MAKERBOT PURCHASE ORDER TERMS AND CONDITIONS
LAST DATE UPDATED: January 2018
1. GENERAL; ACCEPTANCE
The party from whom MakerBot Industries, LLC (“MakerBot”) is obtaining goods or services from a seller (“Seller”) agrees to perform the requested services (“Services”) and/or provide the requested goods (“Goods”) described in this purchase order/request for quote (“PO” or “Order”) in accordance with these terms and conditions (“Terms and Conditions”). All purchases made by MakerBot will be made pursuant to POs issued against these Terms and Conditions. Upon acceptance of this Order by Seller, shipment of Goods from Seller or commencement of Services by Seller, Seller shall be bound by the provisions of these Terms and Conditions and all provisions set forth on the face of this PO. ALL POs ARE GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS. Any additional or inconsistent terms or conditions contained in any acknowledgment, invoice or other communication of Seller are hereby rejected. In the event of any inconsistency among provisions contained in any PO and any other documents or agreements referenced herein or separately agreed between the parties, the inconsistency will be resolved by giving precedence in the following order: (i) separate, written contract; (ii) the PO on which these Terms and Conditions are referenced or to which these Terms and Conditions are attached; (iii) these Terms and Conditions; (iv) drawings; (v) specifications; and (vi) any other documents incorporated by reference.
2. DELIVERY; PACKING AND SHIPMENT
Delivery of Goods shall be as stated in the PO unless otherwise expressly agreed upon and shall be made pursuant to the schedule, via the carrier and to the facility specified on the face of this Order, without charge for boxing, crating, carting or storage unless otherwise specified. If no delivery schedule is specified herein, Seller shall affect delivery by the most expeditious form of land transportation. If no method of shipment is specified in this Order, Seller shall use the least expensive carrier. TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY. Seller will immediately notify MakerBot if it suspects or becomes aware of an inability to timely deliver ordered Goods or Services. Upon such notice, MakerBot may, at its option, (i) decline to accept the Goods or Services and terminate the Order; (ii) demand its allocable fair share of Seller’s available Goods and terminate the balance of the Order; or (iii) require delivery by the fastest method to meet the delivery dates at the sole expense of Seller. Seller shall package all Goods in suitable containers to permit safe transportation and handling, insure against damage from weather or transportation and secure the lowest transportation costs. Such containers must be appropriately labeled, contain packing sheets listing each item and its associated PO line item number. Such PO line item number must appear on all containers, packing sheets, delivery tickets and bills of lading.
3. RISK OF LOSS; DESTRUCTION OF GOODS
Seller assumes all risk of loss with respect to Goods covered by this Order until receipt of Goods by MakerBot at the designated destination. If Goods covered by this Order are destroyed prior to MakerBot’s receipt thereof, MakerBot may: (i) cancel this Order or (ii) require delivery by Seller as soon as commercially practicable of substitute Goods of equal quantity and quality.
MakerBot may at reasonable times inspect the Goods and Services to be purchased under this Order at Seller’s (or Seller’s subcontractor’s) facilities. MakerBot’s inspection of Goods before or after delivery shall not constitute acceptance. No inspection or test made prior to final acceptance shall relieve Seller from responsibility for defects or other failure to meet the requirements of Order. Goods covered by this Order will be subject to final inspection and approval by MakerBot within a reasonable time after delivery to MakerBot, notwithstanding payment by MakerBot prior to delivery. MakerBot may reject or revoke acceptance of any Goods which are defective in material or workmanship or which do not conform to MakerBot’s specifications. MakerBot may elect to: (i) return rejected Goods for the full invoice price plus applicable transportation charges; (ii) retain rejected Goods for repair by Seller or, at MakerBot’s election, for repair by MakerBot with such assistance from Seller as MakerBot may reasonably require; or (iii) return rejected Goods to Seller for repair or replacement within such time as MakerBot may reasonably require. All costs and expenses, loss of value and any other damages incurred by MakerBot in connection with the repair or replacement of non-conforming Goods or Services may be recovered from Seller by an equitable price reduction or credit against any amounts otherwise owed by MakerBot to Seller.
Seller expressly warrants that: (a) Seller will convey clear title to all Goods to be purchased hereunder to MakerBot; free of any liens, claims or other encumbrances; (b) Goods or Services furnished will conform to all applicable specifications, drawings, samples, or other descriptions furnished, specified or adopted by MakerBot and to all other requirements of the PO; (c) Goods will be merchantable, produced using reliable material and workmanship and will be free from defect for at least one year from delivery to MakerBot, or such longer limited warranty period as MakerBot may specify in the PO; (d) all Goods have been selected, designed manufactured or assembled by Seller based upon MakerBot’s intended use and will be fit and sufficient for such purposes. Such warranties, together with Seller’s service performance warranties above and other guarantees, if any, will survive inspection, test, acceptance of, and payment for the Goods or Services and will run to MakerBot, its successors, assigns, and end users at any tier. Seller further warrants that all Goods and Services provided to MakerBot will be free from any third-party claims or liability for alleged misuse, misappropriation or infringement of any patent, trademark, copyright or other right. Seller agrees that it will, at its own expense, including payment of costs and attorney fees and disbursements, defend any claims, charges or lawsuits instituted by any party against MakerBot or its customers arising out of, in connection with or related to any breach of the above warranties, and agrees to indemnify and hold harmless MakerBot and all persons claiming under MakerBot in respect of any claims, demands, liabilities, losses, judgments, awards, fines, settlements, court costs, attorney fees, and expenses incurred by reason of such claims, charges or lawsuits. Seller will notify MakerBot in writing of each such notice or claim of which Seller has knowledge. If the alleged breach relates to a third-party claim based on its intellectual property rights, Seller will, at its own expense, either procure for MakerBot the right to continue using the article, apparatus, material, part, device, process or method or, if the performance thereof will not be adversely affected, replace same with a non-infringing substitute or modify it so it becomes non-infringing, or remove it and refund the purchase price, transportation and installation costs thereof.
Seller’s invoices for Goods or Services purchased under this Order shall be emailed to MakerBot ([email protected]) promptly upon shipment. Line item detail, descriptions of Goods or Services and reference numbers on Seller’s invoices must correspond to their counterparts on the face side of the PO. MakerBot’s standard payment terms are net 60 days from date of invoice unless otherwise agreed. MakerBot shall pay Seller: (i) the amount agreed upon and specified in this Order or (ii) Seller’s quoted price on date of shipment (for Goods) or date of commencement of performance (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, value added taxes, duties, customs, tariffs, imposts and government imposed surcharges must be stated separately on Seller’s invoices. MakerBot shall have the right at all times to set off any amount owing from Seller to MakerBot or any of its affiliated companies against any amount payable at any time by MakerBot.
Prices for Goods are as stated in the respective PO and are not subject to increase unless another PO is executed by the parties for such Goods. No charges or price increases of any kind shall be allowed unless specifically agreed to by MakerBot in writing. Except as otherwise expressly provided, Seller shall bear all of Seller’s own expenses incurred in providing Goods and/or Services.
8. CHANGE ORDERS
MakerBot may at any time, by change order, modify an Order in any of the following respects: drawings, designs, specifications, shipping, packing, place of inspections, place of delivery, place of acceptance, adjustments in quantities, adjustments in delivery schedules or the amount of MakerBot-furnished material. Seller shall promptly notify MakerBot of any change in the cost or expected completion/delivery dates of Goods or Services covered hereby as a result of MakerBot’s change order, and Seller shall provide proposed pricing adjustments (with supporting information) to MakerBot no later than 30 days from the date of Seller’s receipt of MakerBot’s change order.
9. SELLER CHANGES
Seller shall not make any changes in the specifications, physical composition of, or processes used to manufacture the Goods hereunder without MakerBot’s prior written consent.
Seller agrees to indemnify, hold harmless, and at MakerBot’s request, defend MakerBot, its officers, directors, customers, agents and employees (each, an “Indemnified Party”) against all claims, liabilities, damages, losses and expenses, including attorneys’ fees and expenses, incurred by an Indemnified Party on account of the acts or omissions of Seller or its employees, agents or subcontractors in any way connected with the Goods or Services provided under this Order, including, without limitation, (a) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment; (b) any claim based on the negligence, omissions or willful misconduct of Seller or Seller’s employees, agents or subcontractors; and (c) any claim by a third party against any Indemnified Party alleging that the Goods or Services, the results of such Services or any other processes provided under this Order, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other Goods or Services. Seller shall not settle any such claim without MakerBot’ prior approval. Seller agrees to pay or reimburse all costs that may be incurred by an Indemnified Party in enforcing this indemnity, including attorneys’ fees and expenses. If MakerBot or MakerBot’s distributors’ or customers’ use of Goods or Services covered by this Order shall be enjoined or otherwise prevented by legal action, Seller shall, at its sole expense, (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for MakerBot and its distributors or customers the right to continue using the Goods or Services; or (d) refund all amounts paid for the infringing Goods or Services.
No knowledge or information disclosed to MakerBot by Seller which in any way relates to Products or services covered by any PO, will, unless otherwise specifically agreed in writing by MakerBot, be deemed to be confidential or proprietary information, and MakerBot will acquire all such knowledge and information free from any restrictions (other than a claim for patent infringement), as part of the consideration for the PO. All technical and other information obtained or learned by Seller as a result of any MakerBot order or its relationship with Seller, is and will remain the valuable, confidential and proprietary information of MakerBot, including, but not limited to, drawings, data, specifications, components, concepts, designs, or tooling. To the extent the parties have entered into a nondisclosure agreement (“NDA”) to protect such information, the provisions of such NDA shall control any conflicting or inconsistent terms herein. Seller agrees not to disclose to third parties or use for its own pecuniary benefit or advantage any MakerBot confidential and proprietary information. Seller further agrees that any improvement, modification, refinement, or product developed by Seller or jointly by Seller and MakerBot as a result of knowledge of MakerBot confidential and proprietary information shall be the property of MakerBot, and shall be treated as MakerBot confidential and proprietary information. Seller will provide such assignments or other conveyances to the extent such assets require separate documentation from these Terms and Conditions. Accordingly, the Seller agrees that MakerBot will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce these Terms and Conditions. Upon cancellation or termination of any PO or the parties working relationship, or otherwise upon request of MakerBot, Seller shall turn over to MakerBot any and all MakerBot confidential information, including all copies, excerpts or other reproductions thereof. The confidentiality provisions of this Paragraph will apply to and be binding upon Seller’s officers, directors, employees, advisers, consultants and other representatives, and the protection of MakerBot’ confidential information and materials will expressly survive any expiration or termination of any relationships between the parties indefinitely and for as long as such information remains confidential or proprietary, unless and only to the extent otherwise consented to in a writing signed by MakerBot.
12. INTELLECTUAL PROPERTY RIGHTS; WORK PRODUCT
Seller agrees that where Seller undertakes activity of research, development and/or design nature using information provided by MakerBot, MakerBot shall exclusively own all rights, title and interest in any resulting work product including, without limitation, all know-how, trade secrets and intellectual property. Seller shall take all necessary steps to ensure that MakerBot obtains full legal title in and to such rights. Seller will ensure that Seller’s employees, agents and subcontractors appropriately waive any and all claims to, and assign to MakerBot, all rights or interests in, any work product created in connection with this Order. Seller grants the right to MakerBot to produce copies, reproductions or derivative works of material provided under this agreement for purposes of this agreement. Seller will not reverse engineer, decompile, or dissemble any technology, software, materials, products or other items owned or provided by MakerBot.
Seller shall provide and maintain for Services rendered throughout the term of this Agreement inclusive of any warranty obligations the following insurance (and regarding policies on a “claims made” basis, for an additional 24 months after): (a) Workers Compensation: Statutory in accordance with the state in which the Services are being performed; (b) Employers Liability in the amount of $ 1,000,000 each occurrence; (c) Commercial General Liability with limits of $ 1,000,000 each occurrence, $ 2,000,000 aggregate, for bodily injury and property damage combined. Policy will include the following coverage features (1) blanket contractual liability, (2) Products, (3) completed operations, and (4) independent Sellers coverage; (d) Automobile Liability with limits of $ 1,000,000 each occurrence for bodily injury and property damage combined if automobile usage is required to perform Services hereunder. Coverage will include “owned”, “hired” and “non-owned” autos; (e) Umbrella or Excess Liability with limits of $ 5,000,000 each occurrence and aggregate for bodily injury and property damage. Policy must be “follow form” to all primary policies listed above with the exception of Workers Compensation; (f) Professional Liability Insurance. To the extent that Seller is providing design services, Seller will obtain adequate levels of Professional Liability insurance to cover risk of loss reasonably related to the scope and extent of the Services provided. At minimum, the coverage will be: $1,000,000 combined single limit each accident. The Professional Liability policy will include a retroactive date to the date that Seller first rendered Services in connection with the Project and with a discovery period; (g) All insurance required above will be written with insurers rated A or better by the latest “Bests” Guide; (h) All policies with the exception of Workers’ Compensation will include MakerBot as an additional insured and include a waiver of subrogation towards MakerBot. Seller’s insurance will be primary and non-contributory to that maintained by MakerBot; and (i) At the request of MakerBot, the Seller shall provide a certificate of insurance conforming to the policies specified above.
14. TERMINATION FOR CAUSE
Should Seller (i) become unable to pay its debts as they mature, or become in any way the subject of a bankruptcy petition, (ii) have a change in ownership or management such that a competitor of MakerBot gains an ownership or controlling interest in Seller, and/or (iii) materially default in the performance of any provision of the supply agreement, MakerBot may in its discretion terminate this Order or any other PO for “cause” by giving Seller thirty (30) days prior written notice thereof. If Seller, within the thirty-day notice period, corrects the cause giving rise to the notice to the satisfaction of MakerBot, MakerBot may void the termination. In the event MakerBot terminates an order pursuant to this Section, MakerBot shall have all rights and remedies available under law and equity and will have no further obligation to Seller. Upon termination, Seller will, at its expense, promptly deliver to MakerBot all MakerBot Confidential Information, Work Product or other tools and property owned by MakerBot and in Seller’s possession.
15. TERMINATION FOR CONVENIENCE
MakerBot may at any time by notice to Seller, terminate all or part of this Order, effective as of the date specified in such notice. Upon receipt of MakerBot’s notice of termination, Seller shall stop work and take such other action as may be specified by MakerBot in such notice, to facilitate termination of the Order or applicable part. Upon termination, MakerBot shall not incur any further cost or liability to Seller except for Goods already delivered and/or actual costs less any commercial value incurred to the date of termination. Seller may not, later than six (6) months after Seller’s receipt of MakerBot’ termination notice, submit to MakerBot a claim for reimbursement of costs incurred by Seller by reason of MakerBot’s termination for convenience. Seller shall have the duty to mitigate damages.
16. INJUNCTIVE RELIEF
Because damages for violation of this Agreement may be difficult to ascertain and because violation of this Agreement may result in irreparable injury to MakerBot for which money damages may not adequately compensate MakerBot, Seller hereby consents to the entry of an order against Seller to prevent any breach of this Agreement or any continuing breach of this Agreement by Seller as well as any other relief available to it at law or equity.
17. FORCE MAJEURE
Neither Seller nor MakerBot shall be liable for any delay or failure to perform any of its obligations under this Order if and to the extent such delay or failure is due to circumstances beyond the reasonable control of such party, including but not limited to, fires, floods, explosions, accidents, acts of God, declared and undeclared wars or riots, strikes or lockouts, shortages of materials or transportation facilities, inability to obtain export or import licenses, acts of government or any provision or requirement of any law, regulation, order or rule.
18. LABOR DISPUTES
Seller shall give MakerBot prompt notice of every labor dispute or issue which may affect Seller’s ability to deliver Goods or Services pursuant to the terms of this Order. MakerBot shall not have any obligation to reimburse Seller for losses or additional costs incurred by Seller as a result of labor disputes.
19. LIMITATION OF REMEDY; LIMITATION OF LIABILITY
Seller’s sole remedy on account of MakerBot’s breach of this Order shall be the right to damages in the amount equal to the difference between the market price of the subject Goods or Services at the time of breach and the purchase price specified in this Order. IN NO EVENT SHALL MAKERBOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR INCURRED IN CONNECTION WITH THIS ORDER, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
20. INDEPENDENT SELLER
Seller is an independent contractor for all purposes, without express or implied authority to bind MakerBot by contract or otherwise. Seller will secure, at Seller’s sole cost, Workers’ Compensation insurance, disability benefits insurance, and any other insurance required by law. MakerBot will not provide, nor will it be responsible to pay for, employee benefits to Seller or employees of Seller. Seller will pay all required taxes, whether federal, state or local in nature, including, but not limited to, income taxes, FICA, payroll or self-employment taxes, unemployment compensation taxes, and any other fees, charges, licenses, or other payments required by law on any compensation paid by MakerBot to Seller pursuant to this Agreement. Seller hereby waives any right to bring a claim or action against MakerBot or any of its affiliates as to entitlement to any employee benefits with respect to periods of performance hereunder.
21. COMPLIANCE WITH LAW
Seller shall comply with all applicable laws, regulations, rules or orders in connection with its performance hereunder, including as set forth on Appendix A attached and incorporated hereto. At MakerBot’s request, Seller shall issue certificates certifying compliance with any laws or regulations as may be applicable to the Goods or Services covered by this Order in each case in form and substance satisfactory to MakerBot.
Seller shall not, without MakerBot’s prior consent, subcontract more than 25% of the value of this Order (excepting raw material) and in accordance with Appendix A attached and incorporated hereto.
23. EXPORT/IMPORT CONTROLS
Seller will not use, export, re-export or otherwise release any technology or technical data provided to Seller by MakerBot or any of MakerBot’s affiliates under this Order, except in compliance with all applicable U.S. export laws and regulations. Seller agrees that unless otherwise expressly agreed upon, MakerBot will not be a party to the foreign importation of the Goods, that the transaction(s) represented by this Order will be consummated subsequent to importation, and that Seller will neither cause nor permit MakerBot’s name to be shown as “importer of record” on any customs declaration and that Seller will comply with all applicable laws, rules and regulations governing foreign purchases and importation.
24. LIENS AND CLAIMS
Seller shall fully indemnify MakerBot and the property owner against all liens and/or claims of any laborers, materialmen, and subcontractors of Seller against MakerBot or the property on or for which the Services are performed and shall furnish to Seller, upon request, affidavits of status of accounts and releases of liens.
25. MAKERBOT’S PROPERTY
All materials and inventory furnished by MakerBot, or which MakerBot specifically authorizes Seller to acquire, develop or design for work on this Order, shall be the exclusive property of MakerBot. Such property shall be listed and maintained in suitable condition to do the work by and at the expense of the Seller, and will be returned to MakerBot within 72 hours after termination, expiration or MakerBot’s request. Delivery of such property shall be FOB Seller’s location. Such property is maintained at Seller’s risk. All costs for materials and inventory are included in the Price of this Order.
26. PRODUCT RECALLS
If any Goods sold to MakerBot hereunder are determined by Seller, MakerBot or any governmental agency or court to contain a defect or a quality or performance deficiency, or not be in compliance with any standard or requirement so as to make it advisable that such Goods be reworked or recalled, Seller or MakerBot will promptly communicate relevant facts to each other and will undertake corrective action, provided that MakerBot will cooperate with and assist Seller in any necessary filings and corrective action, and provided that nothing contained in this Section will preclude MakerBot from taking such action as may be required of it under any such law or regulation. Seller will pay all reasonable expenses associated with determining whether a recall or rework is necessary, and will perform all necessary repairs or modifications at its sole expense, except to any extent Seller and MakerBot agree to the performance of such repairs by MakerBot upon other, mutually acceptable terms. The parties recognize that it is possible that other Seller-manufactured Goods might contain the same defect or noncompliance condition, as do Goods manufactured for MakerBot. MakerBot and Seller agree that any recall involving Goods for MakerBot will be treated separately and distinctly from similar recalls of other products of Seller; provided that such separate and distinct treatment is lawful and Seller will in no event fail to provide at least the same protection to MakerBot on its Goods as Seller provides to its other customers in connection with such similar recalls. Each party will consult the other before making any statements to the public or a governmental agency relating to potential safety hazards for Goods purchased hereunder, except where such consultation would prevent timely notification required by law.
Seller agrees to notify MakerBot within a reasonable time and in such time as to preserve MakerBot’s interest of suspected or known product obsolescence affecting the Goods hereunder. Seller will use best efforts to (i) track commercial availability of parts related to Goods; (ii) obtain last time buys in sufficient quantities to satisfy MakerBot’ demands; and (iii) find suitable alternatives for the known or suspected parts for a period of at least five (5) years.
28. CONFLICT MINERALS
Seller agrees and represents that it will timely respond, to any request by, or on behalf of, MakerBot, for information on any Goods delivered hereunder containing conflict minerals (“Conflict Minerals”), as defined in Section 13(p) to the Securities Exchange Act of 1934 and Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (collectively, “Conflict Minerals Regulations”). Such information shall be (i) a representation made by Seller to the best of its knowledge and belief following an appropriate due diligence inquiry; and (ii) submitted to MakerBot or its authorized third party, in the form required by MakerBot, no later than fifteen (15) business days from receipt of MakerBot request. Seller shall include the substance of this Conflicts Minerals section in all subcontracts agreements awarded by Seller for work under this Order. Seller further agrees and represents that it will notify MakerBot of any change in the information provided pursuant to this Section and shall provide any other information requested by MakerBot to ensure compliance with the Conflict Minerals Regulations. Breach of Seller obligations under this Section will be considered material breach of these Terms and Conditions.
29. CODE OF CONDUCT
MakerBot may furnish a copy of Stratasys’ Code of Business Conduct (hereinafter “Code”) from time to time upon which Seller shall acknowledge receipt of the Code and shall perform the Services consistent with such Code. Seller will avoid any conflicts of interest as defined in the Code and promptly advise Stratasys of any circumstances of which Seller becomes aware which may give rise to such a conflict. Seller will provide any worker assigned to Stratasys with a copy of the Code and to advise the worker of his or her obligations to comply with the Code.
30. SLAVERY/HUMAN TRAFFICKING
Seller warrants that it has adequate controls in place to ensure the prevention of slavery, human trafficking, child labor and forced labor. Seller further warrants that it will comply with all laws and regulations relating to slavery, human trafficking, child labor, forced labor and the ethical treatment of people. MakerBot reserves the right to audit Seller’s compliance with this section.
31. AUDIT CLAUSE FOR COST PLUS OR CATALOG ORDERS
MakerBot may audit Orders placed to ensure contract pricing is applied consistently to all Orders. If an audit is conducted, MakerBot may perform a statistical sampling of all orders (“Sample”) placed through Seller. The percent of error from actual price paid to contracted price for the Sample will be applied to the total purchase value for all Orders placed pursuant to the audit. The party found to have benefited from the error will pay the difference to the other party within thirty 30 days of audit conclusion. Seller will be provided details of the evaluation. Seller agrees to fully cooperate with MakerBot during an audit and to provide MakerBot with all relevant documents necessary to perform such audit.
32. OBLIGATIONS FOR VENDOR MANAGED INVENTORY AGREEMENTS
It is agreed and understood that the quantities forecasted are only estimates and do not imply a firm commitment on behalf of MakerBot. MakerBot has no obligation to purchase or satisfy the estimated amounts. Seller must notify MakerBot in writing of potential or actual exceeding of the estimated amount in order to obtain appropriate authorization and approval of the increase in estimated amount. MakerBot has no obligation to pay for Goods or Services to the extent the costs exceed the estimated amounts.
If any provision of this Order is declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
34. ASSIGNMENT; NO WAIVER
Seller may not assign this Order or any of its rights or obligations hereunder without MakerBot’s prior consent and any assignment without such consent shall be null and void. A waiver of any default hereunder or of any term or condition of this Order shall not be deemed to be a waiver of any other default or any other term or condition.
All notices and other communications relating to this Order, including consents, shall be in writing and shall be addressed to Seller or MakerBot at the addresses set forth on the face side of the PO and shall be considered given when (i) sent and confirmed by email, (ii) sent by commercial overnight courier with written verification receipt, or (iii) three (3) days after having been sent, postage prepaid, by first class or certified mail.
36. SURVIVAL OF OBLIGATIONS
Any obligations and duties which by their nature extend beyond the expiration or termination of this Order shall survive the expiration or termination of this Order.
37. GOVERNING LAW
For Orders placed inside of the United States: Such U.S. Orders shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, U.S.A., without regard to the choice-of-law principles thereof. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that, at MakerBot’s option, any controversy between the parties and arising under or relating to a PO or otherwise relating to the Seller’s provision of Goods or Services to MakerBot, will be brought only in the courts of the State of New York or the United States District Court for the District of New York, and Seller hereby irrevocably submits and consents to the jurisdiction and venue of such courts. For Orders placed outside of the United States: Such international Orders shall be governed by the internal laws of Switzerland without reference to its International Private Law. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder. Any dispute, controversy or claim arising out of or relating to such Order, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one. The seat of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English language.
38. EQUAL EMPLOYMENT OPPORTUNITY
For all US Orders, the parties hereby incorporate the requirements of 41 C.F.R. §§ 60-1.4(a)(7), 60-250.4 and 60-741.1, if applicable. The parties shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
39. NLRA RIGHTS
For all applicable US Orders, Seller shall comply with 29 CFR Part 471, Appendix A to Subpart A by citing to this regulation in the PO.
40. FEDERAL GOVERNMENT CONTRACTING
When Goods or Services furnished for a PO is in connection with a U.S. Government prime contract or subcontract, in addition to the general provisions herein, the supplemental provisions set forth in the Government Flow-down Terms in Appendix A shall apply and are incorporated by reference, as required by the terms of the prime contract or by operation of law or regulation. All clauses incorporated herein are those in effect on the date of this PO and carry the same force and effect as if they were given in full text. In the event of a conflict between these FAR or DFAR provisions and the general provisions herein, the FAR, DFAR or NFS provisions shall control.
41. PRIORITY RATING
If so identified on the PO as a “Rated Order” certified for national defense use, such PO shall be deemed a Rated Order and Seller shall follow all the requirements of the Defense Priorities and Allocation System Regulation (15 C.F.R. Part 700).
Seller understands and agrees to comply with the United States Foreign Corrupt Practices Act, which prohibits MakerBot and Seller from providing anything of value to a foreign public official in order to obtain or retain business. Seller agrees not to give anything of value, including but not limited to business gratuities and reimbursement of travel, to any foreign government officials. Seller agrees to ensure that it complies with all requirements relevant to its business arrangement with MakerBot, including any registration requirements, and warrants that this PO is in compliance with all applicable laws and regulations of the country or countries in which it performs any service for MakerBot.
Seller warrants that neither it nor any of its employees, agents or representatives have offered or given, or will offer or give, any gratuities to MakerBot.
44. ENTIRE AGREEMENT; AMENDMENT
These Terms and Conditions are the complete and final statement of the terms of the contract between the parties and supersedes all other prior or contemporaneous negotiations and agreements, whether oral or written, relating to the subject matter hereof. These Terms and Conditions Order may not be amended except in writing signed by both parties. MakerBot reserves the right to amend or replace these Terms and Conditions from time to time by posting any new or replacement terms and conditions on www.mbot.me.
US GOVERNMENT CONTRACT PROVISIONS FROM THE FEDERAL ACQUISITION REGULATIONS (FAR) / DEFENSE FEDERAL ACQUISITION REGULATIONS SUPPLEMENT (DFARS)
MakerBot acts as both a contractor and subcontractor to the US government in the sales of its commercial items. As such, MakerBot is subject to the requirements of the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). When the Goods or Services, including the Goods resulting from Services hereby ordered are for use in connection with a United States Government (“Government”) prime contract or higher-tier subcontract, the following FAR/DFARS provisions and clauses shall apply, as required by the terms of the prime contract, or by operation of law or regulation. The effective version of each FAR/DFARS provision and clause shall be the same version as that which appears in MakerBot’s prime contract, or Order, or higher-tier subcontract under which this PO is a subcontract. In the event of a conflict between these FAR/DFARS provisions and clauses and the terms and conditions of any controlling terms and conditions or prime contract provisions, the FAR/DFARS provisions and clauses shall control.
The following FAR/DFARS provisions and clauses in effect as of the date of the prime contract are incorporated herein, with the same force and effect as if they were given in full text. The full text of a FAR/DFARS provision or clause may be accessed electronically at these addresses: https://farsite.hill.af.mil or https://www.acquisition.gov/far. In all provisions and clauses listed herein, terms shall be revised to suitably identify the party to establish Seller’s obligations to MakerBot and to the Government, and to enable MakerBot to meet its obligations under the prime contract. Without limiting the generality of the foregoing, and except where further clarified or modified below, the term “Government” and equivalent phrases shall mean “Buyer”, the term “Contracting Officer” shall mean “Buyer’s Purchasing Representative”, the term “Contractor” or “Offeror” shall mean “Seller”, “Subcontractor” shall mean “Seller’s Subcontractor” under this Purchase Order, and the term “Contract” shall mean this “Purchase Order”. For the avoidance of doubt, the words “Government” and “Contracting Officer” do not change: when a right, act, authorization, or obligation can be granted or performed only by the Government or the prime contract Contracting Officer or duly authorized representative, for example in FAR 52.227-1 or FAR 52.227-2, or when title to property is to be transferred directly to the Government. If any of the following FAR provisions and clauses do not apply to this Purchase Order, such provisions and clauses are considered to be self-deleting. For the avoidance of doubt, those FAR/DFARS provisions which do not apply because the work are not performed in the US are considered self-deleting. Seller shall incorporate into each lower tier contract issued in support of this Purchase Order all applicable FAR/DFARS provisions and clauses in accordance with the flow down requirements specified in such clauses.
From time to time, the FAR/DFARS provisions and clauses may be updated by the US government through change in regulations, change orders to the prime contract, and new subcontracts. Notwithstanding anything to the contrary, these supplemental terms may be updated to Seller by written notice from MakerBot.
Seller shall report suspected violations of this Appendix A immediately to [email protected].
FAR CLAUSES AND PROVISIONS
52.244-6 Subcontracts for Commercial Items (NOV 2017) (a) Definitions. As used in this clause— Commercial item and commercially available off-the-shelf item have the meanings contained in Federal Acquisition Regulation 2.101, Definitions. Subcontract includes a transfer of commercial items between divisions, subsidiaries, or affiliates of the Contractor or subcontractor at any tier. (b) To the maximum extent practicable, the Contractor shall incorporate, and require its subcontractors at all tiers to incorporate, commercial items or nondevelopmental items as components of items to be supplied under this contract. (c)(1) The Contractor shall insert the following clauses in subcontracts for commercial items: (i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509), if the subcontract exceeds $5.5 million and has a performance period of more than 120 days. In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer. (ii) 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5), if the subcontract is funded under the Recovery Act. (iii) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017). (iv) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15 U.S.C. 637(d)(2) and (3)), if the subcontract offers further subcontracting opportunities. (v) 52.219-8, Utilization of Small Business Concerns (OCT 2014) (15 U.S.C. 637(d)(2) and (3)), if the subcontract offers further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities. (vi) 52.222-21, Prohibition of Segregated Facilities (APR 2015). (vii) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). (viii) 52.222-35, Equal Opportunity for Veterans (Oct 2015)(38 U.S.C. 4212(a)); (ix) 52.222-36, Equal Opportunity for Workers with Disabilities (July 2014) (29 U.S.C. 793). (x) 52.222-37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212). (xi) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496), if flow down is required in accordance with paragraph (f) of FAR clause 52.222-40. (xii)(A) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O. 13627). (B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627). (xiii) 52.222-55, Minimum Wages under Executive Order 13658 (DEC 2015), if flowdown is required in accordance with paragraph (k) of FAR clause 52.222-55. (xiv)(A) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a) if flow down is required in accordance with 52.224-3(f). (B) Alternate I (JAN 2017) of 52.224-3, if flow down is required in accordance with 52.224-3(f) and the agency specifies that only its agency-provided training is acceptable). (xv) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706), if flowdown is required in accordance with paragraph (m) of FAR clause 52.222-62. (xvi) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note). (xvii) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013), if flow down is required in accordance with paragraph (c) of FAR clause 52.232-40. (xviii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. App. 1241 and 10 U.S.C. 2631), if flow down is required in accordance with paragraph (d) of FAR clause 52.247-64. (2) While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations. (d) The Contractor shall include the terms of this clause, including this paragraph (d), in subcontracts awarded under this contract.
52.203-6 Restrictions on Subcontractor Sales to the Government.
52.209-5 Certification Regarding Responsibility Matters
52.209-6 Protecting the Government’s Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment
52.212-4(i)(5), 52.232-25(d), 52.232-26(c), 52.232-27(l)) and to report possible violations of the Anti-Kickback Act when the contractor “has reasonable grounds to believe that [such a] violation may have occurred.”
FAR 2.203-7(c)(2) Anti-Kickback Procedures.
52.203-14 Display of Hotline Poster(s).
52.222-17, Nondisplacement of Qualified Workers (MAY 2014) (E.O. 13495
52.222-18 Certification Regarding Knowledge of Child labor for Listed End Products.
52.222-41, Service Contract Labor Standards (MAY 2014) (41 U.S.C. chapter 67).
52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (MAY 2014) (41 U.S.C. chapter 67).
52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services—Requirements (MAY 2014) (41 U.S.C. chapter 67).
52.222-54, Employment Eligibility Verification (Oct 2015) (E. O. 12989).
52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706).
52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).
52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (MAY 2014) (42 U.S.C. 1792
52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).
APPLICABLE TO PRODUCTS PURCHASED FOR RESALE AND/OR CONTRACT MANUFACTURING
52.215-22 Limitations on Pass-Through Charges—Identification of Subcontract Effort.
52.215-23 52.215-23 Limitations on Pass-Through Charges.
DFARS CLAUSES AND PROVISIONS
252.244-7000 Subcontracts for Commercial Items. (Jun 2013) (a) The Contractor is not required to flow down the terms of any Defense Federal Acquisition Regulation Supplement (DFARS) clause in subcontracts for commercial items at any tier under this contract, unless so specified in the particular clause. (b) While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligation. (c) The Contractor shall include the terms of this clause, including this paragraph (c), in subcontracts awarded under this contract, including subcontracts for the acquisition of commercial items.
252.246–7007 Contractor Counterfeit Electronic Part Detection and Avoidance System
252.246-7008 Sources of Electronic Parts
252.247-7023 Transportation of Supplies by Sea
252.247-7024 Notification of Transportation of Supplies by Sea
252-204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting
252-204-7014 Limitations on the use or Disclosure of Information by Litigation Support Contractors
252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support
252.203-7002 Requirement to Inform Employees of Whistleblower Rights
252.225-7048 Export-Controlled Items
252.227-7015 Technical Data – Commercial Items
227.227-7037 Validation of Restrictive Markings on Technical Data
227-244-7000 Subcontracts for Commercial Items
252.225-7009 Specialty Metals
252.203-7001 Prohibition on persons convicted of fraud or other defense-contract-related felonies
252.222-7006 Restrictions on the Use of Mandatory Arbitration Agreements
252.223-7008 Prohibition of Hexavalent Chromium.
252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals (a-c), (e)(2).
252.225-7016 Restriction on acquisition of ball and roller bearings.