Last Updated: August 15, 2016
SyncFab Platform Basics
As set forth above, SyncFab makes available an online platform where SyncFab will match Buyers seeking to have certain Subject Parts manufactured with Factories with the capacity and expertise to meet the Buyers’ needs.
YOU ACKNOWLEDGE AND AGREE THAT SYNCFAB DOES NOT PROVIDE MANUFACTURING OR ENGINEERING SERVICES OR FUNCTION AS A MANUFACTURER OR ENGINEER IN ANY CAPACITY.
Opening a SyncFab Account
In order to register as a Buyer or a Factory on the Platform you must create a SyncFab account (“SyncFab Account”), and in doing so you affirmatively represent, warrant and covenant to SyncFab that: (i) you are at least eighteen (18) years of age; (ii) you will maintain only one SyncFab Account at any given time; (iii) you have full power and authority to enter into to this Agreement and doing so will not violate any other agreement to which you are a party; and (iv) your registration and your use of the SyncFab Platform is in compliance with all applicable laws and regulations.
To obtain a SyncFab Account you must provide a valid e-mail address, supply a username and password as well any such other additional information as SyncFab shall require. It is your responsibility to maintain the confidentiality of your user name and password, and by submitting to the registration process, you agree that: (i) you are fully responsible for all manners of the use of your user name and password; (ii) you will keep your user name and password confidential and not share it with anyone else; (iii) you will immediately notify SyncFab of any unauthorized use of your user name and password or SyncFab Account; and (iv) SyncFab will not be liable for any damage or loss that may arise due to improper use of your user name and password by you or someone else with or without your authorization, except to the extent such use was caused by SyncFab’s gross negligence or intentional misconduct.
Users will also be required to provide to SyncFab certain banking information to enable SyncFab to remit payments due hereunder (collectively, “Payment Information”). You hereby acknowledge and agree that SyncFab may in its sole discretion, take such actions as it may deem necessary to verify the accuracy of such Payment Information. In regard to the Buyer’s use of the SyncFab Platform all Buyers hereby authorize SyncFab to collect the Acquisition Fees (as hereinafter defined) at such times and amounts specified on the SyncFab Platform by charging and/or deducting such Acquisition Fees in accordance with the Buyer’s applicable Payment Information provided to SyncFab.
In addition to the foregoing, in order to a register as a Factory on the Platform you will be required to submit to SyncFab certain information regarding your operations, facilities, capacity, history, equipment, workforce, as well as such other information that SyncFab may request from time to time (“Suppler Information”). You hereby further agree to provide SyncFab with project information including but not limited to project updates, final number of parts produced and any additional information SyncFab deems appropriate to facilitate future job placements as determined in SyncFab’s sole discretion.
By registering for a SyncFab Account, you acknowledge and agree that SyncFab is permitted to access, preserve, and disclose your account information or User Content (as defined below) if it is required to do so by law or based upon a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) enforce this Agreement; (ii) comply with any mandatory requests for information made by a law enforcement agency, internet service provider or other third-party in the course of a legal proceeding; or (iii) protect the rights and/or safety of SyncFab, the SyncFab Platform, other Users or the public.
Notifications and Service Messages
SyncFab may provide notifications about your SyncFab Account or the SyncFab Platform to Users via email notice, written notice, through posting on the SyncFab Platform, or through other means including mobile telephone, as determined by SyncFab in its sole discretion, to which you hereby consent. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, without limitation, your failure to receive critical information and notices about the SyncFab Platform as a result thereof except to the extent that such failure was caused by SyncFab’s gross negligence or intentional misconduct.
Project Submission, Booking and Fulfilment
Submitting a Request
Once a Buyer has created a SyncFab Account, such Buyer will be able to submit to SyncFab a project request pursuant to which the Buyer will be required to provide SyncFab with certain information regarding the Subject Parts the Buyer is seeking to have manufactured, such as the type, the quantity thereof, materials to be involved with the manufacture of the Subject Parts, ex., steel, aluminum, wood, etc. (“Materials”), dates by which the Subject Parts must be received (“In-hand Dates”), shipping location for the finished Subject Parts, and such other information as SyncFab may request, which may include, without limitation, models and drawings of the Subject Parts (collectively, “Buyer Specifications”). Upon SyncFab’s receipt of the Buyer Specifications SyncFab will match the proposed job with a capable Factory based on an analysis of the Subject Parts, associated processes and Buyer Specifications and will compile an estimate for the Buyer for the overall costs that will be involved with the completion of such proposed job (“Estimate”). The Users hereby agree that SyncFab is free to reject any request for an estimate for any reason and acknowledge that only requests for estimates that meet the capabilities of our Factory base and are accompanied by all required information to complete the manufacture of the Subject Parts will be accepted and processed by SyncFab. All Buyers agree that the In-hand Dates included in the Buyer Specifications and the overall market conditions at the time of the remittance of the request for quote may affect SyncFab’s pricing. A Buyer’s request for an estimate for the same Subject Products at a later date may yield a different overall cost based upon these variables and others. All Estimates are subject to change either before or after a Buyer’s acceptance of such Estimate, as a result of any changes that are requested by the Buyer and accepted by SyncFab. Upon acceptance of an Estimate a Purchase Order is generated.
SyncFab does not endorse any Factory. Factories are required to provide accurate Factory Information, and although SyncFab may undertake additional checks and processes designed to help verify or check the identities or backgrounds of Factories, we do not make any representations about, confirm, or endorse any Factory or a Factory’s facility or equipment.
Upon a Buyer’s acceptance of a SyncFab Purchase Order the Buyer will be obligated to remit to SyncFab 100% of the costs set forth in the Purchase Order (“Acquisition Fees”), which shall be non-refundable unless otherwise provided herein or on the SyncFab Platform. Of these Acquisition Fees collected by SyncFab, 15% of the fees that are due to the Factory will be remitted to the Factory upon the Factory’s acceptance of the Purchase Order to manufacture the Subject Parts, while the remaining 85% (“Escrowed Funds”), shall be remitted to the Factory upon the earlier of (i) SyncFab’s receipt of the Buyer’s approval to remit such Escrowed Funds to the Factory; or (ii) ten (10) days from the delivery of the Subject Parts at the Buyer’s facility in the event SyncFab does not receive an approval or disapproval from the Buyer during such time period regarding the payment of such fees.
A Purchase Order that has been accepted by a Buyer and confirmed by a Factory (“Confirmed Job”) may not be cancelled by such Buyer without SyncFab’s prior written consent and shall be subject to the Buyer’s forfeiture of 100% of the Acquisition Fees. Of these retained Acquisition Fees the Factory shall be entitled to receive payment in an amount equal to the (i) Factory’s actual costs incurred prior to the cancellation of such Confirmed Job, which shall be documented and reasonably acceptable to SyncFab (“Factory Costs”); plus (ii) the product of the Factory Costs and 10% (collectively, “Cancellation Fees”). In the event that the amount of the fees that have been remitted to the Factory prior to the termination of the Confirmed Job are less than the Cancellation Fees due to the Factory hereunder SyncFab shall release the excess amount due to the Factory from the Escrowed Funds within ten (10) days of the date of the termination. In the event that the amount of the fees that have been remitted to the Factory prior to the termination of the Confirmed Job are greater than the Cancellation Fee the Factory shall deliver such excess amount to SyncFab within ten (10) days of the date of the termination via the delivery of a certified check or wire transfer of immediately available funds. Any Escrowed Funds remaining after the payment of the Cancellation Fees shall be retained by SyncFab as a cancellation penalty.
Any cancellation or other non-completion of a Confirmed Job by a Factory shall be governed by the Platform’s Bonding Program, more fully described below.
Upon a Buyer’s acceptance of a Purchase Order SyncFab shall arrange for the acquisition and delivery of the Materials to the Factory and shall manage all communications between the Buyer and Factory throughout the process. All Buyers and Factories hereby agree not to communicate directly with one another regarding the manufacture of a Subject Part either before the acceptance of a Quote or prior to the delivery of a Subject Product without SyncFab’s prior written consent. All Users agree not to attempt to circumvent SyncFab’s involvement in the manufacture of any Subject Parts under any circumstances.
All Factories expressly agree and warrant that (i) all Factory Information submitted by the Factory to SyncFab, is accurate and truthful in all respects; (ii) the Subject Parts will be manufactured exclusively on the Factory’s equipment that has been reserved by SyncFab and included within an underlying Purchase Order, unless otherwise agreed to in writing by SyncFab; (iii) all Materials and logistics that are provided and arranged by SyncFab shall be used exclusively for the manufacture of the Subject Parts, unless otherwise agreed to in writing by SyncFab; (iv) all Subject Parts shall be manufactured in compliance with the Buyer’s Specifications; and (v) all Subject Parts shall comply with all applicable laws. All warranties, whether express or implied, relating to the Subject Parts shall run from the Factories to SyncFab, the Buyers, their successors, and assigns. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THIS AGREEMENT, THE FACTORY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OR ANY KIND, EXPRESS OR IMPLIED, AND THE FACTORY DISCLAIMS THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The Factories will not use subcontractors for the manufacture of any of the Subject Parts, or the performance of any of the Factory’s other obligations hereunder, without SyncFab’s express written consent.
Monitoring and Compliance
All Factories authorize SyncFab and its designated agents (including third parties) to engage in monitoring activities to confirm compliance with this Agreement, including on-site inspections of manufacturing facilities and reviews of books and records during Factory’s normal hours of business.
SyncFab will coordinate the delivery of all Subject Parts from Factories to Buyers via third party carriers on the Factory’s behalf. Title to the Subject Parts and risk of loss or damage to such Subject Parts will pass to the Buyer upon the delivery of the Subject Parts to the Buyer’s facility and both the Buyers and Factories hereby acknowledge and agree that at no time shall title to the Subject Parts pass to SyncFab. All missing or damaged shipments or Subject Parts must be reported within ten (10) days of delivery to the Buyer per the Bonding Program set forth below.
All Confirmed Jobs will be covered by a surety bond covering the Factory’s performance of such Confirmed Job (each a “Subject Job”) in favor of the Buyer of such Subject Job. Each such surety bond shall be provided by a reputable surety company (each a “Participating Surety”). In the event that a Buyer determines that (i) a Factory has failed to timely complete a Machine Time in accordance with the agreed upon terms (“Completion Default”); or (ii) that a Subject Product is of unacceptable quality within seven (7) days of the delivery of such Subject Part to the Buyer (“Product Default”), such Buyer shall be required to submit a written claim evidencing such Completion Default or Product Default, as applicable (“Bond Claim”), to SyncFab via (i) email (with confirmation of receipt) to jeff@SyncFab.io; or (ii) registered or certified mail to SyncFab Inc., 446 East High Street, #110, Lexington, California 40507, Attn: Jeffrey Markowitz. All Bond Claims will be forwarded on to the applicable Participating Surety, who shall review such Bond Claims within a reasonable amount of time, which process may include, without limitation, contacting the Factory involved with the Bond Claim and reviewing such documentation as the Participating Surety shall deem appropriate. In this regard, until full performance of a Factory’s obligations of a Subject Job and exoneration of the underlying bond, in the Participating Surety’s sole determination, the Participating Surety may freely access, examine and copy the Factory’s books, records, credit reports, financial statements, bank account records, accounts or any other financial records or any form (collectively, “Records”). All Factories hereby authorize third parties in possession of all such Records to furnish them and any other information such third parties may have in connection with a Subject Job as may be requested by the Participating Surety. Pending the resolution of a Bond Claim a Factory may be temporarily suspended from undertaking any further jobs on the Platform until such Bond Claim has been resolved and may have any Confirmed Jobs currently in process reassigned by SyncFab, in its sole discretion, to other Factories.
All Factories hereby acknowledge and agree that the Participating Sureties may, in their sole discretion, deny, pay, compromise, defend or appeal any Bond Claim or suit against an underlying bond. An itemized statement of, or sworn voucher from a Participating Surety attesting to the loss, shall be prima facie evidence of the loss. All Factories expressly waive notice of any Bond Claims or demand against the underlying bond or information provided to the Participating Sureties and hereby agree to fully indemnify the Participating Sureties and to defend and save them harmless from any and all losses incurred as a result of the issuance of the bond(s), including, without limitation, any interest, costs, attorneys’ fees, incurred by the Participating Surety by reason of any claims against the Participating Sureties under any such bond(s) issued by the Participating Surety. All Factories hereby acknowledge and agree that any amounts due to a Participating Surety hereunder may be paid to the Participating Surety via the release of the Escrowed Funds by SyncFab to the Participating Surety.
If after receipt and review of the Bond Claim the Participating Surety determines that the Factory is in default the Participating Surety shall either, at the Buyer’s discretion, (i) engage a new Factory to complete the Subject Job; or (ii) refund the Acquisition Fees for such Subject Job to the applicable Buyer. In the alternative, if after receipt and review of the Bond Claim the Participating Surety determines that the Factory is not in default, SyncFab, upon notification from the Participating Surety, shall release the Escrow Funds and the Subject Job at issue shall be deemed complete. All Factories hereby irrevocably appoint the Participating Sureties, or their designees, as its attorney-in-fact with the right and power, but not the obligation, to exercise all of the rights assigned to the Participating Sureties in this Agreement, and to make, execute and deliver any and all additional contracts, instruments, assignments, documents or papers (including, without limitation, the endorsement of checks or other instruments payable to the Factory representing payment of monies) deemed necessary and proper by the Participating Surety in order to give full effect to the intent and meaning of the assignments and rights contained herein. It is expressly agreed that this power-of-attorney is coupled with the interest of the Participating Sureties in receiving the indemnification from the Factories. All Factories hereby ratify all acts by the Participating Sureties of their designees as attorneys-in-fact.
In the event of a default on the part of a Factory as set forth herein, in addition to the foregoing, SyncFab may impose additional penalties or consequences to the Factory, which may include, without limitation, (i) publishing an automated review on the Factory’s SyncFab Account indicating that a default has occurred on an accepted Machine Time; and/or (ii) imposing a cancellation fee, in an amount to be determined by SyncFab, in its sole discretion.
All Factories hereby agree and acknowledge that a Participating Surety’s resolution of a Bond Claim shall be final and binding on all such parties, on behalf of themselves, their predecessors, successors, parents, subsidiaries, affiliates, assigns, representatives and agents hereby release and forever discharge such Participating Surety and SyncFab, their predecessors, successors, parents, subsidiaries, affiliates, assigns, representatives and agents, as well as all of their present and former directors, officers, employees, agents, shareholders, representatives, attorneys and insurers, from any and all claims, causes of actions, demands, debts, obligations, damages or liability of any nature whatsoever, known or unknown, which the Factories have or may have which arise out of or in connection with a Bond Claim.
Rules of Use
As a condition to accessing the SyncFab Platform, each User agrees to abide by this Agreement and to strictly observe the following:
- All Factories shall comply with the Code of Conduct set forth on Exhibit A hereto as well as all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
- Provide accurate information to SyncFab as requested and updated as necessary;
- Not upload, post, transmit or otherwise make available any content that (i) falsely states, impersonates or otherwise misrepresents your identity or your affiliation with any person or entity; (ii) includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships; (iii) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; or (iv) contains software viruses, worms, or similar computer code, files or programs.
- Not to reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the SyncFab Platform;
- Not to utilize or copy information, content or any data you view on or obtain from the SyncFab Platform to provide any service that is competitive, in SyncFab’s sole discretion, with SyncFab or the SyncFab Platform;
- Not to utilize or copy information, content or any data you view on or obtain from the SyncFab Platform to provide any service that is competitive, in SyncFab’s sole discretion, with SyncFab or the SyncFab Platform;
- Not to infringe or use, in any manner, SyncFab’s brand, logos or trademarks, including, without limitation, using the word “SyncFab” in any business name, email, URL or otherwise;
- Not to engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of the SyncFab Platform;
- Not to engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the SyncFab Platform’s infrastructure;
- Not to recruit or otherwise solicit any User to join third-party services or websites that are competitive to SyncFab, without SyncFab’s prior written approval, or in an attempt to circumvent SyncFab’s involvement in the manufacture of any Subject Parts, or for any other reason.
You agree to indemnify, and hold SyncFab and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your use of the SyncFab Platform or Subject Parts obtained through the Platform; (b) the manufacture of the Subject Parts; (c) your breach or violation of this Agreement; (d) your User Content; or (d) your violation of the rights of any third party, including any other Users. You will cooperate as fully required by SyncFab in the defense of any claim and SyncFab reserves the right to assume the exclusive defense and control of any matters subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of SyncFab.
Suspension or Termination
We may, in our discretion, without cause or prior notice suspend, deactivate or cancel your SyncFab Account and accordingly terminate any pending or Confirmed Jobs of a User. You may terminate this Agreement, for any reason, at any time, by deleting your SyncFab Account, thereby signifying that you agree not to use the SyncFab Platform. Such termination will be effective upon SyncFab processing your notice; provided, however, you will remain obligated under any and all accepted Purchase Orders and/or Confirmed Jobs commenced prior to your termination of this Agreement.
Upon termination of this Agreement, the rights and obligations of the Users and SyncFab, which by their nature must survive termination of this Agreement in order to achieve their fundamental purposes, including, without limitation, the provisions of sections addressing legal compliance, representations and warranties, and indemnities, shall survive such termination without time limitation.
Intellectual Property Matters
All text, graphics, images, software, information, copyrights, trademarks, service marks, trade dress, trade secrets, or patents, whether registered or not and whether owned directly or licensed from others (collectively, “Content”) that SyncFab makes available through the Platform (“SyncFab Content”), but excluding User Content, are protected by copyright, trademark, and other laws and all Users hereby acknowledge and agree that (i) the SyncFab Platform and all SyncFab Content, including all associated intellectual property rights, are the exclusive property of SyncFab and its licensors; and (ii) SyncFab reserves all of its intellectual property rights in the SyncFab Platform and the SyncFab Content, except as otherwise set forth herein.
Subject to your compliance with this Agreement, SyncFab grants you a limited, non-exclusive, non-transferable license, to (i) access and view the SyncFab Platform and any SyncFab Content solely for your personal and non-commercial purposes, other than in regard to your use of the Platform; and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes, other than in regard to your use of the Platform. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the SyncFab Platform, SyncFab Content or User Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SyncFab or its licensors, except for the licenses and rights expressly granted in this Agreement.
By a User making available to SyncFab any Content through the SyncFab Platform, or otherwise, which may include, without limitation, textual, audio and/or visual content and information, commentary and feedback related to the SyncFab Platform (“User Content”), each User hereby grants to SyncFab a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, to use, view, copy, modify, transfer, publicly display and otherwise exploit such User Content in regard to the operation of the SyncFab Platform and/or the promotion or marketing thereof, without further notice to or consent from you, and without compensation to you and/or any third party.
You acknowledge and agree that you are solely responsible for all User Content that you submit to SyncFab and/or otherwise make available through the SyncFab Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you submit to SyncFab and/or otherwise make available through the SyncFab Platform or you have all rights, licenses, consents and releases that are necessary to grant to SyncFab the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or SyncFab’s or a Buyer’s use of the User Content (or any portion thereof) on, through or by means of the SyncFab Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Notwithstanding the foregoing, the Factory does not represent or warrant that such User Content that the Factory submits to SyncFab and/or otherwise makes available through the SyncFab Platform: (a) will not infringe or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation when specially made, in whole or in part, to the Buyer Specifications; or (b) if used or sold in combination with other materials or apparatus, will not, as a result of such combination, infringe any such patent, and the Factory shall not be liable to SyncFab or the Buyer for damages or losses of any nature whatsoever resulting from actual or alleged infringement arising pursuant to (a) and (b) above.
In the context of a Confirmed Job, a Factory, is granted by the applicable Buyer, a limited license to use the Buyer Specifications and User Content only for the purpose of supplying the Subject Parts and to fulfill the Factory’s obligations under this Agreement. The Factory shall not acquire or assert any ownership in or to any of the Buyer’s User Content and the Factory’s use of the Buyer’s User Content shall inure to the sole benefit of the Buyer.
Disclaimers/Limitations of Liability
SyncFab PROVIDES THE PLATFORM AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW SyncFab DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT. SyncFab MAKES NO WARRANTY THAT THE SyncFab PLATFORM OR ANY CONFIRMED JOBS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SyncFab MAKES NO WARRANTY REGARDING THE QUALITY OF ANY QUOTES, BUYERS, FACTORIES, CONFIRMED JOBS, THE SERVICES, USER CONTENT OR SUBJECT PRODUCTS OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OR SyncFab CONTENT. SyncFab EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY AND ALL USERS.
IF YOU ARE DISSATISFIED OR HARMED BY SyncFab, THE SyncFab PLATFORM OR ANYTHING RELATED TO SyncFab OR THE SyncFab PLATFORM, YOU MAY CLOSE YOUR SyncFab ACCOUNT AND TERMINATE THIS AGREEMENT AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SyncFab BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM THE USE OF OR INABILITY TO USE THE SyncFab PLATFORM, FROM SyncFab’S SELECTION OF A FACTORY, A BUYER’S ACCEPTANCE OF A SyncFab PURCHASE ORDER, FROM A FACTORY’S PERFORMANCE OF A CONFIRMED JOB OR THE MANUFACTURE OF ANY SUBJECT PARTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SyncFab HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL SyncFab’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND YOUR USE OF OR INABILITY TO USE THE PLATFORM AND/OR IN CONNECTION WITH ANY PURCHASE ORDER, CONFIRMED JOBS OR SUBJECT PARTS, EXCEED THE AMOUNTS YOU HAVE BEEN PAID OR BEEN, AS APPLICABLE, FOR CONFIRMED JOBS VIA THE PLATFORM IN THE THIRTY (30) DAY PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE OR RECEIVED. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SyncFab AND YOU AND YOU HEREBY ACKNOWLEDGE AND AGREE THAT SyncFab WOULD NOT HAVE ENTERED INTO THIS AGREEMENT IF THIS PROVISION WAS NOT INCLUDED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Copyright Infringement Claims
Claims of suspected copyright infringement should be sent to SyncFab’s designated representatives as set forth on the SyncFab Platform at firstname.lastname@example.org
Third Party Sites
The SyncFab Platform 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 SyncFab Platform. Moreover, the fact that a Third Party Site can be accessed via the SyncFab Platform is in no way an endorsement of that Third Party Site by SyncFab.
Governing Law; Binding 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 SyncFab Platform shall be governed by the laws of the State of California regardless of your country of origin or where you access the SyncFab Platform, 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 Factories’ 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.
Time Limitation on Claims
You agree that any claim you may have against SyncFab arising out of or related to your relationship with SyncFab must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
SyncFab reserves the right, at its sole discretion, to modify the SyncFab Platform or this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the SyncFab Platform or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the SyncFab Platform after we have modified this Agreement you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the SyncFab Platform. Notwithstanding the foregoing, in the event that SyncFab modifies the “Governing Law; Binding Arbitration” section set forth above after the date that you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject the acceptance of such modification by SyncFab by delivering written notice of such objection to SyncFab, 1933 Davis Street Suite 244, San Leandro, California 94577, Attn: Dispute Resolution, within thirty (30) day of the date such date became effective in accordance herewith. To be effective such notice must include your full name and your intent to reject the specific changes you are objecting to. Your rejection to such changes shall in no way alleviate your obligation to abide by the terms of the “Governing Law; Binding Arbitration” section as they existed prior to your objection to such modifications.
Code of Conduct for Factories
There shall not be any use of forced labor, whether in the form of prison labor, indentured labor, bonded labor, or otherwise.
There shall not be any use of child labor in violation of any applicable laws.
Harassment or Abuse
Every employee shall be treated with respect and dignity. No employee shall be subject to any physical, sexual, psychological or verbal harassment or abuse.
No person shall be subject to any discrimination in employment, including hiring, salary, benefits, advancement, discipline, termination or retirement, on the basis of gender, race, religion, age, disability, sexual orientation, nationality, political opinion, or social or ethnic origin.
Health and Safety
Factories shall provide a safe and healthy working environment to prevent accidents and injury to health arising out of, linked with, or occurring in the course of work or as a result of the operation of Factory facilities.
Wages and Benefits
Factories recognize that wages are essential to meeting employees’ basic needs. Factories shall pay employees, as a floor, at least the minimum wage required by local law or the prevailing industry wage, whichever is higher, and shall provide legally mandated benefits.
Hours of Work
Except in extraordinary business circumstances, employees shall (i) not be required to work more than the lesser of (a) 48 hours per week and 12 hours overtime; or (b) the limits on regular and overtime hours allowed by the law of the country of manufacture or, where the laws of such country do not limit the hours of work, the regular work week in such country plus 12 hours overtime; and (ii) be entitled to at least one day off in every 7 day period.
In addition to their compensation for regular hours of work, employees shall be compensated for overtime hours at such premium rate as is legally required in the country of manufacture or, in those countries where such laws do not exist, at a rate at least equal to their regular hourly compensation rate.
Protection of the Environment
Factories will comply with all applicable environmental laws and regulations.