INDIE 5 PRE-ORDER AGREEMENT
YOUR PRE-ORDER AND PURCHASE OF THE INDIE 5 MONITOR (HEREINAFTER REFERRED TO AS “THE PRODUCT”) FROM SMALLHD LLC (“COMPANY,” “WE,” OR “US”) IS SUBJECT TO THIS PRE-ORDERING AGREEMENT (“AGREEMENT”) AND OUR TERMS AND CONDITIONS SALE FOUND AT https://smallhd.com/pages/terms-and-conditions-of-sale (the “Terms and Conditions of Sale”). EACH OF YOU AND COMPANY IS REFERRED TO AS A “PARTY”, AND TOGETHER – AS THE “PARTIES”.
BY PRE-ORDERING AND PURCHASING THE PRODUCT, YOU ARE AGREEING TO THIS AGREEMENT, WHICH FORMS A BINDING AGREEMENT BETWEEN YOU AND THE COMPANY AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN A COURT OR DECIDED BY A JURY. DO NOT PRE-ORDER THE PRODUCT IF YOU DO NOT ACCEPT THIS AGREEMENT.
THE TERM “YOU” MEANS BOTH THE INDIVIDUAL PLACING THE PRE-ORDER AND THE ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACTING, IF ANY.
THE COMPANY RESERVES THE RIGHT TO FULFILL ITS OBLIGATIONS ACCORDING TO THIS AGREEMENT THROUGH ANY SUBSIDIARY, PARENT OR OTHERWISE AFFILIATED COMPANY, WITHOUT NOTICE TO YOU.
Terms and Definitions.
SmallHD LLC is a limited liability company incorporated under the legislation of the State of North Carolina, USA for the purpose of the Product development and implementation, not being a financial entity, stock, exchange, investment entity or a partner, employer, agent or adviser for any person.
The Product – SmallHD Indie 5 Monitor
The Company is accepting pre -orders for the Product from 9/9/2022, until 11/30/2022 (“the Pre-order Campaign”). Pre-ordering a Product means that you will pay for the Product at the time that you make the pre-order, but you acknowledge and agree that the Product will be delivered at a later date (estimated to be before 11/30/2022. By pre-ordering the Product you have the benefit of receiving one of the first batch of Product after which the Product may not be available for a period of time. You acknowledge and accept that the Company takes partial payment for your pre-order in the form of a 20% deposit when you make the order rather than at the delivery of the Product.
Pricing and Payment.
You agree to pay the deposit for the Product you are pre-ordering via credit card or wire transfer.
The moment of the pre-order is the moment of payment of the deposit and acceptance by the Company.
The mentioned payment amount is merely a deposit and not taking into account the full purchase price of the Product or any taxes or fees which must be paid before delivery of the Product to you. You are solely responsible for payment of all fees and taxes associated with the pre-order and purchase of the Product hereunder.
Submitting a Pre-Order.
By submitting a pre-order for the Product, you are making an offer to purchase the Product. Payment will be processed upon pre-order submission in the manner provided hereby at the time of submission. Payment does not guarantee acceptance of a pre-order.
If you are pre-ordering the Product on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound hereby on behalf of that organization.
Cancellation of Pre-Order.
Pre-orders are subject to the Company’s acceptance, as provided above in Section 4.1. Pre-orders may be rejected by the Company at the sole discretion of the latter any time and for any reason. If the Company rejects your pre-order, it will, as your sole and exclusive remedy and the Company’s sole and exclusive liability, refund the amount you paid. If you have any comments or concerns about why the Company may have rejected your order or if you believe your order was rejected in error, please contact the Company at email@example.com.
Delivering of the Product.
Product being pre-ordered is not currently available for delivery. The moment of delivering the Product is the moment, when the Product becomes available to ship. An estimated time of delivery is before 11/30/22.
Although we will make efforts to begin delivering Product as soon as reasonably practicable, you understand and agree that there may be delays. An estimated time of delivery (ETD) is only an estimate, is subject to change, and the Company does not represent or warrant that it will be able to deliver the Product by the estimated date. As a result, in the event that a delay arises and the estimated release of the product is not met, the Company is not responsible for any damages that may occur due to the delay, nor shall it be obligated, except as set forth herein, to provide any discounts, refunds or credits due to any such delays. We will provide you periodical updates with respect to such delivery schedule.
Risks and Refunds.
You acknowledge and agree that there are risks associated with purchasing, holding, and using the Product, which is an integral part of this Agreement. By pre-ordering the product, you expressly acknowledge and assume these risks.
Except as authorized by the Company or as required by applicable law, all Product purchases are final and non‐refundable. The Company reserves the right to reject your order for any reason.
Use of Product; Restrictions.
You cannot transfer your right to get early access to the Product to any third parties.
You shall not reverse engineer any Product or use the Product to create a competitive product.
The Company and its licensors own all intellectual property rights in the Product. You shall acquire no interest or rights in the Company’s intellectual property other than merely the right to use the Product by virtue of this Agreement.
10.1 Warranties to the Product are contained in our Terms and Conditions of Sale. Except as stated, the Company expressly disclaims all other express and implied warranties, including without limitation any warranty of merchantability, non-infringement of third party patents, or fitness for a particular purpose.
Limitation of Liability.
To the extent permitted by law, in no event will the Company be liable for any collateral, consequential, indirect, punitive, special, exemplary or incidental damages arising out of or related to this Agreement or use of the Products, even if the Company shall have been advised of such potential damages.
To the extent permitted under law, in no event shall the Company’s liability for damages arising in connection with any product exceed the amount actually paid by you. These limitations will apply whether the liability arises in contract, tort (including negligence), strict liability, under statute or otherwise.
12.1 You alone are responsible for the manner in which you use the Product. You shall defend, indemnify and hold harmless the Company and its officers, directors, employees and agents (“Indemnitees”) from any liabilities, damages, losses, expenses, costs and attorneys’ fees arising from your use of the Product not expressly in accordance with this Agreement or from any claim or suit made against the Indemnitees as a result of such conflicting use.
Neither party shall be liable, for damages nor any other consequences, if the party’s obligations according to this Agreement, other than the obligation to pay money, are inhibited or delayed by circumstances that the party cannot reasonably control or foresee, including but not limited to, any conflict in the workforce; natural phenomena such as lightning, earthquakes, floods etc.; fire; war; decisions and decrees made by governments or authorities; accidents; strikes or shortages of transportation facilities, fuel, energy, labor or materials; or similar circumstances.
Dispute Resolution; Arbitration
Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either Party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Company (i) waive your and Company’s respective rights to have any and all Disputes arising from or related to this Agreement resolved in a court, and (ii) waive your and Company’s respective rights to a jury trial. Instead, you and Company will arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions. Any Dispute arising out of or related to this Agreement is personal to you and Company and will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Notice; Informal Dispute Resolution. Each Party will notify the other Party in writing of any Dispute within thirty (30) days of the date it arises, so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to Company shall be sent by e-mail to Company at firstname.lastname@example.org. Notice to you shall be sent by email to the email address you have provided while submitting the pre-order. Your notice must include (i) your name, postal address, email address and telephone number, (ii) a description in reasonable detail of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking. If you and Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable Party, then either you or Company may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
This Agreement shall be governed by the laws of the State of North Carolina applicable to contracts made and to be performed in that state. Any controversy or claims arising out of or relating to any sale hereunder shall be determined and settled by arbitration in Raleigh, North Carolina, in accordance with the Commercial Rules of the American Arbitration Association by a single arbitrator. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any party in such arbitration. The arbitration award will be final as between the parties and judgment thereon may be entered in any court of competent jurisdiction. Any party hereto may make an application for the issuance of a temporary restraining order and/or preliminary injunction from any court of competent jurisdiction pending the determination of any controversy pursuant to the arbitration provisions set forth in this Article. The parties hereby consent and submit to the personal jurisdiction of the United States District Court for the Eastern District North Carolina and any North Carolina State court of competent jurisdiction located in Raleigh Valley, Wake County. North Carolina in any suit, action or proceeding brought in connection with arbitration hereunder.
If any provision of this Agreement is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
INDIE 5 PRE-ORDER AGREEMENT