MAKERBOT TERMS AND CONDITIONS OF SALE
LAST DATE UPDATED: October 17, 2017
1. ACCEPTANCE OF THESE TERMS
These Terms and Conditions of Sale (“Terms”) by MakerBot Industries, LLC (“MakerBot” or “us” or “we”) shall apply to any order for products of MakerBot (“Products”) sold on www.mbot.me or thingiverse.com (collectively the “Sites”) or where explicitly applicable or through a current authorized reseller of Products (“Authorized Party” or “Authorized Parties”).
By placing an order on the Sites or through an Authorized Party for non-resale purpose and use of Products, you on behalf of yourself as an individual or on behalf of an organization, (“Customer” or “you” or “your”), represent and warrant that you have read, understood and agreed to be bound by these Terms, affirm that you are of the legal age to enter into an agreement, and in the case of a Customer purchasing on behalf of an organization, affirm that you have the legal authority to bind any such organization to these Terms.
These Terms are subject to change by MakerBot without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Date Updated” in the beginning of these Terms. Any purchase of Products on the Sites will constitute your acceptance of and agreement to these Terms and any changes thereto as of the Last Date Updated.
These Terms shall control irrespective of any inconsistent or additional terms and conditions, whether printed or otherwise, set forth in any communication from Customer to MakerBot, or which otherwise would be deemed established by any course of dealing, course of performance or usage of trade, unless otherwise provided herein or specifically agreed to in writing as a waiver or modification signed by an officer of MakerBot.
IN NO CASE SHALL YOU PLACE AN ORDER IF: (A) YOU DO NOT AGREE TO THESE TERMS, (B) ARE NOT AT LEAST 18 YEARS OF AGE, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE SITES BY APPLICABLE LAW.
2. ORDER, ACCEPTANCE BY MAKERBOT
You agree that an order placed by you constitutes an offer to purchase all of the Products listed in your order from MakerBot or an Authorized Party pursuant to these Terms (“Order”). MakerBot shall not be deemed to have accepted any Order (or any portion thereof) of Customer with respect to any Products until MakerBot dispatches such Products to the carrier for delivery to Customer as provided herein.
3. ORDER ACKNOWLEDGMENT; INVOICES
Upon receipt of an Order, MakerBot may, at its option, acknowledge such receipt by providing to Customer an “Order Acknowledgment”. No such Order Acknowledgment shall be deemed to constitute MakerBot’s acceptance of such Order or any portion thereof; such acceptance shall only occur as provided in Section 2 above. To the extent that any terms and conditions set forth in any such Order Acknowledgment or in any invoice delivered by MakerBot or an Authorized Party to Customer in connection with any sale of Products hereunder are different from, inconsistent with or in addition to these Terms, such terms and conditions, together with those herein which are not different from or inconsistent with those in such Order Acknowledgment or invoice, shall control and constitute the entire agreement and understanding of the parties with respect to the transactions contemplated thereby.
4. PRODUCT CHANGES
MakerBot expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product, and no such change in specifications shall affect any Order of such Product.
5. PRICES AND PAYMENT
All prices, discounts, and promotions stated by MakerBot or an Authorized Party are subject to change, at any time and without notice. The price charged for Products will be MakerBot’s prices prevailing for such Products at the time of shipment. Unless otherwise indicated in writing by MakerBot, prices are United States Dollars (USD).
Prices do not include: (a) any tax or other government charge or assessment upon the sale, shipment, production or use of Products ordered or sold hereunder. Customer shall be solely responsible for, and shall pay to MakerBot upon demand by MakerBot, any such tax, charge or assessment (other than any such tax on or measured by MakerBot’s income); or (b) any standard service charges of MakerBot or an Authorized Party which may be applicable to sales of its Products to the Customer, all of which Customer shall pay.
All Orders must be paid in full, including shipping, prior to delivery by MakerBot to the carrier, in USD cash. MakerBot reserves the right to suspend delivery and performance until full payment is received. Customer shall not set off against or deduct from any amounts due to MakerBot hereunder all or any part of any amounts owed or alleged to be owed by MakerBot to Customer or any damages or losses which Customer may have sustained or allege to have sustained as a result of any breach or alleged breach by MakerBot or any obligation of any kind to Customer (whether or not arising hereunder or in connection herewith).
6. TITLE AND RISK OF LOSS
Title to all Products supplied hereunder shall pass to Customer when delivered to the carrier and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to any Products ordered hereunder shall be borne by Customer.
MakerBot shall attempt in good faith to effect delivery approximately in accordance with the instructions set forth in Customer’s order or approximately on such other schedule as MakerBot may provide to the Customer in any Order Acknowledgment or other response to an order, but MakerBot shall not be responsible or liable for any delays or failure in such delivery. MakerBot expressly reserves the right to effect delivery of Products ordered in any number of separate shipments. Subject to Customer’s instructions as to carrier, delivery shall be effected using such modes of transport and such carriers as MakerBot shall deem appropriate. During any period of shortage of any product, MakerBot shall have the right to allocate its supply of such product among its customers, including Customer, pursuant to their respective orders and contracts in any manner MakerBot deems appropriate. MakerBot shall in no event be responsible or liable for any delay or failure to effect delivery due to any cause which is unavoidable or beyond MakerBot’s reasonable control and which prevents, impairs or adversely affects in any way MakerBot’s performance under any order, including but not limited to war, fire, flood, natural disaster, strike, labor dispute, act of God, governmental action, civil disturbance, accident, or inability to obtain or use materials, labor, equipment, facilities or transportation; in such cases, MakerBot shall have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time.
8. INSPECTION BY CUSTOMER; CLAIMS FOR DAMAGE IN TRANSIT
Customer shall carefully examine all deliveries of Products made hereunder and within five (5) days of receipt notify MakerBot of any alleged error, shortage, defect or non-conformity of any such Products. Any failure by Customer to examine and report shall constitute a waiver of any claim or right of Customer against MakerBot arising hereunder or by law with respect to any such error, shortage, defect or non-conformity reasonably discoverable by such examination. Any and all claims by Customer for damage or loss in transit shall be made by Customer against the carrier.
9.1 Allowable Period. MakerBot will accept returns on a very limited basis. MakerBot only accepts returns for a refund of your purchase price, less the original shipping and handling costs, within thirty (30) calendar days from the date of Customer’s receipt of merchandise (“Allowable Period”), subject to a 10% restocking fee. This Allowable Period may not reflect the return policy of an Authorized Party or of our authorized third-party financing partners. For defective returns, please refer to our limited warranty (see Section 13).
9.2 Process. Customer shall arrange to have the return shipped back to MakerBot. If a Product consists of several parts, Customer must return all parts of the Product in order to obtain a refund. You are responsible for all shipping and handling charges on returned items unless otherwise specified by MakerBot in writing. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.
9.3 Packaging. Customer must keep the original packaging and use it to repack a Product for return. For the return of a MakerBot Replicator Z18 3D Printer (“Z18”), Customer must contact MakerBot to be issued a return authorization and to receive repacking straps. If Customer does not keep the original packaging for the Z18, Customer will be required to purchase a “Repack Kit” from MakerBot in order to get a return authorization.
9.4 Unauthorized Returns. Any return made by Customer without a written return authorization from MakerBot will be considered an unauthorized return (“Unauthorized Return”). Unauthorized Returns will not be granted a refund or credit by MakerBot. Customer has the sole responsibility to arrange shipment of the Unauthorized Return from MakerBot back to Customer. Customer assumes all shipping and handling charges for any Unauthorized Return.
9.5 MakerBot Experimental Products. MakerBot may offer for sale products deemed explicitly in writing as experimental (“MakerBot Experimental Product”), such as the MakerBot Labs Experimental Extruder. Any purchase of a MakerBot Experimental Product will be accepted by MakerBot or its Authorized Parties for return during the Allowable Period.
If a Product includes any MakerBot or non-MakerBot software, including but not limited to program code together with applicable technical documentation made available by MakerBot from time to time (collectively “Software”), Customer acknowledges that the Software is subject to additional terms and conditions as set forth in executable or electronic license agreements (“Other Agreements”). The Other Agreements, if any, shall control and govern all such licensed Software use to the extent necessary to resolve any conflict with these Terms. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject to these Terms as well as the payment of any applicable Software license fees, including fees for specific Software functionalities.
11. RESTRICTIONS ON USE
MakerBot’s customer support policy can be found at www.mbot.me/legal/customer-service. For any Customer problems with Products purchased from MakerBot or an Authorized Party (“Problem”), Customer shall contact MakerBot via the MakerBot Support Web Form (www.mbot.me/support/select). If a Problem requires MakerBot to ship a replacement part or replace a Product (“Replacement”), Customer shall pay for the cost of the Replacement and associated shipping unless Customer is under an effective MakerBot MakerCare contract or the Problem is a valid limited warranty claim as determined by MakerBot in its sole discretion. In such cases, if Customer receives a Replacement, the original part or Product becomes the property of MakerBot.
13. LIMITED WARRANTY AND DISCLAIMERS
Except for MakerBot Experimental Products which do not have a warranty of any kind from MakerBot or its Authorized Parties, all other hardware Products include a limited warranty and this limited warranty is only available to Customer for a certain period of time. For specific and detailed information regarding this MakerBot limited warranty, Customer shall access the following link: www.mbot.me/legal/warranty and/or contact MakerBot or the Authorized Party that sold the Product to Customer.
14.1 Of Customer. Subject to the restrictions identified below, MakerBot shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that an unaltered Product or any part thereof, furnished pursuant to these Terms infringes upon the third party’s registered copyright, trademark or patent; provided, however, that MakerBot shall: (i) be given immediate notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding; (ii) have sole authority to investigate, defend and/or settle the claim, suit or proceeding; and (iii) be given any such assistance as required for the investigation, preparation, defense and settlement of the claim, suit or proceeding, subject to reimbursement by MakerBot of Customer’s reasonable out-of-pocket expenses. This Section states Customer’s entire remedy, and MakerBot’ entire liability subject to the limitations on liability set out in Section 15 (Limitations of Liability), for any such infringement or claim thereof, and shall control over any other conflicting or inconsistent provision in these Terms. Without the prior written consent of MakerBot, Customer shall not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith. MakerBot shall have no liability or obligation under this Section 14 for any infringement or claim thereof to the extent it is based upon: (a) production, sale or use of prototypes, outputs, or other results of the Products; (b) any method of using a Product other than methods inherent in, and necessary for, the operation of, the Product as supplied; (c) the use of any Product with any consumables, supplies, equipment, device or software not manufactured or supplied and certified by MakerBot; (d) the use of any Product which has been modified by Customer or any third party without obtaining MakerBot’s prior written authorization; (e) the result of MakerBot’s compliance with any of Customer’s requested designs or specifications; and/or (f) Customer’s continued use of any Product after receipt of notice of infringement (collectively, “Exclusions”).
14.2. Of MakerBot. Customer shall defend, indemnify, and hold harmless MakerBot and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to any Exclusions; provided that Customer shall not settle any claim or enter into any agreement that affects MakerBot’s rights or interests without MakerBot’s prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, MakerBot shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer’s sole cost and expense.
15. LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION MAKERBOT’S INDEMNIFICATION LIABILITY UNDER SECTION 14 (INDEMNIFICATION), IN NO EVENT SHALL MAKERBOT OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE USE OF PRODUCTS, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE
Notwithstanding anything herein to the contrary, in no event shall MakerBot or any of its respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation or production of the Products be liable to Customer or anyone else for any indirect, special, punitive, incidental or consequential damages (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of the Products, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages.
The foregoing limitations of liability do not apply to the extent prohibited by law; Customer shall refer to local laws for any such prohibitions.
16. INTELLECTUAL PROPERTY USE AND OWNERSHIP
MakerBot and our licensors and our affiliates are and will remain the sole and exclusive owners of all intellectual property rights in and to each Product made available for sale pursuant to these Terms and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and registered and unregistered trademarks, trade names service marks, and logos and other intellectual property rights. You are not granted by implication, estoppel, or otherwise, any license or right to use any of these intellectual property rights, nor will you have or acquire any ownership of these intellectual property rights in or to the Products, nor of any intellectual property rights relating to the Products.
17. MODIFICATION AND CANCELLATION
Except as expressly provided herein, the terms and conditions hereof may not be modified, terminated, or repudiated, in whole or in part, except by a writing executed by an authorized officer of MakerBot. MakerBot may, at its option, treat any attempted modification, termination or repudiation to which it does not assent in writing as a breach of the entire agreement hereunder and recover from Customer all of MakerBot’s damages, including without limitation special, indirect, consequential and incidental damages (“Damages”) resulting therefrom or arising in connection therewith. In the event that Customer (a) breaches these Terms, (b) becomes unable to conduct its normal business operations (including to meet its obligations as they mature) or the subject of any proceeding under any state or federal bankruptcy law or other law for the benefit of creditors or relief of debtors or (c) makes any assignment for the benefit of creditors, then MakerBot may immediately (x) cancel or terminate any and all agreements with or obligations to Customer relating to sales of Products in whole or in such part as MakerBot may deem expedient and (y) recover from Customer all of MakerBot’s Damages resulting therefrom or in connection therewith.
18. EXPORT COMPLIANCE
You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying Products from for your own personal or household use only, and not for resale or export to Lebanon or any country that violates any applicable export controls administered by the United States of America. Products may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations“).
19. GOVERNING LAW
These Terms and the transactions contemplated hereby 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 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. Any action seeking legal or equitable relief arising out of or relating to these Terms 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.
20. GENERAL; OTHER APPLICABLE TERMS
Any waiver by MakerBot of the performance or breach of any provision hereof shall be in writing and executed by an authorized officer of MakerBot, and no such waiver shall constitute a waiver of the subsequent performance or breach of the same or any other provision. The invalidity or unenforceability, in whole or in part, of any provision hereof shall not affect in any way the validity and enforceability of the remainder of such or any other provision. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.