Auxetic Terms of Service
(last updated November 2nd, 2018)
This Auxetic LLC Terms of Services Agreement (this “Agreement”) is between Auxetic LLC, (“Auxetic”) and the Customer identified in the Purchase Order (capitalized terms are defined in Section 1.3) that specifically references this Agreement (“Customer”), and describes the terms that apply to the provision of the Services and Deliverables specified in the Purchase Order. The parties agree as follows:
1. Agreement Structure.
1.1 Auxetic is willing to provide the Services and Deliverables to Customer only on the condition that Customer first accepts this Agreement (including the Purchase Order). Customer accepts this Agreement (including the Purchase Order) by doing any one or more of the following: (1) signing (by hand or electronically) the Purchase Order or issuing a purchase order or similar document referencing the Purchase Order; (2) sending Auxetic an email containing Customer’s agreement to this Agreement and the Purchase Order; (3) checking the “I Agree” box (or functional equivalent) where this option is made available to you as part of an online Purchase Order; (4) using or allowing others to use one or more applicable Services or Deliverables; or (5) making any payment required under the Purchase Order.
1.2 Access to the Services are void where prohibited. The Services are intended solely for use by individuals who are 13 years of age or older. Registration by, use of, or access to the Service by anyone under 13 is unauthorized and violates this agreement. You represent that (1) you are at least 18 years of age, are of legal age to form a binding contract in the jurisdiction in which you reside, and otherwise have the legal capacity to enter into binding contracts (if you are 13 years of age or older but under 18 years of age, your parent or guardian must enter into this Agreement on your behalf, and that parent or guardian represents that (A) he or she is at least 18 years of age, is of legal age to form a binding contract in the jurisdiction in which he or she resides and otherwise has the legal capacity to enter into binding contracts, and accepts this Agreement on your behalf, and (B) you are 13 years of age or older), (2) you have all requisite power and authority to enter into and perform your obligations under this Agreement, and (3) if you are accepting this Agreement on behalf of another Person, you are duly authorized to bind that Person to this Agreement.
1.3 In this Agreement, the following definitions apply:
“Part” is defined as a three-dimensional object manufactured with or assembled using components manufactured with 3D printing technology
“Consumer” is defined as an individual who purchases one or more Services or Deliverables for use for personal, family, or household purposes only.
“Customer-Provided Items” is defined as the designs, specifications, documents, data, and other items (including 3D Models) provided to Auxetic by Customer in connection with a Purchase Order.
“Deliverables” is defined as one or more 3D Models or Part specified in the Purchase Order.
“3D Model” is defined as a digital model or representation of a three-dimensional object used to print a Part of that object using 3D printing technology.
“Person” is defined as an individual, an entity or organization (including a partnership), or a government body.
“Services” is defined as Auxetic services specified in the Purchase Order.
“Purchase Order” is defined as the online quotation, offline, quotation, sales order, service order, invoice, or other transaction-specific document or online ordering process provided by Auxetic that specifically references this Agreement and contains the details of Customer’s Services and Deliverables purchase, including the Services and Deliverables to be provided by Auxetic, the applicable prices, the street address of Customer’s requested delivery location, and any requirements, specifications, schedules, or terms in addition to those specified in this Agreement.
1.4 Regardless of whether this Agreement is construed as an invitation to bargain, an offer, or an acceptance of Customer’s offer, this Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement, and supersedes all other agreements, whether written or oral, between the parties with respect to that subject matter. This Agreement and Auxetic’s acceptance of Customer’s order for Services and Deliverables (or if for any reason Customer’s issuance of an order for Services and Deliverables is deemed an acceptance of a prior offer by Auxetic, that acceptance by Customer) is expressly limited to, and expressly made conditional on, Customer’s acceptance of the terms of this Agreement, and Auxetic hereby objects to any different or additional terms, including any such different or additional terms in Customer’s purchase order, acknowledgement, or other documentation or communications relating to the subject matter of this Agreement. The term “this Agreement,” whenever used in this Agreement, means, collectively, this Terms of Service Agreement and the Purchase Order unless the context clearly states otherwise.
1.5 Customer hereby consents to this Agreement being formed electronically or otherwise without the need for a signature by either Customer or Auxetic. A printed version of this Agreement and a printed version of any notice in connection with this Agreement given by Auxetic in electronic form is admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records generated and maintained in printed form by Auxetic.
1.6 The pricing terms contained in the Purchase Order are confidential, and Customer shall not disclose them to any non-employees other than its attorneys, accountants, and other professional advisors who are subject to a contractual or generally recognized legal or fiduciary obligation to maintain the confidentiality of those pricing terms.
2. Purchase Order.
2.1 Customer’s submission of a Purchase Order constitutes an irrevocable offer by Customer to purchase the Services and Deliverables specified in that Purchase Order under the terms of this Agreement. Auxetic may, at its discretion, accept or reject the Purchase Order. Auxetic may accept the Purchase Order by confirming the Purchase Order in writing (by written confirmation, invoice, or otherwise), accepting payment for the Purchase Order, or providing the Services and Deliverables, whichever occurs first. This Agreement (and the Purchase Order) will become effective on the date the Purchase Order is received by Auxetic unless Auxetic rejects the Purchase Order (and this Agreement) within 10 days after that date.
2.2 The Purchase Order is governed by this Agreement, and Auxetic shall provide to Customer the Services and Deliverables specified in the Purchase Order in accordance with, and subject to, this Agreement and any additional terms (such as the applicable material and color of Parts) specified in the Purchase Order. If the Purchase Order conflicts with this Agreement (excluding the Purchase Order), this Agreement will prevail unless the Purchase Order specifically (and not generally) identifies the conflicting terms in this Agreement and explicitly states that those terms do not apply but instead are superseded by the Purchase Order, in which case the Purchase Order will prevail.
2.3 Auxetic may upon notice to Customer cancel all or part of the Purchase Order for any reason, including the following reasons: (1) a single file submitted by Customer contains more than one 3D Model; (2) Auxetic’s determination that the file format of a Customer-Provided 3D Model is not compatible with the 3D printing technology used by Auxetic or that a Customer-Provided 3D Model contains technical flaws that prevent it from being successfully printed as a 3D Print; or (3) Auxetic’s determination that (A) a Customer-Provided 3D Model contains, or Customer’s requested design of a Auxetic-created 3D Model would contain, or a Part printed from that Customer-Provided or Auxetic-created 3D Model would contain, anything illegal, tortious, defamatory, libelous, hateful, threatening, abusive, harassing, pornographic, violent (including but not limited to any kind of weapon or firearm), or otherwise objectionable, or (B) the Customer-Provided 3D Model, or a Part printed from that Customer-Provided 3D Model, infringes or violates someone else’s rights, including copyrights, patents, trademarks, service marks, trade names, trade secrets, publicity, privacy, or other intellectual property, personal, or contractual rights. Auxetic may, but is not obligated to, provide Customer with an opportunity to revise the applicable Customer-Provided 3D Model or requested design of a Auxetic-created 3D Model to remove the elements that formed the basis for Auxetic’s cancellation, in which event Auxetic may rescind its cancellation upon notice to Customer if Customer resubmits a modified 3D Model or requested design that removes the elements that formed the basis for Auxetic’s cancellation. If Auxetic cancels all or part of the Purchase Order under this section 2.3, Auxetic shall refund the fees paid for the cancelled Services and Deliverables.
3. Services and Deliverables.
3.1 If the Services include creation of a 3D Model, at Customer’s written request, Auxetic shall deliver to Customer a copy of that 3D Model.
3.2 If the Services include printing one or more Parts of a Customer-Provided 3D Model, and Auxetic is unable to print those Parts due to deficiencies in that Customer-Provided 3D Model, at Customer’s request and as Customer’s sole remedy (1) Auxetic shall refund the fees paid for those Parts, or (2) Auxetic shall print those, in which case those Parts will deemed accepted by Customer upon receipt and section 6 (Inspection of Deliverables) will not apply to those Parts.
3.3 If Auxetic provides Customer a test Part for Customer’s approval and Customer approves that test 3D Print, Customer will be deemed to accept upon receipt all Parts that are of a standard of quality at least as high as the test Part approved by Customer.
3.4 Customer is solely responsible for ensuring the Deliverables (and Parts printed by Customer from a Auxetic-provided 3D Model) comply with any applicable Laws and voluntary industry standards maintained by ISO, ASTM, ASME, and other similar bodies, including those Laws and standards applicable to consumer and product safety, and Customer acknowledges that Auxetic will not test Deliverables for such compliance. In this Agreement, “Laws” mean laws, statutes, regulations, rules, executive orders, conventions, and other legally binding official releases of or by any government body, in each case as then in effect.
4. Delivery.
4.1 Except as otherwise provided in the Purchase Order, (1) Auxetic shall ship Parts FCA Auxetic’s shipping facility, in which case Customer is responsible for carrier selection, carrier freight payments, and routing instructions (subject to Auxetic’s reasonable approval), and tracking and tracing freight in transit (except that if Customer is a Consumer, as an accommodation to Customer Auxetic will arrange for loading and shipping of the Parts by a Auxetic-selected carrier and any applicable freight charges will be specified in the Purchase Order), (2) delivery of a Part to a carrier at Auxetic’s shipping facility constitutes delivery to Customer, and (3) Customer assumes risk of loss to that Part and the expense and responsibility for insuring, loss of, or damage to that Part during and after that delivery, and any claims for loss or damage to Parts in transit must be made to the carrier or Customer’s insurer and not to Auxetic (except that if Customer is a Consumer, as an accommodation to Customer Auxetic may cause each Part to be covered by insurance, arranged and paid for by Auxetic for Customer, covering the period until it is delivered to Customer’s requested delivery location specified in the Purchase Order, and for any loss or damage during shipment, Customer shall report the loss or damage in writing to Auxetic within 5 business days after delivery and follow any applicable claim procedure specified by Auxetic or the insurer.
4.2 Except as otherwise provided in the Purchase Order, (1) shipping dates provided by Auxetic are estimates only and are conditioned on Customer’s timely provision of the applicable Customer Designs (if specified in the Purchase Order) and all necessary shipping and other information and (2) Auxetic may make delivery in installments, in which case Auxetic may separately invoice Customer for each installment and Customer shall pay each such invoice without regard to subsequent deliveries. Auxetic shall use reasonable commercial efforts to meet estimated or requested shipment dates, but Auxetic is not liable to Customer for any late shipment.
5. Title and Security Interest.
Title and risk of loss to a Deliverable passes to Customer when Auxetic delivers that Deliverable in accordance with section 4.1 (Delivery).
6. Inspection of Deliverables.
Customer shall inspect Deliverables within two business days after receipt (that two-day period, the “Inspection Period”) and either accept, or if any Deliverables are Nonconforming Deliverables, reject those Deliverables. Customer will be deemed to have accepted the Deliverables unless Customer notifies Auxetic in writing of any Nonconforming Deliverables before the end of the Inspection Period and promptly furnishes such written evidence or other documentation as reasonably required by Auxetic. “Nonconforming Deliverable” means a Deliverable that does not conform to its applicable specifications as stated in the Purchase Order. A Part that constitutes an accurate printing of a Customer-Provided 3D Model will be deemed to not constitute a Nonconforming Deliverable. If Customer timely notifies Auxetic of any Nonconforming Deliverable and provides all information Auxetic reasonably requests to evaluate Customer’s claim (such as photographs of the allegedly Nonconforming Deliverable), Auxetic reasonably determines that the Deliverable is a Nonconforming Deliverable, Auxetic shall do one of the following: (1) replace the Nonconforming Deliverable with a conforming Deliverable, or (2) refund the price paid for the Nonconforming Deliverable, together with all shipping expenses incurred by Customer in connection with the delivery of that Nonconforming Deliverable to Customer under section 4.1. Auxetic shall issue refunds to the credit card or other payment method Customer used to place the Purchase Order. It normally takes financial institutions five to ten business days to post a refund transaction. This section 6 states Auxetic’s entire liability and Customer’s sole remedy for the delivery of Nonconforming Deliverables.
7. Prices and Payment.
7.1 Customer shall pay all applicable charges for the Services in accordance with the pricing, amounts, and payment terms stated in the Purchase Order. If no payment terms are stated in the Purchase Order, the payment terms are payment in advance of shipment. If any government taxing authority imposes a tax, duty, levy, or fee, excluding those based on Auxetic’s net income, upon any Services or Deliverables supplied by Auxetic under this Agreement, Customer shall pay that amount as specified in the applicable Purchase Order or Auxetic’s invoice or supply Auxetic with tax exemption documentation (e.g., a resale certificate) in which case Auxetic will not collect the taxes covered by that exemption documentation.
7.2 If Customer pays with a credit card (in this Agreement, the term “credit card” includes a credit card or a debit card) for amounts payable under the Purchase Order, Auxetic will bill Customer’s credit card for those amounts. Customer shall provide Auxetic with accurate and complete billing information, including Customer’s name, address, telephone number, and valid credit card information, and shall promptly notify Auxetic of changes in that information. Customer acknowledges that the agreement between Customer and the applicable credit card issuer governs Customer’s use of Customer’s credit card for payment of amounts owed to Auxetic, including Customer’s rights and obligations as a holder of that card. If Auxetic does not receive payment from Customer’s credit card issuer, upon demand Customer shall pay the overdue amount by other means acceptable to Auxetic. Auxetic may accept other forms of payment, and if Auxetic invoices Customer for amounts payable under the Purchase Order, Customer shall pay to Auxetic the amount indicated in each invoice by the due date reflected on the invoice.
7.3 Customer shall make all payments in U.S. Dollars without offset, reduction, or abatement. Except as otherwise provided in section 6 (Inspection of Products), all purchases are nonrefundable, nonreturnable, and cannot be exchanged.
7.4 If Customer fails to pay in accordance with this Agreement, in addition to any other remedies available to Auxetic, Auxetic may charge daily interest from the original due date at the rate of the lesser of 1.5% per month or the maximum amount permissible by Law, suspend the provision of Services and Deliverables, or both. Customer shall reimburse Auxetic for all reasonable expenses incurred by Auxetic in collecting past due amounts, including wire transfer fees, collection agency fees, reasonable attorneys’ fees, and court costs.
8. Cooperation.
Customer shall, at Customer’s expense, provide Auxetic with all reasonable cooperation necessary or appropriate for the performance of Services, including (if necessary) providing Customer-Provided Items to be used in the development of a 3D Model or printing of a 3D Print. If Customer is making available to Auxetic any Customer-Provided Items in connection with Auxetic’s performance of Services, Customer shall obtain any licenses or approvals related to those Customer-Provided Items that are necessary for Auxetic to perform the Services, and Customer shall reimburse Auxetic for reasonable expenses and other amounts that Auxetic incurs as a result of the failure to obtain any such licenses or approvals.
9. United States Government End Users.
If Customer is an office, agency, or branch of the United States Government, Customer acknowledges that the Deliverables are provided as commercial items under the applicable civilian and military Federal Acquisition Regulations (FARs) and any supplement thereto, and with only those rights as are stated in this Agreement.
10. Export Controls.
Customer acknowledges that the Deliverables are of U.S. origin. Customer shall comply with all applicable export and import control Laws in connection with Customer’s use of the Deliverables and Customer shall not export or re-export the Deliverables, directly or indirectly, to any country, or to any agent, representative, or foreign national of any country, without first obtaining all licenses required under export control Laws. In addition, Customer shall not use the Deliverables if Customer is located in a country embargoed by the United States or Customer is on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Purchase Orders. Customer represents that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
11. Intellectual Property.
11.1 Customer acknowledges that Auxetic (or Auxetic’s suppliers) owns all interest in and to the Services and Existing Works, including all intellectual property rights embodied in or practiced by the Services and Existing Works. Auxetic reserves all rights not expressly granted under this Agreement.
11.2 Customer will own, and Auxetic hereby assigns to Customer, the copyright in the Deliverables, excluding works of authorship (such as 3D Models) included in those Deliverables that are not developed under this Agreement, and any modifications of those works of authorship that are made under this Agreement (those works of authorship and modifications, “Existing Works”). Auxetic hereby grants Customer an irrevocable (subject to Customer’s payment obligations), nonexclusive, worldwide license to use, execute, reproduce, display, perform and prepare derivatives of Existing Works solely as embedded in the Deliverables, by means of any media or delivery technology now known or hereafter devised, including the right to authorize others to do any of the foregoing. Auxetic retains an irrevocable (except as revoked in accordance with the immediately following sentence), nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works of Deliverables for which the copyright is owned by Customer solely for (1) research and development and other internal business purposes and (2) external marketing and promotional purposes, by means of any media or delivery technology now known or hereafter devised, including the right to authorize others to do any of the foregoing, subject to the following: Customer may “opt out” of the foregoing external marketing and promotional use license by informing Auxetic in writing, in which case the foregoing external marketing and promotional use license will end upon Auxetic’s receipt of Customer’s written opt-out notice.
11.3 Customer-Provided Items. Customer hereby grants Auxetic a limited license to use the Customer-Provided Items solely for performance of the Services in accordance with this Agreement and as permitted under section 11.2. Auxetic shall not use the Customer-Provided Items for any other purpose without the prior written consent of Customer. Auxetic shall return the Customer-Provided Items upon Customer’s request.
11.4 Auxetic may use and disclose your feedback and other suggestions about the Services for any purpose without an obligation or liability of any kind, including any obligation to compensate you for them (just as you have no obligation to offer them), even if you have designated that feedback or suggestions as confidential.
11.5 Except as otherwise permitted under this Agreement, as allowed by applicable Law, or under a valid license, Customer shall not use Auxetic’s trademarks (including the Auxetic logo), or any confusingly similar marks, without Auxetic’s written permission.
12. Disclaimer of Warranties.
Auxetic provides the Services and Deliverables “as is” without any warranties, including any warranty of merchantability, noninfringement, and fitness for a particular purpose or any warranties regarding the strength, tolerances, or other characteristics of Deliverables. Without limiting the foregoing, Customer acknowledges that the Services are subject to the inherent limits of three-dimensional design and print technology and the materials Auxetic uses for printing Parts makes those Parts suitable for decorative purposes only, and the Parts are not suitable for use as toys or by children, and should not come into contact with electricity, food, liquids or heat.
13. Indemnification.
In addition to any other remedies available to Auxetic, Customer shall indemnify Auxetic against all reasonably foreseeable losses and liabilities arising out of Customer-Provided Items or the use, performance, display, or distribution of the Deliverables, including those losses and liabilities that arise from Customer’s failure to obtain any licenses or approvals required under section 8 and claims that one or more Customer-Provided Items are libelous or directly or indirectly infringe any publicity, privacy, or intellectual property rights of another Person.
14. Limit of Liability.
To the fullest extent permitted by Law, Auxetic’s entire liability for all claims in the aggregate arising out of this Agreement will not exceed the amount of any actual direct damages up to the greater of $1,000 or the charges (if recurring, up to a maximum of 12 months’ charges) actually paid by Customer under the Purchase Order, regardless of the basis of the claim and regardless of whether any remedy provided by Auxetic fails of its essential purpose. Auxetic will not be liable for any claims by other Persons against Customer for losses or damages or for special, incidental, or consequential damages (including lost profits or savings), even if they are informed of their possibility. Customer acknowledges that the charges stated in this Agreement reflect the allocation of risk under this Agreement and that Auxetic would not have entered into this Agreement without these limits on its liability.
15. Amendments and Waivers.
No amendment to this Agreement (including an amendment changing the scope of the Services or the requirements for the Deliverables) will be effective unless it is in writing and signed by both parties. No waiver of satisfaction of a condition or noncompliance with an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the waiver, and no such waiver will constitute a waiver of satisfaction of any other condition or noncompliance with any other obligation.
16. Severability.
If any portion of this Agreement is held to be invalid or unenforceable, that portion is to be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.
17. Governing Law; Actions.
The Laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction, govern all adversarial proceedings arising out of this Agreement or the subject matter of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If either party brings against the other party any proceeding arising out of this Agreement that is permitted under this Agreement to be brought in a court (i.e., any proceeding other than a proceeding that must be resolved by arbitration under section 18), that party may bring that proceeding only in the United States District Court for the Southern District of New York or in any state court of New York sitting in New York County, and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Each party hereby waives any claim that any proceeding brought in accordance with this section has been brought in an inconvenient forum or that the venue of that proceeding is improper.
18. Dispute Resolution.
Please read the following arbitration agreement in this section 18 (“Arbitration Agreement”) carefully. It requires Customer to arbitrate disputes with Auxetic and limits the manner in which Customer can seek relief from Auxetic.
18.1 Applicability of Arbitration Agreement. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of this Agreement or the subject matter of this Agreement, a party may demand that any such dispute be resolved by arbitration administered by JAMS, an established alternative dispute resolution provider, rather than in court, and each party hereby consents to any such dispute being so resolved, except that (1) Customer may assert claims in small claims court if Customer’s claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) Customer or Auxetic may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). If Customer agrees to arbitration with Auxetic, Customer is agreeing in advance that Customer shall not participate in or seek to recover monetary or other relief in any lawsuit filed against Auxetic alleging class, collective, and/or representative claims on Customer’s behalf. Instead, by agreeing to arbitration, Customer shall bring Customer’s claims against Auxetic in an individual arbitration proceeding only. If successful on those claims, Customer could be awarded money or other relief by an arbitrator. Customer acknowledges that Customer has been advised that Customer may consult with an attorney in deciding whether to accept this Agreement, including this Arbitration Agreement.
18.2 Arbitration Rules and Forum.
(a) The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing Customer’s claim to Auxetic LLC, 148 Rosedale Avenue, Staten Island, New York 10312. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.
(b) Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com. If JAMS is not available to arbitrate, the parties shall select an alternative arbitral forum.
(c) If Customer is a Consumer, the following provisions apply:
(1) If the arbitrator finds that Customer cannot afford to pay JAMS’ filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, Auxetic shall pay those fees for Customer.
(2) Auxetic shall reimburse all of JAMS’s filing, administrative, hearing, and/or other fees for claims totaling $10,000 or less, and shall not seek reimbursement of its attorneys’ fees and arbitration expenses, unless the arbitrator determines the claims are frivolous. If your claims are for more than $10,000, the payment of any fees and expenses will be decided by JAMS’ rules.
(3) If Customer resides in the United States of America, Customer may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a location within 100 miles of Customer’s residence.
(d) If Customer is (1) not a Consumer or (2) a Consumer that resides outside of the United States of America, the arbitration will be conducted in New York City, New York, USA. (e) Judgment on any award rendered in any arbitration may be entered in any court having jurisdiction. The arbitration will be conducted in English.
18.3 Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of Customer and Auxetic. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable Law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The parties shall cause the arbitrator to 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 Customer and Auxetic.
18.4 Waiver of Jury Trial. Each party hereby waives its right to a trial by jury in any proceedings arising out of this Agreement. The parties hereby elect that all claims and disputes between the parties be resolved by arbitration under this Arbitration Agreement, except as otherwise provided in section 18.1. An arbitrator may award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5 Waiver of Class or Consolidated Actions. All claims between the parties related to this Agreement will be arbitrated individually, and Customer shall not consolidate or seek class treatment for any claim unless previously agreed to in writing by Auxetic. If this section is deemed invalid or unenforceable neither Customer nor Auxetic will be entitled to arbitration and instead claims and disputes will be resolved in a court as stated in section 17.
18.6 30-Day Right to Opt Out. If Customer is a Consumer, Customer may opt out of the provisions of this Arbitration Agreement by sending, within 30 days after first becoming subject to this Arbitration Agreement, written notice of Customer’s decision to opt out to the following address: Auxetic LLC, 148 Rosedale Avenue, Staten Island, New York 10312, Attention: General Counsel, with a copy to info@auxetic.co. Customer’s notice must include Customer’s name and address, Customer’s Auxetic username (if any), the email address Customer used to set up Customer’s Auxetic account (if Customer has one), and an unequivocal statement that Customer wishes to opt out of this Arbitration Agreement. If Customer opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to Customer. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that Customer may currently have, or may enter into in the future, with Auxetic.
18.7 Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of Customer’s relationship with Auxetic.
19. Assignment.
Customer shall not assign any part of Customer’s rights or delegate any part of Customer’s obligations under this Agreement without Auxetic’s prior written approval, except that Customer may assign Customer’s entire rights and delegate Customer’s entire obligations under this Agreement by notifying Auxetic in instances in which that assignment and delegation is to a Person that controls, is controlled by, or is under common control with Customer or a Person (other than a direct competitor of Auxetic) that acquires all or substantially all of Customer’s business, whether by merger, consolidation, or sale of assets, stock or other ownership interest. Any purported assignment or delegation in breach of this section will be void. Auxetic may assign its rights and delegate its obligations under this Agreement.
20. Publicity.
A party shall obtain the other party’s written consent before publicly using any advertising, written sales promotion, press releases, or other publicity matters relating to this Agreement or in which the other party’s name is used or could reasonably be inferred, except (1) for Auxetic’s promotional and marketing rights with respect to certain Deliverables under section 11.2, and (2) Auxetic may refer to Customer and a factual description of the Services provided under this Agreement and reproduce, publicly display, and otherwise use one or more Customer’s logos in one press release announcing Customer as a Auxetic customer and in Auxetic’s list of references, promotional materials (including on Auxetic’s web site), internal business planning documents, annual report to stockholders, or as otherwise required by Law or to comply with generally accepted accounting principles.
21. Notifications.
Auxetic may use information provided by Customer to send Customer information about Auxetic or Auxetic’s products and services unless Customer unsubscribes from those notifications.
22. Notices.
22.1 Except as otherwise provided in this Agreement, for a notice or other communication under this Agreement to be valid, it must be in writing and the sending party must use one of the following methods of delivery: (1) personal delivery; (2) nationally recognized overnight courier (for example, Federal Express), with all fees prepaid; and (3) registered or certified mail, in each case return receipt requested and postage prepaid.
22.2 For a notice or other communication under this Agreement to be valid, it must be addressed: (1) if to Auxetic, to Auxetic LLC, 148 Rosedale Avenue, Staten Island, New York 10312, Attention: COO, (or to any other address designated by Auxetic in a notice in accordance with this section 22); and (2) if to Customer, to the address for Customer stated on the Purchase Order or otherwise supplied by Customer (to any other address designated by Customer in a notice in accordance with this section 22.
22.3 Subject to section 22.3, a valid notice or other communication under this Agreement will be effective when received by the receiving party. A notice or other communication will be deemed to have been received as follows: (1) if it is delivered in person or sent by registered or certified mail or by nationally recognized overnight courier, upon receipt as indicated by the date on the signed receipt; and (2) if the receiving party rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then upon that rejection, refusal, or inability to deliver.
22.4 If a notice or other communication is received after 5:00 p.m. on a business day at the location specified in the address for the receiving party, or on a day that is not a business day, then the notice will be deemed received at 9:00 a.m. on the next business day.
23. Parties Independent.
This Agreement does not create an agency, partnership, employer and employee relationship or any form of fiduciary or special relationship between the parties.
24. General Interpretative Provisions.
24.1 The terms “including,” “includes,” and “include” are to be read as if they were followed by the phrase “without limitation.” Whenever reference is made in this Agreement to “days,” the reference means calendar days, not business days, except as otherwise specified. The titles and headings of this Agreement are for reference only and do not affect the meaning or interpretation of this Agreement.
24.2 In each case in which a party’s approval or consent is expressly required under this Agreement, that party shall not unreasonably withhold, condition, or delay that approval or consent unless the context clearly states otherwise.
24.3 Except as otherwise provided in this Agreement, each party shall pay all of that party’s own expenses arising from compliance with that party’s obligations under this Agreement.