SkySurfer Aircraft Pre-Order Sales Agreement
WELCOME TO SKYSURFER AIRCRAFT LLC. (“SKYSURFER”, “WE” OR “US”). PLEASE READ THIS PRE-ORDER SALE AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN US AND THE PERSON OR ENTITY LISTED AS THE BUYER (“YOU”, “PURCHASER” OR THE “BUYER”) THAT GOVERNS THE PRE-ORDER PURCHASE OF THE PRODUCT (AS DEFINED BELOW). BY CLICKING “I AGREE” AND/OR SUBMITTING YOUR PRE-ORDER REQUEST, YOU REPRESENT THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF THE BUYER.
1. Pre-Order and Acceptance.
(a) Offer. You may pre-order skysurfer aircraft, a commercially available personal electric aerial vehicle that you can own and fly (the “Product”). Each pre-order you submit (“Pre-Order”) constitutes an offer to purchase the Product. Pre-Orders are submitted, and the offer is made, when you have provided all of the information requested as part of the registration process.
(b) Registration Information. When you place a Pre-Order for the Product, you will be required to provide certain information in connection with your purchase, such as your name, delivery address and billing information. You represent and warrant that all such information is complete and accurate, and you will ensure that such information is kept current. Skysurfer will have no responsibility or liability for inaccurate information or information that later becomes outdated and will have no obligation to make efforts to determine the correct contact or delivery information. You can update your information at any time prior to notice that the Product is ready for delivery by sending an email to info@skysurferaircraft.com.
(c) Acceptance. Completed Pre-Orders are subject to our acceptance and may be rejected at any time prior to delivery for any reason at our sole discretion. If we reject your offer, we will, as your sole and exclusive remedy and our sole and exclusive obligation, refund the Deposit. We will send you an email to the email address provided by you during registration to indicate whether your Pre-Order has been accepted or rejected.
2. Restrictions on Sale; Right of Cancellation.
We reserve the right to: (a) limit the number of pre-order Products sold to a certain number; (b) limit the number of Products sold to any person or entity, and (c) cancel your Pre-Order at any time, even after it has been accepted, and provide you a refund of the Deposit, as defined in Section 3 below. You must be at least 18 years old to offer to purchase a Product. By agreeing to this Agreement, you represent and warrant to us that you are at least 18 years old.
3. Payment
The pre-order price of the Vehicle will be confirmed in your Vehicle Configuration and Final Price Sheet. The Vehicle Configuration will be confirmed with you at a later date. It will describe the vehicle that you configure, including pricing (excluding taxes and official or government fees). As you may have only configured part of your Vehicle, any pre-order price provided to you in advance of the Final Price Sheet is only being offered to you as an estimate and is subject to change. The Final Price Sheet will be provided to you as your delivery date nears. It will include final pricing based on your Vehicle Configuration and will include taxes and official or governmental fees. Any pre-order price listed in the Vehicle Configuration will not include taxes and official or government fees, which will be calculated at the time of delivery of the Product. You will be solely responsible for any such taxes and fees. Your Pre-Order Payment covers the cost of these activities and other processing costs. You will be charged a Pre-Order payment of one hundred U.S. dollars (US $100) for the Product (the “Down Payment”) at the time you place your Pre-Order for the Product. Your placing of the Pre-Order constitutes your express agreement for SkySurfer to charge your provided payment method at such time. Once the Product is ready for delivery, you will be required to pay the remainder of the Purchase Price (i.e., the Purchase Price, less the Down Payment) prior to delivery. If you present a check for any payment, we may process the payment as a normal check transaction, or we may use information from your check to make a one-time electronic fund transfer from your account, in which case your bank account will reflect this transaction as an Electronic Fund Transfer.
4. Refunds
All refunds will be credited back to the same payment method used to pay the Purchase Price and are exclusive of any processing or postage fees previously paid by you. Once you place your Pre-Order, the Pre-Order is final, non-cancelable, and nonrefundable, except as specified in this Agreement and in the FTC Rules (as defined below) incorporated herein by reference. After the Product has been delivered and paid for in full by the Buyer, the Buyer may then request a one time refund for the amount of one hundred U.S. dollars (US $100) (the “Refundable $100 Deposit”). Buyer requests can be made by contacting Skysurfer at info@skysurferaircraft.com.
5. Shipment and Delivery
The Product is pre-sold as it is not ready for delivery. The Product is expected to be ready for delivery on or before the date identified by Skysurfer after the buyer completes vehicle configuration (the “Estimated Delivery Date”). If the Product will not be available for delivery by the Estimated Delivery Date, 16 CFR Part 435 rules (the “FTC Rules”) require Skysurfer to offer you the choice of either a refund or to wait until a new expected delivery date. See the FTC Rules for full details regarding Skysurfers’s legal obligations. You understand that Skysurfer may not have completed the development of the Product or begun manufacturing Product at the time you entered into this Agreement and so we do not guarantee when your Product will actually be delivered. Your actual delivery date is dependent on many factors, including Buyer’s vehicle configuration and manufacturing availability. To secure your final payment and performance under the terms of this Agreement, we will retain a security interest in the Product and all proceeds therefrom until your obligations have been fulfilled. For an additional fee, Skysurfer will, on your behalf, coordinate the shipment of your Product to you from our factory in the United States. In such a case, you agree that this is a shipment contract under which Skysurfer will coordinate the shipping of the Product to you via a third-party common carrier. If you elect to have Skysurfer coordinate the shipment of your Product, you agree that delivery of the Product, including the transfer of title and risk of loss to you, will occur at the time your Product is loaded onto the common carrier’s transport (i.e., FOB shipping point). The carrier will insure your Product while in transit and you will be the beneficiary of any claims for damage to the Product or losses occurring while the Product is in the possession of a common carrier. If you do not elect to have Skysurfer coordinate the shipment of your Product, you are responsible for arranging delivery of the Product to your desired location from our factory, and you agree that the transfer of title and risk of loss to you will occur at the time the Product is ready at our factory.
6. Terms and Conditions
Your purchase and use of the Product will be subject to this Agreement, including the specific terms and conditions set forth below (the “Initial Terms”). The purchase and use of the Product may also be subject to additional terms and conditions (the “Additional Terms” and with the Initial Terms, the “Terms and Conditions”), which will be provided by Skysurfer at or prior to the time that the Product is delivered. You agree that the Terms and Conditions are applicable to you and your use of the Product. Further, you acknowledge and agree that:
(a) Compliance with Laws. Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction. In the United States, these laws and regulations will include, but not necessarily be limited to, Part 103 of the Federal Aviation Regulations (14 C.F.R. Part 103) (“Part 103”). Part 103 imposes operating rules for ultralight vehicles such as the Product in the United States. Part 103 governs, among other things, how, when and where such vehicles may be operated in the United States. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with local laws, regulations, and ordinances. If you do not have sufficient information to determine whether your use of the Product will comply with all applicable laws, regulations, and ordinances, then you should not place a Pre-Order for the Product.
(b) Compliance with Documentation and the Terms and Conditions. You agree to use the Product only in conformance with the user manuals and the reasonable direction and specifications provided by Skysurfer (the “Documentation”), and in no other manner. If you fail to use the Product in conformance with the Documentation, the Product may not operate properly.
(c) Export Control. You acknowledge that Products may be subject to export control laws and other laws and regulations of the United States and other countries. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Product outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Product to: (i) any country (or entity or national thereof) that is subject to an embargo or designated as state sponsors of terrorism by the United States, which as of the Effective Date, include Cuba, Iran, Sudan, Syria, North Korea, and the Crimea Region of the Ukraine; (ii) a person or entity appearing on any U.S. prohibitive or restricted party list, including persons or entities on the Treasury Department’s Specially Designated National List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identification List or the Commerce Department’s Entities List, Unverified List or Denied Persons List; or (iii) any destination for an end use that is prohibited by applicable law.
(d) Privacy. If you provide information for the Pre-Order of the Product, Skysurfer will not use such information except as necessary or helpful to fulfill your order, as expressly set forth in this Agreement, or as set forth in the Skysurfer Privacy Policy located at: Privacy Policy. Skysurfer may use such information to create aggregate data that does not identify any specific individual or entity, and it may publish or otherwise provide such aggregate data to its commercial partners.
7. Intellectual Property.
Skysurfer and its licensors own all intellectual property rights in the Product. Skysurfer reserves all rights in and to the Product not granted expressly in this Agreement or such other additional license terms.
8. WARRANTY AND GENERAL DISCLAIMER:
(a) SKYSURFER WILL USE REASONABLE EFFORTS TO PASS THROUGH TO YOU ANY THIRD PARTY WARRANTIES APPLICABLE TO THE PRODUCT. In addition, you will receive the Product warranty for components manufactured by Skysurfer at or prior to the time of Product delivery (“Limited Warranty”). The limited warranty will remain in effect for one (1) year after the date of Product delivery. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITED WARRANTY DOES NOT COVER THE PROPELLERS OF THE PRODUCT. You may also obtain a written copy of your Limited Warranty, which will be available closer to the time of delivery, from us upon written request to [info@skysurferaircraft.com].
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY, PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SKYSURFER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE CUSTOM ASIC AND PRODUCT WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE EXTENT THAT ANY THIRD PARTY.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SKYSURFER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THE PRE-ORDER OR THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE ANY PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SKYSURFER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL SKYSURFER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCT(S) PURCHASED BY YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The Purchaser desires to purchase a license to build a Skysurfer Aircraft and/or purchase certain components used in the construction of that aircraft. In consideration of the mutual promises contained in this agreement, the parties hereby agree as follows:
1. SkySurfer Aircraft LLC is the owner of the design of the SkySurfer Aircraft (hereinafter “Aircraft”). Upon the execution of this agreement and the payment of the purchase price set out in the Final Price Sheet, SkySurfer Aircraft LLC shall license the Purchaser to use this design, with or without accompanying construction plans, to construct a replica of the Aircraft. The design and plans for the Aircraft are the property of SkySurfer Aircraft LLC and the Purchaser agrees to utilize these plans only for use in constructing one aircraft for the Purchaser’s personal use only. Any other use or reproduction of the plans is strictly prohibited. The Purchaser shall not allow any copies or reproductions of the plans to come into the possession of any other person or entity. SkySurfer Aircraft LLC reserves the right to modify the design or plans of the aircraft in any manner deemed necessary to enhance its performance or safety. SkySurfer Aircraft LLC agrees to make reasonable efforts to notify the Purchaser of any design or plans changes so long as the Purchaser keeps SkySurfer Aircraft LLC apprised of the Purchaser’s current email address.
2. Airworthiness: The Purchaser agrees to comply fully with all applicable governmental aviation regulations in the construction and operation of the aircraft. When necessary, the Purchaser agrees to obtain inspection and certification by the Federal Aviation Administration, or such other inspection and certification body, in full compliance with applicable aviation regulations. The Purchaser understands and agrees that certification of the completed Aircraft is dependent upon the Purchaser’s construction techniques and that air worthiness is beyond the control of SkySurfer Aircraft LLC. SkySurfer Aircraft LLC does not accept responsibility whatsoever for certification of the aircraft or for eligibility for operation of the Aircraft in the ultra-light category.
3. Warranty: SkySurfer Aircraft LLC is not responsible and makes no warranty, express or implied whatsoever, regarding the performance, flight characteristics, structural integrity, or safety of the completed Aircraft or its component parts. Purchaser understands that any information they may or may not have not previously seen or heard are estimations and shall be disregarded from this point foward. Specifically, SkySurfer Aircraft LLC makes no warranty that the plans or components comprising the kit Aircraft are fit for any particular purpose or use. The Purchaser understands and agrees that there are many factors that affect the design integrity of the completed Aircraft, including design requirements for battery’s, motors, propellers and rotors and requirements for aerodynamic and center of gravity limits. SkySurfer Aircraft LLC does not warrant the integrity of component parts once they are shipped to the Purchaser.
4. WARNING: READ THIS BEFORE ORDERING.
A) The risks involved in flying an experimental homebuilt or an ultralight Aircraft are greater than those risks associated with everyday life. There are certain dangers involved which cannot be removed, no matter how safe the design, no matter how careful the construction, no matter how accomplished the pilot. These dangers include the possibility of personal injury or even death, just as in other high risk sports such as motorcycle riding, sky diving and skiing. You cannot build or fly this Aircraft unless you knowingly and willingly accept and assume these risks as your own.
B) You must also realize that the construction and/or use of any Aircraft, especially a SkySurfer Aircraft, is a task which requires critical attention to detail and uncompromising standards of construction. You cannot build this Aircraft unless you are qualified in aircraft manufacturing and willing to follow exactly all instructions provided by SkySurfer Aircraft LLC. Any unapproved alteration or unapproved use may significantly increase the risks of flights, making you a test pilot for an unproven design.
C) As the builder of a SkySurfer Aircraft, it is your responsibility to double check the quality of all materials used in construction. Although all materials supplied to you by SkySurfer Aircraft LLC have been quality checked, it is up to you to give each part a careful examination before installing it on your Aircraft. This duty is especially important in connection with composite materials, which may be damaged in shipment, handling or storage. If you encounter any part or building materials which is not airworthy, then it is up to you to contact SkySurfer Aircraft LLC to arrange for a replacement. Also, if you have any questions about the plans and instructions provided with the aircraft kit, it is up to you to reach out to SkySurfer Aircraft LLC to resolve it. If it appears as though a drawing or instruction can be read in more than one way, it is your responsibility to find out which interpretation is correct. SkySurfer Aircraft LLC is committed to clarifying any and all questions any builder has about the- construction of its Aircraft.
D) It is critical that any person flying an Aircraft designed by SkySurfer Aircraft LLC understands certain facts. First, the Aircraft cannot be flown by anyone who is not a duly licensed, qualified and proficient pilot. Although pilots flying Aircraft in the ultralight category are not required to be licensed, they cannot fly the Aircraft without the proper training, qualifications, experience and proficiency. Second, any pilot who wants to fly the Aircraft should first have adequate experience in a similarly configured training aircraft. Finally, by definition, any pilot who flies an experimental or ultralight Aircraft is an experimental pilot. This maxim is especially true for the first flights of the Aircraft. Initial test flights should be approached with extreme caution, following established guidelines. If you do not know these guidelines, the Experimental Aircraft Association (EAA) can help you. E) By definition, the SkySurfer Aircraft which is the subject of this Agreement is an experimental Aircraft (or an ultralight aircraft if built to those specifications) and is not certificated to the same standards as manufactured general aviation Aircraft. There are some regimes of flight in which the Aircraft has not been tested. It is possible for a pilot to place the Aircraft into these certain flight regimes which may render the Aircraft uncontrollable or unrecoverable. Operation of the Aircraft under these circumstances could result in serious injury or even death. Therefore, any person flying the Aircraft must accept responsibility for acting as a test pilot. There are no guarantees that the Aircraft constructed by the Purchaser will be the same as, or even similar to, the prototype constructed by SkySurfer Aircraft LLC. The Purchaser is the manufacturer of the Aircraft assembled with components supplied by SkySurfer Aircraft LLC. The Purchaser accepts sole responsibility and liability for construction of the Aircraft. Purchaser also accepts liability and responsibility for the safe and careful operation of the completed Aircraft. In summary, building and flying any experimental or Ultralight aircraft involves certain inherent risks which you assume by ordering, building and flying this aircraft. It is up to you minimize these risks by exercising extreme care in every activity associated with construction and flight. By developing an attitude of professionalism, safety and attention to detail, you will be a safer pilot enabling you to enjoy your SkySurfer Aircraft even more.
5. Indemnification and Release: The Purchaser agrees, on behalf of the Purchaser, the Purchaser’s heirs, assigns and any subsequent buyers of Purchaser’s kit or completed Aircraft, to indemnify SkySurfer Aircraft LLC, from any and all claims, demands, and suits, causes of action or losses arising out of the construction or operation of the Purchaser’s Aircraft. The Purchaser assumes all liability in conjunction with construction, maintenance and operation of the Purchaser’s kit or completed SkySurfer Aircraft. The Purchaser, on behalf of himself herself and the Purchaser’s heirs and assigns, hereby unconditionally releases SkySurfer Aircraft LLC, its officers, directors, shareholders, agents and employees from any and all liability for property loss or injury, up to and including death, resulting from the Purchaser’s construction, maintenance or operation of the Purchaser’s SkySurfer Aircraft. The Purchaser understands and agrees that SkySurfer Aircraft LLC, is unwilling to enter into this agreement unless induced to do so by the Purchaser agreeing to the indemnification and release provisions included in this agreement.
6. Purchase Order: The terms and conditions of the SkySurfer Aircraft LLC Purchase Order, Vehicle Configuration, and/or Final Price Sheet used to order any kit or component are expressly made a part of this Agreement.
7. Governing Law: SkySurfer Aircraft LLC and the Purchaser agree that this agreement shall be governed by the laws of the State of California, USA. The parties also agree that if any portion of this agreement is invalidated in any manner, any remaining provisions will continue in full force and effect.
8. Entire Agreement: This instrument constitutes and embodies the entire agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein. With respect to the subject matter hereof, this Agreement supersedes all previous communications, representations or agreements oral or written, between the parties. No modification or waiver of the terms of this Agreement shall be made without the express written consent of SkySurfer Aircraft LLC. The Buyer agrees that he has read the terms, provisions and warnings set out in this Agreement and in any other SkySurfer Aircraft LLC documentation provided to the Buyer before accepting final delivery of the Product, and accepts all provisions as stated herein.
10. INDEMNIFICATION
You agree to indemnify and hold Skysurfer, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Skysurfer Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Product; (b) your violation of this Agreement; (c) your violation of any rights of another party; or (d) your violation of any applicable laws, rules or regulations. Skysurfer reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Skysurfer in asserting any available defenses. This provision does not require you to indemnify any of the Skysurfer Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Pre-Order or Product.
11. Force Majeure.
Neither party will be liable to the other for any failure to perform its obligations due to an event beyond the control of such party, including, but not limited to, any Act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of that party’s control, which causes the termination of an agreement or contract entered into, or which could not have been reasonably foreseen. Any party affected by such event will inform the other party and use all reasonable endeavors to comply with this Agreement.
12. Modification of this Agreement.
We reserve the right, at our discretion, to this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, you will be required to accept the modified Agreement in order for your Pre-Order to remain valid. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication.
13. Entire Agreement; Survival.
This Agreement represent the entire agreement governing your Pre-Order of the Product, and any prior agreements have no force or effect. All provisions of this Agreement which by their nature should survive, will survive termination, including without limitation, ownership provisions, disclaimers, indemnification, and limitation of liability
14. Waiver; Severability.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If for any reason a court of competent jurisdiction finds any portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
15. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Skysurfer and limits the manner in which you can seek relief from us.
(a) Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Skysurfer, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Skysurfer may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, patents. The Buyer may not display or reveal to the public items including but not limited to SkySurfer external designs, internal designs, parts and/or components, manuals, documentation, specifications and methods of use). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
(b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to info@skysurferaircraft.com. The arbitration will be conducted by an established alternative dispute resolution provider that is selected by Skysurfer. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to the most current version of their Streamlined Arbitration Rules and procedures; all other disputes shall be subject to their most current version of the Comprehensive Arbitration Rules and Procedures. Buyer is responsible to pay for their own filing, administrative, hearing and/or other Arbitration fees.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Skysurfer. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
(d) Waiver of Jury Trial. YOU AND SKYSURFER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Skysurfer are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
(f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: info@skysurferaircraft.com , within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Skysurfer username (if any), the email address you used to set up your Skysurfer account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Severability. Except as provided in Section 17(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Skysurfer.
(i) Survival of Agreement. Notwithstanding any provision in this Agreement to the contrary, we agree that if Skysurfer makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Skysurfer at the following address: info@skysurferaircraft.com.
16. Assignment.
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Skysurfer’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Skysurfer agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in [San Francisco, California].
18. Governing Law.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
19. Notice.
Where Skysurfer requires that you provide an e-mail address, you are responsible for providing Skysurfer with your most current e-mail address. In the event that the last e-mail address you provided to Skysurfer is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Skysurfer’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Skysurfer at the following address: info@skysurferaircraft.com. Such notice will be deemed given when received by Skysurfer at the address above or by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to SkySurfer Aircraft 201 E Center St Ste 112 PMB 3048 Anaheim, CA 92805.
20. Consent to Electronic Communications.
The communications between you and Skysurfer use electronic means, whether you visit our website or send us emails, or whether we post notices on our website or communicate with you via e-mail. For contractual purposes, you (1) consent to receive communications from Skysurfer in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Skysurfer provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.