUCT SELECTION, IMPROPER HARDWARE INSTALLATION OR HARDWARE MODIFICATION, MISREPAIR OR MISAPPLICATION. REALWEAR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE HARDWARE OR ANY PRODUCT: (i) IS MERCHANTABLE; (ii) IS FIT FOR A PARTICULAR PURPOSE; OR (iii) DOES NOT AND WILL NOT INFRINGE UPON OTHERS’ INTELLECTUAL PROPERTY RIGHTS.

ADDITIONALLY, THE LIMITED WARRANTY SHALL NOT APPLY TO HARDWARE MALFUNCTIONS WHICH RESULT FROM THE FAILURE TO TIMELY INSTALL ANY RECOMMENDED UPDATES PROVIDED BY REALWEAR, ABUSE OR MISUSE, AND HARDWARE  MALFUNCTIONS CAUSED BY USE OF ACCESSORIES NOT SOLD OR LICENSED BY REALWEAR – INCLUDING BUT NOT LIMITED TO BATTERIES, THIRD PARTY SOFTWARE, CHARGERS, MEMORY CARDS, OR OTHER ACCESSORIES. THE LIMITED WARRANTY DOES NOT APPLY TO HARDWARE WHICH HAS BEEN OPENED, MODIFIED, DISASSEMBLED OR TAMPERED WITH (INCLUDING CIRCUMVENTION OF ANY ANTI-TAMPERING SYSTEM) OR WHICH HAS BEEN REPAIRED OR MODIFIED BY THIRD PARTIES NOT AUTHORIZED BY REALWEAR, INCLUDING BUT NOT LIMITED TO MODIFICATIONS, DOWNLOADS OR CONFIGURATIONS MADE TO THE PRODUCT BY ANY RESELLER, OR TO HARDWARE WHICH HAS BEEN DISGUISED OR DISFIGURED BY REMOVAL OF TRADEMARKS, SERIAL NUMBERS, OR SIMILAR IDENTIFICATION. THIS LIMITED WARRANTY ALSO DOES NOT APPLY TO HARDWARE WHICH HAS BEEN SUBJECTED TO EXTERNAL PHYSICAL DAMAGE INCLUDING WITHOUT LIMITATION BEING DROPPED, BEING SUBJECTED TO INTRUSION OF WATER OR OTHER LIQUIDS, OR AS THE RESULT OF USER’S FAILURE TO FOLLOW INSTRUCTIONS PROVIDED IN WRITTEN DOCUMENTATION INCLUDED WITH THE HARDWARE OR SUBSEQUENTLY SUPPLIED BY REALWEAR IN THE FORM OF UPDATED MANUALS OR TECHNICAL ADVISORIES. CERTAIN CONSUMABLE OR ACCESSORY SUPPLIES INCLUDED WITH THE HARDWARE OR SOLD SEPARATELY BY REALWEAR (SUCH AS BATTERIES OR SOFT CASES) ARE SUBJECT TO A DIFFERENT WARRRANTY TERM AS SET FORTH IN SECTION “C” BELOW.

THE LIMITED WARRANTY IS MADE TO THE ORIGINAL BUYER ONLY, WHO FOR PURPOSES OF THIS AGREEMENT IS THE PROUCT END USER AND, EXCEPT WHERE PROHIBITED BY LAW, IS NOT TRANSFERRABLE.

LIMITATION OF LIABILITY AND REMEDIES

EXCEPT AS REQUIRED BY SPECIFIC STATE LAW, REALWEAR EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY DAMAGE OR INJURY TO PERSON OR PROPERTY (INCLUDING FAILURE TO TIMELY INSTALL ANY RECOMMENDED UPDATES, WHICH FAILURE MAY RESULT IN PRODUCT MALFUNCTION, WITH SUCH MALFUNCTION POTENTIALLY CAUSING BODILY INJURY, OR PHYSICAL DAMAGES TO PERSONS OR PERSONAL PROPERTY), DEATH, 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 HARDWARE 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 HARDWARE OR PRODUCTS 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.

A. How to Get Warranty Service Pursuant to the Limited Hardware Warranty:

  1. Before starting the warranty process, please review the “Frequently Asked Questions” at https://realwear.com/support/faq.

  2. If the FAQ’s do not resolve your problem, then please submit a “Support Request” online at https://realwear.com/contact-us.

  3. Before sending your Hardware to RealWear for service, be sure to keep a copy of any data you want to save and delete anything you consider confidential. RealWear is not responsible for your data and may erase it.

B. RealWear’s Responsibility:

  1. After you return your Hardware to RealWear (at your cost, unless RealWear is required by applicable law to pay) RealWear will inspect it.

  2. If RealWear, in its sole discretion, determines that: (a) a defect in materials or workmanship caused the Hardware to malfunction during the Warranty Period under Normal Use Conditions, and (b) none of the Warranty Disclaimers or Exclusions apply, then RealWear will (at its option) repair or replace the Hardware, or refund the purchase price to You. Unless restricted by applicable law, repair may use new or refurbished parts and replacement may be with a new or refurbished unit.

  3. After repair or replacement, your Hardware will be covered by the Limited Hardware Warranty for the longer of (a) the remainder of your original Warranty Period or (b) ninety-five (95) days after RealWear returns the repaired or replaced Hardware to you. Where required by applicable law, the original Limited Warranty Period will be extended for a period of time equal to the time that your Hardware was in RealWear’s possession.

  4. If your Hardware malfunctions after your Limited Hardware Warranty per your Hardware’s SKU expires, RealWear provides no warranty of any kind. After the Warranty Period expires, RealWear may charge you a fee for its efforts to diagnose and service any problems with your Hardware.

C. Accessories and Consumable Parts:

  1. RealWear branded accessories are covered by the Limited Hardware Warranty, provided that HMT-1 and Navigator™ 500 Series batteries and soft cases are warranted for ninety (90) days only; HMT-1Z1 batteries are warranted for one (1) year; and consumable parts and accessories such as foam pads, straps, hard-hat clips, etc. are not covered by warranty.

D. RW Cloud Pro:

  1. Subject to the terms of the Limited Hardware Warranty as set forth herein, purchase of Hardware beginning July 1, 2023 will include a one-year RW Cloud Pro user license, as defined in the RealWear Cloud Software as a Service Agreement (“SaaS Agreement”), which such terms apply only if the end user purchaser separately accesses the RW Cloud platform and accepts the SaaS Agreement.

GOVERNING LAW, DISPUTE RESOLUTION

A. Arbitration:  Any dispute relating to this Agreement including a claim under the Limited Warranty stated above (“Dispute”) will be resolved by 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 are 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 prevailing party will be entitled to recovery of arbitration expenses (including reasonable attorney’s fees). 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.

B. Governing Law: 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 does not apply to this Agreement. Claims must be brought within one (1) year of the date the claim arose, otherwise the claim will be permanently barred.

C. 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.