This Preorder Agreement (these “Terms” or this “Agreement”) governs the placingof a preorder (“Preorder”) with Emission Free Generators, Inc. (“EFG” or “we”or “us”) for a reservation (fully refundable) for one of our ZenH2 emissionfree generators, prior to production of such generators (“Generator”). Pleaseread all of these Terms carefully before submitting your Preorder. Bysubmitting your Preorder, you agree to be legally bound by these Terms.
1. No Obligations. Each Preorder you submit for a Generator acts as a reservation for a future purchaseof the Generator. You are under no obligation to purchase a Generator from us,and we are under no obligation to supply you with a Generator. These Terms donot constitute an agreement for the sale of a Generator and do not lock inpricing, a firm production slot, or a firm delivery date. To complete thepurchase of a Generator, you will need to execute EFG’s standard OrderAgreement, Agreement to Purchase and any other agreements which we deemnecessary at the time of such purchase or lease, which will include additionalterms and conditions, including the final price sheet for the Generator. TheOrder Agreement, Final Sales Agreement, and any other agreements which we deemnecessary at the time of purchase or lease may be made with another EFG entity.Additional payment for your selected Generator, including taxes and othergovernmental fees, will be required at that time. We may decline Preorders aswe deem appropriate in our sole discretion, including to avoidover-subscription. If your Preorder is declined, you will be notified and yourPreorder payment will be refunded as set forth in Section 6.
2. Preorder Eligibility:Age; Entity Preorders. By agreeing to these Terms, you represent and warrant tous that you are at least 18 years of age. If you are Preordering a Generator onbehalf of a company, organization or entity (an “Entity”), you represent andwarrant that you have the authority to bind that Entity to these Terms and suchEntity agrees to be bound by these Terms.
3. Registration. Whenplacing a Preorder for a Generator, you represent and warrant that allinformation provided is accurate, and it is your responsibility to keep thisinformation current at all times by emailing us at info@emissionfreegenerators.com.EFG shall not be liable for inaccurate or outdated information or any lossesthat occur as a result of such inaccurate or outdated information.
4. Payment. You will becharged the fee indicated (the “Preorder Fee”) when you place your Preorder.Placing a Preorder constitutes your express agreement to be charged thePreorder Fee using your provided payment method.
5. No Guarantee of DeliveryDate. We will endeavor to produce your Generator in the future and yourpriority will be set by us in our sole discretion, taking into considerationthe date of payment of your Preorder Fee, our manufacturing schedule, executionof the Final Sales Agreement and compliance with any other terms andconditions. There is no guarantee as to delivery date based on your Preorder.
6. Cancellation/Refund.You may cancel your Preorder and receive a full refund of your Preorder Fee atany time by sending an email to info@emissionfreegenerators.comfrom the address you used to make the Preorder or an updated address you haveadded to your EFG account by contacting info@emissionfreegenerators.com.We will endeavor to provide you with your refund within approximately 10business days or as soon as reasonably practicable thereafter. EFG promotionalitems, if any, received at the time of Preorder are yours to keep even aftercancellation. EFG may cancel your Preorder at any time and will issue a fullrefund of your Preorder Fee to the address on file.
7. No Setoff. You shallnot, and acknowledge that you have no right, under this Agreement, any otheragreement, document, or law, to withhold, offset, recoup, or debit any amountsowed (or to become due and owing ) to us or any of our affiliates, whetherunder this Agreement or otherwise, against any other amount owed (or to becomedue and owing) to you by us or our affiliates, whether relating to us or ouraffiliates' breach or non-performance of this Agreement or any other agreementbetween you, and us or any of our affiliates, or otherwise.
8. Generator Configuration.You understand that we may not have begun manufacturing the Generator at thetime of your Preorder and specifications are subject to change at any time. Youunderstand exact available features have not yet been determined. By agreeingto these Terms, you represent and warrant to us that you understand that the Generatorconfiguration may change prior to execution of any Final Sales Agreement or anyother agreement related to the lease or purchase of the Generator.
9. Privacy Policy and Termsof Use. The information you provide to EFG entities will be used inaccordance with our Privacy Policy and website Terms of Use, each of which isincorporated herein by reference and available on our website. Please read ourPrivacy Policy and Terms of Use carefully to understand EFG’s practicesregarding your information and how it will be treated. If you have questionsregarding our Privacy Policy or Terms of Use, you should contact us by email atinfo@emissionfreegenerators.com.
10. Force Majeure. Neither younor EFG will be liable for any failure or delay in performing an obligationunder this Agreement that is due to an event beyond our reasonable control,including, but not limited to, any Act of God, pandemic, epidemic, disease,terrorism, war, political insurgence, insurrection, riot, civil unrest, act ofcivil or military authority, material changes in applicable law or regulations,uprising, unavailability of materials, strike, earthquake, flood or any othernatural or man-made eventuality outside of our control.
11. Confidentiality. Allnon-public, confidential, or proprietary information of EFG, including, but notlimited to, trade secrets, specifications, samples, patterns, designs, plans,drawings, documents, data, business operations, customer lists, pricing,discounts, or rebates, disclosed by EFG to you, whether disclosed orally ordisclosed or accessed in written, electronic, or other form or media, andwhether or not marked, designated, or otherwise identified as"confidential," in connection with this Agreement is confidential,solely for the use of performing this Agreement and may not be disclosed orcopied unless authorized by EFG in writing. Upon EFG's request, you shallpromptly return all documents and other materials received from EFG. EFG shallbe entitled to injunctive relief for any violation of this provision. Thisprovision shall not apply to information that is: (a) in the public domain; (b)known to you at the time of disclosure as a result of a disclosure rightfullyobtained by you; or (c) rightfully obtained by you on a nonconfidential basisfrom a third party.
12. Entire Agreement andSeverability. We reserve the sole right, at our discretion, to change theseTerms at any time. If for any reason a court of competent jurisdiction findsany provision, or portion thereof, to be unenforceable, the remainder of theseTerms shall continue in full force and effect and the unenforceable provisionshall be deemed to be modified solely to the extent necessary to make itenforceable. Your Preorder, Order Agreement, Final Purchase Agreement, ourWebsite Terms of Use and our Privacy Policy will be deemed the final andintegrated agreement between you and us on the matters contained in theseTerms.
13. Modification. ThisAgreement may not be modified, altered or amended unless expressly agreed to inwriting signed by EFG.
14. No Waivers. Thefailure by us to enforce any right or provision of these Terms will notconstitute a waiver of future enforcement of that right or provision. Thewaiver of any right or provision will be effective only if in writing andsigned by a duly authorized representative of EFG.
15. Assignment. You maynot assign your rights under these Terms without our express prior consent. EFGmay assign these Terms in our discretion without your consent.
16. Limitation of Liability.No Consequential or Indirect Damages. In no event shall EFG, its affiliates orpartners, or any of their respective employees, officers, directors, members,shareholders, agents, or representatives be liable for consequential, indirect,incidental, special, exemplary, punitive or enhanced damages arising out of,relating to, or in connection with any breach of this agreement, regardless of(a) whether such damages were foreseeable, (b) whether or not a proposeddefendant was advised of the possibility of such damages and (c) the legal orequitable theory (contract, tort or otherwise) upon which the claim is based.Maximum Liability. In no event shall EFG’s aggregate liability arising out ofor related to this agreement, whether arising out of or related to breach ofcontract, tort (including negligence) or otherwise, exceed the total of theamounts paid to EFG pursuant to this agreement.
17. Applicable Law and ClassAction Waiver. These Terms, its subject matter and its formation, and anyrelated non-contractual disputes or claims, are governed by the laws of theState of California without regard to choice or conflict of law principles. Inaddition, to the fullest extent permitted by applicable law, you and EFG agreeto arbitrate all disputes and claims between us after complying with the stepsoutlined in the Initial Dispute Resolution provision below. This agreement toarbitrate is intended to be broadly interpreted. It includes but is not limitedto: Claims arising out of or relating to any aspect of the relationship betweenus, whether based in contract, tort, statute, fraud, misrepresentation, or anyother legal theory; Claims that arose before this or any prior agreement(including, but not limited to, claims relating to advertising); Claims thatare currently subject to purported class action litigation for which you arenot a member of a certified class; and Claims that may arise after thisAgreement. Notwithstanding the foregoing, either party may bring an individualaction in small claims court. This arbitration agreement does not preclude youfrom bringing issues to the attention of federal, state, or local agencies,including for example the Federal Trade Commission, State Attorney General orother federal or state agencies. Such agencies can, if the law allows, seekrelief against us on your behalf. This Agreement evidences a transaction ininterstate commerce, and thus the Federal Arbitration Act governs theinterpretation and enforcement of this provision. Arbitration shall beinitiated and take place in San Diego County, California and you and EFG agreeto submit to the personal jurisdiction of the state and federal courts of SanDiego County, California. These courts have exclusive jurisdiction in order tocompel arbitration, stay proceedings pending arbitration, or to confirm,modify, vacate, or enter judgment on the award entered by the arbitrator. EFGand you consent to the jurisdiction of the California courts and waive anyobjections as to personal jurisdiction or as to the laying of venue in suchcourts due to inconvenient forum or any other basis. Initial DisputeResolution. Most disputes can be resolved without resort to arbitration. If youhave any dispute with us, you agree that before taking any formal action youwill contact us at info@emissionfreegenerators.comand provide a brief, written description of the dispute and your contactinformation. Except for intellectual property, you and EFG agree to usereasonable efforts to settle any dispute, claim, question, or disagreementdirectly and good faith negotiations shall be a condition to either partyinitiating a lawsuit or arbitration. Binding Arbitration. If the parties do notreach an agreed-upon solution within a period of 60 days from the time informaldispute resolution is initiated under the Initial Dispute Resolution provisionabove, then either party may initiate binding arbitration as the sole means toresolve claims (except as provided below) subject to these Terms set forthbelow. Specifically, all claims arising out of or relating to these Terms, theparties' relationship with each other, and/or your use of EFG products orservices shall be finally settled by binding arbitration administered by JAMSin accordance with the JAMS Streamlined Arbitration Procedure Rules for claimsthat do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules andProcedures for claims exceeding $250,000 in effect at the time the arbitrationis initiated, excluding any rules or procedures governing or permitting classactions. The parties specifically incorporate the terms of California Code ofCivil Procedure section 1283.05 with respect to discovery. Arbitrator’s Powers.The arbitrator, and not any federal, state, or local court or agency, shallhave exclusive authority to resolve all disputes arising out of or relating tothe interpretation, applicability, enforceability, or formation of these Terms,including but not limited to any claim that all or any part of these Terms isvoid or voidable, whether a claim is subject to arbitration or the question ofwaiver by litigation conduct. The arbitrator shall be empowered to grantwhatever relief would be available in a court under law or in equity. Thearbitrator's award shall be written and shall be binding on the parties and maybe entered as a judgment in any court of competent jurisdiction. Filing aDemand. To start an arbitration, you must do the following: (a) Write a Demandfor Arbitration that includes a description of the claim and the amount ofdamages you seek to recover (you may find a copy of a Demand for Arbitration atwww.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus theappropriate filing fee, to JAMS, 401B St UNIT 2100, San Diego, CA 92101; and (c) Send one copy of the Demandfor Arbitration to us at: info@emissionfreegenerators.com.Fees & Costs. If your claim(s) total is less than US $5,000.00, then youmay choose whether your participation in the arbitration will be conducted onthe basis of documents provided to the arbitrator, through a telephonic hearingor by an in-person hearing. You are responsible for your own attorneys' feesunless the arbitration rules and/or applicable law provide otherwise. Thearbitrator is bound by the terms of this Agreement. All issues are for thearbitrator to decide, except that issues relating to the scope andenforceability of the arbitration provision are for the court to decide. Thearbitrator may make rulings and resolve disputes as to the payment andreimbursement of fees and expenses at any time during the proceeding and uponrequest from either party made within 14 days of the arbitrator's ruling on themerits. The right to attorneys' fees and expenses discussed above supplementsany right to attorneys' fees and expenses you may have under applicable law.Thus, if you would be entitled to a larger amount under the applicable law,this provision does not preclude the arbitrator from awarding you that amount.However, you may not recover duplicative awards of attorneys' fees or costs. NoJury Trial. The parties understand that, absent this mandatory arbitrationsection, they would have the right to sue in court and have a jury trial. Theyfurther understand that, in some instances, the costs of arbitration couldexceed the costs of litigation and the right to discovery may be more limitedin arbitration than in court. Class Action Waiver. The parties further agreethat the arbitration shall be conducted in the party’s respective individualcapacities only and not as a class action or other representative action, andthe parties expressly waive their right to file a class action or seek reliefon a class basis. You and EFG agree that each may bring claims against theother only in your or its individual capacity, neither you nor EFG will beentitled to join or consolidate claims by or against other customers in courtor in arbitration or otherwise participate in any claim as a classrepresentative, class member or in a private attorney general capacity. If anycourt or arbitrator determines that the class action waiver set forth in thisparagraph is void or unenforceable for any reason or that an arbitration canproceed on a class basis, then the arbitration provisions set forth above shallbe deemed null and void in their entirety and the parties shall be deemed tohave not agreed to arbitrate disputes. Exception: Litigation of IntellectualProperty. Notwithstanding the parties' decision to resolve all disputes througharbitration, either party may bring enforcement actions, validitydeterminations, or claims arising from or relating to theft, piracy, orunauthorized use of intellectual property in any state or federal court withjurisdiction or in the U.S. Patent and Trademark Office to protect itsintellectual property rights (“intellectual property rights” means patents,copyrights, moral rights, trademarks, and trade secrets, but not privacy orpublicity rights). Opt-Out: You may opt-out of the agreement to arbitrate, orthe class action waiver, or both within 60 days from the date youelectronically sign this agreement, by sending an email to info@emissionfreegenerators.comfrom the email associated with your Preorder with “Opt-Out” in the subject lineand a clear instruction on your opt-out choice in the body of the email – forexample: “Opt-out of class action waiver” or “Opt-out of the arbitrationprovision”. You agree that any request will not apply to subsequent agreementsbetween you and EFG unless you follow the requirements outlined in that otheragreement. Survival. This Mandatory Arbitration, Waiver of Class Actionssection shall survive any termination of your use of the Site.
18. Telephone ConsumerProtection Act. By agreeing in writing to these terms, you understand thatby providing your wireless telephone number(s) now or in the future, youconsent to being contacted at those numbers or addresses using prerecordedartificial voice messages and/or automatic telephone dial devices. Youunderstand and agree that providing your wireless telephone number andconsenting to receive calls or texts at that number is not a condition ofpurchase. You also consent to receiving emails to any email address(es) youprovide. You further understand and agree that these communications may containyour non-public information. You explicitly confirm that this consent coversthe use of these contact methods to call or send text messages to the wirelesstelephone number(s) and to send text or email messages to the email address(es)you provide, for which you may incur a charge. You can control permission forcalls or texts by contacting info@emissionfreegenerators.com.
19. Entire Agreement.Your Preorder confirmation, these Terms, our Website Terms of Use, and ourPrivacy Policy will be deemed the final and integrated agreement between youand us on the matters contained in these Terms. It shall supersede all priorand contemporaneous representations, warranties, agreements, understandings,inducements and conditions, express or implied, oral or written, of any naturewhatsoever with respect to the subject matter hereof. In the event of anyconflict between these Terms, our website Terms of Use and our Privacy Policy,these Terms shall prevail.
