Your preorder of a ByFusion By-Product
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A BINDING ARBITRATION AGREEMENT (SEE SECTION 15 BELOW) AND IT AFFECTS YOUR AND BYFUSION’S RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT OR JOIN A CLASS ACTION.
This Preorder Agreement (these “Terms” or “Agreement”) governs the placing of a preorder (“Preorder”) with ByFusion Global, Inc (“ByFusion” or “we” or “us”) for a ByFusion By-Product (“Product”). Please read all of these Terms carefully before submitting your Preorder. By submitting your Preorder, you agree to be legally bound by these Terms.
1. No Obligations
Each Preorder you submit for a Product acts as a deposit for a future purchase of the Product. You are under no obligation to purchase a Product from us, and we are under no obligation to supply you with a Product.
These Terms do not constitute an agreement for the sale of a Product and do not lock in pricing, a firm production slot, a firm delivery date, specific Product specifications or specific Product configuration. To complete the purchase of a Product, you will need to execute ByFusion’s standard Product Purchase Agreement (as applicable, a “Final Agreement”) which may, at times, include additional terms and conditions, including the final price sheet for the Product you ultimately select (“Your Selected Product”). The Final Agreement may be made with another ByFusion entity. Additional payment for Your Selected Product, including taxes and other governmental fees, will be required at that time.
We may decline Preorders to avoid over-subscription or as we deem appropriate in our sole discretion. If your Preorder is declined, you will be notified and your Preorder payment will be refunded.
2. Preorder Eligibility: Age and Residency; Entity Preorders
You must be at least 21 years of age and a resident of the United States to Preorder a Product. By agreeing to these Terms, you represent and warrant to us that you are at least 21 years of age and a resident of the United States. If you are Preordering a Product 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 Preorder for a Product, 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. ByFusion shall not be liable for inaccurate or outdated information.
You will be charged the fee indicated next to the Preorder Button on the ByFusion website when you place your Preorder (the “Preorder Fee”). Placing a Preorder constitutes your express agreement to be charged the Preorder Fee using your provided payment method. Your payment will be held by ByFusion and released for application towards the final sales price of Your Selected Product when you execute the Final Agreement. Your payment is subject to ByFusion’s payment terms and conditions located at byfusion.com/legal/payment on our website.
5. No Guarantee of Delivery Date
You are preordering a Product without specifying the model, features, and options. We will endeavor to produce Your Selected Product in the future and your priority will be set by the date of payment of your Preorder Fee, our manufacturing schedule, our delivery and service operations availability and our mutual execution of the Final Agreement. There is no guarantee as to delivery date based on your Preorder.
You may cancel your Preorder and receive a full refund of your Preorder Fee at any time by logging into your account and following the refund instructions or by sending an email to email@example.com from the address you used to make the preorder with your ByFusion ID. You will receive your refund within approximately 5-10 business days. ByFusion may cancel your Preorder at any time, for any or no reason, and will issue a full refund of your Preorder Fee.
7. Product Configuration
You understand that we may not have completed the development of the Product or begun manufacturing the Product at the time of your Preorder and specifications are subject to change at any time. You understand 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 Product specifications and configuration may change prior to execution of any Final Agreement.
9. Force Majeure
The obligations of you and ByFusion 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. You and ByFusion hereby agree that the COVID-19 pandemic and any government actions taken in response thereto constitute force majeure, regardless of the foreseeability thereof.
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 ByFusion and you or accepted by you electronically after being presented to you by ByFusion online (e.g., a “clickwrap”).
12. No Waivers
The failure by ByFusion 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 ByFusion.
You may not assign your rights under these Terms without our express prior consent. ByFusion may assign these Terms or your Preorder Fee at our discretion without your consent. Any assignment in violation of this Agreement will be null and void.
14. Limitation of Liability
No Consequential or Indirect Damages. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL BYFUSION 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 BYFUSION’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 BYFUSION PURSUANT TO THIS AGREEMENT.
15. Dispute Resolution—Arbitration AND Class Action Waiver
Binding Arbitration. To the fullest extent permitted by applicable law and except for small claims as provided below, you and ByFusion 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 ByFusion, and as applicable, your credit application, purchase or condition of the Product (a “Dispute”) by binding arbitration conducted by the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules, unless you and we agree otherwise. For more information on arbitration and to access the AAA Commercial Arbitration Rules, please visit: www.adr.org. If the AAA Commercial 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). If this provision is found unenforceable for any reason, the parties intend that it shall be struck and the remainder of this Section 15, Dispute Resolution – Arbitration and Class Action Waiver shall remain in force.
Initial Dispute Resolution Requirement. Most disputes can be resolved without resort to arbitration. For any Dispute, you and we agree that before taking any formal action we will contact the other in an attempt to resolve the Dispute. You will contact us at firstname.lastname@example.org and provide a brief, written description of the Dispute and your contact information (including your ByFusion ID, if you have one). We will contact you at your contact information on file with ByFusion. You and ByFusion 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.
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. You can find information about how to start an arbitration and you can 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: email@example.com.
Fees & Costs. You and ByFusion shall equally share the arbitrator’s fees, filings fee and other fees payable to AAA. Each party is responsible for its own attorneys’ fees and other costs and expenses it may incur.
Location of Arbitration. Arbitration shall be initiated and take place in Los Angeles County, California. You and ByFusion may also agree to conduct arbitration by videoconference or teleconference or conduct a document-only arbitration without any hearing.
Applicable Law. This Section 15, 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.
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 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 BYFUSION AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, NEITHER YOU NOR BYFUSION WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PERSONS OR ENTITIES 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 15, 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. Notwithstanding the foregoing, either party may bring an individual action in small claims court consistent with the jurisdictional limits that apply to that forum.
This Section 15, Dispute Resolution – Arbitration and Class Action Waiver shall survive the end of this Agreement and/or your relationship with ByFusion.
By agreeing to this Preorder Agreement, you acknowledge and agree to the terms and conditions of this Section 15, Dispute Resolution – Arbitration and Class Action Waiver.
16. 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 California, without regard to choice or conflict of law principles.
17. 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 prerecorded artificial voice messages and/or automatic telephone dial devices with non-marketing information about your Product, 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 and texts by contacting firstname.lastname@example.org.
18. Entire Agreement
19. 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.