THE ORIGINAL DREAM STRAP
DISCLAIMER OF PRODUCT LIABILITY
This Disclaimer shall apply in respect of The Original Dream Strap (the “Product”) and the supply by DAY DREAMER ACCESSORIES INC. (the “Supplier”) of the Product to all persons acquiring the Product (each such person referred to collectively and singularly using the terms “you” and “your” for the purpose of this Disclaimer) whether located or resident in Canada or not and without the requirement for you to formally execute or acknowledge this or any other document. In consideration of the supply of the Product by the Supplier to you, the terms of this Disclaimer are automatically incorporated into, and form an integral part of, the contract pursuant to which you acquired the Product and it is an express and irrevocable condition of such acquisition that the same apply without derogation.
- INSTRUCTIONS FOR USE AND RISK OF INJURY in the event of misuse
Use of the Product
- The Product should only be used in accordance with the instruction pamphlet included with the Product and such instruction pamphlet is hereby incorporated by reference into this Disclaimer.
- For the avoidance of doubt, the Product is designed and intended by the Supplier only for use by a an adult person (over the age of 18 years old) properly seated in a Legally Compliant stationary seat, airline seat, car seat, truck seat, van seat, bus seat, train seat, or ferry boat seat (all of which may or may not have a headrest) that is situated on a Legally Compliant stationary seat, commercial airplane, car, truck, van, bus, train or ferry. Do not use or allow any other person to use the Product in any other vehicle or location whatsoever. In particular, you should not use the Product in a military or cargo airplane, helicopter, motorcycle, scooter, ATV, dirt bike, any type of boat or marine vehicle (that is not a Legally Compliant ferry boat) or other analogous or similar conveyance that is not specifically permitted in this Section 1.2. Further, the Product cannot and should not be used as a seatbelt or a replacement for a seatbelt.
- The Product is not suitable for use except in strict accordance with Sections 1.1. and 2. and MISUSE OF THE PRODUCT (being the use of the Product in any other manner whatsoever) MAY RESULT IN SERIOUS INJURY OR DEATH. THE PRODUCT SHOULD NEVER BE USED BY ANY PERSON WHO IS OPERATING ANY TYPE OF MOTORIZED OR NON-MOTORIZED VEHICLE OR DEVICE. NOR SHALL THE PRODUCT BE USED AS A SEATBELT OR A REPLACEMENT FOR A SEATBELT.
- By acquiring and/or using the Product you are deemed to have: (a) acknowledged and accepted the foregoing (i.e. that the Product is to be used in the prescribed manner and that any other use of the Product carries risk of injury and/or death), which has been communicated to you by the provision of this Disclaimer at the time of acquisition of the Product by you; and (b) waived any Claim against the Supplier and/or its Affiliates arising from the misuse of the Product by you or any other person.
- For the purpose of this Disclaimer, the term “Legally Compliant” shall mean that the object concerned is at that time and all applicable times and in respect of all jurisdictions applicable thereto, in full compliance with Applicable Law.
Do Not Modify the Product
- The Product is complete and suitable for its intended use without the need for addition, accession, or modification. You should not modify, or procure the modification of, the Product in any manner whatsoever including, without limitation, the addition or removal of any material to or from the Product. Without prejudice to any other provision(s) of this Disclaimer which endeavour to restrict the liability of the Supplier and its Affiliates, the Supplier and its Affiliates shall not be liable for any Loss incurred by you or any other person resulting in whole or part, directly or indirectly, from the modification of the Product other than modification undertaken by the Supplier, and you are deemed to have waived any Claim against the Supplier and/or its Affiliates arising from the modification of the Product.
- DISCLAIMER of warranties AND LIMITATIONS ON LIABILITY
- The Supplier disclaims all liability arising from, in respect of or in connection with the Product or the supply of the Product to you and, by acquiring and/or using the Product, you have accepted such disclaimer and remise, release and forever discharge the Supplier and its Affiliates from all Claims that have in the past existed, exist now or may in future accrue, howsoever arising and whether known or unknown, by reason of any matter or thing that has existed or exists now, or any event that has in the past occurred, in any way relating to the Product.
- Without prejudice to the generality of Section 2.1, the Supplier disclaims all liability for, or resulting from: head and/or neck injuries (including, without limitation, whiplash, strangulation, asphyxiation, concussion, skull fracture, spinal contusion, trauma, chafing or loss of blood circulation); choking hazards; loss of control of a vehicle by you or any other person while using the Product; drowning or other injury resulting from a permanent or temporary inability to detach the head or other part of the body from the Product; using the Product while operating machinery (including any vehicle); allergic reaction; sudden impact or any matter or thing analogous or similar to any of the foregoing.
- The Supplier makes no representations and grants no warranties or conditions, express or implied, either in fact or by operation of law, by statute or otherwise, in respect of or in connection with the Product and/or the supply of the Product and the Supplier specifically disclaims, and you acknowledge and agree by virtue of your acquisition and/or usage of the Product that the Supplier has and is entitled to disclaim, any warranty, condition or representation of any kind (written or oral) in respect of or in connection with the Product and/or the supply of the Product whether express or implied by Applicable Law or otherwise including, without limitation, those implied by the Sale of Goods Act, R.S.O. 1990, c. S.1, International Sales Conventions Act, R.S.O. 1990, c. I.10 or United Nations Convention on Contracts for the International Sale of Goods.
Limitations on Liability
- IN NO EVENT SHALL THE SUPPLIER AND/OR ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS OR EARNINGS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR CLAIMS ARISING AS A RESULT OF THE SUPPLIER’S FRAUD OR WILFUL MISCONDUCT, THE SUPPLIER’S TOTAL LIABILITY TO YOU SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL DOLLAR AMOUNT PAID BY YOU FOR THE PRODUCT.
- GOVERNING LAW AND DISPUTE RESOLUTION
- To the extent permitted by Applicable Law, all disputes, grievances, complaints, claims, actions or controversies pertaining to the Product and/or this Disclaimer (collectively “Disputes”) between you and the Supplier and/or its Affiliate(s) (each a “Supplier Party”) shall be resolved by mediation and/or arbitration in accordance with Sections 3.2 through 4.
- In the event that a Dispute between you and a Supplier Party is not resolved in private meetings between the parties to the Dispute then, without prejudice to or in any other way derogating from the rights of any Supplier Party as set out in this Disclaimer or in Applicable Law, and as an alternative to any person instituting a law suit or legal action, such Dispute shall be settled by a process of dispute resolution as follows:
- the Dispute shall first be mediated pursuant to the National Mediation Rules of the ADR Institute of Canada Inc.;
- if the parties are not successful in resolving the Dispute through mediation, then the Dispute shall be finally resolved by arbitration before a single arbitrator pursuant to the National Arbitration Rules of the ADR Institute of Canada Inc.; and
- any mediation or arbitration shall take place in Waterloo, Ontario, or such other place as the parties may mutually agree.
- No Dispute may be brought forward in a representative group or on behalf of any “class” of persons, and the Disputes of multiple persons (other than those who are immediate family members) may not be joined together for purposes of these procedures or any law suit or other legal action without the prior written consent of the Supplier.
- This Disclaimer shall be governed by the laws in force in the Province of Ontario (excluding any conflict of laws, rule or principle which might otherwise apply) and the federal laws of Canada applicable therein. Subject to the provisions of Sections 3.1 and 2, the parties (being you and the Supplier) irrevocably submit to the exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from those courts with respect to any matter related to the Product and/or this Disclaimer.
- This Disclaimer and every provision hereof shall survive indefinitely.
- If any provision of this Disclaimer is determined by a court of competent jurisdiction (which shall include an arbitrator or panel of arbitrators whose decision is binding upon the parties hereto) to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of the provisions of this Disclaimer, which shall be given full effect, without regard to the invalid or unenforceable portions. If the scope of any provision, section, subsection or definition contained in this Disclaimer is found to be too broad to permit enforcement of the same to its full extent, then such provision, section, subsection or definition shall be enforced to the maximum extent permitted by Applicable Law, and the parties hereby consent and agree that such scope shall be modified by a court or arbitrator accordingly in any proceeding brought to enforce such provision, section, subsection or definition. Furthermore, if any provision, section, subsection or definition of this Disclaimer is determined by a court of competent jurisdiction to be invalid or unenforceable even after modification intended to reflect the maximum scope legally permissible under the circumstances, such invalidity or unenforceability shall not affect the remainder of the provisions, sections, subsections or definitions of this Disclaimer, which shall be given full effect, without regard to the invalid or unenforceable portions.
- definitions and interpretation
In addition to the terms defined elsewhere in this Disclaimer, in this Disclaimer, the following capitalized terms shall have the meanings ascribed:
- “Affiliates” shall mean with respect to the Supplier, any person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Supplier (with, for purposes of such definition, the term “control”, including the terms “controlled by” and “under common control with”, meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise) and the directors, officers, employees, contractors, consultants of the Supplier and any other person for whom the Supplier is responsible at law and each of the respective successors, assigns, insurers and sureties of any of the foregoing;
- “Applicable Law” is to be broadly interpreted and means, with respect to any person, property, transaction, event or other matter dealt with in this Disclaimer, any and all statutes, by-laws, regulations, enactments, ordinances, rules, permits, consents, approvals, certificates of approval, licenses, judgments, orders, judicial decisions, common-law rules, decrees, injunctions, agreements, authorizations, regulations, policies, guidelines, directives, objectives, whether federal, provincial, state, municipal or otherwise;
- “Claims” any and all manner of actions, causes of action, claims and potential claims (including by way of third-party claim, cross-claim, counterclaim or otherwise), liabilities, obligations, contracts, covenants, complaints, and demands of every kind and nature including but not limited to claims for any Losses, damages, declaratory relief, injunctive relief, contribution, indemnity, costs, expenses, interest and taxes and every other form of relief of every kind and nature, and “Claim” shall be construed accordingly;
- “Losses” means any losses, costs, claims, damages, liabilities, expenses (including legal and accounting fees, costs of suit and costs of appeal), interest, fees, charges, surcharges, fines and penalties, and “Loss” shall be construed accordingly; and
- “person” is to be broadly interpreted and includes any individual, sole proprietorship, partnership, limited partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator, or other legal representative.