Deposit Aggreement

Your Pre-Order of an Ellavate Wagon

PLEASE READ THIS AGREEMENT CAREFULLY.  IT CONTAINS A BINDING ARBITRATION AGREEMENT (SEE SECTION 16 BELOW) AND IT AFFECTS YOUR AND ELLAVATE WAGON’S RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT OR JOIN A CLASS ACTION .   

This Deposit Agreement (these “Terms” or “Agreement”) governs the placement of a preorder (“Preorder”) with Ellavate Wagon (“Ellavate” or “we” or “us”) for an Ellavate Wagon  “Wagon”).  Please read all of these Terms carefully before paying your deposit payment (“Deposit”) towards the placement of a Preorder.  By payment of your Deposit, you agree to be legally bound by these Terms.  

1. No Obligations
   
   a. Each Deposit you pay for a Wagon acts as a Preorder for a future purchase of a Wagon.  You are under no obligation to purchase a Wagon from us, and we are under no obligation to supply you with a Wagon.
   
   b. These Terms do not constitute an agreement for the sale of a Wagon and do not lock in pricing, a firm production slot, a firm delivery date, or specific Wagon design or configuration.  To complete the purchase of a Wagon, you will need to pay the balance of any amount owing on your Wagon after payment of your Deposit, in addition to any applicable taxes and other governmental fees (“Final Payment”).
   
   c. 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 Deposit will be refunded.  
   
   
2. Preorder Eligibility: Age and Residency; Entity Preorders
   
   You must be at least 18 years of age and a resident of the United States to Preorder a Wagon.  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 Preordering a Wagon 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.  
   
   
3. Registration
   
   When placing a Preorder for a Wagon, 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 [info@ellavatewagon.com].  Ellavate shall not be liable for inaccurate or outdated information.
   
   
4. Payment     
   
   You will be charged the fee indicated (“the Deposit Fee”) when you place your Preorder.  Placing a Preorder constitutes your express agreement to be charged the Deposit Fee using your provided payment method.  Your payment will be held by Ellavate in a separate account designated solely for Preorders and released for application towards the final sales price of your Wagon when you make your Final Payment.  Your payment is subject to Ellavate’s Payment Terms and Conditions located at [ellavatewagon.com] on our website.
   
   
5. No Guarantee of Delivery Date
   
   You are pre ordering a Wagon with specifications and configurations that are subject to change.  We will endeavor to produce your Wagon in the future, and your priority will be set by the date of payment of your Deposit, our manufacturing schedule, our delivery and service operations availability and receipt of your Final Payment.  There is no guarantee as to delivery date based on your Preorder.  Notwithstanding the foregoing, Ellavate will make reasonable efforts to communicate your specific delivery date to you between 6 and 8 weeks prior to that date.
   
   
6. Cancellation/Refund
   
   You may cancel your Preorder by sending an email to [info@ellavatewagon.com] from the address you used to make the Preorder or an updated address you have added to your Ellavate account by contacting [info@ellavatewagon.com].  You will receive a full refund of your Deposit if cancellation is requested within 1 month of the date of your Preorder.  For any cancellations requested more than 1 month after the date of your Preorder, but more than two weeks prior to the forecasted delivery date, you will receive a partial refund totaling 80% of your Deposit.  For any cancellations requested within two weeks of the forecasted delivery date communicated to you by Ellavate, you will receive a partial refund totaling 10% of your Deposit.  In all cases where only a partial refund of the Deposit Amount is warranted, the non-refunded portion of your Deposit will be used to defray tooling and production costs incurred in response to your Preorder.  Any Ellavate promotional items, if any received at the time of Preorder, are yours to keep even after cancellation.  Ellavate may cancel your Preorder at any time and will issue a full refund of your Deposit to the address on file. 
   
   
7. Vehicle Configuration and Battery Range
   
   You understand that we may not have completed the development of the Wagon or begun manufacturing the Wagon at the time of your Preorder and specifications are subject to change at any time.  You understand that battery range 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 Wagon configuration may change prior to your Final Payment.
   
   
8. Privacy Policy and Terms of Use
   
   The data Ellavate and/or its affiliates collects from you or about your Wagon will be used in accordance with our Privacy Policy, each of which is incorporated herein by reference and available on our website at [ellavatewagon.com].  Please read our Privacy Policy carefully to understand the data that we collect and our practices regarding your information and how it will be treated.  If you have questions regarding our Privacy Policy, you should contact us by email at [info@ellavatewagon.com].
   
   
9. Force Majeure
   
   The obligations of you and Ellavate 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.
   
   
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 a writing signed by Ellavate
    
    
12. No Waivers
    
    The failure by Ellavate 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 Ellavate.
    
    
13. Assignment
    
    You may not assign your rights under these Terms without our express, prior written consent.  Ellavate may assign these Terms or your Deposit in our discretion without your consent.  Any assignment in violation of this Agreement will be null and void.
    
    
14. No Resellers; Discontinuation; Cancellation
    
    Ellavate and its affiliates may unilaterally cancel any order that we believe has been made with the intent to resell the Wagon or otherwise has been made in bad faith.  Ellavate may also cancel your order if a product (including but not limited to a Wagon), feature, or option is discontinued after you pay your Deposit.  Should Ellavate Wagon cancel your order for any reason, including but not limited to the reasons set forth herein, you will receive a full refund totalling 100% of your Deposit. 
    
    
15. Limitation of Liability
    
    a. No consequential or indirect damages.  Except as otherwise provided by applicable law, in no event shall Ellavate 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 Ellavate’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, exceeding the total of the amounts you paid to Ellavate 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, you and Ellavate 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 Ellavate, Ellavate products or services, and as applicable, your credit application, or the purchase or condition of a Wagon (or other Ellavate product) (“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. 
    
    b. Confidentiality.  Unless otherwise prohibited by federal and 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 result 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 [info@ellavatewagon.com] and provide a brief, written description of the Dispute, (and your Order Number, if you have one).  We will contact you at your contact information on file with Ellavate.  You and Ellavate 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. 
    
    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 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 htps://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: [info@ellavatewagon.com].
    
    e. Fees & Costs.  AAA’s Consumer Arbitration Rules will govern the allocation of arbitration fees and costs between you and Ellavate.  However, if your arbitration case filing fee exceeds the filing fee you would pay to file the action in a court of law, Ellavate 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 s/he finds 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.
    
    f. Arbitration Location and Procedure.  Arbitration shall be initiated and take place in the city or county of your residence unless you and Ellavate agree otherwise, or, if you reside outside of the United States, in Orange County, California. If your claim does not exceed $25,000, you and Ellavate may agree to conduct arbitration by videoconference 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 California, 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 party 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. 
    
    i. Class Action Waiver.  The parties further agree that 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 Ellavate agree that each party may bring claims against the other party only in your or its individual capacity; neither You nor Ellavate 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.  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 [info@ellavatewagon.com] from the email address associated with your Deposit payment 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 Ellavate unless the other agreement provides an option to opt out and you follow 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 unenforceable. 
    
    m. Survival.  This Section 16, Dispute Resolution – Arbitration and Class Action Waiver shall survive the end of this Agreement and/or your relationship with Ellavate, including the end of any promotion or contest, opt-out of communication or other use or participation in any Ellavate Produce or Service.
    
    By agreeing to this Deposit 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 Ellavate is licensed to sell motor vehicles 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. Entire Agreement
    Your Preorder confirmation and this Agreement will be deemed the final and integrated agreement between you and us on the matters contained in this Agreement.  It shall supersede all prior and contemporaneous representations, warranties, agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.  In the event of any conflict between your Preorder confirmation and this Agreement, this Agreement will prevail. 
    
    
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 extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.