PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A BINDING ARBITRATION AGREEMENT (SEE SECTION 16 BELOW) AND IT AFFECTS YOUR AND RIVIAN’S RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT OR JOIN A CLASS ACTION.
This Pre Order / Reservation Agreement (these “Terms” or “Agreement”) governs the placing of a Pre Order / reservation (“Pre Order”) with Promo Drone Inc. (“Promo Drone” or “we” or “us”) for a Starling X.2 drone system (“Drone”). Please read all of these Terms carefully before submitting your Pre Order. By submitting your Pre Order, you agree to be legally bound by these Terms.
1. No Obligations
Each Pre Order you submit for a Drone acts as a deposit for a future purchase of the Drone. You are under no obligation to purchase a Drone from us, and we are under no obligation to supply you with a Drone.
These Terms do not constitute an agreement for the sale of a Drone and do not lock in pricing, a firm production slot, a firm delivery date, or specific Drone configuration. To complete the purchase or lease of a Drone, you will need to execute Promo Drone’s standard final Promo Drone Motor Drone Purchase Agreement (“Final Sales Agreement”) which will include additional terms and conditions, including the final price sheet for the Drone. The Final Sales Agreement may be made with another Promo Drone partner or entity. Additional payment for Your Drone, including taxes and other governmental fees, will be required at that time.
We may decline Pre Orders to avoid over-subscription or as we deem appropriate in our sole discretion. If your Pre Order is declined, you will be notified and your Pre Order payment will be fully refunded.
2. Pre Order Eligibility: Age and Residency; Entity Pre Orders
You must be at least 18 years of age and a resident of the United States to Pre Order a Drone. By agreeing to these Terms, you represent and warrant to us that you are at least 18 years of age and a resident of the United States. If you are Pre Ordering a Drone on behalf of a company, organization or entity (an “Entity”) located in the United States, you represent and warrant that you have the authority to bind that Entity to these Terms and such Entity agrees to be bound by these Terms.
When placing a Pre Order for a Drone, you represent and warrant that all information provided is accurate, and it is your responsibility to keep this information current at any time by emailing firstname.lastname@example.org. Promo Drone shall not be liable for inaccurate or outdated information.
You will be charged the fee indicated (the “Pre Order Fee”) when you place your Pre Order. Placing a Pre Order constitutes your express agreement to be charged the Pre Order Fee using your provided payment method. Your payment will be held by Promo Drone in a separate account designated solely for Pre Orders and released for application towards the final sales price of your Drone when you execute the Final Sales Agreement. Your payment is subject to Promo Drone’s payment terms and conditions located at https://promo-drone.co/terms-and-conditions on our website.
5. No Guarantee of Delivery Date
You are Pre Ordering a Drone without specifying the model, features, and options. We will endeavor to produce Your Drone in the future and your priority will be set by the date of payment of your Pre Order Fee, our manufacturing schedule, our delivery and service operations availability and execution of the Final Sales Agreement. There is no guarantee as to the delivery date based on your Pre Order.
You may cancel your Pre Order and receive a full refund of your Pre Order Fee at any time by sending an email to email@example.com from the address you used to make the Pre Order or an updated address you have added to your Promo Drone account by contacting firstname.lastname@example.org. You will receive your refund within approximately 15-21 business days. Promo Drone promotional items, if any, received at the time of Pre Order are yours to keep even after cancellation. Promo Drone may cancel your Pre Order at any time and will issue a full refund of your Pre Order Fee to the address on file.
7. Drone Configuration and Performance Specifications
You understand that we may not have completed the development of the Drone or begun manufacturing the Drone at the time of your Pre Order and specifications are subject to change at any time. You understand specifications and other available features have not yet been determined and may change, even after features are announced. By agreeing to these Terms, you represent and warrant to us that you understand that the Drone configuration may change prior to execution of any Final Sales Agreement.
9. Force Majeure
The obligations of you and Promo Drone under this Agreement (other than your payment obligations) will be suspended to the extent that such party is wholly or partially precluded from complying with its obligations under this Agreement by force majeure. Force majeure includes, but is not restricted to, fire, storm, flood, earthquake, explosion, accident, act of the public enemy, war, rebellion, insurrection, sabotage, outbreak, epidemic, public health emergency, quarantine restriction, labor dispute, labor shortage, transportation embargo or failure, curtailment or delay in transportation, act of God, act (including laws, regulations, orders, advisories, disapprovals or failure to approve) of any government or public health agency or authority, whether national, statewide, municipal, or otherwise, or any other event or circumstance beyond such party’s control.
If for any reason a court of competent jurisdiction finds any provision, or portion of this Agreement, to be unenforceable, the remainder of this Agreement shall continue in full force and effect and the unenforceable provision shall be deemed to be modified solely to the extent necessary to make it enforceable.
This Agreement may not be modified, altered or amended unless expressly agreed to in writing signed by Promo Drone.
12. No Waivers
The failure by Promo Drone to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Promo Drone.
You may not assign your rights under these Terms without our express prior consent. Promo Drone may assign these Terms or your Pre Order Fee in our discretion without your consent. Any assignment in violation of this Agreement will be null and void.
14. No Resellers; Discontinuation; Cancellation
Promo Drone and its affiliates may unilaterally cancel any order that we believe has been made with the intent to resell the Drone or otherwise has been made in bad faith. Promo Drone may also cancel your order if a Drone, product, feature, or option is discontinued after you place your order.
15. Limitation of Liability
No Consequential or Indirect Damages. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL PROMO DRONE OR ANY OF ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT A PROPOSED DEFENDANT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
Maximum Liability. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL PROMO DRONE’S OR ANY OF ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO PROMO DRONE PURSUANT TO THIS AGREEMENT.
16. Dispute Resolution—Arbitration AND Class Action Waiver
Binding Arbitration. To the fullest extent permitted by applicable law and except for small claims or if you choose to opt-out as provided below, you and Promo Drone agree to resolve any claims, demands, disagreements, or disputes between us whether based in contract, tort, statute or otherwise arising from or related to this Agreement or our relationship, including advertising and other communications between you and Promo Drone, Promo Drone products or services, and as applicable, your credit application, or the purchase or condition of a Drone (a “Dispute”) by binding arbitration conducted by the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules, unless you and we agree otherwise. For more information on arbitration and to access the AAA Consumer Arbitration Rules, please visit: www.adr.org. If the AAA Consumer Arbitration Rules conflict with this Agreement, then this Agreement shall control. You and we understand that we are both waiving our rights to go to court (other than small claims court, as provided below), to present our claims to a jury and to have claims resolved by a jury trial, and also that judicial appeal rights, if any, are more limited in arbitration than they would be in court.
Confidentiality. Unless otherwise prohibited by federal or state law or regulation, any arbitration, and any award issued in an arbitration, shall be kept confidential, except to the extent necessary to seek court intervention (such as to enforce an award).
Initial Dispute Resolution Requirement. Most disputes can be resolved without resort to arbitration or small claims court. For any Dispute, you and we agree that before taking any formal action to initiate arbitration or a small claims suit we will contact the other in an attempt to resolve the Dispute. You will contact us at email@example.com and provide a brief, written description of the Dispute and your contact information (including your Promo Drone ID, if you have one). We will contact you at your contact information on file with Promo Drone. You and Promo Drone agree to use reasonable efforts to settle any Dispute directly and good faith negotiations shall be a precondition to either party initiating a small claims suit or arbitration.
Filing a Demand for Arbitration. If the parties do not reach an agreed-upon solution within a period of 60 days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration. In order to initiate arbitration, you must file an arbitration demand with AAA. You can find information about AAA and file your arbitration demand at https://www.adr.org/support. You are also required to send a copy of the arbitration demand to us and you should send it by email to: firstname.lastname@example.org.
Fees & Costs. AAA’s Consumer Arbitration Rules will govern the allocation of arbitration fees and costs between you and Promo Drone. However, if your arbitration case filing fee exceeds the filing fee you would pay to file the action in a court of law, Promo Drone will pay the amount of your case filing fee in excess of the filing fee you would pay in a court of law. The amount we pay may be reimbursed in whole or in part by decision of the arbitrator if they find that applicable law allows such reimbursement because your claims were frivolous or brought in bad faith. You are responsible for your own attorneys’ fees unless applicable law provides otherwise.
Arbitration Location and Procedure. Arbitration shall be initiated and take place in San Diego, California. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Promo Drone submit to the arbitrator. If your claim exceeds $25,000, you and Promo Drone may agree to conduct arbitration by videoconference or teleconference or conduct a document-only arbitration without any hearing.
Applicable Law. This Section 16, Dispute Resolution – Arbitration and Class Action Waiver, its subject matter, formation and enforceability will be governed by the Federal Arbitration Act as interpreted by the federal courts, and not any state law regarding arbitration. The statute of limitations laws of the State in which Promo Drone is licensed to sell Drones that is nearest to your delivery address, without regard to choice or conflict of law principles, will apply to any claims brought in arbitration.
Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Section, including but not limited to any claim that all or any part of this Section is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. However, the parties agree that any issue concerning the validity of the class action waiver below must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver. The arbitrator shall be empowered to grant whatever relief would be available to you in your individual capacity in a court under law or in equity, including public injunctive relief. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Class Action Waiver. The parties further agree that the arbitration shall be conducted in each party’s respective individual capacity only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PROMO DRONE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, NEITHER YOU NOR PROMO DRONE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CONSUMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If a court or arbitrator finds this Class Action Waiver provision to be unenforceable as to a particular class or representative action, then this entire Section 16, Dispute Resolution – Arbitration and Class Action Waiver shall be null and void as to that class or representative action, and the action may only be brought in court rather than in arbitration.
Small Claims Court. Subject to the Initial Dispute Resolution Requirement, either party may bring an individual action in small claims court consistent with the jurisdictional limits that apply to that forum.
Opt-Out Right. You may opt-out of this Section 16, Dispute Resolution – Arbitration and Class Action Waiver within 30 days from the date you electronically sign this Agreement, by sending an email to email@example.com from the email associated with your Promo Drone ID with “Opt-Out of Arbitration” in the subject line and, in the body of the email, your full name and address. You agree that any request will not apply to subsequent agreements between you and Promo Drone unless the other agreement provides an option to opt out and you follow the requirements outlined in that agreement.
Severability. Except as provided in the Class Action Waiver Section above, if any competent legal authority determines any part of this Section 16, Dispute Resolution – Arbitration and Class Action Waiver is illegal or unenforceable, then such part will be eliminated and the remainder of Section 16, Dispute Resolution – Arbitration and Class Action Waiver will remain in force and effect and the unenforceable part shall be deemed to be modified solely to the extent necessary to make it enforceable.
Survival. This Section 16, Dispute Resolution – Arbitration and Class Action Waiver shall survive the end of this Agreement and/or your relationship with Promo Drone, including the end of any promotion or contest, opt-out of communication or other use or participation in any Promo Drone Product or Service.
By agreeing to this Pre Order Agreement, you acknowledge and agree to the terms and conditions of this Section 16, Dispute Resolution – Arbitration and Class Action Waiver.
17. Choice of Law
This Agreement, its subject matter and its formation, and any related non-contractual disputes or claims, are governed by the laws of the State in which Promo Drone is licensed to sell Drones that is nearest to your delivery address, without regard to choice or conflict of law principles, except as otherwise provided in the Arbitration Agreement.
18. Text Messages, Notifications, and Telephone Calls
By agreeing to this Agreement, you understand that by providing your wireless telephone number(s) now or in the future, you consent to being contacted at those numbers or addresses using pre recorded artificial voice messages and/or automatic telephone dial devices with non-marketing information about your Drone, such as service reminders and appointments. You understand and agree that by providing your wireless telephone number you are consenting to receive calls or texts at that number. You also consent to receiving emails to any email address(es) you provide. You further understand and agree that these communications may contain your non-public information. You explicitly confirm that this consent covers the use of these contact methods to call or send text messages to the wireless telephone number(s) and to send text or email messages to the email address(es) you provide, for which you may incur a charge. Separately, we may seek your prior express written consent for marketing text messages or telephone calls. For all communications, you can control permission for calls, texts or push notifications by contacting firstname.lastname@example.org and requesting to unsubscribe.
19. Entire Agreement
20. Printed Agreement
A printed version of this Agreement and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.