SIMULAVR PREORDER AGREEMENT DATED OCTOBER 24th, 2022
This Preorder Agreement (these “Terms” “Preorder Terms,” or “Agreement”) governs the placing of a preorder with SimulaVR, LLC (“SimulaVR”, “Simula” or “we” or “us”) for our hardware offerings (“Headset” or “Offerings”). Please read all of these Preorder Terms carefully before submitting your Preorder. By submitting your Preorder, you agree to be legally bound by these terms.
Product Overview. SimulaVR has road-mapped the Simula One headset and its other hardware offerings (our “Offerings”). Proceeds from our pre-order process are specifically intended to fund the manufacturing and distribution of our Offerings.
Biweekly Updates. SimulaVR commits to offering transparent updates concerning the manufacturing and product development of its Offerings, at a schedule no less frequent than approximately once every two weeks. These updates will be available at www.simulavr.com/blog.
Expected Lead Times are Long. The expected lead time to manufacture our Headsets and other Offerings is long. The most likely outcome is that most headsets will ship at earliest in Q2 2023. Given the admitted uncertainty, we cannot with certainty predict there will be no delays against this schedule.
Delays & Risks. Bringing new technologies to life -- especially hardware products like the Simula One -- involves considerable risk. In order to address this risk, we have people on our team who have experience in hardware & manufacturing. In addition, we also believe our consistent dedication to Linux VR over the past several years has prepared us to meet this project's challenges and deliver on a timely basis.
With all of this said, our familiarity with producing hardware makes us respectful of the ever-present possibility of unpleasant surprises, either in supply chain availability of a critical component, or in the delay of an unexpected certification for a particular country. Our error in these areas could result in delays.
Delivery Guaranteed by End of 2023. We will endeavor to produce your selected Offering against our expected lead times, and your priority will be set by the date of your deposit, our manufacturing schedule, our delivery and service operations availability and execution of the Final Sales Agreement. We only guarantee delivery of our preorder Offerings by end of 2023.
Changes. The Preorder Agreement which appears on our website may change from time to time for customers making future purchases. The terms of this Preorder Agreement, however, will be locked in for orders on the date of the initial deposit.
In the event Simula seeks to materially change the terms of this Preorder Agreement for outstanding depositors, we will email them with the proposed changes and provide them with the opportunity to seek a deposit refund; failure to demand a deposit refund within 30 days will be interpreted as consent for the new term changes.
Our Product Specifications are Subject to Change. Due to supply issues, it’s possible our headset specifications will change slightly or even materially throughout the course of manufacturing. A change in product specification is not a basis for order cancellation or deposit cancellation.
Headset Configuration. You understand that we may not have completed the development of the Headset or begun manufacturing the Headset at the time of your Preorder. SimulaVR’s hardware and software specifications are subject to change at any time. You understand available features have not yet been determined and may change, even after features are announced. By agreeing to this Preorder Agreement you represent and warrant to us that you fully understand that the headset configuration may change in the future.
Launch Pricing: The following is our headset pricing as of preorder launch date (February 11th, 2022). Future headset pricing is subject to change, and will be reflected on our website.
|Headset||Full Deposit Pre-Order Pricing (First Day of Launch)||Full Deposit Pre-Order Pricing||Partial Deposit Pre-Order Pricing||MSRP|
|Simula One||$2,499||$2,699||$1,499 + $1,499 = $2,998||$3,499|
|Simula One (Tethered Edition)||$1,999||$1,999||$1,149 + $1,149 = $2,298||$2,499|
|Simula One (Founders’ Edition)||$4,999||$4,999||N/A||$4,999|
Possible VAT. There is a chance our fulfillment will be handled in Germany, in which case we might have to charge VAT to non-business EU customers.
Taxes, customs, & duties. The customer is responsible for any taxes, customs fees or duties. They may be charged, partially or in full, at a later date.**
Shipping. The customer is responsible for shipping costs, and may be charged, partially or in full, at a later date.
No Obligation. Each Preorder you submit for an Offering acts as a deposit for a future purchase of that Offering. You are under no obligation to purchase from us. We may decline Preorders to avoid over-subscription as we deem appropriate in our sole discretion. If your Preorder is declined, you will be notified and your Preorder payment will be refunded. We are under no obligation to supply you with our Offering. To complete the purchase of an Offering you will need to execute SimulaVR’s standard final Purchase Agreement (“Final Sales Agreement”) which will include additional terms and conditions, including the final price sheet for the Offering you ultimately select (“Your Selected Offering”). The Final Sales Agreement may be made with another SimulaVR entity. Additional payment for Your Selected Offering, including taxes and other governmental fees, will be required at that time.
Immediate Pre-Order. We offer two different ways to make a pre-order.
Making a Full Deposit (“Full Deposit”). The first way is to make a complete, upfront deposit of the entire price of the headset, based on a discounted MSRP.
To receive a headset consumers must then pay any remaining fees (including but not limited to taxes, duties, & shipping fees) within 30 days of advanced request. Failure to pay within 30 days of advance request means either forfeiture of the original deposit, or the requirement to pay the difference between the full MSRP Offering price (plus associated fees) and the initial deposit.
Making a Partial/Half Deposit (“Partial Deposit”). The second way is to pay a half-deposit based on a discounted MSRP price. To receive a headset consumers must pay the other half of the discounted MSRP (and any additional fees) within 30 days of advanced request. Failure to pay within 30 days of advance request means either forfeiture of the original partial deposit or the requirement to pay the difference between the full MSRP (plus associated fees) and the initial partial deposit.
Cancellation/Refund. You may cancel either your Full Deposit or Partial Deposit and receive a full refund within 1 week of the deposit date. Anyone making a deposit will have 1 week to request a deposit refund. After 1 week the deposit becomes non-refundable. You may request a refund within 1 week by sending an email from the address you used to make the preorder to firstname.lastname@example.org. You will receive your refund within approximately 30 business days. In addition, to avoid over-subscription, SimulaVR may cancel your Preorder at any time and will issue a full refund of your Preorder Fee to the address on file.
Deposit is Acceptance. You will be charged when you place a deposit. Placing a deposit constitutes an acknowledgment of and agreement to these terms.
Registration. When placing a deposit for an Offering you represent and warrant that the information you provide is accurate and current. It is your responsibility to keep this information current by emailing email@example.com.
Emails, Text Messages, Notifications, and Telephone Calls. You understand and agree that by providing your wireless telephone number you are consenting to receive calls or texts at that number. 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. Separately, we may seek your prior express written consent for marketing text messages or telephone calls. For all communications, you can control permission for calls texts or push notifications by contacting firstname.lastname@example.org.
Force Majeure. The obligations of you and SimulaVR 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, foreign or domestic war, civil 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.
Severability. If for any reason a court of competent jurisdiction finds any provision, or portion of this Preorder Agreement, to be unenforceable, the remainder of this Preorder 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.
Modification. Any Agreements made, once made, may not be modified, altered or amended unless expressly agreed to in writing by SimulaVR.
No Waivers. The failure by SimulaVR 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 SimulaVR.
Assignment. You may not assign your rights under these Terms without our express prior consent. SimulaVR may assign these Terms or your Preorder Fee in our discretion without your consent. Any assignment in violation of this Agreement will be null and void.
Discontinuation & Cancellation. SimulaVR may cancel your Preorder if an Offering, product, feature, or option is discontinued after you place your Preorder. You will be issued a deposit refund within 30 days of discontinuation or cancellation.
Limitation of Liability; No Consequential or Indirect Damages. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL SIMULAVR 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 PREORDER 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. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL SIMULAVR’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, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO SIMULAVR PURSUANT TO THIS PRE-ORDER AGREEMENT.
Dispute Resolution; Small Claims Court; Arbitration AND Class Action Waived. To the fullest extent permitted by applicable law you and SimulaVR 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 Preorder Agreement or our relationship, including advertising and other communications between you and SimulaVR, SimulaVR products or services, and as applicable, your credit application if any, or the purchase or condition of a Headset (a “Dispute”) in small claims court, Garfield County, Oklahoma unless you and we agree otherwise. Either party may bring an individual action in small claims court consistent with the jurisdictional limits that apply to that forum. You and we understand that we are both waiving our rights to present our claims to a jury and to have claims resolved by a jury trial plus we are also waiving our right to go to arbitration or regular district court (other than small claims court) or federal court.
Class Action Waiver. The parties further agree that any small claims action 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 SIMULAVR AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, NEITHER YOU NOR SIMULAVR WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CONSUMERS IN COURT OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Initial Dispute Resolution Requirement. Most disputes can be resolved without resort to small claims court. For any Dispute, you and we agree that before taking any formal action to initiate a small claims suit we will contact the other in an attempt to resolve the Dispute. You will contact us at email@example.com and provide a brief, written description of the Dispute and your contact information (including your SimulaVR ID, if you have one). We will contact you at your contact information on file with SimulaVR. You and SimulaVR agree to use reasonable efforts to settle any Dispute directly and good faith negotiations shall be a pre-condition to either party initiating a small claims suit in small claims court, Garfield County, Oklahoma.
Fees & Costs. You are responsible for your own attorneys' fees and costs.
Applicable Law. This Agreement, its subject matter, formation and enforceability will be governed by the laws of the State of Oklahoma.
Severability. If any competent legal authority determines any part of this is illegal or unenforceable, then such part will be eliminated and the remainder will remain in force and effect and the unenforceable part shall be deemed to be modified solely to the extent necessary to make it enforceable.
Survival. This Agreement shall survive the end of this Agreement and/or your relationship with SimulaVR, including the end of any promotion or contest, opt-out of communication or other use of or participation in any SimulaVR Product or Service.
Printed Agreement. A printed version of this Agreement and of any notices given in electronic form shall be admissible in a judicial proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.