RainStick Preorder Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PREORDERING RAINSTICK SHOWER OR SHOWERS AND USING ITS RELATED WEBSITE AND APPLICATION TOOLS. THIS IS INTENDED TO BE A BINDING AGREEMENT, ENFORCEABLE AGAINST YOU, AND BY CLICKING THE “ACCEPT” BUTTON BELOW, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN.
These Preorder Terms & Conditions (the “Agreement”) by and between Pledge Resource Managers Inc. Dba RainStick Shower, a Canadian corporation (“RainStick Shower”), and you as the identified customer that has accepted this Agreement (the “Customer"). This Agreement is entered into as of the day that the Customer clicks the “accept” button (the “Effective Date”).
The word “you” in this Agreement refers to the Customer. The word “us” in this Agreement refers to RainStick Shower.
WHEREAS this Agreement governs the placing of a preorder (“Preorder”) for a RainStick Shower and your legal rights and obligations with respect thereto. To the extent RainStick Shower offers variants, or models, of the Shower, your Preorder will apply to the variant you selected at the time of placing your Preorder; references to “Shower” below shall refer to such Shower variant.
WHEREAS the Customer intends to Preorder one or more Showers pursuant to the electronic purchase confirmation or communication to which these Purchase Terms & Conditions are attached and have been accepted.
NOW THEREFORE in consideration of the mutual covenants and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, RainStick Shower and the Customer (collectively, the “Parties”) agree as follows:
ARTICLE 1 – SCOPE AND NO OBLIGATION
1. By placing a Preorder, you are not ordering a Shower. Each Preorder you submit for a Shower acts as a deposit for a future purchase of a Shower. You are under no obligation to purchase a Shower from us, and we are under no obligation to supply you with a Shower.
2. This Agreement does not constitute an agreement for the sale, lease or subscription of a Shower and does not lock in pricing, a firm production slot, a firm delivery date, a specific Shower type, model, size or configuration. When the start of production for your Preorder nears, we will ask you to confirm these details. The order will be finalized only once you have placed a final order for the purchase of your Shower(s) (the “Final Order”) and executed the corresponding Shower Purchase Agreement (the “Shower Purchase Agreement”), which shall set forth the agreed specifications and purchase price for your Shower(s), plus estimates of any applicable taxes, duties, transport and delivery charges, along with any other applicable fees, terms and conditions. The Final Order and Shower Purchase Agreement may be made with another RainStick Shower entity or authorized distributor.
3. Until you place a Final Order and enter into a Shower Purchase Agreement, your Preorder may be cancelled at any time by you or by RainStick Shower, in which case you will receive a full refund of your Preorder Payment.
4. 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 Preorder Payment will be refunded.
ARTICLE 2 – PREORDER ELIGIBILITY
1. In accepting this Agreement you hereby represent and warrant that you have the capacity to enter into a legal agreement in the province, state, territory or country in which you reside. To Preorder a Shower, you must be at least 18 years of age (or older, if required by the legal age to contract in your place of residence). At launch, the Preorder program shall be restricted to Canadian and United States residents only, however RainStick Shower may in its discretion extend eligibility to residents of other eligible jurisdictions (which shall be indicated by the option to select such jurisdiction during the Preorder signup process). You may not participate in the Preorder program where doing so would be prohibited by any applicable laws or regulations.
2. By agreeing to this Agreement, you represent and warrant to us that you are at least 18 years of age and a resident of Canada or the United States or another eligible jurisdiction (indicated by the option to select such jurisdiction during the Preorder signup process). If you are Preordering a Shower on behalf of a company, organization or entity (an “Entity”) located in Canada, United States or another eligible jurisdiction, you represent and warrant that you have the authority to bind that Entity to this Agreement and such Entity agrees to be bound by this Agreement. The Company reserves the right to exclude any person or Entity from participation in the Preorder program in its sole and absolute discretion.
ARTICLE 3 – PAYMENT
3.1 You will be charged the deposit fee indicated (the “Preorder Payment”) when you place your Preorder. Payments will be due on the Effective Date. Placing a Preorder constitutes your express agreement to be charged for the amount of the Preorder Payment, in addition to any taxes or additional processing fees (not subject to refund), where applicable, using your provided payment method. Your Preorder Payment will be held by RainStick Shower in a separate account designated solely for Preorders. If you ultimately proceed with the order of your Shower(s), we will apply your Preorder Payment (or applicable portion) towards the Final Order payment. Additional payment for ordered Shower(s), including applicable taxes and fees, will be required at that time. All prices and amounts are set forth in the applicable currency for the country of shipping origin (or as otherwise set forth in Preorder documentation.
ARTICLE 4 – NO GUARANTEE OF PRODUCT SPECIFICATIONS OR DELIVERY DATE
1. You understand and acknowledge that RainStick Shower has not completed the development or begun manufacturing of the Shower(s) at the time of your Preorder and that many current Shower specifications, options and features are conceptual in nature and have not yet been determined or finalized. You further understand and acknowledge that the actual Shower(s) available for purchase or services offered by RainStick Shower may differ from the Showers or services presented to you on RainStick Shower’s website, in emails, in RainStick Shower marketing materials or elsewhere, including without limitation with respect to estimated pricing, specifications, options, accessories, geographic availability, estimated cost of ownership or other features or claims. By agreeing to this Agreement, you represent and warrant to us that you understand that the Shower specifications may change prior to the date you place a Final Order for your Shower(s).
2. There is no guarantee as to delivery date based on the date you place your Preorder or to priority access to a Shower. However, by placing a Preorder, we recognize your early interest in RainStick Shower Shower’s and will endeavor to produce your Shower(s) in the future and hope to provide you with approximate priority for ordering your Shower(s) once they are available. The actual date of availability or delivery for any Shower(s) will depend on a variety of factors, including without limitation our development and manufacturing schedule, the delivery jurisdiction, and the date you place a Final Order. Certain parties, e.g., RainStick Shower customers who had previously signed up for The Waitlist, may be given priority over other Preorder program participants.
3. You hereby acknowledge and agree that you will be responsible for all shipping and handling costs, and for any duties, tariffs or other taxes payable in connection with the transactions contemplated in the Shower Purchase Agreement, whether or not such costs and/or other amounts are set forth or specifically contemplated in the Shower Purchase Agreement.
ARTICLE 5 – CANCELLATION; REFUND PROCESS
1. You may cancel your Preorder and receive a full refund of your Preorder Payment at any time by sending an email to email@example.com from the address you used to place the Preorder or an updated address you have provided to RainStick Shower. To prevent fraud, RainStick Shower may, in its discretion, also ask you to supply additional information or complete additional steps to verify your identity.
2. RainStick Shower may cancel your Preorder at any time and will issue a full refund of your Preorder Payment to the address or account on file.
ARTICLE 6 – ACCURACY OF INFORMATION
6.1 In connection with placing your Preorder, we ask you to provide your name, phone number, postal code, email address and other identifying information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. The Company shall have no responsibility or liability for inaccurate information or information that later becomes outdated and shall have no obligation to make efforts to determine the correct contact information. You can update your information at any time by sending an email to firstname.lastname@example.org.
ARTICLE 7 – PRIVACY AND COMMUNICATIONS
ARTICLE 8 – WARRANTY
8.1 Subject to the exceptions listed below, RainStick Shower warrants each Shower to be free from defects in material and workmanship for a period of two (2) years (the “Warranty Period”) covering parts and labour from the commencement of the Warranty Period. The Warranty Period shall commence on the date of shipment by RainStick Shower. The Customer acknowledges that EXCEPT AS STATED ABOVE, ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED AND THE CUSTOMER ASSUMES ALL RISKS AND LIABILITY RESULTING FROM USE OF ALL GOODS. RAINSTICK SHOWER NEITHER ASSUMES NOR AUTHORIZES ANY PERSONS TO ASSUME FOR RAINSTICK SHOWER ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE GOODS SOLD, AND THERE ARE NO VERBAL AGREEMENTS OR WARRANTIES COLLATERAL TO OR AFFECTING THIS WRITTEN WARRANTY. THE PARTIES ACKNOWLEDGE THAT THIS EXCLUSION OF WARRANTIES AND THE LIMITATION OF LIABILITIES BELOW ARE REASONABLE AND CONSTITUTE THE BASIS OF THE BARGAIN.
ARTICLE 9 – LIABILITY
(a) By participating in the Preorder program, you agree to be bound by this Agreement. You further agree to release and hold harmless the Company and its affiliates and subsidiaries, together with their respective employees, directors, officers, shareholders, attorneys and agents including, without limitation, their respective advertising and promotion entities and any person or entity associated with the production, operation or administration of the Preorder program (collectively, the “Released Parties”), from any and all claims, demands, damages, losses, liabilities, costs or expenses of any kind, whether direct or indirect (“Liabilities”), caused by, arising out of, in connection with or related to your participation in the Preorder program (including, without limitation, any property loss, damage, personal injury or death caused to any person(s), the unauthorized or illegal access to personally identifiable or sensitive information or the administration of the Preorder program).
(b) You expressly understand and agree that the Preorder program is provided and administered on an “as is” and “as available” basis without warranties, representations or guarantees of any kind, either express or implied, including, but not limited to, warranties or conditions or merchantability, fitness for a particular purpose and non-infringement. The Company makes no warranties or representations about the accuracy or completeness of the content provided through the Company’s website or social media accounts, or on any sites linked to any of the foregoing and assumes no liability or responsibility in contract, warranty or in tort for any of the foregoing.
(c) The Released Parties shall not be liable to you for any failure to perform by reason of any unavailability of supply, financial hardship of the Company (at the Company’s discretion), acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, natural disaster or unusually severe weather, pandemic, epidemic or other public health emergency, terrorism, war, fire, flood, labor dispute, transportation interruption of any kind or any other cause beyond any of the Released Parties' reasonable control.
(d) UNDER NO CIRCUMSTANCES WHATSOEVER, SUBJECT ONLY TO THE LIMITS OF APPLICABLE LAW, SHALL ANY OF THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, ENHANCED, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR LOSS OF OPPORTUNITY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT OR THE PREORDER PROGRAM, REGARDLESS OF THE BASIS OR CIRCUMSTANCES OF ANY CLAIM, DAMAGE, LOSS OR EXPENSE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY LIABILITIES.
(e) TO THE FULLEST EXTENT POSSIBLE BY LAW, IN THE EVENT THAT THE RELEASED PARTIES ARE HELD LIABLE FOR ANY LIABILITIES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE PREORDER PROGRAM, THE RELEASED PARTIES’ MAXIMUM CUMULATIVE LIABILITY, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PLEDGE RESOURCE MANAGERS INC. d/b/a RAINSTICK SHOWER BY YOU PURSUANT TO THIS AGREEMENT.
The Company's failure to enforce any term of this Agreement shall not constitute a waiver of that provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.
ARTICLE 10 – INTELLECTUAL PROPERTY
10.1 Each Shower, and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to each Shower, all modifications, changes, enhancements, or additions thereto) are owned by RainStick Shower.
ARTICLE 11 – DISPUTES
(a) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, your rights and obligations or the rights and obligations of the Company in connection with the Preorder program, shall be governed by, and construed in accordance with, the laws of the Province of Ontario, without giving effect to any choice of law or conflict of law rules (whether of Ontario or any other jurisdiction) which would cause the application of the laws of any jurisdiction other than Ontario.
(b) The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and located in the City of Kitchener for any legal proceedings arising out of this Agreement or the performance of the obligations hereunder.
(c) To the fullest extent permitted by applicable law, you and the Company agree to arbitrate all disputes and claims between us. Any claim or controversy arising out of or relating to this Agreement, the Preorder program and/or your relationship or interactions with the Company with respect to such matters shall be settled by binding arbitration before a single, neutral arbitrator in Ontario, Canada.
(d) The arbitrator, and not any federal, provincial, 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 Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Each party shall pay the fees of its own attorneys, the expenses of its witnesses and all other expenses connected with presenting its case; however, you and the Company agree that, except as may be prohibited by law, the arbitrator may, in his or her discretion, award reasonable attorney’s fees to the prevailing party. Except as may be prohibited by law, other costs of the arbitration, including the cost of any record or transcripts of the arbitration, administrative fees, the fee of the sole arbitrator, and all other fees and costs, shall be borne equally by the parties.
(e) IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER CLAIM FROM OTHER CURRENT OR FORMER CUSTOMERS OR OTHERWISE RELATED TO THE PREORDER PROGRAM. NO CLAIM BROUGHT UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THE PREORDER PROGRAM SHALL PROCEED AS A CLASS ACTION. 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.
(f) FURTHER, YOU HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. YOU AGREE THAT WE MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG US TO IRREVOCABLY WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER BETWEEN US RELATING TO THIS AGREEMENT SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
(g) You may opt-out of the agreement to arbitrate, or the class action waiver, or both within 60 days from the date you submit your Preorder by sending an email to email@example.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 the arbitration provision” or “Opt-out of the class action waiver”. You agree that any request will not apply to subsequent agreements between you and the Company unless you follow the requirements outlined in that other agreement.
(h) This Section shall survive any termination of this Agreement.
ARTICLE 12 – TELEPHONE CONCUMSER PROTECTION ACT
12.1 By agreeing to this Agreement, you understand and acknowledge 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, automatic telephone dial devices and/or other methods. 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, texts or emails by contacting firstname.lastname@example.org.
ARTICLE 13 – ASSIGNMENT AND NON-TRANSFERABILITY
13.1 You may not assign or otherwise transfer your rights under this Agreement without express prior consent of RainStick Shower. RainStick Shower may assign this Agreement in their discretion without your consent.
ARTICLE 14 – RIGHT TO CANCEL, MODIFY OR TERMINATE; SEVERABILITY
14.1 We reserve the right to make changes or additions to this Agreement or to cancel, modify or terminate the Preorder program at any time for any reason, including if a Shower does not go into production as scheduled for any reason. We reserve the right to disqualify any person or entity at any time from participation in the Preorder program if we have a good faith belief that he/she has violated any terms of this Agreement. If for any reason a court of competent jurisdiction finds any provision of these Terms, or portion thereof, 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.
ARTICLE 15 –TERM
15.1 The terms of this Agreement shall remain in effect, on the same terms and conditions as provided herein, unless, one Party notifies the other Party in writing of the termination of this Agreement at least 30 days prior to the effective date of such termination (the period from the date hereof to the date of such termination, the “Term”). Except as otherwise set forth herein, any termination by either party will be treated as a cancellation under Article 5 hereof.
ARTICLE 16 – NOTICES
16.1 All notices under the terms of this Agreement shall be given in writing and sent by email, registered mail or facsimile transmission or shall be delivered by hand to the addresses set forth in this Agreement. All notices shall be presumed to have been received on the business day (in the Province of Ontario) after they are hand delivered or confirmed received by nationally recognized courier service, confirmed email or other electronic communication mechanism, or five (5) business days (in the Province of Ontario).
ARTICLE 17 – ENTIRE AGREEMENT
17.1 This Agreement together with any other documents referred to herein shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall replace all prior promises or understandings, oral or written.
If there are any questions regarding this preorder terms of service, you may contact us using the information below.
Pledge Resource Manager’s Inc. (RainStick Shower)
550 Burrard St #2300
Vancouver, British Columbia V6C 2B5