Reservation Terms

Last updated: 04/13/2023

These Reservation Terms (“Terms”) apply to your reservation (a “Reservation”) of a smart firearm product or accessories (the “Product”) offered by Biofire Hermes Inc. or its affiliates (“Biofire,” “we,” “us,” or “our”). By submitting a Reservation, you agree to be bound by these Terms.

These Terms contain a mandatory arbitration provision and class action waiver. If you accept these Terms, you and Biofire agree to resolve most disputes only in individual binding arbitration and not as part of a class action (see Section 10 for more information). If you do not agree to these Terms, you may not submit a Reservation.

Submitting a Reservation or otherwise agreeing to these Terms is not a purchase of your Product. The final purchase and delivery of your Product will be subject to you submitting and accepting the terms of the Final Order (defined below), payment of the remaining fees due for the Product, and federal, state, and local requirements, which include criminal history background checks performed by a local federal firearms license holding dealer located in your state (“Licensed Dealer”) who will then process the transfer of the Product to you. Final purchase and delivery of your Product are also contingent on compliance with federal, state, and local laws.

1. 1. Privacy.

For information about how we collect, use, share, or otherwise process information about you, please see our Privacy Policy: https://biofire.io/privacy-policy.

1. 2. Eligibility.
2. a. To submit a Reservation you must: (i) be an individual lawfully residing in the United States and at least 21 years of age; (ii) not be located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction or that has been designated by the U.S. government as a “terrorist supporting” country; (iii) not be on any of the federal or state government lists of restricted end users; and (iv) be Reserving the Product for your own personal use or for another person who is legally able to own a handgun and who is not seeking to avoid being associated with the purchase of a firearm. By submitting a Reservation, you represent and warrant that you meet the foregoing eligibility requirements.

1. b. Placing a Reservation is not a purchase, and delivery of your Product will be subject to you submitting and accepting the terms of the Final Order (defined below), payment of the remaining fees due for the Product, and federal, state, and local requirements, which include passing background checks performed by a Licensed Dealer.

1. 3. Billing Information; Contact.

1. a. As part of your Reservation, you will need to provide your name, phone number, billing address, shipping address, and credit card information. Our use of your information is governed by our Privacy Policy: https://biofire.io/privacy-policy.

1. b. We may contact you regarding your Reservation, or other information that we think may be interesting to you.

1. 4. Reservations.

1. a. Required Information. When you place a Reservation, you must provide Biofire (or its third-party payment processor) with complete and accurate personal, shipping, and payment information. If your information changes, you must contact Biofire immediately and provide updated information. By placing a Reservation, you represent to us that you are authorized to use the payment information provided to pay for the Product, including any deposit, and that the payment information you provided is complete and accurate. We use third parties to process your payments, and you authorize such third parties to collect, analyze, and relay information generated in connection with your Reservation.

1. b. Offer to Purchase. Each Reservation you submit for a Product constitutes an offer to purchase that Product when it becomes available. Biofire may require you to provide a deposit when you submit a Reservation. If you do not agree to the terms of this Section 4, do not place a Reservation; wait to place an order when the Product is commercially released.

1. c. Subject to Acceptance. Reservations are subject to our acceptance and may be rejected at any time and for any reason at our discretion (even if we have previously accepted your Reservation). If we reject your offer, we will, as your sole and exclusive remedy and our sole and exclusive liability, refund any amount you paid with your Reservation. We will contact you to indicate whether your Reservation has been rejected or, subject to these Terms, accepted. If you have any questions, comments, or concerns regarding our Reservation acceptance policy, or if you believe that your Reservation was rejected in error, please contact us at [email protected]

1. d. Products Not Yet Ready for Manufacturing. You understand and acknowledge that (i) any Product you Reservation is not yet ready for delivery, that we have not yet begun manufacturing or shipping such Products, and that manufacturing or shipping may be delayed, (ii) the specifications for a Product you Reservation may change between when you place a Reservation and when the Product is made available for shipment, and (iii) you must pay the remaining balance due for the Product when requested to do so by Biofire. Unless otherwise agreed in writing, Biofire has no obligation to transfer a Product to a Licensed Dealer until you have paid all remaining amounts due for the Product. The Licensed Dealer further has no obligation to transfer a Product to you until you have met the eligibility requirements identified in Section 3 or otherwise required by applicable law.

1. e. Release of Reservation Products; Changes. While we may provide a reasonable estimate of a Product’s expected specifications when you place a Reservation, your Reservation is for the Product as it is eventually commercially released. Any shipping date estimate we provide is only a reasonable estimate of when we expect your Product to ship. The actual date a Product that you Reserve will ship is uncertain and depends on a variety of factors, including whether product development and manufacturing schedules are met, when you placed your Reservation, when we accept your Reservation, and when you pass the background check required in your jurisdiction. If we provide an estimated shipping date and we are unable to ship your Product by the shipping date provided in your Reservation confirmation, we will contact you with an updated shipping date and further information. If you make changes to a Reservation, it may be subject to potential price increases for any pricing adjustments made since your original Reservation date, and your shipping date may change.

1. 5. Final Order; Fulfilment.

1. a. Final Order Process. After you have submitted your completed Reservation, when your selection becomes available for production, we will invite you to complete the final purchase contract for the Product by contacting you using the information you have provided in the Reservation submission and requiring you to make final payment and accept the final terms and conditions for the sale of the Product (“Final Order”). The Final Order will include the warranty terms for the Product, unless otherwise expressly provided in these Terms. By placing the Final Order for the Product, you will be required to acknowledge and agree that you have reviewed the warranty terms for the Product and that you accept that warranty in lieu of all other warranties.

1. b. Fulfillment. Unless otherwise canceled as set forth in these Terms, your Product will be ultimately transferred to you at a Licensed Dealer.

1. 6. Cancellation; Refunds.

1. a. Cancellation by Biofire.

1. i. Reservation Cancellation. Reservations may be canceled by Biofire in the following circumstances: (i) if you violate these Terms; (ii) where Biofire reasonably believes that your purchase of a Product would damage the reputation of Biofire or would otherwise be unlawful; (iii) if you do not agree to updated Terms per Section 12 or any required terms for any Final Order; or (iv) where Biofire cannot, with commercially reasonable efforts, overcome administrative, technical, legal, or regulatory obstacles to fulfilling your Reservation. This may happen, for example, if we are unable to complete development of a Product or if we are unable to obtain all necessary licenses, certificates, and permits for the distribution of the Product in your jurisdiction. If Biofire cancels any Reservation pursuant to this Section 6(a)(i), Biofire will refund any Reservation amounts paid by you up until such cancellation, and your sole and exclusive remedy and our sole and exclusive liability, unless otherwise required by law, will be for us to refund any amount you have already paid Biofire for the Reservation.

1. ii. Final Order Cancellation. After you submit a Final Order, Biofire may cancel the Final Order if you fail to pick up your Product from the Licensed Dealer within 30 days of us notifying you that your Product has been delivered to the Licensed Dealer or if you fail any required background checks. If Biofire cancels a Final Order pursuant to this Section 6(a)(ii), you will receive a refund of the amounts paid by you for the Product within 30 days of Biofire receiving the returned Product from the Licensed Dealer, less a restocking fee of $300, and Biofire will not owe any further responsibilities or duties (including liability for damages) to you about the cancellation.

1. b. Cancellation by You.

1. i. Cancellation of Reservations Prior to Final Order. You may cancel your Reservation at any time before submitting a Final Order. Upon your timely written request to cancel your Reservation, we will cancel your Reservation and refund any Reservation amounts paid by you. Any such cancellation and refund requests should be made by email to [email protected] You acknowledge and agree that if you cancel your Reservation and subsequently re-submit a Reservation, your subsequent Reservation will be fulfilled in the order received (e.g., you will lose your initial place in the queue for Products).

1. 7. Reservation Price, Taxes, and Official Fees.The price of the Product will be as stated in your Reservation unless you make changes after submission. The price listed for your Reservation is exclusive of taxes and official or government fees (“Taxes”) other than Federal Firearms and Ammunition Excise Tax, which is included in the final purchase price. Taxes could amount to up to 10% or more of the Product price. Because Taxes are constantly changing and will depend on many factors, such as your local jurisdiction, Taxes will be calculated closer to the time of shipment and indicated on your final purchase order. You are responsible for paying all Taxes associated with the Product.

1. 8. Disclaimers.

1. a. You understand that Biofire has not completed the development of the Product or begun manufacturing Products at the time you accept these Terms or submit a Reservation and so we do not guarantee when your Product will be delivered. Your actual delivery date is dependent on many factors, including your Product’s configuration and manufacturing availability and the volume of demand for Products.

1. b. Each Product is priced and configured based on features and options available at the time of Reservation. Options, features, or hardware released after you place your order may not be included in or available for your Product.

1. c. YOUR USE OF THE PRODUCT IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OR ANY COURSE OF DEALING OR USAGE OF TRADE; AND YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT.

1. 9. Limitation of Liability.

1. a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIOFIRE WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF BIOFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

1. b. THE TOTAL LIABILITY OF BIOFIRE FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE PRODUCT, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF (I) $10 OR (II) THE AMOUNT YOU PAID FOR THE PRODUCT WHEN SUBMITTING THE RESERVATION LESS ANY REFUNDS THAT HAVE BEEN ISSUED TO YOU.

1. c. THE LIMITATIONS SET FORTH IN THIS SECTION 9 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF BIOFIRE OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

1. 10. Dispute Resolution; Binding Arbitration.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BIOFIRE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND BIOFIRE FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND BIOFIRE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. BIOFIRE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

1. a. For any dispute or claim that you have against Biofire or that Biofire has against you, in each case arising from, relating to, or stemming from these Terms, Reservations, or any aspect of the relationship between you and Biofire as relates to these Terms or Reservations, including any privacy or data security claims (collectively, “Claim(s)”), you and Biofire agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Biofire, you will first contact Biofire by sending a written notice of your Claim (“Claimant Notice”) to Biofire by email to [email protected] The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Biofire asserts a Claim against you, Biofire will first contact you by sending a written notice of Biofire’s Claim (“Biofire Notice”) and each of a Claimant Notice and Biofire Notice (a “Notice”) to you via email to the primary email address associated with your Reservation. The Biofire Notice must (1) include the name of a Biofire contact and the contact’s email address and telephone number; (2) describe the nature and basis of the Claim; and (3) set forth the specific relief sought. If you and Biofire cannot reach an agreement to resolve the Claim within 60 days after you or Biofire receives such a Notice, either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for 60 days from the date that either you or Biofire first sends the applicable Notice so that the parties can engage in this informal dispute-resolution process.

1. b. Except for individual disputes that qualify for small claims court, all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that are not resolved in accordance with Section 11(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

1. c. These Terms affect interstate commerce, and the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.

1. d. All Claims must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:

1. i. YOU AND BIOFIRE AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND BIOFIRE ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if 25 or more similar or coordinated claims are asserted against Biofire or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.

1. ii. For any arbitration you initiate, you will pay the consumer filing fee, and Biofire will pay the remaining AAA fees and costs. For any arbitration initiated by Biofire, Biofire will pay all AAA fees and costs.

1. iii. For all arbitrations where the Claims asserted are $25,000 or less, the arbitration will be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations, the following procedure will apply: (1) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (2) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.

1. iv. If you or Biofire submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Biofire agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Biofire agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.

1. v. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies, and, if the law allows, they can seek relief against us for you.

1. vi. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if 25 or more similar claims are asserted against Biofire or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Biofire understand and agree that when 25 or more similar claims are asserted against Biofire or you by the same or coordinated counsel or are otherwise resolved, your or Biofire’s Claim might be delayed. For such coordinated actions, you and Biofire also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Biofire shall each select 10 cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration, nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial 20 proceedings, each side shall select another 10 cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration, nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have the authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Biofire or you.

1. e. One Year to Assert Claims. To the extent permitted by law, any Claim by you or Biofire relating in any way to these Terms, Reservations, or any aspect of the relationship between you and Biofire as relates to these Terms or Reservations, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Biofire will not have the right to assert the Claim.

1. f. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt out via email at [email protected] or by certified mail addressed to Legal Department, Biofire Hermes Inc., 8835 W. 116th Circle, Suite H, Broomfield, Colorado 80021. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 11.

1. g. If any portion of this Section 10 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 10 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 10; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 10 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 10 will be enforceable.

1. 11. Governing Law.

All Claims will be governed by and construed and enforced in accordance with the laws of the State of Colorado, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 10, then the state courts located in the county of Broomfield, Colorado, or federal courts located in Denver, Colorado, as applicable, will have exclusive jurisdiction. You and Biofire waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

1. 12. Updating These Terms.

We may make changes to these Terms at any time. The “Last Updated” date above indicates when these Terms were last changed. The version of the Terms you agreed to when placing a Reservation will continue to apply to you and your Reservation unless either: (a) the Terms are amended in a writing signed by both you and Biofire or (b) you agree to have an updated version of these Terms apply to the Reservation or Final Order. You are not required to accept any amended version of these Terms, but Biofire may, at its option, cancel all or part of any Reservation if you do not accept the updated Terms. If Biofire cancels any part of an Order under this clause, Biofire will refund any amount you have already paid to Biofire for the canceled portion of the Reservation.

1. 13. Severability.

If any portion of these Terms, other than Section 10, are found to be unenforceable or unlawful for any reason, including but not limited to because they are found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

1. 14. Miscellaneous.

1. a. Biofire’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. We may assign, transfer, or delegate these Terms, in whole or in part, at our discretion without your prior written consent. Communications and transactions between us may be conducted electronically.

1. b. If you have a question or complaint regarding the Product, please send an email to
2. . You may also contact us by writing to Biofire Hermes Inc., 8835 W. 116th Circle, Broomfield, Colorado, 80021. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.