Xcol unit-00
Reservation Terms and Conditions
IMPORTANT - PLEASE READ CAREFULLY: THESE
TERMS AND CONDITIONS (THE “TERMS”) CONSTITUE A LEGALLY BINDING CONTRACT BETWEEN YOU AND XCOL
TEHCNOLOGY, INC., A COLORADO CORPORATION (“XCOL”, “US,” “OUR” OR “WE”), AND APPLIES TO
YOUR RESERVATION FOR THE XCOL UNIT-00 (THE “UNIT00”). IF YOU DO NOT
ACCEPT ANY OF THESE TERMS, PLEASE DO NOT PLACE A RESERVATION FOR THE UNIT00.
By reserving the UNIT00 and paying the
deposit of $1000 (the “Deposit”), you hereby agree to these Terms in their entirety. By agreeing to
these Terms, you (i) acknowledge and understand that you have reviewed and
agreed to the Class Action Waiver detailed in these Terms, and (ii) confirm
that you are at least 18 years of age, or otherwise have the consent of a
parent or legal guardian to agree to the Terms.
WE RESERVE THE RIGHT TO MODIFY THESE TERMS
AT ANY TIME, AND EACH SUCH MODIFICATION SHALL BE EFFECTIVE UPON POSTING ON OUR
WEBSITE. ALL MATERIAL MODIFICATIONS WILL APPLY PROSPECTIVELY ONLY. IF ANY
MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO
CANCEL THE RESERVATION AND RECEIVE A REFUND OF THE DEPOSIT.
Reservation Process and Changes
By reserving a UNIT00 and providing the
Deposit, you agree to provide full payment of the purchase price and take
delivery of the UNIT00 once XCOL notifies you that it has been built and is
ready to be delivered to you. Your Deposit will place you in line for receiving
the UNIT00 at a time to be determined by XCOL in its sole discretion. The
features, specifications, design and/or configuration of the UNIT00 may change
prior to production. You can cancel your reservation at any time prior to
completing your purchase and seek a refund of the Deposit by providing a
cancellation notice to XCOL, and we will use reasonable efforts to refund the
Deposit in a timely manner.
Once the UNIT00 that you reserved has been
built and is ready to be delivered, we will reach out to you by sending an
email to the email address that you provided requesting payment of the purchase
price. Once payment of the purchase price is received by XCOL, the UNIT00 will
be delivered to you, subject to our standard terms and conditions of sale. If
we do not receive your payment in full within a reasonable period of time, we
may extend a purchase invitation to the next person on the reservations list. If
you are unable to pay the full purchase price or if you otherwise cancel your
reservation, you will be entitled to a full refund of your Deposit, but you
will not be entitled to receive a UNIT00.
We will aim to serve you based on your
reservation date, but we reserve the right to re-sequence reservations based on
available production details at the time.
In summary, by providing your Deposit at
the time of your reservation, you understand that XCOL may not have completed
the development of the UNIT00, finalized the design of the UNIT00 or begun
manufacturing the UNIT00. We do not guarantee if or when the UNIT00 will
actually be manufactured or delivered. Your delivery date is dependent on many
factors, including the UNIT00’s configuration and our manufacturing availability. You also understand
that you will not receive the UNIT00 unless and until you provide full payment
of the purchase price.
Payments
Payments may be declined or returned to
you, in XCOL’s sole discretion, for any reason or no reason at all. If we accept
your Deposit for a UNIT00, your account, credit card, or other payment
mechanism will be charged for the Deposit upon approval by XCOL regardless of
when the product is expected to ship. If any credit card chargeback of any
amount is issued on your reservation, your place in the queue for receiving the
UNIT00 will be paused until the chargeback has been resolved. Any applicable
taxes (including sales tax) will be collected on reservations where such taxes
are required to be collected.
No Resale and Our Cancellation Rights.
XCOL and our affiliates and
distributors sell XCOL products directly to end-consumers, and we may
unilaterally cancel any reservation that we believe has been made with a view
toward resale of the UNIT00 or that has otherwise been made in bad faith. We
may also unilaterally cancel your reservation and refund your Deposit if we
discontinue the UNIT00 or any of its features or options after the time you
place your reservation or if we determine that you are acting in bad faith.
Warranty
We offer limited warranties on our
products. Unless otherwise communicated to you in writing by us, the UNIT00
will be sold to you subject to our standard product warranty applicable to this
product. EXCEPT FOR THE LIMITED WARRANTIES, THE UNIT00 IS SOLD ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITHOUT ANY
WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, XCOL DISCLAIMS
ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY,
NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNES
FOR ANY PARTICULAR PURPOSE.
Liability and Limitation of Remedies
IN NO EVENT SHALL XCOL OR ANY OF ITS
AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “AFFILIATES”) BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE
DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR
RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS. THIS LIMITATION WILL
APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU AGREE AND UNDERSTAND THAT YOUR SOLE AND
EXCLUSIVE REMEDY, AND XCOL’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY AND ALL CLAIMS UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR
RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS WILL BE LIMITED TO THE
REFUND OF YOUR DEPOSIT.
Dispute Resolution and Class Action Waiver
Governing Law. The parties acknowledge and
agree that these Terms shall in all respects be interpreted, enforced and
governed by the laws of the State of California applicable to instruments,
persons and transactions which have legal contacts and relationships solely
with the State of California and the laws of the United States of America. The
parties exclude in its entirety the application to the order of the United
Nations Convention on Contracts for the International Sale of goods.
Choice of Forum. Each party irrevocably and
unconditionally agrees that it shall not commence any action, litigation or
proceeding of any kind whatsoever against the other party in any way arising
from or relating to these Terms, including all exhibits, schedules, attachments
and appendices attached hereto and thereto, and all contemplated transactions,
including contract, equity, tort, fraud and statutory claims, in any forum
other than United States District Court for the Central District of California
or, if such court does not have subject matter jurisdiction, the courts of the
State of California sitting in Orange County, and any appellate court from any
thereof. Each party irrevocably and unconditionally submits to the exclusive
jurisdiction of such courts and agrees to bring any such action, litigation or
proceeding only in United States District Court for the Central District of
California or, if such court does not have subject matter jurisdiction, the
courts of the State of California sitting in Orange County. Each party agrees
that a final judgment in any such action, litigation or proceeding is
conclusive and may be enforced in other jurisdictions by any manner provided by
applicable laws.
THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY ACTIVITY ARISING UNDER OR RELATED TO THESE TERMS OR
THE RESERVATION.
Prohibition of Class and Representative
Actions and Non-Individualized Relief. YOU AND XCOL AGREE THAT EACH OF US MAY
BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR
PROCEEDING. UNLESS BOTH YOU AND XCOL AGREE OTHERWISE, THE COURT MAY NOT
CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT
OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS
PROCEEDING. ALSO, THE COURT MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE,
AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF
AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL
CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE COURT MAY AWARD PUBLIC
INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE
ENFORCEABILITY OF THIS PROVISION.
Notices and Communications
XCOL will provide any notices (including
legal process) that it may be required to give you by any lawful method,
including by making notices available through our website or by sending notices
to any email address that you provide to XCOL. XCOL will also communicate with
you about your reservation and send you updates, surveys and other information
about XCOL products via the email address that you provide. If you’d prefer not to
receive certain emails from XCOL click the unsubscribe link in an email and unsubscribe.
Please note that if you do not (i) provide
XCOL with current and accurate contact information and/or (ii) subsequently
provide any updated contact information to XCOL, we may not be able to contact
you about your reservation.
You agree to send all notices under these
Terms to XCOL by emailing them to
cyberxcol@xcol.com.
Your Privacy
At XCOL, we respect the privacy of our
customers. For details please see our Privacy Policy. By using this website
and/or reserving a UNIT00, you consent to our collection and use of your
personal data as outlined therein.
Miscellaneous
Assignment. Nothing in these Terms may be
assigned by you without the prior written consent of XCOL. These Terms shall
bind and inure to the benefit of XCOL’s assigns and successors, including,
without limitation, any entity with which or into which XCOL shall merge or
consolidate.
Severability. In the event one or more of
the terms of this Agreement are adjudicated invalid, illegal, or unenforceable,
the adjudicating body may either interpret these Terms as if such terms had not
been included, or may reform such terms to the limited extent necessary to make
them valid, legal or enforceable, consistent with the economic and legal
incentives underlying the Terms.
Excuse of XCOL’s Performance. XCOL’s performance
hereunder shall be excused if rendered impossible or “impractical.” “Impractical” shall have the same
general meaning as in Section 2615 of the California Commercial Code.
Waiver. XCOL’s failure to enforce
at any time any of these Terms, to exercise any election or option provided
herein, or to require at any time performance by you of any of the provisions
hereof, shall in no way be construed to be a waiver of such provisions, nor in any
way to affect the validity of the reservation or any part thereof, or the right
of XCOL thereafter to enforce each and every such provision.
