Preorder Agreement This Preorder Agreement (these “Terms” or this “Agreement”) governs the placing of a pre order (“Preorder”) with Lit Motors (“Lit Motors” or “we” or “us”) for an AEV (“Vehicle”). 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 Vehicle acts as a reservation for a future purchase of the Vehicle. You are under no obligation to purchase a Vehicle from us, and we are under no obligation to supply you with a Vehicle. These Terms do not constitute an agreement for the sale of a Vehicle and do not lock in pricing, a firm production slot, a firm delivery date, or specific Vehicle configuration. To complete the purchase or lease of a Vehicle, you will need to execute Lit Motors’s standard Order Agreement, Agreement to Purchase and any other agreements which we deem necessary at the time of such purchase or lease, which will include additional terms and conditions, including the final price sheet for the vehicle you ultimately select. The Order Agreement, Final Sales Agreement, and any other agreements which we deem necessary at the time of purchase or lease may be made with another Lit Motors entity. Additional payment for your selected Vehicle, including taxes and other governmental fees, will be required at that time. We may decline Pre Orders as we deem appropriate in our sole discretion, including to avoid over-subscription. If your Pre Order is declined, you will be notified and your Pre Order payment will be refunded as set forth in Section 6.

 

2. Preorder Eligibility: Age; Entity Pre Orders. By agreeing to these Terms, you represent and warrant to us that you are at least 18 years of age. If you are Pre Ordering a Vehicle on behalf of a company, organization or entity (an “Entity”), 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 Vehicle, you represent and warrant that all information provided is accurate, and it is your responsibility to keep this information current at all times by emailing reserve@litmotors.com. Lit Motors shall not be liable for inaccurate or outdated information or any losses that occur as a result of such inaccurate or outdated information.

 

4. Payment. You will be charged the fee indicated (the “Pre Order Fee'') when you place your Preorder. Placing a Preorder constitutes your express agreement to be charged the Preorder Fee using your provided payment method.

 

5. No Guarantee of Delivery Date. You are pre ordering a Vehicle without specifying the model, features, and options. We will endeavor to produce your selected Vehicle in the future and your priority will be set by us at our sole discretion, taking into consideration the date of payment of your Pre Order Fee, our manufacturing schedule, execution of the Final Sales Agreement and compliance with any other terms and conditions. There is no guarantee as to delivery date based on your Preorder.

 

6. Cancellation/Refund. You may cancel your Preorder at any time by sending an email to reserve@litmotors.com from the address you used to make the Preorder or an updated address you have added to your Lit Motors account by contacting reserve@litmotors.com.      The Pre Order Fee is non-refundable. Lit Motors promotional items, if any, received at the time of Preorder are yours to keep even after cancellation. Lit Motors may cancel your Preorder at any time. In the event of this type of cancellation, Lit Motors will issue a full refund of your Pre Order Fee to the address on file.

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7. No Setoff. You shall not, and acknowledge that you have no right, under this Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to us or any of our affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to you by us or our affiliates, whether relating to us or our affiliates' breach or non-performance of this Agreement or any other agreement between you, and us or any of our affiliates, or otherwise.

 

8. Vehicle Configuration and Battery Range. You understand that we may not have completed the development of the Vehicle or begun manufacturing the Vehicle at the time of your Preorder and specifications are subject to change at any time. You understand the exact battery range and other available features have not yet been determined. By agreeing to these Terms, you represent and warrant to us that you understand that the Vehicle configuration may change prior to execution of any Final Sales Agreement or any other agreement related to the lease or purchase of the Vehicle.

 

9. Privacy Policy and Terms of Use. The information you provide to Lit Motors entities will be used in accordance with our Privacy Policy and website Terms of Use, each of which is incorporated herein by reference and available on our website. Please read our Privacy Policy and Terms of Use carefully to understand Lit Motors’ practices regarding your information and how it will be treated. If you have questions regarding our Privacy Policy or Terms of Use, you should contact us by email at reserve@litmotors.com.

 

10. Force Majeure. Neither you nor Lit Motors will be liable for any failure or delay in performing an obligation under this Agreement that is due to an event beyond our reasonable control, including, but not limited to, any Act of God, pandemic, epidemic, disease, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, material changes in applicable law or regulations, uprising, unavailability of materials, strike, earthquake, flood or any other natural or man-made eventuality outside of our control.

 

11. Confidentiality. All non-public, confidential, or proprietary information of Lit Motors, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Lit Motors to you, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Lit Motors in writing. Upon Lit Motors' request, you shall promptly return all documents and other materials received from Lit Motors. Lit Motors shall be entitled to injunctive relief for any violation of this provision. This provision shall not apply to information that is: (a) in the public domain; (b) known to you at the time of disclosure as a result of a disclosure rightfully obtained by you; or (c) rightfully obtained by you on a nonconfidential basis from a third party.

 

12. Entire Agreement and Severability. We reserve the sole right, at our discretion, to change these Terms at any time. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of these Terms 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. Your Preorder, Order Agreement, Final Purchase Agreement, our Website Terms of Use and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.

 

13. Modification. This Agreement may not be modified, altered or amended unless expressly agreed to in writing signed by Lit Motors.

 

14. No Waivers. The failure by us 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 Lit Motors.

 

15. Assignment. You may not assign your rights under these Terms without our express prior consent. Lit Motors may assign these Terms in our discretion without your consent.

 

16. Limitation of Liability. No Consequential or Indirect Damages. In no event shall Lit Motors, its affiliates or partners, or any of their respective employees, officers, directors, members, shareholders, agents, or representatives be liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages arising out of, relating to, or in connection with any breach of 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. In no event shall Lit Motors’ 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 paid to Lit Motors pursuant to this agreement.

 

17. Applicable Law and Class Action Waiver. These Terms, 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. In addition, to the fullest extent permitted by applicable law, you and Lit Motors agree to arbitrate all disputes and claims between us after complying with the steps outlined in the Initial Dispute Resolution provision below. This agreement to arbitrate is intended to be broadly interpreted. It includes but is not limited to: Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); Claims that are currently subject to purported class action litigation for which you are not a member of a certified class; and Claims that may arise after this Agreement. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including for example the Federal Trade Commission, State Attorney General or other federal or state agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. Arbitration shall be initiated and take place in San Francisco County, California and you and Lit Motors agree to submit to the personal jurisdiction of the state and federal courts of San Francisco County, California. These courts have exclusive jurisdiction in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Lit Motors and you consent to the jurisdiction of the California courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at info@litmotors.com and provide a brief, written description of the dispute and your contact information. Except for intellectual property, you and Lit Motors agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Binding 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 as the sole means to resolve claims (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties' relationship with each other, and/or your use of Lit Motors products or services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The parties specifically incorporate the terms of California Code of Civil Procedure section 1283.05 with respect to discovery. 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 these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. 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. Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111; and (c) Send one copy of the Demand for Arbitration to us at: legal@litmotors.com Fees & Costs. If your claim(s) total is less than US $5,000.00, then you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. The right to attorneys' fees and expenses discussed above supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys' fees or costs. No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities 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 Lit Motors agree that each may bring claims against the other only in your or its individual capacity, neither you nor Lit Motors will be entitled to join or consolidate claims by or against other customers 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 any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Opt-Out: You may opt-out of the agreement to arbitrate, or the class action waiver, or both within 60 days from the date you electronically sign this agreement, by sending an email to legal@litmotors.com from the email associated with your Preorder with “Opt-Out” in the subject line and a clear instruction on your opt-out choice in the body of the email – for example: “Opt-out of class action waiver” or “Opt-out of the arbitration provision”. You agree that any request will not apply to subsequent agreements between you and Lit Motors unless you follow the requirements outlined in that other agreement. Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.

 

18. Telephone Consumer Protection Act. By agreeing in writing to these terms, 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 pre recorded artificial voice messages and/or automatic telephone dial devices. You understand and agree that providing your wireless telephone number and consenting to receive calls or texts at that number is not a condition of purchase. 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. You can control permission for calls or texts by contacting info@litmotors.com.

 

19. Entire Agreement. Your Pre Order confirmation, these Terms, our Website Terms of Use, and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms. 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 these Terms, our website Terms of Use and our Privacy Policy, these Terms shall prevail.