3.2 The amount of your Reservation Deposit will determine the reservation package you receive. Your benefits will be limited only to your particular package and will exclude the benefits offered to all other packages, including lower tier packages. For the sake of clarity, you will not receive any other benefits than those expressly stated in your particular reservation package below. The benefits for each respective package include:
3.3 Your Reservations Payment is not a deposit towards your Nikola vehicle. The Reservations Payments will be held in a separate account. Except to the extent required by applicable law, no interest will be paid on the Reservation Payment. For the sake of clarity, Nikola will apply your Reservation Payment and other applicable incentives to the final purchase price of your Badger.
3.4 Until you finalize the purchase agreement for your Badger, you may cancel your Reservation at any time, in which case you will receive a full refund of your Reservation Payment if your Nikola World tickets were not used. To the extent you attend Nikola World using the ticket(s) you receive with your reservation package, $250 of your Reservation Payment will become non-refundable.
3.5 Your rights and obligations pertaining to the entries for the Nikola Badger Giveaway are subject to additional terms and conditions. Your Nikola World tickets are subject to availability, additional terms, and are non-transferrable.
If you have a concern or dispute you wish to resolve informally, please send a written notice describing it and your desired resolution to firstname.lastname@example.org. If not resolved within 60 days, you agree that any dispute, controversy or claim arising out of or relating to any aspect of the relationship between you and Nikola will be governed by a single arbitrator and the terms stated herein.
8.1. Generally. It would serve both your and Nikola’s interests to resolve any dispute in the quickest and most cost-effective way. If any dispute arises that relates to these Arbitration Terms, this Agreement, or your relationship with Nikola, regardless of the type or nature of the dispute, but subject to a few exceptions below, both you and Nikola agree to resolve it on an individual basis in binding arbitration. Arbitration is less formal than a lawsuit in court and typically provides a quicker resolution. A single neutral arbitrator, instead of a judge or jury, can award the same damages and remedies that a court can award. These Arbitration Terms are subject to and governed by the Federal Arbitration Act (“FAA”) and are intended to be broadly interpreted.
By way of example, any disputes regarding:
and these Arbitration Terms apply:
You acknowledge and agree that you and Nikola are each waiving the right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Nikola otherwise agree in writing, any arbitration will be conducted only on an individual basis.
8.2. Exceptions. However, you and Nikola each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction.
8.3. Rules. The American Arbitration Association (“AAA”) will administer the arbitration and will do so according to its Consumer Arbitration Rules (the “AAA Rules”). You can see the AAA Rules and filing forms online at www.adr.org. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
8.4. Dispute Resolution Process. Here is an outline of the arbitration process that you and Nikola agree to follow:
Send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (or international equivalent) or, only if the other party hasn’t provided a current physical address, then by electronic mail. Nikola’s physical address for notice is:
4141 E Broadway Rd,
Phoenix, AZ 85040
The notice must include, if available: (a) the name of the person making the claim, (b) the type of Nikola product or service, as applicable, (c) a description of the nature and basis of the claim, (d) the result that is desired (e.g., an amount of money), and (e) the case number(s) assigned by Nikola to track previous attempts to resolve the dispute, if such a number has been assigned.
You and Nikola agree to try to resolve the claim, but if you and Nikola can’t do that within 60 days after the notice is received, you or Nikola may initiate an arbitration proceeding by following the AAA Rules. Unless the parties agree otherwise, your demand for arbitration must be sent to Nikola’s physical address for notice and entitled “Demand for Arbitration.” Nikola will send demands for arbitration to you at the e-mail address provided in the notice of the dispute.
During the arbitration, the amount of any settlement offer made by you or Nikola may not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any).
If you win in the arbitration and are awarded an amount that exceeds the last written settlement amount offered by Nikola before the arbitrator was appointed, Nikola will pay you: (i) the amount awarded by the arbitrator and (ii) your reasonable attorney’s fees incurred during the arbitration proceedings, but which fees will be capped at $1,000.
8.5. Fees. If you are the one who commences arbitration, Nikola will reimburse you for your payment of the filing fee, unless your damages claim is for more than $2,500, in which case the AAA Rules will determine who pays that fee. Notwithstanding the preceding, if the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)).
8.6 Hearing Location. Unless the you and Nikola agree otherwise, any arbitration hearing will take place (at your option) in Maricopa County, Arizona or the county (or parish) of your current address. However, if the claim is for $2,500 or less, you may decide whether you want the arbitration conducted instead: (a) only on the basis of documents or (b) through telephone hearing or video conference. If the arbitrator decides that either the substance of your claim or the remedy you asked for is frivolous or brought for an improper purpose, then you and Nikola will use the AAA Rules to Determine whether you or Nikola is responsible for the filing, administrative and arbitrator fees.
8.7. No Class Actions. By agreeing to arbitration, to the fullest extent legally permissible, you and Nikola each may bring claims relating to these Arbitration Terms and/or your Nikola product or service only in your and Nikola’s individual capacities and not in a class action. Also, to the fullest extent legally permissible, the arbitrator can’t consolidate claims into a class proceeding either. The arbitrator may award injunctive relief only in favor of you, the individual party seeking relief, and only to the extent necessary to provide relief that is warranted by your individual claim, and not any remedy that affects other Nikola customers. However, if a court decides that applicable law precludes enforcement of any of the limitations in this Section 8.7 as to a particular claim for relief or remedy (such as declaratory or injunctive relief), then that claim or remedy (and only that claim or remedy) must be severed from the arbitration and must be brought in the state or federal courts located in Maricopa County, Arizona, while the remaining claims and remedies (such as individual damages or restitution) will still be resolved through binding arbitration. For the avoidance of doubt, if this Section 8.7 waiver of class action is determined to be unenforceable, against public policy, or otherwise unlawful by an appropriate authority for any reason, the Arbitration Terms as a whole will be considered void and inapplicable to this Agreement.
8.8. Enforceability. All issues in the dispute are for the arbitrator to decide, except that only a court may decide issues relating to the scope and enforceability of these Arbitration Terms, whether a dispute can be arbitrated, or the interpretation of these Arbitration Terms. Except as provided in Section 8.7, if any provision of these Arbitration Terms is found unenforceable, that provision will be severed and the balance of these Arbitration Terms will remain in full force and effect. If for some reason the entirety of these Arbitration Terms is found to be unenforceable, then they won’t apply, and you and Nikola agree to resolve disputes in the state or federal courts as set forth in Section 8.12. Judgment on any arbitration award may be entered by any court having jurisdiction. Terms not expressly contained herein are not binding.
8.9. Confidentiality. The arbitrator shall honor all evidentiary privilege recognized at law and shall enter orders as appropriate in order to protect the parties’ trade secrets or confidential information. You and Nikola agree to maintain each other’s trade secrets or proprietor business information as confidential and to protect the confidentiality of any other information that is legally protected from disclosure. However, you and Nikola may each disclose these matters, in confidence, to your and Nikola’s respective accountants, auditors, and insurance providers.
8.10 Opt-Out Period. You have the right to opt-out of these Arbitration Terms if you don’t agree with these Arbitration Terms, unless you previously agreed to an arbitration provision in connection with your relationship to Nikola. If you decide to opt-out of these Arbitration Terms, you must do so by notifying Nikola within 30 days of submitting your Reservation to Nikola for the first time (unless a longer period is required by applicable law) by sending a letter to: Nikola Arbitration; 4141 E Broadway Rd, Phoenix, AZ 85040, stating your name, reservation confirmation number, and intent to opt out of the Arbitration Terms. If you do not opt out, the Arbitration Terms override any different arbitration agreement between you and Nikola, including any arbitration agreement in a lease or finance contract.
8.11 Future Changes to the Arbitration Terms and this Agreement. If Nikola makes any changes to these Arbitration Terms or this Agreement (other than a change to Nikola’s address for notice), you may reject any of those changes by notifying Nikola via the process set forth in Section 8.10 within 30 days of the change. It is not necessary to submit a rejection of the future change if you properly opted out of arbitration under Section 8.10. By rejecting a future change, you are reconfirming your prior agreement to arbitrate any dispute between us in accordance with the language of the last Arbitration Terms that you accepted. Nikola may make non-material changes to these Arbitration Terms at any time without notice, but Nikola will provide notice of any material changes.
8.12 Governing Law and Judicial Forum for Non-Arbitration Disputes. These Arbitration Terms are governed by the FAA and to the extent not inconsistent with the substantive and procedural provisions of the FAA, the laws of the State of Arizona, without regard to conflicts of laws principles. The arbitrator will not be bound by any other ruling in other arbitrations involving Nikola to which you are not a party. Other than claims that must be resolved through binding arbitration or that may be brought in small claims court, any disputes relating to your Reservation, approximate reservation priority, or Nikola product, if the entirety of these Arbitration Terms is found to be unenforceable by a court under Section 8.8, will be litigated exclusively in the federal or state courts of Maricopa County in Arizona; the parties consent to personal and exclusive jurisdiction in such courts.
8.13 Waiver. Nikola’s delay or failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Nikola in writing. You acknowledge and agree that any delay in Nikola’s enforcement of any right or provision of these Arbitration Terms will not materially impact your interests or substantially affect any of your rights.