Terms and Conditions of Sale of Products

Last Updated: April 21, 2015

 

These Terms and Conditions of Sale of Products (collectively, this “Agreement”) apply to all purchases or pre-orders of products (each a “Product”) marketed by Recon Instruments Inc. (“Recon”) and sold via any web site whose domain ends in “reconinstruments.com”, or such other websites as made available by Recon and its affiliates and subsidiaries from time to time (the “Site”).  In this Agreement, the buyer of any Product via the Site is referred to as “you”; accordingly, if the individual making the purchase is doing so on behalf of a corporation or other legal entity, he or she represents and warrants having the authority to do so and to bind such entity to this Agreement.

This Agreement contains important terms that, among other things, affect Recon’s liability and your remedies against Recon.  Please read this Agreement carefully, BEFORE you indicate your acceptance of this Agreement as part of a transaction on the site.  If you check the “I AGREE TO THE TERMS AND CONDITIONS OF THIS SALE” option as part of the transaction in which this agreement is presented, you agree to be bound by this entire Agreement including the warranty disclaimers, limitations of liability and methods of resolving disputes.

 

Terms of Sale

  1. Orders, Price and Payment.
    1. Price and Order.  The total price for the Products you are purchasing will be stated on the confirmation notice displayed at the last step of the ordering transaction before you confirm your purchase, and, upon your acceptance of the confirmation notice as well as all of the terms and conditions of this Agreement, the notice becomes your “Order”, an offer to us to purchase such Products on the terms set out therein and this Agreement.
    2. Availability.  All Orders are subject to availability.  When placing your Order, the confirmation notice will display whether the item is in-stock (an “In-Stock Product”), out-of-stock (an “Out-Of-Stock Product”), or a Pre-Order (a “Pre-Ordered Products”).
    3. Acceptance.  Orders submitted by you are not binding upon Recon until the Order is accepted by Recon as indicated by Recon’s issuance of a Purchase Invoice (an “Invoice”) to you by email for such Order, which email also constitutes Recon’s acceptance of your Order.
    4. Merchant.  Recon may appoint a merchant of record (the “Merchant”), as indicated in your confirmation notice, as the merchant of record for the transaction.  In such a case, the Merchant will accept payment, handle Orders, and handle shipments for and behalf of Recon.  Accordingly, your point of contact for dealing with Orders may be the Merchant and not Recon directly; check your Invoice for more details.
    5. Payment.  Payment for all Orders must be by credit card, and full payment must be authorized by your credit card issuer before Recon is legally obligated to fulfill any Order previously accepted under an Invoice.  Your credit card will be charged when you place your Order.
    6. Subject to Recon Cancellation.  Recon reserves the right to decline to accept your Order, or to cancel an accepted Order after an Invoice, at any time, including, without limitation, in the event there is an error, typographical error, inaccuracy, omission, or mistake to the price of any of Recon’s Products or Product descriptions, promotions, offers, or availability. Prices, specifications and configurations are subject to change without notice. Although Recon makes reasonable efforts to ensure that the Site is current and contain no errors or inaccuracies, Recon makes no representations, warranties or guarantees that the information, content or materials included in the Site will be error-free or completely accurate or current at all times, or at any time. Recon reserves the right at any time in Recon’s sole and absolute discretion and without notice to correct any errors, inaccuracies or omissions to the information on the Site.
    7. Extra Charges.  Prices advertised on the Site may not include shipping and handling or applicable country, or region-specific sales, goods, or services taxes, which may be added to the price you pay.  Calculation of taxes and shipping charges occurs before your Order is submitted and charged to Your credit card as part of the total order amount. You are also responsible for any duties or any other similar fees associated with your order.
    8. Currency.  All pricing will be noted on your Order and on the Invoice in the appropriate country-, or region-specific currency as indicated thereupon. Depending on that currency, your credit card company may apply a conversion rate and additional fees that are outside of Recon’s control.  Furthermore, if for any reason pursuant to this Agreement you become entitled to a refund, that refund may be converted by your credit card company at a different rate meaning that it may be lesser than, or greater than, the actual amount charged to you by your credit card company, as the case may be.
    9. Privacy.  By placing an Order with us, you agree to the collection and use of your personal information, and the sharing of such information with Recon’s fulfillment partners (such as delivery agents and its Merchant), in accordance with Recon’s privacy policy available at: reconinstruments.com/privacy.
    10. Licenses.  All software and firmware embedded within or installed on any Product, or delivered to you in connection with any Product, is licensed and not sold.  The terms of Recon’s license are contained within the Product packaging.  The terms of such licenses may contain restrictions on use and, by purchasing a Product, you agree to comply therewith at all times.

 

  1. Changes to Orders.
    1. Changes.  You may request a change to your Order under any Invoice, provided that the Product has not been released to shipping by the time of your request. Contact information can be found at: http://reconinstruments.desk.com/customer/portal/emails/new.  Please note that any such changes may delay other items of your Order, or may delay your Order entirely.  Changes to existing Orders are treated as a new Order, subject to acceptance and other procedures generally described in Section 1 above.  You will be responsible for any additional charges resulting from any accepted changes to your Order, and if an accepted change would entitle you to a refund, Recon or its Merchant will process such refund within fifteen days of the acceptance of the change.
    2. Cancellations and Cancellation Fees.  You may request cancellation of any Order (even after an Invoice has been accepted) at any time until the applicable Product(s) has/have shipped.  Contact information can be found at: http://reconinstruments.desk.com/customer/portal/emails/new.

 

  1. Returns and Refunds.
    1. Return Period.  Recon offers a limited, 30-day return period for all unopened Products purchased from the Site (unless the Product Description, or Order as the case may be, indicates otherwise for any particular Product) (the “Return Period”).
    2. Requesting an RMA.  The Return Period applicable to a Product commences when Recon or its Merchant receives notice from its shipping agent that the applicable Product has been delivered to you.  To request a refund, you must, within the Return Period, contact Recon or its Merchant (contact information can be found at: http://reconinstruments.desk.com/customer/portal/emails/new) during business hours to request a return merchandise authorization (“RMA”).  Recon or its Merchant will send to you a RMA form by email or facsimile, and you must complete the RMA form and return it to Recon or its Merchant by following the instructions contained therewith within ten calendar days.
    3. Returning the Product.  You must return the product to Recon, following the RMA instructions. The Product must be in its original, unopened packagingand with all contents provided to you with the Product when it originally shipped.
    4. Non-Compliant Returns; Restocking Fee.  If Recon, in its sole and absolute discretion, determines that the returned Product has not been returned in accordance with this Agreement or is not in original condition (such as, without limiting Recon’s discretion, if the package has been opened, there are signs of use or tampering, there are any missing components or it has been damaged) Recon may, in its sole and absolute discretion:
      1. charge a restocking fee of up to 50% of the purchase price of the Product, which will be deducted from any refund to be provided to you, or
      2. refuse to accept the return by returning the Product to you, upon which you will not be entitled to any refund.
    5. Processing Refund.  Subject to Section 3(d), Recon or its Merchant will refund to You the purchase price for the Product that was actually paid to Recon or its Merchant (for greater certainty, including applicable taxes but excluding shipping costs and any other extra charges for which you are responsible pursuant to the “Extra Charges” section above at Section 1(g)) via the same means Recon or its Merchant received your payment in the first instance.  Your refund will be processed no later than 15 calendar days of Recon’s or its Merchant’s receipt of your Product.

 

Shipping Terms

  1. Shipping.
    1. In-Stock Products.  In-Stock Products will generally be shipped to you within approximately five calendar days of the date of the Invoice.
    2. Out-Of-Stock Products.  Out-Of-Stock Products will generally be shipped to you within approximately five calendar days of the date that the Products come back into stock, if and as available.
    3. Pre-Ordered Products.   When placing an Order for a Pre-Ordered Product, the Order or your Invoice may indicate an estimated shipping time.  Pre-Ordered Products will be shipped if and when available.  Recon makes no guarantee that any such Products will be shipped at any particular time and the actual date of shipment may change for any reason, including availability of parts, supplier difficulties, changes in specifications, matters beyond Recon’s or its Merchant’s control, design changes, government approvals or certifications, or any other reason.  Recon will update you with its estimate of the shipping date from time to time, and will notify you when the Pre-Ordered Product ships.
    4. Estimates.  Any shipping dates or timeframes provided (whether in your Invoice or in this Agreement) are estimates only and subject to change.
    5. Priority.  All Products will be shipped in the order in which Invoices have been issued to Recon’s customers, including you.
    6. Receipt.  The date of shipping does not guarantee the date of receipt; the actual delivery date to you will depend on the shipping method selected and available to you during your Order.

 

  1. Delivery.
    1. General.  Recon will arrange to deliver the Products in your Order to the address you provided in your Order, as noted on the Invoice. Title to the Products, and risk of loss, passes to you upon Recon’s delivery of the Product to the carrier you have selected or that was made available to you during your Order.
    2. Delivery Procedure.  Recon’s carriers will require your signature (or the signature of someone authorized to sign on your behalf) to complete delivery of the Product to you at the address you specify in your Order.
    3. Investigations.  Recon reserves the right to investigate (or to retain a third party to investigate) any claims or returns on the basis of incorrect delivery procedure and false information. In the unlikely event that your order arrives with visible damage to the exterior packaging, you may either take delivery or refuse the shipment.
    4. Errors and Damages.  You must examine the Product after you receive it. If an Order or shipping error has occurred, or if your Product is damaged (except for latent damage not readily apparent) you must notify Recon of the particulars as soon as possible, but in any event within five days of the carrier’s delivery to you (the “Inspection Period”). Any claims made after this time frame will not be honoured and the Product(s) shipped and delivered to you will be deemed to have been delivered and accepted by you, and Recon will not consider any claim for damaged or missing Products outside of this time period.
    5. Return Procedure.  If your Product was received in error, or in damaged condition or other than in apparent good order, please contact Recon immediately.  Contact information can be found at: http://www.reconinstruments.com/support.

Limited Warranty; Waiver and Exclusion of Warranties and Liability

  1. Warranty.
    1. Limited Warranty.  Recon’s only warranty with respect to any Product is that set out in the Limited Warranty applicable to the Product, available at http://reconinstruments.desk.com/customer/portal/articles/1136318–recon-warranty-services(the “Limited Warranty”).
    2. Warranty Return Procedure.  As more particularly set out in the Limited Warranty, Recon will replace, repair or correct your Product or part free of charge if Recon determines that your Product or falls within the terms of such Limited Warranty during the warranty period set out therein.
    3. Exclusions.  The Limited Warranty applicable to a particular Product represents Recon’s (and its Merchant’s) entire representations, conditions, endorsements and warranties to you.  All other representations, warranties, endorsements, and conditions of any kind, express or implied, including, without limitation, any warranties of title or non-infringement and any implied representations, warranties and conditions of fitness for a purpose, merchantability, merchantable quality, satisfactory quality, durability, or arising from a course of dealing or usage of trade are hereby excluded and are expressly disclaimed.  Some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion of certain warranties, so the above limitations or exclusions may not apply to you if so required by applicable law.

 

  1. Limitation of Liability.
    1. Limitation (Direct Damages).  In no event shall the Recon Entities’ cumulative liability to you or to any third party claiming through you or on your behalf FOR DIRECT DAMAGES under this agreement exceed the purchase price of the Products you purchased within the ONE-year period prior to the date that the circumstances giving rise to such liability arose.
    2. Exclusion (Other Damages).  Recon, its Merchant, their respective affiliates and subsidiaries, and their respective officers, directors, agents, employees, licensors, suppliers, and distributors (collectively, the “Recon Entities”) will in no event be liable to you for, and you hereby waive your right to receive, any indirect, economic, special, commercial, incidental, exemplary or consequential damages (including any direct or indirect damages relating to lost profits, loss of business revenue, ANTICIPATED SAVINGS or earnings, lost data, damages caused by delays or a failure to realize expected savings and the like) arising from or in connection with any Order, this Agreement, or the use or performance of any Product.
    3. Clarification.  The exclusions and limits of liability set out in this Section 7 are intended to, and do, apply to any claims, actions, causes of action (whether in contract or in tort or any other theory of recovery in law or in equity), suits, proceedings, complaints, contentions, liabilities and demands of any kind whatsoever, both in law and in equity, whether implied or express, and howsoever caused (collectively, “Claims”) even if Recon has been advised of, or could have reasonably foreseen, the possibility of such damages.  However, nothing in this Section 7 applies to the extent that any such Claim (a) arises from a Recon Entities’ negligence that results in death or bodily injury, in which case no such limit or exclusion will apply (b) cannot be limited by applicable law in accordance with this Section 7, in which case such impermissible exclusion or limitation will apply to the maximum extent permitted by applicable law in respect of such Claim.

 

General Matters

  1. Binding Effect.
    1. Equivalency.  This electronic Agreement and any other materials incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
    2. Enurement.  These terms and conditions and the rights and duties herein will be binding on and enure to the benefit of you and Recon and their successors and permitted assigns (including your heirs, executors and administrators).
    3. Force Majeure.  No Recon Entity shall be responsible for a failure to fulfil any obligations pursuant this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation.

 

  1. Entire Agreement.
    1. Entire Agreement.  This Agreement, together with the Invoice and any other materials expressly referred to herein, constitutes the complete and exclusive statement of all of the terms, conditions, representations and warranties between you and Recon with respect to the purchase and sale of any Product offered by Recon, and supersedes and replaces all other oral and written communications between the parties or otherwise relating to the subject matter of this Agreement.
    2. Amendments.  This Agreement will not be and is incapable of being amended or varied, verbally or in writing, unless any such amendment or variation is in writing and signed by both you and a senior officer of Recon in an instrument that expressly refers to this Agreement.
    3. No Implicit Waivers or Novations.  The failure by Recon to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of these terms and conditions at any one time or times will not be deemed to be a waiver for any other time.  The failure of Recon to assert its rights in a timely fashion for any of its rights or remedies under these terms and conditions will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of Recon to assert any rights at any time thereafter.

 

  1. Construction.
    1. Severability.  Each provision of this Agreement, and part thereof, is declared to be separate, separable, and distinct, from all other provisions and parts thereof. If any provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper.
    2. Interpretation.  In this Agreement, except as otherwise expressly provided or as the context otherwise requires: (i) the words “include” or “including” when following any general term of statement are not to be interpreted as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope (and, accordingly, shall always be read as being followed by “without limitation”); (ii) the words “herein”, “hereof”, “hereby” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, subsection, paragraph, subparagraph or other subdivision, and (iii) a capitalized cognate of a defined term has a meaning corresponding to that of the defined term.
    3. Headings.  The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
    4. Non-Application.  The International Sale of Goods Act(British Columbia) and the United Nations Convention on Contracts for the International Sale of Goods, or any other similar legislation of any other jurisdiction that may be excluded by a similar reference, will not apply in any way to this Agreement or to the transactions contemplated by this Agreement.
    5. English Language.  The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English / Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

 

  1. Law and Disputes
    1. Governing Law.  This Agreement will be governed by and interpreted in accordance with the laws (procedural and substantive) of the Province of British Columbia and the federal laws of Canada as if made and performed by and between parties situate in such province and without regard to the conflict of law rules that would apply a different body of law. Subject to the enforcement by Recon of its rights under this Agreement in any other jurisdiction requiring injunctive relief, and to the dispute resolution procedure set out herein, any dispute arising out of or in connection with or in relation to this Agreement will be submitted to and be subject to the exclusive jurisdiction of the courts of the Province of British Columbia, Canada, situate in Vancouver.
    2. Waiver of Jury Trial.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    3. Attornment.  Each party hereby irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of Vancouver, British Columbia, and any competent courts of appeal therefrom, with respect to any and all disputes, controversies or Claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any question regarding its existence, validity, performance or termination and any tort or other common law or statutory claim arising out of or relating to its negotiation, execution or performance (collectively, a “Dispute”).
    4. Dispute Resolution Procedure.  Notwithstanding the foregoing, any and all disputes, controversies or Claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any question regarding its existence, validity, performance or termination and any tort or other common law or statutory claim arising out of or relating to its negotiation, execution or performance (collectively, a “Dispute”), will be resolved as follows:
      1. Mediation—The Dispute will be first subject to non-binding mediation in an effort to resolve any such Dispute by participating in a structured negotiation conference with a mediator under the Commercial Mediation Rules of the British Columbia International Commercial Arbitration Centre. The mediation will be held in Vancouver, British Columbia, Canada. The parties agree to use their best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible. All aspects of the mediation will be treated as confidential. The costs of the Mediator will be shared equally between you and Recon. The mediation may, at the option of either party, occur by videoconference transmission. The party electing to participate in the mediation by videoconference will be responsible for paying the costs of one Mediator who must attend and participate in the mediation at the videoconference facility selected by the party engaging such person.
      2. Arbitration—If the Dispute cannot be settled within 45 calendar days after the Mediator(s) has (have) been appointed, or such other period agreed to in writing by You and Recon, the Dispute will be referred to and finally resolved by binding arbitration, with the losing party paying all costs of arbitration (including reasonable legal fees and expenses) to be conducted by a single arbitrator in Vancouver, British Columbia, pursuant to the provisions of the Commercial Arbitration Act(British Columbia) and any amendments thereto, and the determination of such arbitrator will be final and binding upon You and Recon; and if involving court proceedings, will be submitted to and be subject to the jurisdiction of the courts of the Province of British Columbia, with the losing party responsible for all costs and expenses, including without limitation, court costs and reasonable legal fees and expenses. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of you and Recon agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as hereby contemplated. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought.
      3. Appointment of Mediator and Arbitrator—Any mediator or arbitrator will be appointed by agreement between you and Recon or, in default of agreement, such mediator or arbitrator will be appointed by a Judge of the Supreme Court of British Columbia sitting in the Courts of Vancouver, upon the application of either such party.
      4. Procedure—In any arbitration proceeding between you and Recon, it is agreed that the parties will be entitled to discovery to the same extent permitted by the Supreme Court of British Columbia as if the matter were being adjudicated in such Court.

 

  1. How to Contact Recon.