Procurement RFQ Terms and Conditions
Last Updated: 9/22/2020
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
This Customer Agreement (the “Agreement”) is made and entered between SyncFab Co. (“SyncFab”) and you (“You” or “Your”), as of the date that You accept this Agreement as provided in this preamble. PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING SyncFab’s website (the “WEBSITE”), INCLUDING placing an order with SyncFab for manufacturing services (the “Services”), CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SYNCFAB, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES. SyncFab’s General Terms and Conditions available at: https://syncfab.com/general-terms-and-conditions (“General Terms”) are incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the General Terms, the terms of this Agreement shall supersede and control to the extent of any such conflict.
PLEASE NOTE that SyncFab may modify these terms and conditions at any time, and such modifications shall be effective immediately upon posting of the modified version on the Website for orders placed after such modifications have been posted. SyncFab will also update the “Last Updated” date at the top of this Agreement. If SyncFab makes any material changes, and You have registered with SyncFab to create an Account (as defined below), SyncFab may also send you an email to the last email address You provided pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new and existing users of the Website and/or Services. SyncFab may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or Services is permitted. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website and/or Services. Otherwise, Your continued use of the Website and/or Services shall be deemed Your conclusive acceptance of the modified terms and conditions.
1. About the SyncFab Request for Quote (“RFQ) ON-DEMAND SERVICE.
SyncFab hosts and maintains an online platform available at the Website (www.SyncFab.com) that enables secure business-to-business communications between customers and Partners of manufacturing services. The platform allows customers to deliver Requests for Quotes (“RFQ”) through the secure platform to Partners to participate in submitting bids in response to the RFQs (Partners). SyncFab’s customers may upload their specifications (including three dimensional (3D) models, two-dimensional drawings, and other documentation) for their manufacturing and / or supporting service projects.
In order to use certain Services, you may be required to register for an account (“Account”). In registering for the Services, You agree to (1) provide true, accurate, current and complete information about You as prompted in the Website account details section (“Registration Data”); and (2) maintain and promptly update Your Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (x) notify SyncFab immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or SyncFab has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SyncFab has the right to suspend or terminate your Account and refuse any and all current or future use of the Website and Service (or any portion thereof).
3. SyncFab RFQ ON-DEMAND Process
3.1 Use of the SyncFab’s RFQ On-Demand Service. In order to make use of SyncFab’s RFQ On-Demand Service, a user must first upload files and other details into the RFQ creation form. This information can be stored in a user’s RFQ History indefinitely. Order details, such as quantity, secondary processes, material specifications, delivery address and lead time must be specified by the user in order to initiate and RFQ event. Once all of the information is complete, a user can initiate the RFQ event. The RFQ will be sent to SyncFab Partners who meet the criteria of the RFQ. Customer must specify the amount of time Partners have to respond to an RFQ. If a Partner has questions concerning the RFQ, a Partner may contact the User directly through the application. The aggregated results of the RFQ event will be presented on the Quote Overview page. The User can contact any of the responding Partners directly. If a User and Partner come to an agreement, this takes place outside of the SyncFab Platform, and SyncFab will have no visibility or involvement in the transaction moving forward.
3.2 Specifications. The SyncFab RFQ On-Demand Service is to be used to collect bids and information relevant to each RFQ. The subsequent activities and placement of contracts or supply of goods or services and payment collection is solely the responsibility of the Customer. The specification of the application includes:
- Storage for CAD files and other information relating to projects
- A means of creating an RFQ
- A bidding portal for the collection of bids from Partners
- Reports aggregating the responses to the RFQ events
- Means of communicating with the Partners who are invited to participate in the RFQ
- Means of awarding opportunities and initiating credit card transactions pertaining the terms of agreement as specified between Customer and Partner
- Means of managing the active project, in the case a Partner’s bid is awarded an opportunity
SyncFab is not NOT responsible for:
- Verifying information uploaded by any user, for its quality, manufacturability, or right to use Verifying information submitted by a Partner
- Fielding questions from Partners or communicating with Partners on customer’s behalf
- Facilitating the awarding of contracts
- Providing manufacturing services, unless the contract is awarded to SyncFab, and both parties acknowledge this in writing
- Overseeing the manufacture and delivery of parts
4. Pricing and Payment; SyncFab Points
4.1 Payment. By awarding an opportunity to a Partner who has submitted a bid to your RFQ, you agree to pay all fees or charges to Your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise expressly agreed in advance by SyncFab, all invoices are due upon award of a job to a Partner who submitted a bid to the RFQ.. You agree that SyncFab is authorized to immediately invoice your Account for all fees and charges due and payable to SyncFab hereunder and that no additional consent or notice is required. You agree to immediately notify SyncFab of any change in your billing address or the credit card used for payment hereunder. SyncFab will hold the funds in escrow, and will not release the funds until completed delivery of the goods and services. SyncFab reserves the right at any time to change its prices and billing methods, either immediately upon posting notice on the Website or by email delivery to you. All prices are calculated in US Dollars and payment to SyncFab must be in the form of US Dollars.
4.2 Taxes and Costs. You will be liable for all other transaction duties and taxes associated with services outlined in your RFQ (other than taxes based on SyncFab’s net income).
4.3 Suspension of Services. SyncFab reserves the right to suspend performance in the event of your failure to pay all outstanding amounts when due.
5.1 No Warranty of Specifications Since You are solely responsible for the Specifications, and the manufacture of certain Parts in accordance with your Specifications may be impossible or otherwise commercially impracticable, SyncFab does not warrant that your RFQ can or will be manufactured in accordance with Your Specifications. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, SYNCFAB DOES NOT WARRANT THAT THE PARTS YOU HAVE ORDERED THROUGH THE RFQ ON-DEMAND SERVICE WILL MEET YOUR REQUIREMENTS OR BE WILL BE MERCHANTABLE OR FIT FOR YOUR PARTICULAR PURPOSE.
5.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE PARTS MANUFACTURED PURSUANT TO AN ORDER SUBMITTED ON THIS WEBSITE AS WELL AS THE WEBSITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SYNCFAB EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE, SERVICES AND PARTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT. SYNCFAB DOES NOT WARRANT THAT ANY SUCH PARTS OR THE USE OF THE WEBSITE OR SERVICES WILL BE UN INTERRUPTED OR ERROR FREE OR THAT ANY ERROR OR DEFECTS WILL BE OR CAN BE CORRECTED. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS.
5.3 BECAUSE THE PARTS ARE BASED ON YOUR SPECIFICATIONS, SYNCFAB MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE PARTS WILL MEET YOUR REQUIREMENTS, (2) THE PARTS ARE FIT FOR ANY PARTICULAR PURPOSE, OR MERCHANTABLE, OR (3) THE PARTS ARE DEFECT OR ERROR-FREE.
5.4 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SYNCFAB MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
5.5. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SYNCFAB OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5.6. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESS THROUGH THE WEBSITE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
5.7.YOU ACKNOWLEDGE AND AGREE THAT SYNCFAB IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SYNCFAB LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING FOR ANY PART MANUFACTURED BY A THIRD PARTY.
5.8. THE WEBSITE MAY CONTAIN HYPERLINKS RELATING TO OTHER WEBSITES (“THIRD PARTY SITES”). UPON YOUR ACCESSING SUCH HYPERLINKS, YOU ACKNOWLEDGE AND AGREE THAT ANY TERMS AND CONDITIONS OF USE FOUND WITHIN SUCH THIRD PARTY SITES SHALL APPLY TO SUCH THIRD PARTY SITES AND NOT THIS AGREEMENT. ACCORDINGLY SYNCFAB MAKES NO WARRANTY OR REPRESENTATION AS TO THE CONTENT, ACCURACY, LEGALITY OR AUTHENTICITY OF ANY CONTENT PRESENTED BY ANY THIRD PARTY SITES FROM WHICH YOU GAIN ACCESS VIA A HYPERLINK FROM THE WEBSITE. MOREOVER, THE FACT THAT A THIRD PARTY SITE CAN BE ACCESSED VIA THE WEBSITE IS IN NO WAY AN ENDORSEMENT OF THAT THIRD PARTY SITE BY SYNCFAB
6. Intellectual Property
6.1 License. Subject to the terms herein, SyncFab grants to You a limited, revocable, non-exclusive license to use the Website for your personal or internal business purposes. SyncFab and its licensors retains all ownership and intellectual property rights to the Website and all content therein. You shall not or permit any third party to: (i) reverse engineer, disassemble or decompile the Website, the pricing and matching algorithms of SyncFab, or any component of the ServicesSyncFab’s geometry parsing engine; (ii) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website; (iii) access the Website in order to build a similar or competitive website, application or service; (iv) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; or (v) use the Website for any illegal or illicit purpose, including to manufacture any products, components, goods or tools designed or intended for use in firearms. Without limiting the foregoing, You acknowledge and agree that the pricing and matching algorithms, processes and mechanisms used by SyncFab, along with all components of the Website and/or ServicesSyncFab’s geometry parsing engine are the proprietary information and trade secrets of SyncFab. In the event You attempt to reverse engineer such pricing and matching algorithms, processes and/or mechanisms, or any component of the Website and/or ServicesSyncFab’s geometry parsing engine, Your right to use the Website and Service shall immediately cease, and SyncFab will take any action it deems necessary or appropriate to protect its rights and interests.
6.2 Trademarks. The Website contains names, which are trademarks, service marks and/or brand names of SyncFab and may not be used without the written permission of SyncFab. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners.
6.3 Your Content. SyncFab does not claim any ownership over your Specifications or any content, data or other materials you upload to or otherwise make available on the Website (“Your Content”). You are solely responsible for Your Content that You upload to the Website. You hereby grant SyncFab a non-exclusive, perpetual, royalty free, fully paid-up, sublicensable (to our Partners), right and license to reproduce, and use Your Content for the purpose of designing, manufacturing and delivering your Parts to You, and to provide you any other Services you request. You further acknowledge and agree that SyncFab may use Your Content on an aggregated and anonymized basis to improve the Website and Services, including without limitation, to improve our pricing algorithms and help manufacture Parts in a more efficient and expedient manner. By submitting an order to SyncFab, You represent and warrant that You are the owner and/or You have obtained the rights necessary to grant SyncFab granted herein use without any violation of any intellectual property rights, or payment by SyncFab of any amounts to any third party. You further represent and warrant that Your Content does not infringe upon, misappropriate, or violate any third party’s rights, including intellectual property, privacy and publicity rights. If SyncFab, in its sole commercial discretion, determines that the Specifications You submit to the Website infringes upon the intellectual property rights of any third party, SyncFab reserves the right to either not manufacture the Part(s) based on your Specifications.
7. Indemnification by You. You agree to indemnify and hold harmless SyncFab and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by You of any undertaking, warranty, representation or agreement contained herein; (ii) arising out of a claim that a Part manufactured by a Partner selected on the SyncFab RFQ On-Demand Service pursuant to an order hereunder violates any law, regulation or ordinance; (iii) arising out of a claim with respect to the Part (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Part; or (iv) arising out of any claim that any Specification, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party.
8. Limitation of Liability
8.1 Disclaimer of Certain Damages. SYNCFAB SHALL NOT IN ANY EVENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT SYNCFAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, PARTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE OR SERVICES; (3) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, SPECIFICATIONS, TOLERANCES OR DATA; (4) YOUR PARTS; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE AND SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SYNCFAB BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (I) THE AMOUNT RECEIVED BY SYNCFAB FROM YOU DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, OR (II) ONE HUNDRED DOLLARS ($100).
8.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SYNCFAB AND YOU.
9. Release of Liability.
YOU ACKNOWLEDGE AND AGREE THAT THE PARTS AND THEIR MANUFACTURE, ARE BASED ON SPECIFICATIONS PROVIDED BY YOU. ACCORDINGLY, YOU AGREE THAT UNDER NO CIRCUMSTANCE WILL SYNCFAB BE LIABLE FOR ANY DAMAGE OR LIABILITY RESULTING FROM ANY PART, INCLUDING ANY PART DEFECT RESULTING FROM THE MANUFACTURE OF A PART IN ACCORDANCE WITH THE SPECIFICATIONS. You hereby release SyncFab and its affiliates, and their officers, directors, employees, agents, and consultants and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from your Part(s). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
10. Term and Termination
10.1 Term. This Agreement commences on the date when You accept it (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated in accordance with the terms herein.
10.2 Termination of Services by You. If You want to terminate the Services provided by SyncFab, You may do so by (a) notifying SyncFab at any time and (b) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to SyncFab’s address set forth below.
10.3 Termination of Services by SyncFab. SyncFab has the right to, immediately and without notice, suspend or terminate this Agreement or Your use of the Website and Services (with or without cause), including if SyncFab becomes aware of any possible violations by You of this Agreement. In the event SyncFab determines, in its sole discretion, that You have breached any portion of this Agreement, SyncFab reserves the right to: (i) warn you via email (to any email address you have provided to SyncFab) that you have violated this Agreement; (ii) delete Your Content provided by You or Your agent(s) to the Website; (iii) notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which SyncFab deems to be appropriate.
10.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also include deletion of Your password and all related information, files and Your Content associate with or inside Your Account. SyncFab will not have any liability whatsoever to You for any suspension or termination, including deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations and limitation of liability.
11.1 Electronic Communications. The communications between You and SyncFab use electronic means, whether You visit the Website or send SyncFab e-mails, or whether SyncFab posts notices on the Website or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from SyncFab in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SyncFab provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
11.2 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without SyncFab’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
11.3 Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.4 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Website or Services, please contact us at: email@example.com. We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, we invite You to let us know for further investigation.
11.5 Limitations Period. YOU AND SYNCFAB AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
11.6 Arbitration. This Agreement or any claim, cause of action or dispute arising out of or related to this Agreement and/or your use of the Website and/or Services shall be governed by the laws of the State of Wyoming regardless of your country of origin or where you access the Website and/or Services, and notwithstanding of any conflicts of law principles and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable.
For any dispute you have with SyncFab, you agree to first contact SyncFab and attempt to resolve the dispute with us informally. If SyncFab has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules then in effect for the AAA, except for a claim by SyncFab for infringement or misappropriation of any patent, copyright, trademark, or trade secret or a breach of the Suppliers’ obligations under the “Bonding Program” Section of the Agreement. Unless you and SyncFab agree otherwise, the arbitration will be conducted in the State of California, County of Alameda and each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
In the event the agreement to arbitrate set forth herein is held unenforceable by a court, then you and SyncFab hereby agree that all claims that would otherwise have been arbitrated will be brought exclusively in courts of the State of California, County of Alameda, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California. Notwithstanding the above, you agree that SyncFab shall be permitted to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT YOU MAY BRING CLAIMS AGAINST SyncFab ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Wyoming, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.11.7 Non-Circumvention. You agree not to circumvent SyncFab by communicating or conducting business with SyncFab Clients either directly or indirectly without prior written amendment to this agreement by SyncFab.
11.8 Non-Use and Non-Disclosure of Confidential Information. Definition. For the purposes of this Non-Use and Non-Disclosure subsection, the following definitions are applicable: “Confidential Information” means any information disclosed by SyncFab to you ( “Recipient”) (whether prior to or after the Effective Date, and whether written, oral or by inspection of tangible objects), including without limitation any information and physical material not generally known or available outside Discloser and information and physical material entrusted to Discloser in confidence by third parties. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Discloser (whether by oral, written, graphic or machine-readable format) (collectively, “SyncFab Technology”), which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding any failure to so identify it, however, all of the Company’s provided Part Drawings and CAD Files shall be Confidential Information of the Company. “Affiliate” means any entity controlling, controlled by, or under common control with a party.
Exceptions. Confidential Information will not include any information that Recipient can demonstrate is: (i) or becomes publicly known and generally available without a duty of confidentiality through no fault of Recipient; (ii) in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by SyncFab to Recipient; (iii) obtained by Recipient from a third party without a duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (iv) independently developed by Recipient without use of any Confidential Information. SyncFab will not have any confidentiality obligations with respect to any information provided to SyncFab regarding the SyncFab Technology. If Company or any of Company’s Affiliates provides suggestions or other information regarding the SyncFab Technology or makes any improvements, enhancements or modifications to the SyncFab Technology, Company and Company’s Affiliates grant SyncFab a nonexclusive, perpetual, irrevocable license to make, use, sell, reproduce, distribute, modify, sublicense and otherwise exploit the foregoing without restriction. If Recipient becomes legally compelled to disclose any Confidential Information, Recipient will promptly notify SyncFab (if legally permissible) and assist SyncFab in seeking a protective order or other appropriate remedy and furnish only the portion of Confidential Information legally required to be disclosed.
Recipient will not use any Confidential Information except to evaluate and engage in discussions with SyncFab regarding the Opportunity. Subject to Section 4 below, Recipient will not disclose any Confidential Information except to employees, advisors, accountants, legal counsel, or directors of Recipient or Recipient’s Affiliates (“Representatives”) who need the information so Recipient can evaluate and engage in discussions with SyncFab regarding the Opportunity; provided such Representatives are subject to a duty of confidentiality no less restrictive than the terms of this Agreement with respect to Confidential Information. Recipient will ensure that Recipient’s Affiliates are bound by and comply with this Agreement. Recipient will be jointly and severally liable for any breach by Recipient’s Representatives or Recipient’s Affiliates in the same manner as Recipient. Recipient will not (i) reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody SyncFab’s Confidential Information, or (ii) file any patent application(s), utility model applications, or design registrations containing or based on, in whole or in part, any of SyncFab’s Confidential Information.
Maintenance of Confidentiality. Recipient will take reasonable measures to protect the secrecy of (and avoid disclosure and unauthorized use of) the Confidential Information, including at least those measures that Recipient employs to protect Recipient’s own confidential information of a similar nature. No right or license is granted to Recipient under any SyncFab Technology or intellectual property rights. Recipient will reproduce SyncFab’s proprietary rights notices on any authorized copies in the same manner as set forth in or on the original. Recipient will promptly notify SyncFab of any unauthorized use or disclosure of Confidential Information.
Return of Materials. All documents and other tangible items containing or representing Confidential Information that have been disclosed by SyncFab to Recipient (and all copies, extracts, or notes derived therefrom) in Recipient’s possession, will be and remain SyncFab’s property and will be promptly returned to SyncFab or destroyed (with proof of such destruction) upon SyncFab’s written request.
Term. This Non-Use and Non-Disclosure subsection will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Recipient’s obligations with respect to this Non-Use and Non-Disclosure subsection will continue for five (5) years after the disclosure of the Confidential Information unless earlier terminated by either party upon written notice. Recipient’s obligations with respect to Confidential Information will survive until such Confidential Information becomes publicly known through no fault of Recipient. The “Exceptions”, “Non-Circumvention”, “Maintenance of Confidentiality”, “Return of Materials”, and “Term” provisions of this subsection will survive any termination of this Agreement.
11.9 Notice. Where SyncFab requires that You provide an e-mail address, You are responsible for providing SyncFab with Your most current e-mail address. In the event that the last e-mail address You provided to SyncFab is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, SyncFab’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SyncFab at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by SyncFab by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
11.10 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.11 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.12 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Unless otherwise specifically agreed to by the parties, in the event of any conflict between the terms of this Agreement, the General Terms, or any order for Parts, the order of precedence is as follows: (i) the Ordering Terms; (ii) Manufacturing Standards; (iii) this Agreement; (iv) the General Terms; and (v) the order for Parts. Unless otherwise specifically agreed, the parties acknowledge that the pre-printed provisions on the reverse side of any quotation, order, acknowledgement or invoice will be deemed deleted and of no effect whatsoever.