Reservation Agreement

Thank you for your interest in a Cala 65 Gallon heat pump water heater (“Product”).  These Reservation Terms and Conditions (these “Terms”) set out the terms for you (“you” or “your”) to place a Reservation (“Reservation”) with Cala Systems, Inc. (“Cala”, “we”, “our”, or “us”) for a Product.

THESE TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND CALA AND INCLUDE A DISPUTE RESOLUTION AND ARBITRATION PROVISION UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.  PLEASE READ THESE TERMS CAREFULLY BEFORE SUBMITTING A RESERVATION.

By submitting a Reservation, you are accepting these Terms and entering into a legally binding agreement with Cala (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement).  IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISION IN SECTION 7, DO NOT SUBMIT A RESERVATION.

Each Reservation you submit for a Product is a reservation for a future purchase of the Product.  You are under no obligation to purchase a Product from us, and we are under no obligation to supply you with a Product.  Your Reservation does NOT guarantee a set price for the Product or a firm delivery date and these Terms do not constitute an agreement for the sale of a Product.

When the start of production for your Reservation nears, we will ask you to confirm your intent to purchase the Product, and we will provide a proposal with the final system purchase price of the Product, plus estimates of any applicable taxes, duties, transport and delivery charges, any other applicable fees, and the terms and conditions for your purchase of the Product (the “Purchase Agreement”). After your execution of the Purchase Agreement, the Reservation Fee (defined below in Section 2) is no longer refundable and will be applied to the purchase price for the Product.

You will be charged the listed fee (the “Reservation Fee”) when you submit your Reservation.  You agree to provide us (or our designated third party payment provider) with accurate and valid payment account information and to update your account in the event any information provided becomes invalid or incomplete.  By providing payment account information to us, you represent that you are an authorized user of such payment account and you agree to be charged the Reservation Fee using your provided payment method.  You understand that we will not hold your Reservation Fee separately or in an escrow account or trust fund or pay any interest on your Reservation Fee.

Until you and we enter into a Purchase Agreement, your Reservation may be canceled by you or Cala at any time for any reason, in which case, you will receive a full refund of your Reservation Fee.  You may cancel your Reservation by sending an email to reservations@calasystems.com, and including your name and the e-mail address you used to submit the Reservation. You will receive your refund within approximately 5-10 business days of our receipt of your e-mail.  If we cancel your Reservation, we will issue a full refund of your Reservation Fee to the payment method you used to pay the Reservation Fee.

The information we collect from you in connection with your Reservation will be used in accordance with our Privacy Notice, which is incorporated into these Terms by this reference.  Our Privacy Notice is available on our website at [insert applicable url].  Please read our Privacy Notice carefully to understand the information that we collect and our practices regarding your information and how it will be treated.  If you have questions regarding our Privacy Notice, you can contact us by email at support@calasystems.com.  By agreeing to these Terms (including by submitting a Reservation), you are accepting and agreeing to our Privacy Notice, as it may be modified from time to time in accordance with its terms, including your consent to all actions taken by Cala with respect to your information in compliance with our Privacy Notice.

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 e-mails to any e-mail 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 e-mail 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 telephone calls or texts by contacting us at support@calasystems.com.

EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL CALA OR ANY OF OUR AFFILIATES 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 THESE TERMS, HOWEVER CAUSED, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT CALA OR ITS AFFILIATES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

IN NO EVENT SHALL CALA’S OR ANY OF OUR AFFILIATE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS EXCEED THE AMOUNT YOU PAID TO CALA FOR YOUR RESERVATION.

THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

In the event of any dispute arising out of or relating to these Terms (including their interpretation, validity, performance, or breach) (a “Dispute”), the Dispute shall be resolved solely as follows.  A party shall send a written notice to all affected parties describing the Dispute and any relief requested, including any specific damages claimed.  In order to permit the affected parties to attempt to resolve the matter amicably, no arbitral or judicial proceeding may be commenced until the passage of sixty (60) days from the receipt of the written notice.  

If the affected parties are unable to resolve the Dispute within the 60-day time period, any Dispute, other than a claim for wrongful death or personal injury, shall be resolved exclusively by binding arbitration administered by the American Arbitration Association (AAA) under its Consumer Rules (information about the AAA and its rules is available at www.adr.org.).  In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. ss. 2, et seq.  The obligation to arbitrate under this section shall extend to any claims against any affiliates, officers, directors, contractors, subcontractors, suppliers, agents, or employees of a party.  This provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets.

To the maximum extent permitted by law, the prevailing party or parties shall be entitled to an award of all costs, expenses, and attorneys’ fees reasonably incurred in the successful prosecution or defense of any claim.  However, if a claimant recovers less than the respondent’s highest written offer made before the commencement of arbitration, the respondent shall be deemed to be the prevailing party for this purpose.  The arbitrator shall have authority to issue any and all remedies authorized by law, but the arbitrator shall have no authority to conduct proceedings on a class or aggregated basis without the written consent of all parties; provided, however, that in the event of the filing of over twenty five (25) arbitration claims against Cala or any of its any affiliates, officers, directors, contractors, subcontractors, suppliers, agents, or employees raising substantially the same or similar Dispute, the AAA may at the request of such respondents appoint a single arbitrator or panel of arbitrators to resolve some or all common issues of law or fact.

Notwithstanding the foregoing, any party may at its option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction.  

If at any time any party requests mediation, all affected parties shall participate in a mediation directly and not solely through counsel, the requesting party to bear the costs and fees of the mediator(s).

Without derogation of the parties’ obligation to arbitrate, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to a Dispute shall be vested exclusively in the state or federal courts sitting in and for Boston, Massachusetts, U.S.A., except that any judgment thereof or any arbitral award may be enforced in any court of competent jurisdiction.  If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.

If any part of this dispute resolution and arbitration provision is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this provision shall remain in effect, with the exception that if a court or arbitrator determines in an action between you and us that the above class action waiver is unenforceable, then this arbitration provision will be void as to you.

These Terms are governed by the substantive laws of the Commonwealth of Massachusetts, U.S.A., without regard to its or any other jurisdiction’s conflict of laws principles that would apply another law.  The United Nations Convention for the International Sale of Goods is hereby disclaimed.

These Terms may not be amended or modified except by way of an express writing signed by Cala.

Your Reservation, these Terms, and your rights and obligations hereunder are not assignable or otherwise transferable by you to any third party without our prior written consent in our sole discretion.  Any purported assignment or transfer without such consent will be null and void.  We may assign or otherwise transfer these Terms (including any rights or obligations hereunder) or your Reservation Fee from time-to-time in our sole discretion.  These Terms will be binding upon and inure to the benefit of the parties’ successors and permitted assigns.

Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.  No waiver will be binding on us unless made in an express writing signed by a duly authorized representative of Cala.

Your Reservation confirmation, these Terms, and our Privacy Notice comprise the final and integrated agreement between you and us on the matters contained in these Terms, and supersede all prior promises, agreements or representations, express or implied, written or oral, regarding such subject matter.

Except as otherwise expressly provided herein, if any provision of these Terms is found to be invalid or unenforceable, then these Terms will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.  As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive.  Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of these Terms.

These Terms may be executed electronically, and your electronic assent shall constitute execution of these Terms.  You agree that the electronic text of these Terms constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.

All rights that are not expressly granted under these Terms are reserved by Cala.
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