Customer Service Agreement
31 mins
AutofabX Customer Service Agreement (Buyer Terms)
Last Updated: October 31, 2024
THIS AGREEMENT CONTAINS A CLASS ACTION WAIVER, A WAIVER OF JURY TRIALS, AND REQUIRES INDIVIDUAL ARBITRATION TO RESOLVE DISPUTES.
These Buyer Terms and Conditions (the "Agreement") govern Your ("You" or "Your") use of AutofabX's ("AutofabX") website (the "Website"). PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE, INCLUDING PLACING AN ORDER WITH AUTOFABX FOR MANUFACTURING SERVICES (THE "SERVICES"), CLICKING 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 AUTOFABX, 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 THE WEBSITE OR THE SERVICES. AutofabX's General Terms and Conditions, available at www.autofabx.com/terms-of-service ("General Terms"), are incorporated herein by reference.
PLEASE NOTE that AutofabX may modify these terms and conditions at any time, and such modifications will be effective immediately upon posting of the modified version on the Website for any orders placed after such modifications are posted. AutofabX will also update the "Last Updated" date at the top of this Agreement. If AutofabX makes any material changes and You have registered with AutofabX to create an Account (as defined below), AutofabX may also send You an email to the most recent email address You provided. Any changes to this Agreement will be effective immediately for new users of the Website and/or Services and will become effective thirty (30) days after posting or notice for existing users (whichever occurs first). AutofabX may require You to provide consent to the updated Agreement before You may continue to use the Website and/or Services. If You do not agree to the changes after receiving such notice, You must stop using the Website and/or Services. Otherwise, Your continued use of the Website and/or Services shall constitute Your acceptance of the updated terms.
AutofabX will use Your information as described in its Privacy Policy. We consider protecting user privacy to be fundamental. You represent and warrant that any data, information, records, or files that You upload, transmit, or enter into the Website will only contain Personal Information, as defined in the Privacy Policy, for which You have provided all necessary notices and disclosures, obtained all applicable third-party consents and permissions, and have all requisite authority, as required by applicable laws, to enable AutofabX to provide the Services.
1. SERVICES
1.1 About the Services. AutofabX provides and maintains an online platform accessible through the Website that allows AutofabX buyers to upload three-dimensional (3D) models for their manufacturing projects. AutofabX operates a vendor manufacturing program consisting of a network of third-party manufacturers (each referred to as a "Partner") who can perform manufacturing services to offer buyers greater efficiencies, including pricing, certifications, and lead times, while ensuring excellent quality manufacturing services. When a buyer uploads their specifications (as defined below) for a manufacturing project, AutofabX will either manufacture the parts, assemblies, or items to be delivered or subcontract the manufacturing to one of AutofabX's Partners (each referred to as a "Part").
1.2 Responsibilities When Using the Services. By using the Services, You agree to:
Comply with all applicable laws and regulations, including, but not limited to, intellectual property, data, privacy, and export control laws;
Only upload and share content or information that You have the necessary legal rights to use and disseminate, that is not subject to any confidentiality obligations, and that complies with all applicable laws and agreements to which You are bound;
Take reasonable steps to prevent unauthorized access to or use of the Services;
Monitor and control all activity conducted through Your Account in connection with the Services; and
Promptly notify AutofabX if You become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving Your Account, including any loss, theft, or unauthorized disclosure or use of Your Account.
If AutofabX believes that You have failed to comply with the above, AutofabX may, without notice, suspend or terminate Your access to the Services and refuse any current or future use of the Services (or any part thereof).
2. REGISTRATION
To access certain Services, You may need to register for an account ("Account"). By registering for the Services, You agree to (1) provide true, accurate, current, and complete information about Yourself as prompted in the account details section on the Website ("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 under Your Account, and AutofabX is not liable for any loss or damage (of any kind and under any legal theory) that may arise for You or any third party due to Your inability or failure to comply with these Terms and any applicable General Terms. You may not share Your Account or password with anyone, and You agree to (a) notify AutofabX immediately of any suspected or confirmed unauthorized use of Your password or any other security breach; and (b) log out from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current, or incomplete, or AutofabX reasonably suspects that such information is untrue, inaccurate, not current, or incomplete, AutofabX 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 part thereof).
3. ORDERING PROCESS
3.1 Placing Orders. To place an order for a Part, You must upload an acceptable model of the Part that You want produced as per the terms of this Agreement. During the ordering process, You may choose, from the list of available options, the material, color, surface, and measurement units (mm or inches) for Your Part. Certain restrictions may apply regarding thickness, material, color, and surface finishes. For an additional fee, You can request material certifications and inspection reports for Your Parts during the ordering process. AUTOFABX WILL NOT ALTER, MODIFY, OR CHANGE THE SPECIFICATIONS OF ANY PART WITHOUT OBTAINING WRITTEN APPROVAL FROM YOU. You will have the opportunity to see and review the order and the estimated costs (including production, delivery, and applicable taxes) provided by AutofabX before finalizing the order (the "Quote"). No contract for the manufacture of any Part will exist until AutofabX acknowledges Your acceptance of its Quote via confirmatory email or another appropriate means of communication, as determined by AutofabX at its sole discretion. SINCE EACH ORDER IS CUSTOM MANUFACTURED, YOU MAY NOT CANCEL AN ORDER ONCE IT HAS BEEN PLACED. AutofabX, at its sole discretion, may allow a buyer to cancel an order and may charge a fee not exceeding 3% of the total order value if the buyer requests such a cancellation, provided that no work has begun on the order as of the cancellation date.
3.2 Specifications. If You accept AutofabX's Quote by placing an order referencing the Quote number, AutofabX will, subject to these terms, manufacture or arrange for the manufacture of the Part(s) in accordance with the 3D geometry and features specified in the Quote (excluding details located in the Notes section) (collectively, the "Specifications"). You are solely responsible for ensuring that the Specifications in the Quote and any other information submitted with Your order are accurate and complete before payment. YOU MAY NOT AMEND OR MODIFY THE SPECIFICATIONS AFTER YOU HAVE PLACED YOUR ORDER.
3.3 AutofabX Cancellations. AutofabX may, at any time during the quotation, ordering, or manufacturing process, revoke or cancel any Quote/order if technical or other issues arise (such as concerns over intellectual property rights or legality of the Part). In such cases, AutofabX will reimburse You for any payments made for that Part.
3.4 Limitations. AutofabX will manufacture Your Part(s) according to the Manufacturing Standards found at www.autofabx.com/inspections (the "Manufacturing Standards"), unless AutofabX has agreed to different standards in the Quote. Due to technological limitations, it may be impossible or commercially impracticable to manufacture certain Parts exactly per Your Specifications. In such cases, AutofabX will make commercially reasonable efforts to contact You. Upon receiving Your written approval, AutofabX and its Partners may either produce the Part with different specifications (such as thickness) or switch to a different production technique and apply any necessary modifications to the order (including changes in price, delivery terms, etc.). You agree to compensate AutofabX for any additional costs resulting from modified Specifications.
3.5 Subcontracting. You acknowledge and agree that AutofabX may subcontract or delegate any order You place to one of AutofabX's Partners. Consequently, You acknowledge that AutofabX may share Your Specifications with its Partners for processing and manufacturing purposes. You will not have any obligation to pay any Partner directly.
3.6 Compliance with Export Controls. The data, items, deliverables, and Services may be subject to national, foreign, and international trade and export control laws and regulations ("Export Laws"). You must identify any 3D models and resulting items subject to Export Laws when providing them to AutofabX, including identifying items controlled under the International Traffic in Arms Regulations ("ITAR"). NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, YOU ARE LIABLE FOR ALL DAMAGES, LOSSES, AND LIABILITIES INCURRED BY AUTOFABX RESULTING FROM YOUR NON-COMPLIANCE WITH EXPORT LAWS OR FAILURE TO ACCURATELY IDENTIFY APPLICABLE EXPORT LAWS. Upon request by AutofabX, You will provide (a) any Harmonized Tariff Schedule ("HTS") codes for any Parts, (b) the end use of any such Parts, and (c) the end user within two (2) days of AutofabX's request.
3.7 Prohibited Items. While AutofabX aims to provide buyers with the freedom to create the most creative, imaginative, and useful projects and Parts, AutofabX reserves the right to refuse any Part that is illegal, designed to cause harm to human beings, or otherwise deemed inappropriate in its sole discretion. Accordingly, AutofabX prohibits the use of its Services for manufacturing certain Parts intended for firearms or those requiring federal, state, or local manufacturing licenses.
4. PRICING AND PAYMENT; AUTOFABX REFERRAL PROGRAM
4.1 Payment. 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 AutofabX, all invoices are due thirty (30) days after the date of the invoice or will be paid by credit card at the time of order placement. AutofabX reserves the right to require payment in advance for certain orders. All invoices are due in full, without any deductions or offsets. All invoices will be deemed final and binding unless You object to an invoice, in writing, within ten (10) days of receipt. All invoices not paid in full within such thirty (30) day period shall bear interest at the rate of 1.5% per month or the highest rate permitted under law. AutofabX may also draw down on any AutofabX Credits held in Your Account in the event You fail to pay any past due invoices within forty-five (45) days of their due date. If You choose to pay for an order by credit card, You must provide AutofabX with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) ("Payment Provider"). Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement and not this Agreement to determine Your rights and liabilities. By providing AutofabX with Your credit card number and associated payment information, You agree that AutofabX is authorized to immediately invoice Your Account and charge Your credit card for all fees and charges due and payable to AutofabX hereunder, and that no additional consent or notice is required. You agree to immediately notify AutofabX of any change in Your billing address or the credit card used for payment hereunder. AutofabX 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 AutofabX must be in the form of US Dollars. You will reimburse AutofabX for all reasonable expenses (including attorneys' fees) incurred by AutofabX in collecting overdue payments except where such overdue payments are due to AutofabX's billing inaccuracies.
4.2 Taxes and Costs. Unless otherwise stated, the price quoted with respect to the manufacture of any particular Part includes the cost for the Services rendered by AutofabX, the manufacturing of the Part, and the standard shipping (as selected by AutofabX), as well as all applicable sales and use taxes. Additional fees may apply for any alternate shipping methods https://www.autofabx.com/customer-service-agreement and/or shipping insurance. You will be liable for all other transaction duties and taxes (other than taxes based on AutofabX's net income). If Your order is exempt from sales tax, You must submit a valid sales tax exemption certificate.
4.3 Suspension of Services. AutofabX reserves the right to suspend performance hereunder (including the manufacture of the Part) in the event You fail to pay all outstanding amounts when due, and AutofabX retains full legal title to Parts until it has received full payment with respect to such Parts and payment on any other Parts that You have ordered. AutofabX reserves the right to refrain from manufacturing additional orders, or additional components of an existing order, as long as the outstanding issued invoices remain unpaid.
4.4 AutofabX Credits. Registered users can earn credits ("AutofabX Credits") through the following means.
Refer a Colleague. In order to refer a colleague and earn AutofabX Credits, registered users must send their unique referral link to facilitate the invitation or post their unique link on either Twitter or Facebook. If a Referred Colleague (as defined below) clicks on the link provided to them and purchases a Part, Your Account will be credited with 50 AutofabX Credits for the initial purchase only. As used herein, a "Referred Colleague" means any potential buyer of AutofabX who, prior to the time of the referral: (i) has not purchased any Parts from AutofabX, and (ii) has not created an Account. AutofabX Credits will only be awarded for the Referred Colleague's initial purchase of a Part, and You will not receive or be entitled to any AutofabX Credits in connection with any subsequent purchases made by any Referred Colleague.
AutofabX Credits may be solely redeemed towards the purchase of Parts. Each AutofabX Credit is equal to $1 and may be redeemed at checkout on future orders. Credits expire after 18 months and are redeemed on a first-in, first-out basis. AutofabX Credits are not legal tender and cannot be reloaded, resold, transferred for value, redeemed for cash, or applied to any other account, except to the extent required by applicable law. AutofabX prohibits and does not recognize any purported transfers of AutofabX Credits outside the Services, or the purported sale, lease, gift, or trade in the "real world" of anything that appears or originates outside of the Services. AUTOFABX RESERVES THE RIGHT TO DRAW DOWN UPON YOUR AUTOFABX CREDITS, IF ANY, IN THE EVENT OF ANY LATE PAYMENT(S) OR OTHER MATERIAL BREACH OF THIS AGREEMENT BY YOU.
5. SHIPMENT ESTIMATES; RISK OF LOSS IN TRANSPORT
5.1 Shipment Estimates. Quotations issued by AutofabX will contain an estimated date of shipment, calculated on the basis of the input data. The term of delivery generated by the online ordering system provides a preliminary indication of the planned shipment date, though it does not bind AutofabX in any way. The estimated shipment date is based on the working conditions applicable at the time the agreement is concluded and on the punctual delivery of the materials ordered by AutofabX for the performance of the work. Should a delay arise for which AutofabX is not responsible, due to a change in the aforementioned working conditions or because materials ordered in time for the performance of the work are not delivered on time, the shipment date may be extended, and AutofabX will not be liable for such delay.
5.2 Risk of Loss. Unless otherwise agreed, all sales of Parts shall be Ex-works Seller's factory (Incoterms 2000). If You require delivery of the Parts otherwise than Ex-works, You must contact AutofabX in writing to detail Your requirements. AutofabX, at its discretion, shall arrange the delivery requirements, including, without limitation, transport insurance, the mode of transport (AutofabX reserves the right to vary the mode of transport if any regulations or other relevant considerations require it), and any special packaging requirements. All costs, taxes, duties, and charges related to fulfilling any of Your requests under this Section shall be paid by You unless otherwise agreed by both parties.
6. REPLACEMENT PARTS
6.1 No Warranty of Specifications. Upon delivery of a Part, You should inspect the Part carefully. All Parts will be deemed accepted upon delivery to You. You acknowledge and agree that AutofabX will use commercially reasonable efforts to manufacture or have the Part manufactured by our Partners in accordance with Your Specifications. AutofabX does not warrant Part design or 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, AutofabX does not warrant that Your Part can or will be manufactured in accordance with Your Specifications. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, AUTOFABX DOES NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE, SERVICES, PARTS, OR ANY MATERIALS PROVIDED BY AUTOFABX HEREUNDER, AND DOES NOT WARRANT THAT THE PART WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF ANY CERTIFICATIONS PROVIDED, OR BE MERCHANTABLE OR FIT FOR YOUR PARTICULAR PURPOSE.
6.2 Specifications Warranty; Remedy. AutofabX represents and warrants for a period of three (3) business days following the delivery of the Part (the "Warranty Period"), that the Part shall conform to the Specifications for such Part. In the event You notify AutofabX during the Warranty Period that the Part fails to comply with the applicable Specifications in all material respects, AutofabX will, as Your sole and exclusive remedy, replace such non-conforming Parts at AutofabX's sole cost and expense, provided (i) You return the non-conforming Part(s) to AutofabX within three (3) business days of Your notice of non-conformance, and (ii) AutofabX reasonably confirms such non-conformity. No returns will be accepted by AutofabX unless You have notified AutofabX within the Warranty Period. If You fail to contact AutofabX within the Warranty Period, AutofabX shall have no further obligations with respect to such Part, and ALL SALES WILL BE DEEMED FINAL AND SUCH PARTS MAY NOT BE RETURNED TO AUTOFABX.
7. INTELLECTUAL PROPERTY
7.1 License. Subject to the terms outlined herein, AutofabX grants You a limited, revocable, non-exclusive license to use the Website for Your personal or internal business purposes. AutofabX and its licensors retain all ownership and intellectual property rights to the Website and all content contained within it. You shall not, nor permit any third party to:
(i) reverse engineer, disassemble, or decompile the Website, including the pricing and matching algorithms or the geometry parsing engine of AutofabX;
(ii) use any manual or automated software tools or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools, or similar) to "scrape" or download data from any web pages contained on the Website;
(iii) access the Website to develop a similar or competitive website, application, or service;
(iv) except as expressly provided herein, copy, reproduce, distribute, republish, download, display, post, or transmit any part of the Website in any form or by any means;
(v) use the Website for any illegal or prohibited purpose, including manufacturing certain products, components, goods, or tools designed for use in firearms;
(vi) send, upload, collect, transmit, store, use, post, publish, or otherwise communicate any data, information, pictures, videos, music, or other materials or content on the Website that: (a) contains viruses, worms, malicious code, or software intended to damage or alter a computer system or data; (b) You do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (c) is false, intentionally misleading, or impersonates another person, including reviews that do not accurately reflect Your experience; (d) is defamatory, slanderous, bullying, harassing, abusive, threatening, obscene, offensive, or contains pornography, nudity, graphic violence, or promotes violence, racism, discrimination, bigotry, hatred, or physical harm against any group or individual; (e) is harmful to minors or directed at minors; (f) infringes, violates, or misappropriates the intellectual property or other rights of any third party (including moral rights, privacy rights, or publicity rights); or (g) encourages conduct that may violate applicable laws or lead to civil or criminal liability;
(vii) share, transfer, or otherwise provide access to an account designated for You to another person;
(viii) misuse the AutofabX domain or use the AutofabX trademark without authorization;
(ix) disable, overly burden, impair, or interfere with servers or networks connected to the Website (e.g., denial-of-service attacks);
(x) gain unauthorized access to the Website or circumvent or violate the Website's security measures, including: (a) accessing content not intended for You; (b) attempting to breach Website security or authentication measures; (c) disrupting or disabling service to users, hosts, servers, or networks by any means; or (d) attempting to interfere with the proper functioning of the Website, including introducing any malicious or technologically harmful material.
You acknowledge that the pricing and matching algorithms, processes, and mechanisms used by AutofabX, as well as AutofabX’s geometry parsing engine, are proprietary information and trade secrets. Any attempt to reverse engineer these elements will result in immediate termination of Your right to use the Website and Service, and AutofabX may take any action deemed necessary to protect its rights and interests.
7.2 Trademarks. The Website includes names, trademarks, service marks, and brand names that belong to AutofabX and may not be used without AutofabX's written permission. Other trademarks, service marks, and trade names that may appear on the Website are the property of their respective owners.
7.3 Your Content. AutofabX does not claim any ownership over Your Specifications or any content, data, or other materials You upload or make available on the Website ("Your Content"). You are solely responsible for the Content You upload. By doing so, You grant AutofabX a non-exclusive, perpetual, royalty-free, fully paid-up, sublicensable (to our Partners) right and license to reproduce and use Your Content for designing, manufacturing, and delivering Your Parts to You, as well as to provide other requested Services. You may request the return or destruction of Your Content by written notice to AutofabX, though AutofabX may retain archival copies to comply with applicable laws or document retention policies. You further agree that AutofabX may use Your Content in an aggregated and anonymized manner to improve the Website and Services, including improving pricing algorithms and increasing manufacturing efficiency. By submitting an order to AutofabX, You represent and warrant that You own or have the necessary rights to grant AutofabX the use rights set forth herein without violating any third-party intellectual property rights, and that Your Content does not infringe on the rights of any third party, including intellectual property, privacy, or publicity rights. If AutofabX determines, at its sole discretion, that the Specifications submitted infringe upon third-party intellectual property rights, AutofabX reserves the right to refuse to manufacture the Part(s). AutofabX will use commercially reasonable efforts to protect the confidentiality of Your Content and only share it with third parties as necessary to provide Services, except where disclosure is required by law.
7.4 Your Data. When using the Service, You agree that AutofabX will need to collect, use, and process data from Your organization to provide the Services ("Buyer Data"), as governed by our Privacy Policy and applicable General Terms. You must provide all billing and other necessary information in the requested format. AutofabX is not responsible for its inability to perform Services due to incorrect information, improperly formatted or corrupt files, viruses on submitted media, or incompatible backup media or software. You must maintain accurate backups of all data provided to AutofabX. You acknowledge that transferring Buyer Data may involve human and machine errors, omissions, and losses, including accidental data loss or damage to media. You are responsible for taking reasonable measures to minimize the impact of such issues.
With respect to Buyer Data, You represent, warrant, and covenant that:
The provision of Buyer Data to AutofabX and AutofabX's use thereof complies with all applicable laws, and You have obtained all necessary third-party approvals and consents;
Buyer Data and AutofabX's use of it does not infringe on or violate any intellectual property or other rights of third parties.
You retain ownership of all Buyer Data. You hereby grant AutofabX a non-exclusive, non-transferable, sublicensable, royalty-free, worldwide right to process Buyer Data to: (i) provide You with the Services as defined herein and in any General Terms; (ii) generate aggregate data; and (iii) sublicense Buyer Data solely as necessary to provide the Services, including enabling Partners to fulfill their obligations to AutofabX and to You, subject to applicable General Terms.
8. INDEMNIFICATION BY YOU. You agree to indemnify and hold harmless AutofabX, its officers, directors, shareholders, agents, licensees, employees, successors, assigns, and Partners from and against any and all damages, liabilities, awards, losses, costs, and expenses, including, without limitation, reasonable attorneys' fees and court costs, arising from: (i) any breach by You of any undertaking, warranty, representation, or agreement contained herein; (ii) a claim that a Part manufactured by AutofabX pursuant to an order violates any law, regulation, or ordinance; (iii) a claim related to the Part (whether arising from product liability, strict liability, negligence, or otherwise), including claims for injury, death, or damage to any person or property caused by the Part; or (iv) any claim that any Specification infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity, or other rights of any third party.
9. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN, THE PARTS MANUFACTURED BY AUTOFABX PURSUANT TO AN ORDER SUBMITTED THROUGH THIS WEBSITE, AS WELL AS THE WEBSITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, AND ANY OTHER MATERIALS PROVIDED BY AUTOFABX, ARE OFFERED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. AUTOFABX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATED TO THE WEBSITE, SERVICES, AND PARTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. AUTOFABX DOES NOT GUARANTEE THAT THE PARTS OR USE OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL 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.
9.1 BECAUSE THE PARTS ARE BASED ON YOUR SPECIFICATIONS, AUTOFABX MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE PARTS WILL MEET YOUR USE REQUIREMENTS, (2) THE PARTS ARE FIT FOR ANY PARTICULAR PURPOSE OR MERCHANTABLE, OR (3) THE PART DESIGN IS FREE FROM DEFECTS OR ERRORS.
9.2 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. AUTOFABX 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.
9.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUTOFABX OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
9.4 ANY CONTENT DOWNLOADED OR OTHERWISE ACCESSED THROUGH THE WEBSITE IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM OR ANY DEVICE YOU USE TO ACCESS THE WEBSITE, OR ANY OTHER LOSS RESULTING FROM ACCESSING SUCH CONTENT.
9.5 YOU ACKNOWLEDGE AND AGREE THAT AUTOFABX IS NOT LIABLE, AND YOU AGREE NOT TO HOLD AUTOFABX LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY PART MANUFACTURED BY A THIRD PARTY.
10. LIMITATION OF LIABILITY
10.1 Disclaimer of Certain Damages. AUTOFABX SHALL NOT, IN ANY EVENT, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES, OR 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 AUTOFABX 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.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL AUTOFABX BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY AUTOFABX FROM YOU UNDER A GIVEN ORDER FOR ANY CLAIM RELATING TO THAT ORDER.
10.3 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 MAY HAVE ADDITIONAL RIGHTS.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AUTOFABX AND YOU.
11. 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 AUTOFABX BE LIABLE FOR ANY DAMAGE OR LIABILITY RESULTING FROM ANY PART, INCLUDING ANY DEFECT RESULTING FROM THE MANUFACTURE OF A PART IN ACCORDANCE WITH THE SPECIFICATIONS. YOU HEREBY RELEASE AUTOFABX AND ITS AFFILIATES, AS WELL AS THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, AND PARTNERS AND THEIR SUCCESSORS, FROM CLAIMS, DEMANDS, ANY AND ALL LOSSES, DAMAGES, RIGHTS, AND ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE, WHETHER DIRECTLY OR INDIRECTLY RELATED TO OR ARISING FROM YOUR PART(S), EXCLUDING ANY MATERIAL DEFECTS IN ANY PART(S) SOLELY CAUSED BY THE ACTS OR OMISSIONS OF AUTOFABX. 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.”
12. TERM AND TERMINATION
12.1 Term. This Agreement becomes effective on the date when You accept it (as described in the preamble above) and remains in effect as long as You use the Services, unless terminated in accordance with the terms herein.
12.2 Termination of Services by You. Subject to Section 3.1, if You wish to terminate the Services provided by AutofabX, You may do so by (a) notifying AutofabX at any time and (b) closing Your Account for all the Services You use. Your notice should be sent in writing to AutofabX’s address provided below.
12.3 Termination of Services by AutofabX. AutofabX 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 AutofabX becomes aware of any potential violations by You of this Agreement. If AutofabX determines, at its sole discretion, that You have breached any portion of this Agreement, AutofabX reserves the right to: (i) warn You via email (to any email address You have provided to AutofabX) that You have violated this Agreement; (ii) delete 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 appropriate law enforcement authorities for further action; and/or (iv) take any other action that AutofabX deems appropriate.
12.4 Effect of Termination. Termination of any Service includes removal of access to such Service and preventing further use of the Service. Termination of all Services also includes deletion of Your password and all related information, files, and Your Content associated with or inside Your Account. AutofabX will have no liability whatsoever to You for any suspension or termination, including the deletion of Your Content. All provisions of this Agreement that by their nature should survive shall survive termination of the Services, including, without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations, and limitations of liability.
13. MISCELLANEOUS
13.1 Electronic Communications. Communications between You and AutofabX use electronic means, whether You visit the Website or send AutofabX emails, or whether AutofabX posts notices on the Website or communicates with You via email. For contractual purposes, You (1) consent to receive communications from AutofabX in electronic form and (2) agree that all terms, agreements, notices, disclosures, and other communications that AutofabX provides to You electronically satisfy any legal requirement that such communications would satisfy if in writing. The foregoing does not affect Your statutory rights.
13.2 Linked Sites. The Website may provide links or access to third-party content, websites, or services. AutofabX does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under AutofabX’s control, and if You choose to access any such content, websites, or services, or access the Website from such systems, You do so entirely at Your own risk. You acknowledge that You may be required to accept terms of use applicable to third-party content, websites, services, or systems, and agree to accept and comply with any such terms of use.
The Website may integrate with social networking services. You understand that AutofabX does not control such services and is not liable for how they operate. While we may provide You with the ability to use such services in connection with the Website, AutofabX does so as an accommodation and, like You, relies upon those services to operate properly and fairly.
13.3 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by You without AutofabX’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Neither party shall be liable for any delay or failure to perform (excluding payment obligations) resulting from causes beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, pandemics, government-ordered shutdowns, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
13.5 Questions, Complaints, Claims. If You have any questions, complaints, or claims with respect to the Website or Services, please contact us at: [email protected]. 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.
13.6 Limitations Period. YOU AND AUTOFABX 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.
13.7 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 13.7 (“Arbitration Agreement”) carefully. It is part of Your contract with AutofabX and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by AutofabX that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to You and AutofabX, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and the requested relief. A Notice to AutofabX should be sent to: [email protected]. After the Notice is received, You and AutofabX will attempt to resolve the claim or dispute informally. If You and AutofabX do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including, but not limited to, the method of initiating and/or demanding arbitration, except to the extent such rules conflict with this Agreement. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by one to three neutral arbitrators, at the discretion of AutofabX. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Wilmington, Delaware, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(e) Time Limits. If You or AutofabX pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and AutofabX, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and AutofabX.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between You and AutofabX in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND AUTOFABX WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE BUYER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER BUYER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Agreement, neither You nor AutofabX is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 13.7(n).
(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Agreement shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with AutofabX.
(l) Small Claims Court. Notwithstanding the foregoing, either You or AutofabX may bring an individual action in small claims court.
(m) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(n) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Montgomery County, Maryland, for such purposes.
13.8 Governing Law. This Agreement and any action related to it shall be governed by and interpreted under the laws of the State of Maryland, consistent with the Federal Arbitration Act, without considering any principles that would apply the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.9 Independent Contractor. Your relationship with AutofabX under this Agreement is that of an independent contractor. Nothing in this Agreement is intended to or should be construed as creating a partnership, joint venture, or employer-employee relationship between AutofabX and You. You agree not to take any position on any tax return, application for benefits, or in any proceeding involving AutofabX that is inconsistent with Your status as an independent contractor (and not an employee) of AutofabX. You are not an agent of AutofabX and are not authorized, and must not represent to any third party that You are authorized, to make any commitments or otherwise act on behalf of AutofabX.
13.10 Notice. If AutofabX requires that You provide an email address, You are responsible for providing AutofabX with Your most current email address. If the last email address You provided to AutofabX is not valid, or if for any reason it cannot deliver notices required/permitted by this Agreement, AutofabX’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to AutofabX at the following address: 7529 Standish Place, Suite 200, Derwood, MD 20855, Attn: Legal Dept. Such notice shall be deemed given when received by AutofabX through a nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
13.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be considered a waiver of any other provision or of such provision on any other occasion.
13.12 Severability. If any provision of this Agreement is found to be invalid or unenforceable for any reason, the other provisions of this Agreement will remain in full force and effect. The invalid or unenforceable provision will be modified to the extent necessary to make it valid and enforceable to the maximum extent allowed by law.
13.13 Entire Agreement. This Agreement represents the final, complete, and exclusive agreement between the parties regarding the subject matter hereof, and it supersedes all prior discussions between the parties concerning such subject matter. Unless otherwise specifically agreed in writing 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) Manufacturing Standards; (ii) this Agreement; (iii) the General Terms; and (iv) the order for Parts. Unless otherwise specifically agreed in writing by the parties, any pre-printed provisions on the reverse side of any quotation, order, acknowledgment, or invoice shall be considered deleted and of no effect.