This Agreement sets forth the terms and conditions on which design services, prototype services, and production manufacturing services and/or quotations for such services (Services) are made available via Fidget software application. The Services available through this software application are provided by Fidget, Inc.  

1.  DESIGN SERVICES, PROTOTYPE SERVICES, PRODUCTION MANUFACTURING SERVICES.

1.1  FIDGET QUOTATIONS.From time to time the Customer may request price quotations (SERVICES TAB) from Fidget for design, prototype and production of complete products or parts by completing Fidget Quote forms in the software application. The FIDGET Quote requires the Customer to submit all of its desired specifications (Specifications) for the design or Part to FIDGET, using 128-bit encryption. FIDGET will provide all quotes promptly after receipt of the Customers request. Each FIDGET Quote is only valid for 30 days from the time the quote is saved. However, FIDGET reserves the right to adjust any quote if the Customer makes changes to the applicable Design Requirements, Quantity, Materials or Specifications.

1.2  ORDERS.  Once the Customer has obtained a FIDGET Quote, the Customer may accept the quote from FIDGET and may submit an online order (an Order) requesting FIDGET to produce the design or Part(s) quoted. The total fees for each Order shall include the applicable amount specified in the FIDGET Quote for the Design or Part(s), plus all applicable taxes and all shipping charges (collectively, the Fees). To submit an Order, the Customer must either pay the Fees in advance online by providing FIDGET with valid credit card account information, e-check, pre-pay check by mail, wire transfer, or by issuing a non-cancelable purchase order to FIDGET by fax (877) 259-9403, or e-mail. A hard copy of the PO is required before an Order can be shipped from our facilities. Once an electronic Order confirmation has been delivered to the Customer, the Order is binding on both parties, and may not be cancelled/changed except by agreement. FIDGET reserves the right to accept or reject any Order for any reason.

1.2.1  CANCELLATION/CHANGE ORDERS.  Customer refunds for cancelled/changed orders based on the following:

• Design work will stop immediately upon written notice via e-mail and only hours worked will be deducted from pre-payment or will be applied to purchase order.
• If customer makes a change to design requirements, all work will stop immediately until a design change order is approved by client with any adjustments to design estimate (increasing or decreasing) before work will restart continue.
• Prototype and Production manufactured products and parts
• 75% credit on Product & Tax, 100% credit on Shipping for Orders cancelled/changed after order placement and before build start.
• 25% credit on Product & Tax, 100% credit on Shipping for Orders cancelled/changed after start of build and before part finishing.
• 0% credit on Product & Tax, 100% credit on Shipping for Orders cancelled/changed after start of finishing and before shipping.
• 0% credit on Product, Tax & Shipping for Orders cancelled/changed after shipping.

Orders can only be cancelled/changed by FIDGET personnel. Please contact a sales person by telephone at: 1.877.573.6287 or International at 1.408.569.0977, or via email at sales@Fidget.net if you need to make changes to your order.

1.3  DELIVERY:   All design and manufactured part orders will include an estimated completion date.

1.3.1 DESIGN SERVICES: We will make all reasonable attempts meet estimated completion date supplied in Fidget quote, but date is not guaranteed. 

1.3.2 PROTOTYPE PARTS. FIDGET will use commercially reasonable efforts to provide all prototype Parts to the Customer in accordance with this Agreement and within the timeframe provided by FIDGET shortly after time of Order. Average delivery is 3 to 5 business days based on the FIDGET Quote Specifications. Shorter lead-times may be available for smaller projects. Lead times will be longer for orders containing large quantities and/or large parts. Partial shipments allowed and may require additional charges. Please call 1.877.573.6287 for more information.

1.3.3 PRODUCTION PARTS. FIDGET will use commercially reasonable efforts to provide all production manufactured Parts to the Customer in accordance with this Agreement and within the timeframe provided by FIDGET shortly after time of Order. Delivery varies on type of manufacturing process, quantity or parts ordered, manufacturing location, holiday's, shipping method and an estimated ship date will be part of the FIDGET Quote. Partial shipments are allowed and may require additional charges. Please call 1.877.573.6287 for more information.

1.3.1  TRANSPORTATION: Shipments are F.O.B. shipping point. Any damage to product during transportation is the responsibility of the carrier and customer. Customer is responsible for submitting claims to the carrier for damages.

2.  CUSTOMER SATISFACTION. 

2.1 DESIGN SERVICES. If a design does not meet the customers design requirements, we will gladly make changes to the design to meet those requirements. Customer recognizes that no engineer is perfect and designs are not expected to be production ready when completed. Prototyping, testing, debugging and design updates are common before being released to production. In addition, after release to production designs often need additional refinements to meet high quality standards. We have developed an advanced design check process to minimize errors in our design process.

2.2 PROTOTYPE PARTS. If any Part does not meet the Specifications, and the Customer notifies FIDGET within two business days of receipt, the Customer may return the Part(at the Customers own expense) within five business days of receipt and receive a replacement Part, or a full refund of the Part Fees (exclusive of applicable taxes and shipping charges). Failure to return a Part in this manner shall constitute acceptance of the Part by the Customer.

2.3 PRODUCTION PARTS. If any Parts do not meet the Specifications, and the Customer notifies FIDGET within five business days of receipt, the Customer may return the Parts within seven business days of receipt and receive replacement Parts. Failure to return Parts in this manner shall constitute acceptance of the Part by the Customer.

3.  OWNERSHIP OF INTELLECTUAL PROPERTY.

3.1  CUSTOMER OWNERSHIP.  The entire right, title and interest, including all copyright, patent, trade secret, mask work and trademark rights (Intellectual Property), in and pertaining to any Specifications and the applicable Part shall be owned solely by the Customer.

3.2  FIDGET RIGHTS.  Notwithstanding Section 3.1, FIDGET shall retain all right, title and interest, including all Intellectual Property, in the website and software application, technology, methodologies and know-how used by FIDGET in performing its Services and manufacturing Parts.

4.  LIMITED WARRANTIES.

4.1  NATURE OF DESIGN SERVICES. Customer acknowledges and agrees that all designed products or individual parts or assemblies need to be validated and tested and the final deliverable does not constitute a finished product. All designs of products, parts, or assemblies should be prototyped, tested and debugged to meet a customer's acceptance criteria.

4.2 NATURE OF PROTOTYPE MODELS.  Customer acknowledges and agrees that all Parts are intended to be used for initial design analysis only, and that no warranties exist or are offered as to materials, strength, tolerances or other Part characteristics. All Parts are delivered and accepted in AS IS condition, and FIDGET HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR ANY FIDGET PARTS OR SERVICES. Customer also acknowledges and agrees that in no event will FIDGET be liable for any damages of any nature under any circumstances, including FIDGET’s alleged negligence, and that the aggregate liability for any claim(s) awarded by any court of competent jurisdiction will in no event exceed the limitations identified in Section 5 below. Customer further agrees that these disclaimers, exclusions and limitations of liability are a material and essential condition of this Agreement, and that the Website software application would not be made available, or would be made available on materially different terms in the absence of these conditions.

4.3  CUSTOMER WARRANTIES.  The Customer hereby warrants that (a) it has the right to provide the Specifications to FIDGET; (b) the use of the Specifications and such other materials provided by the Customer to produce a Part will not violate or infringe any intellectual property or other legal rights of any third party; and (c) any software or Part files delivered by the Customer to FIDGET will be free of any viruses, time bombs and other harmful programming routines.

5.  LIABILITY.

5.1  LIMITATION OF LIABILITY.  FIDGET HEREBY DISCLAIMS AND EXCLUDES ALL LIABILITY FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING IN CONNECTION WITH THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH DAMAGES ARISE BY CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.

5.2  LIMITATION OF AGGREGATE DAMAGES.  FIDGET’S AGGREGATE LIABILITY FOR ANY DAMAGES SUFFERED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER ARISING BY CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY THE CUSTOMER FOR THE APPLICABLE PART ALLEGED TO HAVE CAUSED SUCH DAMAGE.

5.3  INDEMNITY.  The Customer shall indemnify, defend and hold harmless FIDGET and its directors, officers, employees and agents from all losses, liabilities, damages and expenses (including reasonable attorneys fees and costs) that they may suffer as a result of any claims, demands, actions or other proceedings made or instituted by any third party against any of them and arising out of: (i) any claim that any Specifications, Parts or any other materials provided to FIDGET in connection with an Order violate or infringe the intellectual property or other legal rights of any third party; or (ii) any use of a Part by the Customer or its employees, agents or contractors.

6.  ACCESS AND INTERFERENCE.

The Customer shall use their e-mail address and a secure password to log on to the FIDGET website and software application. The Customer must not disclose their password to third parties. The Customer is responsible for all access to and use of the FIDGET website and software application using their user name and password. If an employee, agent or any person uses the Customers username and password to access the FIDGET website or software application, the Customer will be deemed to have authorized any access, use or misuse of the FIDGET website or software application(including without limitation all orders placed) by such employees or agents or any other person using the Customers username and password. The Customer will not use any robot, spider, other automatic device or manual process to monitor or copy FIDGET’s web pages or software application or the content contained herein without the express written permission of FIDGET. The Customer will not interfere or attempt to interfere with the proper working of the FIDGET site or software application or any activities conducted on the FIDGET site or software application. The Customer will not take any action that imposes an unreasonable or disproportionately large load on FIDGET’s infrastructure. The Customer will not copy, reproduce, alter, modify, create derivative works of, or reverse engineer the FIDGET website or software application or publicly display any content from the FIDGET website or software application without the prior express written consent of FIDGET.

7.  TERMINATION.

Either the Customer or FIDGET may terminate this Agreement at any time upon written notice to the other party, but all Orders previously submitted and confirmed shall remain binding upon the parties. Sections 3 thru 6 shall survive the termination of this Agreement.

8.  MISCELLANEOUS PROVISIONS.

8.1  GOVERNING LAW.  This Agreement and all Orders shall be governed by and construed in accordance with the internal laws of the State of California, applicable to contracts to be accepted and performed wholly within California. By placing any Order, Customer irrevocably consents to the jurisdiction of the applicable federal or state courts located in San Mateo County, California, and agrees that such courts shall be the exclusive forums for the resolution of any disputes hereunder.

8.2  FORCE MAJEURE.  Neither party shall be liable for a breach of its obligations hereunder to the extent that such breach is caused by factors outside its reasonable ability to foresee and avoid (provided that such party makes diligent good faith efforts to remedy the breach as soon as possible), including without limitation war, acts of God, terrorism, natural disaster, or third party communications or encryption failure, and which continue for any 60 day period.

8.3  ENTIRE AGREEMENT.  This Agreement and any accompanying Orders embody the entire agreement and understanding between the parties regarding the subject matter hereof, and supersede any prior understanding and agreements between and among them respecting the subject matter hereof. FIDGET may at any time change or modify the terms of this Agreement by publishing such additional or replacement terms on the website at least five business days prior to implementation. If the Customer does not agree with any change or modification, the Customer may terminate this Agreement on notice to FIDGET.

8.4  INDEPENDENT CONTRACTORS.  The parties hereto are independent contractors and are not, and shall not represent themselves as, principal and agent, partners or joint ventures. No party shall attempt to act, or represent itself as having the power, to bind another party or create any obligation on behalf of another party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.

8.5  SEVERABILITY.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. The parties agree that (a) the provisions of this Agreement shall be severable in the event that any of the provisions hereof are for any reason whatsoever invalid, void or otherwise unenforceable, (b) such invalid, void or otherwise unenforceable provisions shall be automatically replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions shall remain enforceable to the fullest extent permitted by law.

8.6  ASSIGNMENT.  The Customer shall not assign the rights and obligations under this Agreement without the written consent of FIDGET. Any assignment in breach of this provision shall be void ab initio.