Last Updated: May 1, 2022
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 Services Agreement (the “Agreement”) is made and entered between FormRep, LLC. (“FormRep”) and you (“You” or “Your”), as of the date that You accept this Agreement or purchase products or services as provided in this preamble. PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING FormRep’s WEBSITE (THE “WEBSITE”), INCLUDING PLACING AN ORDER WITH FormRep FOR MANUFACTURING SERVICES (THE “SERVICES”), IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR ANY SERVICES.
FormReps General Terms and Conditions available at: www.formrep.com/tc (“General Terms”) are incorporated herein by reference.
PLEASE NOTE that FormRep 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. FormRep will also update the “Last Updated” date at the top of this Agreement. If FormRep makes any material changes, FormRep 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. FormRep 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.
The Parties agree as follows:
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this document, the Proposal document(s), Quotes, Estimates, Invoices, (if any), Schedule A, and Schedule B, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.
1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.
1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client, in the form and media specified in Schedule A.
1.5 “Designer Tools” means all design tools developed and/or utilized by Designer in performing the Services, including, without limitation, pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions (whether or not patentable), and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 “Final Art” means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including, but not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials, and as approved and accepted by Client.
1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer and approved and accepted by Client.
1.8 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Designer and which may or may not be shown and or delivered to Client for consideration.
1.9 “Project” means the scope and purpose of Client’s identified usage of the work product.
1.10 “Services” (or “Designer’s Services”) means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables.
1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.
1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.
2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Designer’s Services and the production of the Deliverables.
2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Design Services or otherwise integrated into the Final Art. Under such circumstances, Designer shall inform Client of any need to license.
2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer as part of the Final Art and Final Deliverables for use by Client. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
2.4 Assignment of Final Art. Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the Payment Terms and Schedule of any estimate or invoice.
4.1 Timing. Designer shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer.
4.2 Acceptance. Client, within 3 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted.
Client acknowledges that he shall be responsible for performing the following in a reasonable and timely manner:
(a) Coordination of any decision-making with parties other than the Designer;
(b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and,
(c) Final proofreading pursuant to Provisions 4.1 and 4.2.
Designer retains the right to reproduce, publish and display the Final Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to this Agreement, except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in this Agreement. Designer and the Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement.
8.2 No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.
9.1 By Client. Client represents, warrants and covenants to Designer that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and,
(b) To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties.
9.2 By Designer.
(a) Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Designer further represents, warrants and covenants to Client that
(i) The Final Deliverables shall be the original work of Designer; and,
(ii) To the best of Designer’s knowledge, the Final Art provided by Designer does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.
10.1 By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Designer shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.
10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and the Final Deliverables and the Final Art are delivered.
11.2 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party:
(a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or,
(b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 Upon expiration or termination of this Agreement:
(a) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and,
(b) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
12.1 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment. Designer shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Client.
12.4 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States in the State of Missouri without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
12.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.6 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.
12.7 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement.
INDEMNIFICATION BY YOU. You agree to indemnify and hold harmless FormRep 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 FormRep 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.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE PARTS MANUFACTURED BY FORMREP PURSUANT TO AN ORDER AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. FORMREP 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. FORMREP 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.
Quotations
A quotation is valid for a period of 30 days from the date quoted, unless FormRep informs the customer within this period, but prior to placing an order, that the quote is void. If the quote is voided, FormRep reserves the right to issue a revised quote or decline to quote. It is the responsibility of the customer to alert FormRep to all design changes that have been made after the quoted design state. Acceptance of an order without such notification does not prevent FormRep from changing the price for the order.
It is at FormRep’s discretion whether to accept, re-quote or decline an order with design changes. If FormRep deems necessary, the original quote will be voided and FormRep will issue a new quote for the revised part design, or will decline to quote. Any feature such as inserts, over-molding, texturing, text, etc., or material not clearly identified in the customer’s request for quote, and not specifically stated on the quote, is not included in the quoted price. With current market conditions, raw material cost fluctuations have become normal. Therefore FormRep reserves the right to requote a project before production due to raw material market pricing.
Furthermore, a part may be quoted with the assumption that design flaws that are not conducive to injection molding will be corrected prior to mold design. If moldability flaws are present and identified at any point in processing the order, the customer will be informed. If the customer agrees, the design changes will be made, otherwise the order will be voided. FormRep will provide design change recommendations when the customer design is not conducive to industry standard and/or FormRep molding techniques. The tooling and part quote is based on the part size and weight listed in the quote. The customer is responsible for verification of the parts listed in the quote conforming with the customer’s part design.
All prices are quoted and payments shall be made in U.S. dollars. Depending on the customer’s credit report, a minimum of 100% down payment of the tooling cost is required to commence tooling production. The remaining tooling cost (if any) will be invoiced upon sample part shipment. Customer shall have a period of 5 business days from receipt of parts for sample approval. If FormRep is not notified within this time period of nonconformance to the model, customer acknowledges approval and payment becomes due. Parts payment terms are prepaid with order. Accepted payment methods are wire transfer, ACH, check, and credit and debit cards including MasterCard, Visa, American Express and Discover. Credit card payments may be subject to a 9% convenience fee. Terms may be modified for established customers in good standing and approved credit. Any modifications will be required in writing.
All tooling is based on the customer-approved 3D CAD data which supersedes any conflict with 2D dimensional or geometric data. Full dimensional layouts, CMM reports, or a higher number of samples will be quoted as needed. Any additional samples provided are at the customer’s risk, as the purpose of the initial samples is for approving tooling and parts, samples cannot be returned for any reason.
Customer assumes ownership of the mold core once it is paid in full. In cases where an exchangeable mold frame is used, customer has ownership of the mold core, and FormRep retains ownership of the mold frame. FormRep will maintain and store the customer’s tooling at no cost for a period of two years of inactivity. After two years of inactivity, we will automatically send an invoice to the customer’s last known address on file for $360 per year (prepaid) for maintenance/storage. The customer will have 30 days to pay the invoice or place a new order for parts. If the customer fails to pay the storage fee or place a new order for parts, FormRep reserves the right to discard the mold tooling. All tooling will only be used to make parts for the original customer or their authorized associate during the period.
Due to the dynamic nature of the injection molding process and the unstable nature of plastic, part tolerance accuracies will be attempted, but are not guaranteed. Once the shrink rate is added. Tighter tolerances may be requested and additional charges may apply.
FormRep will modify tooling to support design changes at a quoted rate. FormRep reserves the right to determine the suitability of the mold modification vs. making a new mold. A set-up fee, based on the injection machine size required, is applied for each part run or tool sampling resulting from a customer-driven design change to the mold. Changing or adding plastic resins or colors results in additional trialing and approval samples for which the customer will be quoted. Each color change during a parts run will incur a fee.
The technical performance of parts and materials is the responsibility of the customer, which assumes all liabilities associated with the use of the parts. The customer is responsible for all testing and approval prior to their use of the parts. Design characteristics which are deemed by FormRep to be the cause of post-molding part distortion, warp or sink are the responsibility of the customer to correct through part design. Based on the customer’s specification for the load condition of the parts or other factors, CNC machined plastic parts may be milled from multiple blocks and bonded together.
The customer is responsible for complying with all applicable U.S. laws or laws of whichever country and/or locality said parts are associated with the direct or indirect use of the part(s) and the ultimate destination. The customer also certifies that the 3D CAD data being submitted to FormRep WILL NOT produce products that violate United States firearms laws or laws of any other international governments. FormRep cannot be held responsible or liable for violations of United States firearms laws or laws of any other international governments that are the result of the manufacturing, delivery or use of any product that was a provided design by the customer.
Due to the customization of services performed, FormRep will charge a minimum 15% cancellation fee on the total purchase order amount should Buyer cancel an order. Additional cancellation fees may apply to cover engineering work, up-front material purchase, and other administrative or services performed up to that point.
FormRep assumes no responsibility or liability for the design or designs of the products that are the result of this transaction. All designs are a result of the customer providing 3D CAD designs to FormRep for production of the customer’s goods whether they are customer-designed or a customer-approved design the customer had commissioned a third party or FormRep to produce.
The customer will not hold FormRep responsible or liable for materials selected by the customer for the production of their parts. Although FormRep representatives may make recommendations as to which materials may be the better choice for production of a customer’s goods, FormRep and/or its representatives will not express, imply or choose what materials are to be used in production of the customer’s goods. The choosing of said materials is solely the responsibility of the customer for their goods. The customer is responsible for their own due diligence and research as to which materials and designs for their goods are best to comply with government regulations regarding health and safety, CE, FCC, FDA, FMCSA, ISO, NSF, UL, and USP requirements, strength, durability and/or flexibility, or other regulations either not mentioned or implied in the present or future. This also includes specialized materials purchased by FormRep at the customer’s request as well as specialized materials provided to FormRep by the customer for use in the customer’s goods.
SELLER MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Returns of defective parts will not be accepted past 60 days from receipt for injection molded parts or 30 days for CNC machined parts. Should the customer wish to return the parts within this period, customer may request an RMA. FormRep may, at its discretion, replace the parts or issue a credit to the customer’s account. FormRep shall not be responsible for return shipping, nor any costs related to part scrappage.
Upon receipt of an export mold, customer is responsible for ensuring that the mold meets the specifications of the supplied 3D CAD model of the parts. Customer shall have 30 days to notify FormRep of any nonconformity issues. If FormRep is not notified within 30 days of the customer’s receipt of the mold, customer acknowledges acceptance and conformance of the mold. FormRep will review any issues brought to its attention by the customer regarding nonconformance of the mold to the 3D CAD model of the parts. If FormRep agrees to any nonconformance issue, it may at its discretion elect to allow the mold to be returned to its mold manufacturing facility for rework at buyer’s expense. In no case will FormRep be held responsible for any loss of business, revenue or any loss whatsoever claimed as a result of returning a mold for rework.
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.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of Your contract with FormRep 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 FormRep 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 FormRep, 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 FormRep should be sent to: [email protected]. After the Notice is received, You and FormRep will attempt to resolve the claim or dispute informally. If You and FormRep 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 are in 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 a three, neutral arbitrators. 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 Missouri, 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 FormRep 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 FormRep, 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 FormRep.
(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 FormRep in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND FormRep 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 CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER 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 or FormRep 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 13.6(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 effect any other portion of this Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with FormRep.
(l) Small Claims Court. Notwithstanding the foregoing, either You or FormRep 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 in order 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 Missouri for such purpose.
Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Missouri, 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.
Independent Contractor. Your relationship to FormRep under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between FormRep and You. You agree to take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving FormRep that is inconsistent with You being an independent contractor (and not an employee) of FormRep. You are not an agent of FormRep’s and are not authorized, and must not represent to any third party that You are authorized, to make any commitment or otherwise act on behalf of FormRep.
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.
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.
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) Manufacturing Standards; (ii) this Agreement; (iii) the General Terms; and (iv) 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.
By placing an order or accepting an estimate from FormRep, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of received order, and each represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.