Terms & Conditions
AMOS Power, Inc.
Pre-Order Reservation Agreement and Terms & Conditions
This Pre-order Reservation Agreement and Terms and Conditions (these “Terms” or “Agreement”) from Amos Power, Inc., an Iowa corporation (the “Company”) are effective as of such date (“Effective Date”) the purchaser the “Purchaser”) enters into or agrees to be subject to these Terms and, and shall govern the placing of a pre-order / reservation (“Pre-order”) with the Company for the Product (defined below). Please read all of these Terms carefully before submitting your Preorder. By submitting your Pre-Order, you agree to be legally bound by these Terms.
WHEREAS, the Company is in the business of designing and manufacturing agricultural machinery;
WHERAS, the Company has developed a machine called the AMOS Tractor, which is an electric-powered agricultural tractor utilizing autonomous operational technology (the “Product”);
WHEREAS, the Company desires to bring the Product to market and further develop demand for the Product by soliciting Pre-Orders; and
WHEREAS, upon and subject to the terms and conditions herein, the Company will accept a pre-order / reservation fee from the Purchaser in exchange for a right to purchase the Product on a future date (the “Pre-Order”).
1. Terms of Pre-Order.
A. Right to Purchase. Each Pre-Order submitted herein shall grant the Purchaser the right to purchase the Product on the Purchase Date (defined below), and shall act as a deposit to be credited against the final purchase price for the Product.
B. Non-Binding. Purchaser is under no obligation to purchase a Product from the Company, and the Company is under no obligation to supply Purchaser with the Product.
C. Final Purchase Agreement. These Terms do not constitute an agreement for the sale of the Product and do not establish or lock in a purchase price, a firm production slot, a firm delivery date, or specific Product configuration. To complete the purchase or lease of a Product, Purchaser will need to enter into and execute a subsequent Purchase and Sale Agreement with the Company for the Product (“Final Purchase Agreement”). The Final Purchase Agreement shall include additional terms and conditions, including the final purchase price for the Product, and shall establish a date upon which the Purchaser will take possession of the Product (the “Purchase Date”). The Final Purchase Agreement may be executed by the Company or one of its affiliate entities, if any.
D. Denial of Pre-Orders. The Company retains the right to decline Pre-Orders within its sole discretion to avoid over-subscription or for any other reason the Company deems appropriate. If the Purchaser’s Pre-Order is declined, your Pre-Order Payment will be automatically refunded.
2. Pre-Order Eligibility: Age and Residency; Entity Pre-Orders. Purchaser must be at least 18 years of age and a resident of the United States to Pre-Order the Product. By agreeing to these Terms, Purchaser hereby represents and warrants to the Company that it, if a natural person, is at least 18 years of age and a resident of the United States. If this Pre-Order is made by a company, organization or other entity located in the United States, the undersigned represents and warrants that it has the authority to bind that any such entity to these Terms and such entity agrees to be bound by these Terms.
3. Registration. When placing a Pre-Order with the Company, Purchaser further represents and warrants that all information provided is accurate, and that such information shall be current at all times. Any such information requiring to be updated shall by emailed to the email address provided by Purchaser to the Company as part of entering into these Terms. The Company shall not be liable for inaccurate or outdated information.
4. Payment. As consideration for the right to purchase the Product pursuant to a Pre-Order, Purchaser shall be charged a fee $1000.00 (the “Pre-Order Payment”). By placing a Pre-Order with the Company, Purchaser hereby provides its express consent to be charged the Pre-Order Payment.
5. No Guarantee of Delivery Date. This Pre-Order makes no warranty as to the Product’s specific design, model, features, configuration, or pricing. This Pre-Order further does not warrant, promise, guarantee a specific delivery date of the Product. The Purchaser’s priority to execute a Final Purchase Agreement will be set by the date of the Company’s receipt of the Purchaser’s Pre-Order submission and Pre-Order Payment, and the Company’s manufacturing, delivery and service operations schedule.
A. Purchaser may cancel this Pre-Order and receive a full refund of the Pre-Order Payment at any time by sending an email to firstname.lastname@example.org which shall include the Purchaser’s assigned Pre-Order confirmation number.
B. The Company may also cancel any Pre-Order at any time within its sole discretion and issue the Purchaser a full refund of its Pre-Order Payment by sending an email to the Purchaser.
C. All refund payments shall be made to the Purchaser’s address on file with the Company, or by any other means upon mutual agreement of the parties.
7. Specifications and Configurations Subject to Change. Purchaser hereby acknowledges and understands that the Company may not have completed the development of the Product or commenced manufacturing the Product at the time of this Pre-Order and specifications are subject to change at any time. By agreeing to these Terms, the Purchaser represents and warrants to the Company that it acknowledges and understands that the Product configuration may change prior to execution of any Final Purchase Agreement.
9. Force Majeure. The obligations of Company under this Agreement (other than your payment obligations) will be suspended to the extent that Company 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.
10. Severability. 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.
11. Modification. This Agreement may not be modified, altered or amended unless expressly agreed to in writing signed by the Company.
12. No Waivers. The failure by the Company 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 the Company.
13. Assignment. You may not assign your rights under these Terms without the Company’s express prior consent, which may be withheld in the Company’s sole discretion. The Company may assign these Terms or your Pre-Order Payment in its sole discretion without Purchaser’s consent. Any assignment in violation of this Agreement will be null and void.
14. No Resellers; Discontinuation; Cancellation. The Company and its affiliates may unilaterally cancel and/or rescind any order it believes has been made with the intent to resell the Product or otherwise has been made in bad faith. The Company may also cancel your order if a product, feature, or option is discontinued after you place your order.
15. Limitation of Liability.
A. No Consequential or Indirect Damages. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY 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.
B. Maximum Liability. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY’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 PRE-ORDER PAYMENT PAID TO THE COMPANY PURSUANT TO THIS AGREEMENT.
16. Dispute Resolution—Arbitration AND Class Action Waiver.
A. 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, Purchaser and the Company agree to resolve any claims, demands, disagreements, or disputes whether based in contract, tort, statute or otherwise arising from or related to this Agreement, including advertising and other communications between the parties, the Company’s products or services, and as applicable, Purchaser’s credit application, or the purchase or condition of a Product (a “Dispute”) by binding arbitration conducted by the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules, unless mutually agreed to otherwise by the parties. 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. The parties hereto understand that they are both waiving their rights to go to court (other than small claims court, as provided below), to present 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.
B. 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).
C. Initial Dispute Resolution Requirement. Most disputes can be resolved without resort to arbitration or small claims court. For any Dispute, the parties agree that before taking any formal action to initiate arbitration or a small claims suit they will contact the other in an attempt to resolve the Dispute. The Company will be contacted at email@example.com, and the Purchaser shall provide a brief, written description of the Dispute and its contact information. The Company will contact Purchaser at its contact information on file with the Company. The parties agree to use reasonable efforts to settle any Dispute directly and good faith negotiations shall be a pre-condition to either party initiating a small claims suit or arbitration.
D. 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, such party must file an arbitration demand with AAA. The party initiating arbitration shall promptly notify the other party of the demand.
E. Fees & Costs. AAA’s Consumer Arbitration Rules will govern the allocation of arbitration fees and costs between the parties. Each party is responsible for its own attorneys’ fees unless applicable law provides otherwise.
F. Arbitration Location and Procedure. Arbitration shall take place in Johnson County, Iowa. If a claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator. If a claim exceeds $25,000, the parties may agree to conduct arbitration by videoconference or teleconference or conduct a document-only arbitration without any hearing.
G. 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 of Iowa, without regard to choice or conflict of law principles, will apply to any claims brought in arbitration.
H. 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 the parties 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.
I. 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. THE COMPANY AND PURCHASER AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY, AND NEITHER PARTY 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.
J. 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.
K. Opt-Out Right. Purchaser may opt-out of this Section 16, Dispute Resolution – Arbitration and Class Action Waiver within 30 days from the date it executes this Agreement, by sending an email to firstname.lastname@example.org with “Opt-Out of Arbitration” in the subject line and, in the body of the email, the Purchaser’s full name and address. Purchaser agrees that any request will not apply to subsequent agreements with the Company unless the other agreement provides an option to opt out, and the Purchaser follows the requirements outlined in that agreement.
L. 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.
M. Survival. This Section 16, Dispute Resolution – Arbitration and Class Action Waiver shall survive the end of this Agreement, including the end of any promotion or contest, opt-out of communication or other use or participation in any Company product or service. By agreeing to this 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 of Iowa, without regard to choice or conflict of law principles, except as otherwise provided in Section 16, Dispute Resolution – Arbitration and Class Action Waiver.
18. Text Messages, Notifications, and Telephone Calls. By agreeing to this Agreement, Purchaser understands and acknowledges that by providing wireless telephone number(s) now or in the future, it consents to being contacted at those numbers or addresses using prerecorded artificial voice messages and/or automatic telephone dial devices with non-marketing information about the Product, such as service reminders and appointments. Purchaser further understands and agrees that, by providing its wireless telephone number, it consents to receive calls or texts at that number. It further consents to receiving emails to any email address(es) provided. Purchaser understands and agrees that these communications may contain non-public information. This consent also 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) provided, for which you may incur a charge.
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.