ELYSIUM SPACE – SPACEFLIGHT SERVICES AGREEMENT
This Memorial Spaceflight Services Agreement (“Agreement”) by and between you (the “Customer”) and Elysium Space, Inc. (“Elysium Space”), a Delaware corporation having its principal place of business at 123 10th Street, San Francisco, CA 94103. This Agreement provides the terms and conditions on which Elysium Space will provide Memorial Spaceflight Services to the Customer.
Capitalized terms used in this Agreement will have the meanings given in this section or in the context in which the term is used.
a. “Memorial Spacecraft” means the spacecraft used by Elysium Space to launch cremated remains into space.
b. “Memorial Spaceflight Services” means those Services described in Section 2 (Memorial Spaceflight Services) of this Agreement including but not limited to providing a cremated remains sample to Elysium Space to be launched into space.
2. MEMORIAL SPACEFLIGHT SERVICES
a. Memorial Spaceflight Service Description. The Memorial Spaceflight Services refer to the launch of a cremated remains sample provided by the Customer into space. The Customer will provide a cremated remains sample in a capsule containing about 400 cubic millimeters of remains. The capsule used to collect the remains will be mailed to the Customer once the Memorial Spaceflight Services have been purchased. After placing cremated remains into the capsule, the Customer will return the capsule to Elysium Space as provided in the instructions mailed with the capsule. Following receipt of a Customer capsule containing cremated remains, the capsule will be placed in a Memorial Spacecraft:
• To be launched into Earth orbit if a Customer purchased a “Shooting Star Memorial” service.
• To be delivered to the lunar surface if a Customer purchased a “Lunar Memorial” service.
• To be launched into deep space, escaping the solar system, if a Customer purchased a “Milky Way Memorial” service.
The Memorial Spaceflight Services include: (a) the collection of a cremated remains sample, (b) the launch of a cremated remains sample into space, (c) the printing of initials, up to 3 characters, on the capsule containing the remains, (d) the printing of a personal message, up to 80 characters, on the Memorial Spacecraft containing the capsules, (e) an invitation to the launch viewing event, (f) download access to a video of the launch and associated events, and (g) a certificate attesting the completion of the memorial spaceflight. Any other services including but not limited to travel to the launch, launch lodging and meals are the responsibility of attendees and not included as part of the Memorial Spaceflight Services.
b. Completion of the Memorial Spaceflight Services. The Memorial Spaceflight Service will be deemed complete upon:
• The attainment of the Memorial Spacecraft making one (1) complete revolution around the Earth at an altitude above 100 km, in the case of a Shooting Star Memorial.
• The initiation of the propulsive maneuver used to set the Memorial Spacecraft on a trajectory towards the Moon, in the case of a Lunar Memorial.
• The initiation of the propulsive maneuver used to set the Memorial Spacecraft on an escape orbit, in the case of a Milky Way Memorial.
c. Remedies for an Incomplete First Launch. If, after the first launch attempt, the Memorial Spaceflight Service is deemed to be incomplete, you will have the option to have a second cremated remains sample launched into space at no additional cost using the next Elysium Space launch opportunity (“Second Attempt”) for the same memorial service. Such Second Attempt shall be your sole and exclusive remedy for a Failed First Launch and you will not be eligible for any further refunds or damages.
d. Changes to the Memorial Spaceflight Services. Elysium Space reserves the right to change the Memorial Spaceflight Services including any general practices and limitations related to the Memorial Spaceflight Services in its sole discretion.
3. CUSTOMER ACKNOWLEDGEMENTS, RELEASES, DISCLAIMERS AND LIMITATIONS (please read carefully)
a. Acknowledgements. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE BEEN WELL ADVISED ABOUT THE INHERENT HAZARDS OF LAUNCHING CREMATED REMAINS INTO SPACE BY USING A LAUNCH VEHICLE. YOU ARE AWARE OF THE RISK OF LAUNCH FAILURE, WHICH MAY LEAD TO THE DESTRUCTION OF THE LAUNCH VEHICLE. YOU ARE AWARE THAT IF SUCH A LAUNCH FAILURE OCCURS, THE REMAINS WILL BE SCATTERED ALONG THE FLIGHT PATH. YOU EXPRESSLY ACKNOWLEDGE THAT IN THE CASE OF A SHOOTING STAR MEMORIAL, IF THE LAUNCH IS SUCCESSFUL AND THE MEMORIAL SPACECRAFT ACHIEVES ITS PLANNED ORBIT, THE ORBIT WILL DECAY AND THE MEMORIAL SPACECRAFT WILL EVENTUALLY BURN UP WHILE REENTERING THE EARTH’S ATMOSPHERE.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT WITH RESPECT TO THE MEMORIAL SPACEFLIGHT SERVICES, ELYSIUM SPACE DOES NOT GUARANTEE THAT (1) THE LAUNCH WILL TAKE PLACE ON ANY PARTICULAR DATE; (2) THE LAUNCH VEHICLE WILL ACHIEVE ITS PLANNED ORBIT; OR (3) IN THE CASE OF A SHOOTING STAR MEMORIAL, THE MEMORIAL SPACECRAFT WILL REMAIN IN ORBIT FOR ANY PARTICULAR LENGTH OF TIME
b. Release and Indemnity
(i) CUSTOMER UNDERSTANDS AND AGREES THAT THE BENEFICIARIES OF THIS RELEASE (“RELEASEES”) ARE (1) ELYSIUM SPACE, INC, A DELAWARE CORPORATION, AND ITS OFFICERS, EMPLOYEES, AND AGENTS AND (2) THE COMPANY(S) PROVIDING THE MEMORIAL SPACECRAFT USED TO PLACE THE REMAINS IN SPACE. CUSTOMER HEREBY RELEASES AND DISCHARGES THE RELEASEES FROM AND AGAINST ANY AND ALL CLAIMS FOR BODILY INJURY, MENTAL ANGUISH, OR DAMAGE TO PROPERTY, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, ARISING OUT OF OR IN CONNECTION WITH THE MEMORIAL SPACEFLIGHT SERVICES UNDER THIS AGREEMENT WHETHER IN FAVOR OF CUSTOMER OR ANY FAMILY MEMBER BECAUSE OF BODILY INJURY. CUSTOMER UNDERSTANDS THAT THIS RELEASE DOES NOT AFFECT OR WAIVE ANY RIGHTS THAT CUSTOMER POSSESSES AS SET FORTH IN THE CONTRACT THAT CUSTOMER HAS ENTERED INTO CONTEMPORANEOUSLY WITH ELYSIUM SPACE, INC.
(ii) CUSTOMER AGREES TO PROTECT, DEFEND, INDEMNIFY, AND SAVE THE RELEASEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND OR CHARACTER INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR BODILY INJURY, MENTAL ANGUISH, OR DAMAGE TO PROPERTY, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, ARISING OF OR IN CONNECTION WITH THE SERVICES UNDER THIS AGREEMENT WHETHER IN FAVOR OF CUSTOMER OR ANY FAMILY MEMBER. CUSTOMER UNDERSTANDS THAT THIS RELEASE DOES NOT AFFECT OR WAIVE ANY RIGHTS THAT CUSTOMER POSSESS AS SET FORTH IN THE AGREEMENT THAT CUSTOMER HAS ENTERED INTO CONTEMPORANEOUSLY WITH ELYSIUM SPACE, INC.
(iii) CUSTOMER IS FULLY INFORMED ABOUT THE CONTENTS OF THIS RELEASE BY READING IT BEFORE ACCEPTING THIS AGREEMENT.
ELYSIUM SPACE SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY TYPE INCLUDING WITHOUT LIMITING THE FOREGOING ANY WARRANTY OF SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
d. Limitation of Liability
(i) ELYSIUM SPACE’S TOTAL LIABILITY TO THE CUSTOMER, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) WILL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER TO ELYSIUM SPACE FOR THE MEMORIAL SPACEFLIGHT SERVICES. ELYSIUM SPACE HAS NO FURTHER RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DESTRUCTION OF CREMATED REMAINS.
(ii) Elysium Space will not be liable to the Customer for any indirect or consequential, exemplary, punitive or special damages, regardless of the form of action or the theory of recovery, even if the Customer has been advised in advance of the possibility of such damages.
4. CUSTOMER REPRESENTATIONS
By purchasing the Memorial Spaceflight Services, Customer agrees to, acknowledges, and represents as follows:
a. That Customer is eighteen (18) years of age or older.
b. If you are a customer outside the U.S. providing a cremated remains sample, Customer confirms that this act is not subject to any export ban or restriction in the country in which Customer resides.
c. Customer agrees that any cremated remains sample that Customer provides may be transferred outside the country in which Customer resides.
d. Customer certifies that, to the best of Customer’s knowledge, the collected cremated remains are pure cremated remains, which have not been mixed with any other material.
e. Customer agrees to provide the cremated remains sample to Elysium Space by the deadline that Elysium Space requests in written notice to Customer after purchasing the Memorial Spaceflight Services. Customer agrees that if this deadline is missed, the cremated remains sample will be launched on a later flight opportunity.
f. Customer has the authority, under the laws of the state or jurisdiction in which Customer resides, to provide these representations.
In event of a breach of any of these representations, Elysium Space has the right to suspend or terminate Customer’s account and refuse any and all current or future use of the Memorial Spaceflight Services (or any portion thereof) and Customer will defend and indemnify Elysium Space, its officers, employees and agents against any liability, costs, or damages arising out of the breach of the representation.
5. PAYMENT AND REFUNDS
a. Payment. Elysium Space accepts credit card payments using Visa, Mastercard, American Express, JCB, Discover, and Diners Club. Elysium Space does not accept payments via Paypal, Bitcoin, or in the form of personal checks or money orders.
b. Refunds. If Customer changes his/her mind about purchasing the Memorial Spaceflight Services and notifies Elysium Space by email to [email protected] of Customer’s intent to cancel before Elysium Space initiates fulfillment of Customer’s order, Elysium Space will issue a full refund of Customer’s purchase price. If Customer notifies Elysium Space within 30 days of Customer’s order that Customer no longer wishes to purchase the Memorial Spaceflight Services, Elysium Space will refund the balance of Customer’s original purchase price that remains after subtracting: (i) a $190 processing fee, and (ii) Customer’s original shipping charges. Elysium Space will not issue a refund if more than 30 days have passed since Customer’s order or after the capsule containing the cremated remains has been placed in the Memorial Spacecraft (this step generally occurs significantly in advance of the launch). Any refunds provided under this policy will be issued to the credit card(s) used for the purchase and will be processed within 21 business days of confirmation by Elysium Space’s customer support team.
6. PROPRIETARY RIGHTS
a. Material Provided to Elysium Space – Customer’s Proprietary Rights. Elysium Space does not claim ownership of the cremated remains sample that Customers provide. However, after the capsule containing the remains is placed in the Memorial Spacecraft, cremated remains cannot be recovered or returned under any circumstances.
b. Elysium Space’s Proprietary Rights. Customer acknowledges and agrees that Elysium Space (or Elysium Space’s licensors, as applicable) own all legal right, title, and interest in and to the Memorial Spaceflight Services, including any intellectual property rights which subsist in the Memorial Spaceflight Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
Customer further acknowledges that the Memorial Spaceflight Services may contain information which is designated confidential by Elysium Space and that Customer shall not disclose such information without Elysium Space’s prior written consent including information such as the exact launch date and status of the launch.
7. EXPORT CONTROL AND APPLICABLE LAWS AND REGULATIONS
Recognizing the global nature of the Internet, Customer agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Customer agrees (a) that providing a cremated remains sample is not subject to any export ban or restriction in the country in which Customer resides, and (b) that the cremated remains sample Customer provides may be transferred outside the country in which Customer resides.
a. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Elysium Space and governs Customer’s use of the Memorial Spaceflight Services, superseding any prior agreements between you and Elysium Space on this subject. Customer also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.
b. Notices. Notices to Customer may be made via either email or regular mail.
Official notices related to this Agreement must be sent to Elysium Space at:
Elysium Space, Inc.
Attn: Chief Executive Officer
123 10TH Street
San Francisco, CA 94103
Additionally, Elysium Space accepts service of process at this address. Any notices that Customer provides without complying with this section on Notices shall have no legal effect.
c. Applicable Law. Any disputes with Elysium Space arising out of or relating to the Agreement (“Disputes”) shall be governed by California law regardless of Customer’s country of origin or where the Memorial Spaceflight Services are performed, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods.
d. Waiver. The failure of Elysium Space to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
e. Survival of Terms. The following provisions shall survive expiration or termination of the Terms: Section 1 (Definitions), Section 3 (Customer Acknowledgements, Releases, Disclaimers and Limitations), Section 6 (Proprietary Rights), Section 7 (Export Control and Applicable Laws and Regulations), Section 8(c) (Applicable Law), and Section 8(e) (Survival of Terms).
f. Term for Causes of Action. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Memorial Spaceflight Services or this Agreement must be filed within one (1) year after such claim or cause of action arose.
g. Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
h. Severability Clause. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
i. Assignment. Customer may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. Elysium Space may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to Customer. Elysium Space may also substitute, by way of unilateral novation, effective upon notice to Customer, Elysium Space for any third party that assumes Elysium Space’s rights and obligations under this Agreement.