1.YOUR RIGHTS AND OBLIGATIONS
(a)THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
(b)THESE TERMS REQUIRE THE USE OF INFORMAL NEGOTIATION AND, IF UNSUCCESSFUL, NON-BINDING MEDIATION BEFORE ANY LEGAL PROCEEDING MAY BE COMMENCED; REQUIRE DISPUTES IN WHICH THE AMOUNT IN CONTROVERSY EXCEEDS US$30,000 TO BE RESOLVED EXCLUSIVELY BY FINAL AND BINDING ARBITRATION IN TULSA, OKLAHOMA; REQUIRE ALL OTHER DISPUTES TO BE RESOLVED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN TULSA COUNTY, OKLAHOMA; AND WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.
(c)BY SUBMITTING A RESERVATION REQUEST AND PAYING THE RESERVATION PRIORITY FEE THROUGH THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS, AND YOU REPRESENT, WARRANT, AND COVENANT THAT (i) YOU ARE A DULY FORMED AND VALIDLY EXISTING BUSINESS ENTITY ACTING THROUGH AN AUTHORIZED REPRESENTATIVE WITH FULL LEGAL CAPACITY AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS; (ii) YOU ARE SUBMITTING THE RESERVATION REQUEST EXCLUSIVELY FOR COMMERCIAL, ENTERPRISE, INDUSTRIAL, GOVERNMENTAL, OR PROFESSIONAL USE, AND NOT FOR ANY PERSONAL, FAMILY, OR HOUSEHOLD PURPOSE; (iii) YOU ARE NOT A “CONSUMER” UNDER THE FEDERAL TRADE COMMISSION ACT, THE MAGNUSON-MOSS WARRANTY ACT, THE OKLAHOMA CONSUMER PROTECTION ACT, OR ANY OTHER APPLICABLE FEDERAL OR STATE CONSUMER PROTECTION STATUTE; AND (iv) THE PLATFORMS RESERVED HEREUNDER ARE NOT, AND ARE NOT BEING ACQUIRED AS, “CONSUMER PRODUCTS” WITHIN THE MEANING OF 15 U.S.C. § 2301(1) OR ANY ANALOGOUS STATE STATUTE. ENCOR INDUSTRIES, INC. IS AN ENTERPRISE-ONLY MANUFACTURER AND DOES NOT SELL OR ACCEPT RESERVATIONS FROM INDIVIDUAL CONSUMERS.
(d)YOU MAY NOT SUBMIT A RESERVATION REQUEST OR OBTAIN ANY RESERVATION PRIORITY POSITION THROUGH THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS; (ii) ARE NOT A VALIDLY EXISTING BUSINESS ENTITY ACQUIRING THE RESERVATION SOLELY FOR COMMERCIAL, ENTERPRISE, INDUSTRIAL, GOVERNMENTAL, OR PROFESSIONAL USE; (iii) ARE UNABLE TO TRUTHFULLY AFFIRM EACH OF THE REPRESENTATIONS AND COVENANTS SET FORTH IN SECTION 1(c); (iv) HAVE NOT PROVIDED A VALID LEGAL BUSINESS NAME AND STATE OR JURISDICTION OF FORMATION ON THE RESERVATION REQUEST FORM; OR (v) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
(e)These terms and conditions (these "Terms") apply to the submission of commercial reservation requests for, and the eventual offer for sale and conditional reservation of, autonomous and remotely operated aerial platforms and related goods and services manufactured by EnCor Industries, Inc. (the “Platforms”) through www.encorinc.com (the "Site"). These Terms are subject to change by EnCor Industries Inc., a Delaware corporation with its principal place of business in Tulsa, Oklahoma (referred to as "us," "we," or "our" as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the "Last Updated Date" referenced on the Site. You should review these Terms prior to submitting any Reservation Request or making any payment through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
(f) These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site. You should also carefully review our Privacy Policy before submitting any Reservation Request through this Site (see Section 10).
2. Reservation Request; No Acceptance Absent Shipment. You agree and acknowledge that your online submission through the Site (a “Reservation Request”) constitutes solely a non-binding offer by you to acquire a non-transferable, revocable priority position on EnCor’s reservation waitlist for the Platforms described in your Reservation Request, and is not an offer or agreement to purchase any specific, identified, or unidentified goods. No contract for the sale of goods is formed, and no goods are identified to the contract within the meaning of UCC § 2-501 or any analogous statute, by virtue of your Reservation Request, your payment of the Reservation Priority Fee, EnCor’s receipt of such fee, or any automated acknowledgment or confirmation email generated by the Site. EnCor reserves the absolute and unconditional right, in its sole and unfettered discretion, to accept, reject, modify, defer, cancel, or rescind any Reservation Request at any time and for any reason or no reason, including (without limitation) after EnCor has generated or transmitted any automated confirmation email, order number, queue position, serial number, or other acknowledgment. Acceptance of a Reservation Request, if it occurs at all, shall occur only upon, and shall be effective only as of, EnCor’s actual shipment of a conforming Platform pursuant to a separately executed purchase agreement. Any eventual purchase of a Platform, if offered by EnCor, shall be governed by a separate written purchase agreement and not by these Terms.
3. Reservation Priority Fee; Non-Refundable; Use of Funds.
(a) In exchange for, and solely in consideration of, the issuance of a non-transferable and revocable priority position on EnCor’s reservation waitlist for the Platforms (a “Reservation Priority Position”), you shall pay to EnCor a fee in the amount stated on the Site at the time of submission of your Reservation Request and confirmed in EnCor’s confirmation email or order acknowledgment to you (the “Reservation Priority Fee”), which amount is fully earned by EnCor upon receipt as set forth below. EnCor may modify the published Reservation Priority Fee, or establish multiple tiers of Reservation Priority Fees, from time to time in its sole discretion; provided that the Reservation Priority Fee applicable to your Reservation Request shall be the amount in effect on the Site at the time you submit your Reservation Request and pay such fee. The Reservation Priority Fee is not a deposit, down payment, prepayment, escrow, trust deposit, partial purchase price, or any other form of consideration for the purchase or sale of identified or unidentified goods, and it does not create, evidence, or convey any present, future, contingent, equitable, or in rem right, title, interest, or property of any kind in or to any Platform, component, work-in-progress, raw material, intellectual property, or other asset of EnCor. The Reservation Priority Fee is fully earned by EnCor upon receipt and is non-refundable in whole or in part under any circumstances, including (without limitation) any delay, modification, or cancellation of any Platform program, any failure or refusal by EnCor to ship any Platform, any rejection or cancellation of a Reservation Request, or your election to withdraw, transfer, or repudiate your Reservation Request. All Reservation Priority Fees, immediately upon receipt by EnCor, shall be deposited into EnCor’s general operating account and shall constitute unrestricted corporate revenue of EnCor, available to be used by EnCor in its sole and unfettered discretion for any lawful corporate purpose, including (without limitation) general working capital, research and development, engineering, tooling, component procurement, vendor and subcontractor obligations, payroll, overhead, debt service, distributions, and any other operational expenditure. You expressly acknowledge, agree, and covenant that: (i) no trust, escrow, bailment, fiduciary, agency, joint venture, partnership, or similar relationship of any kind is created by these Terms or by your payment of the Reservation Priority Fee; (ii) EnCor is not required to, and shall not be deemed to, segregate, hold separately, account for, or otherwise restrict the use of any Reservation Priority Fee; (iii) you are and shall remain a general unsecured creditor of EnCor with respect to any claim arising out of or related to the Reservation Priority Fee or your Reservation Request, holding no priority, preference, security interest, lien, or in rem claim against EnCor or any of its property, and standing behind all secured creditors, all priority creditors, and the costs of winding up in any insolvency, receivership, assignment for the benefit of creditors, dissolution, reorganization, or bankruptcy proceeding; and (iv) the Reservation Priority Fee is not a “deposit” for goods or services within the meaning of 11 U.S.C. § 507(a)(7) or any analogous federal or state statute, and you waive, to the maximum extent permitted by law, any claim to priority treatment thereunder. The Reservation Priority Fee is not, and is not intended to be construed as, an investment contract, security, equity interest, profit-sharing arrangement, or instrument of any other character, and you acknowledge that you are acquiring no expectation of profit from the efforts of EnCor or any third party.
(b) Terms of payment of the Reservation Priority Fee are within EnCor’s sole discretion. Payment of the Reservation Priority Fee in full and in immediately available U.S. funds must be received by EnCor at the time of submission of the Reservation Request, and the Reservation Priority Fee is deemed fully earned by EnCor upon receipt and is non-refundable as provided in Section 3(a) above and Section 5 below. EnCor accepts Visa, Mastercard, American Express, and Discover commercial credit cards, and ACH transfers from accounts in the name of the reserving business entity, for all Reservation Priority Fee payments. You represent and warrant that (i) the payment card or other payment information you supply to us is true, correct, and complete; (ii) you are duly authorized to use such payment method on behalf of the reserving business entity for the payment of the Reservation Priority Fee; (iii) charges incurred by you in respect of the Reservation Priority Fee will be honored by your payment processor or financial institution, and you irrevocably waive any right to initiate or maintain a chargeback, payment reversal, ACH return, or similar dispute with respect to the Reservation Priority Fee, except in cases of demonstrable unauthorized use of the payment instrument; and (iv) you will pay the Reservation Priority Fee in full, together with any applicable taxes, transaction fees, or assessments imposed on you by applicable law, without offset, counterclaim, or deduction of any kind.
4. Shipments; Delivery; Title and Risk of Loss.
(a) If, and only if, EnCor in its sole discretion accepts a Reservation Request and offers the holder of a Reservation Priority Position the opportunity to acquire a Platform pursuant to a separately executed written purchase agreement, EnCor will arrange for shipment of the applicable Platform on terms set forth in such separate purchase agreement. Nothing in these Terms obligates EnCor to ship, deliver, manufacture, complete, or make available any Platform to you, and no payment of the Reservation Priority Fee creates any such obligation. All shipping and handling charges, taxes, duties, insurance, and similar costs associated with any eventual delivery shall be paid by you in addition to, and not in lieu of, the Reservation Priority Fee.
(b)No title, risk of loss, special property, ownership interest, or other right or interest in any Platform passes to you by reason of these Terms or your payment of the Reservation Priority Fee, and no Platform is identified to any contract within the meaning of UCC § 2-501. Any anticipated availability or delivery timing for a Platform shall be communicated solely as a non-binding, fluid “Target Season” (for example, “Expected Window: Winter 2026”) and is a non-binding, good-faith estimate only, expressed as a range of months or a calendar season. Target Seasons are subject to change, deferral, advancement, or cancellation by EnCor at any time and for any reason, do not constitute a guarantee, warranty, commitment, promise, or firm contractual deadline of any kind, and do not give rise to any right of cancellation, damages, or remedy of any kind in your favor. TIME IS NOT OF THE ESSENCE WITH RESPECT TO ANY PERFORMANCE OR DELIVERY OBLIGATION OF ENCOR UNDER THESE TERMS, AND NO DELAY, EXTENSION, RESCHEDULING, OR FAILURE TO MEET ANY TARGET SEASON, ESTIMATED WINDOW, ANTICIPATED MILESTONE, OR OTHER NON-BINDING TIMING REFERENCE SHALL CONSTITUTE A BREACH OF THESE TERMS, A MATERIAL BREACH, AN ANTICIPATORY REPUDIATION, A FAILURE TO PERFORM WITHIN A REASONABLE TIME UNDER UCC § 2-309, OR ANY OTHER DEFAULT BY ENCOR, AND YOU SHALL HAVE NO RIGHT TO CANCEL, RESCIND, OR DEMAND REFUND OF THE RESERVATION PRIORITY FEE ON ACCOUNT OF ANY SUCH DELAY OR RESCHEDULING. EnCor shall not be liable for any delay, deferral, or non-delivery, and you waive any claim for cover damages, incidental damages, consequential damages, or other relief on account of any such delay, deferral, or non-delivery, subject only to the exclusive remedies expressly provided in Section 6 below. Without limiting the foregoing, EnCor shall not be liable for any failure or delay in the performance of any obligation under these Terms caused by or resulting from any cause beyond EnCor’s reasonable control, including (without limitation) acts of God, government action, natural disaster, war or civil unrest, public health emergency, supply chain disruption, semiconductor or component shortage, engineering or certification delay, change in regulatory framework affecting unmanned aircraft systems, or other event of force majeure.
5.No Returns; No Refunds of Reservation Priority Fees. ALL RESERVATION PRIORITY FEES PAID TO ENCOR ARE FULLY AND IMMEDIATELY EARNED BY ENCOR UPON RECEIPT AND ARE COMPLETELY NON-REFUNDABLE, IN WHOLE OR IN PART, UNDER ANY AND ALL CIRCUMSTANCES. Without limiting the foregoing, no refund, credit, rebate, or other return of the Reservation Priority Fee shall be available on account of: (i) any delay in, deferral of, or failure to achieve any Target Season or other timing estimate; (ii) any modification, redesign, or discontinuation of any Platform program or specification; (iii) EnCor’s rejection, cancellation, or rescission of a Reservation Request in its sole discretion; (iv) your election to withdraw, repudiate, or transfer your Reservation Request; (v) your dissatisfaction with the published specifications or marketing of the Platforms; (vi) any insolvency, restructuring, or change of control of EnCor; or (vii) any other circumstance whatsoever, except solely the limited refund-of-Reservation-Priority-Fee remedy expressly elected by EnCor in its sole discretion under Section 6 below. The non-refundability of the Reservation Priority Fee is a material inducement to EnCor to issue any Reservation Priority Position and is bargained-for consideration that is not subject to challenge under UCC § 2-302, the doctrine of failure of consideration, or any analogous legal or equitable theory.
6. Limited Warranty.
(a) No Warranty Under These Terms; Warranty Deferred to Purchase Agreement. These Terms govern only your Reservation Request and the Reservation Priority Position (if any) issued in response thereto, and do not constitute, and shall not be construed as, an offer, sale, or warranty of any Platform, component, software, firmware, documentation, service, or other deliverable. EnCor makes no representation, warranty, covenant, or undertaking of any kind, whether express or implied, under or in connection with these Terms with respect to any Platform or any related item. If, and only if, EnCor in its sole discretion offers you the opportunity to purchase a Platform and you and EnCor execute a separate written purchase agreement governing such sale, then any warranty applicable to such Platform shall be governed exclusively by the express terms of that separate purchase agreement, and the warranty scope, duration, notice procedures, remedies, limitations, and exclusions set forth in that purchase agreement (and not these Terms) shall control. For the avoidance of doubt, nothing in these Terms creates any future obligation on the part of EnCor to offer any Platform for sale or to grant any warranty on any Platform.
(b)WITHOUT LIMITING SECTION 6(a), ENCOR MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THESE TERMS, ANY RESERVATION REQUEST, ANY RESERVATION PRIORITY POSITION, OR ANY PLATFORM, AND ENCOR EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; AND (v) ANY WARRANTY ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE BY OPERATION OF LAW. THE FOREGOING DISCLAIMERS ARE MADE CONSPICUOUSLY AND IN WRITING FOR PURPOSES OF UCC §§ 1-201(b)(10) AND 2-316 AND ALL ANALOGOUS PROVISIONS OF APPLICABLE STATE LAW. NO IMPLIED WARRANTY OF ANY KIND SHALL SURVIVE THESE TERMS OR ANY ASSOCIATED RESERVATION REQUEST, RESERVATION PRIORITY POSITION, OR PLATFORM SALE.
(c) Sole and Exclusive Remedy. As your sole and exclusive remedy and EnCor’s entire liability for any claim, dispute, or controversy of any kind arising out of or relating to these Terms, any Reservation Request, any Reservation Priority Position, or any failure, deferral, modification, rescission, or cancellation of any of the foregoing, EnCor may elect, in its sole and unfettered discretion, to refund to you an amount equal to the Reservation Priority Fee actually paid by you to EnCor, upon which refund EnCor shall be fully and finally released and discharged from any and all liability of any kind arising out of or relating to these Terms, the Reservation Request, the Reservation Priority Position, and any Platform. The parties expressly agree that the foregoing exclusive remedy is bargained-for consideration material to EnCor’s agreement to accept any Reservation Request, and that, notwithstanding any allegation that the foregoing exclusive remedy has failed of its essential purpose under UCC § 2-719(2) or any analogous statute, the disclaimers of warranty in Section 6(b), the limitation of damages in Section 7, and the non-refundability of the Reservation Priority Fee under Sections 3 and 5 shall each remain in full force and effect, are severable from this exclusive-remedy provision, and shall not be voided by any such allegation.
7. Limitation of Liability.
(a)IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE RESERVATION REQUEST, THE RESERVATION PRIORITY POSITION, OR ANY PLATFORM, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY DUTY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), MISREPRESENTATION, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF THE RESERVATION PRIORITY FEE ACTUALLY PAID BY YOU TO ENCOR HEREUNDER. THE LIMITATIONS SET FORTH IN THIS SECTION 7 ARE INTENDED TO APPLY, AND SHALL APPLY, INDEPENDENTLY OF, AND SHALL SURVIVE, ANY ALLEGED FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY SET FORTH IN SECTION 6 OR ELSEWHERE IN THESE TERMS, AND ARE SEVERABLE FROM SUCH REMEDY.
8. Goods Not for Resale or Export. You acknowledge and agree that any Platform you may acquire from EnCor in the future will be acquired solely for your own commercial use and not for resale or export, and any such acquisition will be subject to EnCor’s then-current export-compliance, ITAR, EAR, and other applicable legal requirements set forth in the separately executed purchase agreement governing such acquisition. EnCor may refuse to offer any Platform for sale to any person or entity in any jurisdiction in its sole discretion.
9. Intellectual Property Use and Ownership. You acknowledge and agree that:
(a) No license, right, title, or interest in or to any Platform, software, firmware, documentation, specification, trademark, patent, copyright, trade secret, or other intellectual property of EnCor or its licensors is granted to you under these Terms, whether by implication, estoppel, exhaustion, first sale, or otherwise.
(b) Any license terms, use restrictions, reverse-engineering prohibitions, confidentiality obligations, and other intellectual-property protections applicable to a Platform actually sold to you, or to any software, firmware, or service associated with such Platform, will be set forth exclusively in the separately executed purchase agreement and any associated software, firmware, or service license agreement, and those agreements shall control all of EnCor’s intellectual property rights in connection with such Platform. The doctrines of patent exhaustion (including the first-sale doctrine in patent law) and the copyright first-sale doctrine (17 U.S.C. § 109) do not apply to these Terms because no goods, software, or other intellectual property is sold or transferred to you under these Terms.
10. Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, https://encorinc.com/privacy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Site.
11. Governing Law; Forum; Equitable Relief. All matters arising out of or relating to these Terms, any Reservation Request, any Reservation Priority Position, any Platform, and any related transaction or relationship (whether sounding in contract, tort, statute, or otherwise) are governed by and construed in accordance with the internal laws of the State of Oklahoma, without giving effect to any choice or conflict of law provision or rule (whether of the State of Oklahoma or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Oklahoma. Subject to the mandatory pre-suit negotiation and mediation procedures and the tiered dispute-resolution provisions of Section 12, (a) any Dispute (as defined in Section 12) in which the aggregate amount in controversy, exclusive of interest and attorneys’ fees, does not exceed US$30,000 shall be brought, heard, and finally adjudicated on the merits exclusively in the District Court of Tulsa County, Oklahoma (including, where applicable, its small claims division), or, if subject matter jurisdiction exists, the United States District Court for the Northern District of Oklahoma, Tulsa Division; and (b) any action, suit, or proceeding seeking to compel arbitration, to confirm, vacate, modify, or enforce an arbitral award, or otherwise permitted by Section 12 to be brought in court, shall likewise be brought exclusively in the same courts. Each party irrevocably consents to the personal jurisdiction of, and venue in, such courts, waives any objection on the basis of forum non conveniens, and waives any right to remove any such proceeding to any other court except pursuant to 28 U.S.C. § 1441 as between the listed Tulsa state and federal courts. Notwithstanding the foregoing or anything to the contrary in Section 12, EnCor shall be entitled (but not obligated) to seek and obtain injunctive, equitable, or other provisional relief, including ex parte relief, in any court of competent jurisdiction wherever located, to enforce, protect, or prevent the breach of EnCor’s intellectual property rights, confidentiality rights, or the restrictions in Section 8 and Section 9, without posting bond, and without prejudice to its right to compel arbitration of the underlying dispute. You waive any right to seek equitable or injunctive relief against EnCor outside of arbitration.
12. Waiver of Jury Trials and Binding Arbitration.
(a)YOU AND ENCOR INDUSTRIES INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, AND ARE WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, CONSOLIDATED ACTION, OR REPRESENTATIVE PROCEEDING OF ANY KIND. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
FOR PURPOSES OF THIS SECTION 12, A “DISPUTE” MEANS ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE; WHETHER PRE-EXISTING, PRESENT, OR FUTURE; AND INCLUDING STATUTORY, CONSUMER-PROTECTION, COMMON-LAW, INTENTIONAL-TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND ENCOR ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS, ANY RESERVATION REQUEST, ANY RESERVATION PRIORITY POSITION, ANY PLATFORM, OR ANY RELATED TRANSACTION OR RELATIONSHIP. EVERY DISPUTE IS SUBJECT TO THE MANDATORY PRE-SUIT NEGOTIATION AND MEDIATION REQUIREMENTS SET FORTH IN SECTION 12(b) BELOW. IF, AND ONLY IF, A DISPUTE REMAINS UNRESOLVED AFTER COMPLIANCE WITH THOSE PROCEDURES, THEN: (i) ANY DISPUTE IN WHICH THE AGGREGATE AMOUNT IN CONTROVERSY, EXCLUSIVE OF INTEREST AND ATTORNEYS’ FEES, EXCEEDS US$30,000 SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED IN ACCORDANCE WITH SECTION 12(c) AND 12(d); AND (ii) ANY OTHER DISPUTE SHALL BE RESOLVED EXCLUSIVELY IN THE TULSA COURTS DESIGNATED IN SECTION 11, ON THE MERITS, WITHOUT A JURY AND WITHOUT CLASS OR REPRESENTATIVE PROCEDURES.
(b) Pre-Suit Negotiation and Mediation. Before commencing any arbitration under Section 12(c) or any judicial proceeding on the merits in the courts identified in Section 11, the party asserting a Dispute (the “Claimant”) shall first deliver to the other party (the “Respondent”) written notice (a “Dispute Notice”) describing the Dispute in reasonable detail, identifying the relief sought, and including the Claimant’s good-faith calculation of the amount in controversy. Upon delivery of a Dispute Notice, the parties shall negotiate in good faith for a period of not fewer than thirty (30) calendar days in an attempt to resolve the Dispute informally, including, at the request of either party, a senior-executive negotiation between authorized representatives. If the Dispute remains unresolved at the end of such thirty (30)-day period, the parties shall, within an additional fifteen (15) calendar days, jointly select and submit the Dispute to a single mediator under the Commercial Mediation Procedures of the American Arbitration Association (or, if the parties agree, a mediator from another reputable provider), and shall in good faith attend and participate in at least one (1) full mediation session conducted in Tulsa, Oklahoma (which session may, by mutual consent, be conducted by videoconference). The parties shall share the mediator’s fees and the costs of the mediation session equally; each party shall bear its own attorneys’ fees and other expenses. No party may commence any arbitration or judicial proceeding (other than an action seeking injunctive or equitable relief under the carve-out in Section 11) until the procedures in this Section 12(b) have been completed or have been refused by the other party in writing. Any applicable limitations or repose periods are tolled during the pendency of the procedures required by this Section 12(b). All communications, settlement offers, and mediator-prepared materials in connection with the procedures required by this Section 12(b) shall be treated as confidential settlement communications under Federal Rule of Evidence 408 and Okla. Stat. tit. 12, § 1823 and shall not be admissible in any subsequent arbitration or judicial proceeding except for the limited purpose of demonstrating compliance with this Section 12(b).
(c)The arbitration of any Dispute properly subject to binding arbitration under Section 12(a) (i.e., where the aggregate amount in controversy exceeds US$30,000 and the parties have complied with, or one party has refused to participate in, the pre-suit procedures required by Section 12(b)) will be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules") and, where the amount in controversy meets the applicable threshold, the Procedures for Large, Complex Commercial Disputes. The arbitration shall be conducted by a single arbitrator, the seat and legal place of arbitration shall be Tulsa, Oklahoma, and the language of the arbitration shall be English. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding; the arbitrator may not consolidate the claims of more than one person, and may not preside over any form of representative or class proceeding. The Supplementary Rules for Class Arbitrations shall not apply.
(d) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
(e) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
13. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. Notwithstanding the foregoing, EnCor may assign these Terms, in whole or in part, without your consent, to any successor in interest by way of merger, consolidation, sale of all or substantially all of its assets, internal reorganization, or financing arrangement, or to any subsidiary, parent, or affiliate of EnCor, and any such assignee shall be entitled to all rights of EnCor hereunder. Your obligations hereunder shall continue and be binding upon any such assignee.
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 EnCor Industries Inc..
15. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
16. Notices.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: by personal delivery, overnight courier, or registered or certified mail to EnCor Industries Inc., Attn: Legal Claims, 1211 West 36th Street N, Tulsa, Oklahoma 74127, with a courtesy copy by email to legal@encorinc.com. We may update the address or email for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
17. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms. The rights and obligations of the parties under Sections 3, 5, 6, 7, 8, 9, 10, 11, 12, and this Section 17 (and any defined terms used therein) shall survive any termination, expiration, cancellation, or rescission of these Terms, of any Reservation Request, or of any Reservation Priority Position.
18. Entire Agreement. These Terms, together with the Website Terms of Use and Privacy Policy in effect at the time of your Reservation Request, constitute the entire agreement between you and EnCor with respect to the Reservation Request and the Reservation Priority Position, and supersede all prior or contemporaneous communications, representations, and proposals on those subjects. For the avoidance of doubt, nothing in these Terms supersedes, modifies, or limits the separately executed purchase agreement (if any) governing any sale of a Platform, which shall be the sole and exclusive agreement governing such sale and shall control in the event of any conflict with these Terms with respect to the subject matter of that purchase agreement.