Axtra3D, Inc.  

TERMS AND CONDITIONS FOR MAINTENANCE SERVICES

Effective August 26, 2024

CAREFULLY READ THESE TERMS AND CONDITIONS FOR MAINTENANCE SERVICES (THE “MAINTENANCE TERMS”). BY PURCHASING OR USING ANY MAINTENANCE SERVICES OR OTHER REQUESTED SERVICES (COLLECTIVELY, “MAINTENANCE SERVICES”) FROM AXTRA3D, INC. AND/OR ITS AFFILIATES (“AXTRA3D”), EXECUTING OR ACKNOWLEDGING RECEIPT OF THESE MAINTENANCE TERMS, CLICKING “ACCEPT” OR “AGREE” (OR SIMILAR LANGUAGE) TO THE MAINTENANCE TERMS WHEN MADE AVAILABLE, OR ACCESSING AND USING THE MAINTENANCE SERVICES, INDICATES AGREEMENT WITH, AND ACCEPTANCE OF, THESE MAINTENANCE TERMS.

YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE MAINTENANCE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE MAINTENANCE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY ACCEPTANCE OR USE BY CUSTOMER OF ANY MAINTENANCE SERVICES SHALL CONSTITUTE CUSTOMER’S IRREVOCABLE ACCEPTANCE OF THESE MAINTENANCE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE MAINTENANCE TERMS, DO NOT ACCEPT, AGREE TO, ACCESS, OR OTHERWISE USE THE MAINTENANCE SERVICES. 

1. MAINTENANCE SERVICE PLANS. Axtra3D will use commercially reasonable efforts to provide the specific Maintenance Services included in the applicable Maintenance Service Plan selected and purchased by Customer, as summarized in the Maintenance Services Plan offerings available below. Such Maintenance Services may include correcting, repairing and/or replacing, as applicable, a non-conforming or defective Axtra3D 3D printer or related product (“Product”), as determined by Axtra3D in its sole discretion, which Product may include proprietary Axtra3D software (“Software”) embedded therein or otherwise licensed to Axtra3D in connection with the sale or use of the Product, and any part thereof (excluding Consumables, as specified in Section 9 below).

2. FEES AND PAYMENT. In exchange for the Maintenance Services, Customer agrees to pay Axtra3D a sum equal to the fees payable for the selected Maintenance Service Plan (the “Maintenance Fees”). Customer shall be invoiced and shall pay the Maintenance Fees annually in advance commencing on the Effective Date. Unless otherwise indicated on a Customer’s invoice, Maintenance Fees are due within thirty (30) days of invoice. If any such payment is not received by Axtra3D on or before the due date, all past due amounts shall bear interest, at the option of Axtra3D, at a rate of 2% per month, compounded monthly, or the highest lawful contract rate computed from its due date to the date when paid, whichever is less. In addition to late payment charges, Customer will be liable for Axtra3D’s reasonable costs of collection, including collection agency fees, attorneys’ fees, court costs and expenses.

3. TAXES. The Maintenance Fees set forth herein are exclusive of any special handling charges, assessment, and applicable taxes. Customer is responsible for all such charges, including all applicable sales, usage, excise, and similar taxes imposed upon the Maintenance Fees for the Maintenance Services. Customer acknowledges and agrees it is responsible for all taxes set forth in this Section 3 and agrees to pay all such charges unless it provides Axtra3D a certificate evidencing its exemption from applicable taxes.

4. TERM. Unless otherwise agreed by the parties in writing, the initial term of your Maintenance Services Plan is one (1) year. At the expiration of the initial term, these Maintenance Terms shall automatically renew on an annual basis until terminated by a party by giving at least thirty (30) days written notice of its intention to terminate these Maintenance Terms prior to the start of the next renewal term. All renewal terms together with the initial term shall be referred to as the “Term.” The Maintenance Fees may be subject to an annual increase, which shall be communicated to Customer upon renewal.

5. USE. Maintenance Services are contingent upon Customer’s use of the Product(s) in accordance with the Product User Manual, which is incorporated herein by reference and made an integral part of these Maintenance Terms. Customer agrees to use Product(s) consistent with the operating conditions stated in the Product User Manual.

6. 1. Axtra3D will perform the specific Maintenance Services set forth in Customer’s selected Maintenance Service Plan. Technical phone and email help desk support will be available on non-holiday weekdays between the hours of 8:00 A.M. and 5:00 P.M.
   2. If Customer’s selected Maintenance Service Plan includes on-site services, and Axtra3D determines, in its sole discretion, that phone and email support cannot be rendered to resolve the problem, Axtra3D may provide on-site service. Customer agrees to make the Product(s) available for servicing by representatives of Axtra3D during Axtra3D’s normal business hours. Customer will provide, without charge to Axtra3D, a suitable work area within Customer’s premises enabling Axtra3D or its agents to safely service the Product(s).
   3. Except for Axtra3D’s obligation to perform the Maintenance Services set forth in Customer’s selected Maintenance Service Plan, Customer retains all other responsibility and liability for the maintaining the Product(s) in proper condition and good working order and will be responsible all maintenance services not listed in Customer’s selected Maintenance Service Plan. Customer shall be solely responsible, at its own cost and expense, for the daily operation and ordinary care of the Product(s) in support of Customer’s normal business operations. Further, Customer shall promptly install and maintain all software updates and procure any additional equipment or software that may be required for, or as a result of, such installation or maintenance, all in accordance with the Product User Manual.
   4. Customer will remain solely liable for ensuring that its data and files are adequately documented for backup purposes and Customer agrees that Axtra3D will not be liable for any lost data and/or part production, or any data or part production reconstruction costs.
   5. Any services provided by Axtra3D not otherwise expressly identified hereunder as included Maintenance Services, which are any Extraordinary Repairs (defined in Section 7 below), and/or provided outside of working hours, will be charged on a time and materials basis according to Axtra3D’s then-current repair rates, and will be invoiced to and payable by Customer.

7. DAMAGE DUE TO ABUSE OR OVERLOADING; EXTRAORDINARY REPAIRS. Without limiting any other rights and remedies of Axtra3D under these Maintenance Terms, if any Product is damaged, or if any part or component fails as the result of overloading or abusive or other improper usage of the Product by Customer, including, but not limited to, the failure by Customer to maintain the Product in accordance with the Product User Manual, Customer shall promptly pay, upon receipt of an invoice from Axtra3D, for all costs and expenses incurred by Axtra3D to repair the damaged Product. To the extent the Product is damaged beyond repair, Axtra3D shall have no additional responsibility to Customer and Customer shall reimburse Axtra3D for all costs related to any Maintenance Services performed on the damaged Product. Further, nothing in these Maintenance Terms will require Axtra3D to provide any external electrical work; equipment reconditioning or refurbishing; repairs or adjustments due to abuse, modification, or alteration, or equipment operation or maintenance contrary to Axtra3D’ published instructions; or due to any external causes such as fire, flood or other intervening catastrophic causes (collectively “Extraordinary Repairs“). If requested and made available, all Extraordinary Repairs will be billed to and paid by Customer at Axtra3D’s then-current repair rates.

8. ACCIDENTS OR MALFUNCTIONS. Customer agrees to immediately notify Axtra3D in writing of any accident or malfunction affecting a Product. Customer will provide all relevant facts and will promptly furnish all information requested by Axtra3D in writing. Nothing in these Maintenance Terms shall obligate Axtra3D to repair, replace, service, maintain or otherwise perform Maintenance Services hereunder, for any Product(s) if such Product(s) are damaged or such service is required due to one or more events beyond Axtra3D’s control, as determined in its sole judgement, including, any accidents, delays, or acts or omissions by Customer.

9. CONSUMABLES AND SPARE PARTS.

1. Customer acknowledges that, unless otherwise expressly provided in the Maintenance Service Plan, Maintenance Services (and the prepaid fees) do not include the replacement of any consumables and disposable materials, such as thermoplastics, resins, printing heads, build trays, cleaning fluid, wiping cloths, gloves, and other similar items (collectively, “Consumables“), made available for purchase separately at Company’s then-current rates.

1. Company warrants that all maintenance spare parts manufactured and supplied by Company hereunder shall be free from material defects in material and workmanship for a period of ninety (90) days following installation thereof, and Customer acknowledges that spare parts may be reconditioned parts. ANY SPARE PARTS SUPPLIED BUT NOT MANUFACTURED BY AXTRA3D ARE PROVIDED BY AXTRA3D “AS IS”. AXTRA3D’S LIABILITY PERTAINING TO SUCH PARTS SHALL BE LIMITED TO AMOUNTS RECOVERED BY AXTRA3D UNDER WARRANTIES GIVEN BY ITS SUPPLIER(S), IF ANY.

1. Customer acknowledges that use of parts and/or consumables not manufactured or certified by Axtra3D may result in damage to Products. In the event Axtra3D reasonably determines that damage to a Product has been caused by the use of non-Axtra3D-manufactured or non-Axtra3D supplied parts and/or consumables, Axtra3D reserves the right to (i) void and terminate Customer’s rights to any further Maintenance Services, and/or (ii) offer to diagnose and repair the Product or its components at Axtra3D’s then-current maintenance restoration rates. Use of non-Axtra3D-manufactured or non-Axtra3D supplied parts and/or consumables may also disqualify Customer from receiving any discounts on other Axtra3D services, parts, materials, and/or consumables.

10. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNIFICATION.

THE MAINTENANCE OF AXTRA3D PRODUCTS IS A SHARED RESPONSIBILITY; AXTRA3D DOES NOT WARRANT THAT THE PERFORMANCE OF THE MAINTENANCE SERVICES WILL MAINTAIN THE PRODUCTS IN FULL OPERATING CONDITION OR GOOD WORKING ORDER.  AXTRA3D IS NOT RESPONSIBLE FOR, AND SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR, ANY DAMAGES OR LOSSES CAUSED BY CUSTOMER’S FAILURE TO PERFORM RECOMMENDED MAINTENANCE, AND FOR ANY MAINTENANCE SERVICES PERFORMED BY CUSTOMER OR CUSTOMER’S AGENTS, OR WITH RESPECT TO ANY DELAY OF PERFORMANCE TO THE EXTENT CAUSED BY A FORCE MAJEURE EVENT AS SET FORTH IN SECTION 18. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, AXTRA3D’S TOTAL, AGGREGATE LIABILITY TO CUSTOMER OR ANY PERSON CLAIMING BY OR THROUGH CUSTOMER FOR ANY CLAIMS, LOSSES, DAMAGES OR EXPENSES ARISING OUT OF OR IN ANY WAY RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE MAINTENANCE SERVICES, FOR THE PROVISION OF ANY PRODUCT(S), AND FOR ANY CAUSE WHATSOEVER ARISING IN RELATION TO THESE MAINTENANCE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR OTHER CAUSE (A “CLAIM”) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID TO AXTRA3D UNDER THESE MAINTENANCE TERMS IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. UNDER NO CIRCUMSTANCES SHALL AXTRA3D BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND OR NATURE, INCLUDING DAMAGES FOR LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOSS OF REVENUE OR OPPORTUNITY, LOSS OF SAVINGS, OR CLAIMS OF THIRD PARTIES OR FOR INJURY TO PERSONS OR PROPERTY. THESE LIMITATIONS SHALL BE EFFECTIVE REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN FORESEEN BY AXTRA3D, AND REGARDLESS OF THE THEORY OF LIABILITY ON WHICH THE CLAIMS IS BASED. Customer agrees to indemnify, defend and hold Axtra3D and its affiliates, and its and their officers, directors, employees, members, controlling persons, agents, successors and assigns (“Axtra3D Indemnitees”), harmless from any and all of the following, whether the same be actual or alleged unless directly caused by Axtra3D’s negligent acts or omissions: all losses, damages, claims, suits, taxes, liens, penalties, fines, liability and expense (including attorneys’ fees) howsoever arising or incurred as a result of Customer’s possession, use and operation of the Axtra3D Product(s), including damages for injuries or death to persons or injury to or destruction of property, claims for labor and materials and all loss of and damage to Product(s).

11. OWNERSHIP. It is expressly understood and agreed that these Maintenance Terms are for the provision of the maintenance services only. Axtra3D does not acquire title or ownership of any Product(s) by virtue of the performance of the Maintenance Services. Customer retains title and ownership of all Product(s) provided by Customer for the provision of the Maintenance Services.

12. TERMINATION
    1. Either party may terminate these Maintenance Terms if the other party fails to comply with any material obligation of these Maintenance Terms and fails to remedy such breach within thirty (30) days after the giving, by the non-breaching party, of written notice specifying the nature of the breach.
    2. Axtra3D may terminate these Maintenance Terms upon the giving of thirty (30) days prior written notice of termination to Customer if, in Axtra3D determines in its sole discretion that the Product(s) are being abused, misused, or used in a manner other than as described in the Product User Manual.
    3. Axtra3D may terminate these Maintenance Terms immediately without penalty upon the giving of written notice of termination to Customer if: 1) Customer fails to pay any amounts due hereunder and fails to cure the breach (including the payment of any late charges or penalties) within five (5) days after written notice of the default; or 2) there is instituted a proceeding in reorganization, bankruptcy or insolvency by or against Customer or its property in any court, which proceeding remains not dismissed for a period of thirty (30) days, or the application for or consent to by Customer of any assignment for creditors or other reorganization or creditor agreement either with or without court action.
    4. Axtra3D may terminate these Maintenance Terms for any reason or no reason without penalty by giving the Customer ninety (90) days’ written notice of termination, provided that Axtra3D shall provide a pro-rata refund of any prepaid unused fees in the event that Axtra3D terminates these Maintenance Terms pursuant to this Section 12(d) prior to the end of the then-current Term.
    5. In the absence of renewal of Customer’s Maintenance Service Plan, Customer agrees to pay Axtra3D’s then-current rates for any repair or maintenance services provided following expiration or other termination of the term.

13. Customer agrees to hold all confidential or proprietary information (including, without limitation, technology, software, ideas, know-how, processes, specifications, technical data, configurations, algorithms and trade secrets) which is disclosed by Axtra3D (collectively, “Confidential Information”) in strictest confidence, and agrees not to use any Confidential Information for any purpose outside the purchase, sale and use of Products, and not to disclose the Confidential Information to any third party, except to those employees of Customer who are bound by written restrictions at least as protective of Axtra3D’s Confidential Information as those provided herein, and who must be given access to the Confidential Information solely to use the Products in accordance with these Terms. Upon execution of a non-disclosure agreement satisfactory to Axtra3D, its Confidential Information may also be disclosed to Customer’s consultants who have been retained to perform services in connection with the Products, provided that Customer shall remain liable for any breach of such agreement, or damage or loss incurred as a result of such breach, by any such consultants.

14. CHANGES TO these Maintenance Terms. Axtra3D reserves the rights to amend, revoke and/or replace these Maintenance Terms at any time and without prior notice to Customer, and by posting such then-current Terms to https://axtra3d.com/maintenance-serice-terms-conditions/. Where practicable, Axtra3D will use its commercially reasonable efforts to honor, or to provide a reasonable substitute, for the balance of the Axtra3D’s prepaid Maintenance Services term, in the event it terminates or adversely alters any specific services offered to Customer.

15. Notices hereunder must be provided in writing and will be effective when mailed by registered or certified mail, return receipt requested, or sent by overnight courier service to a party at its address stated on the invoice, or at such other address as furnished by a party in writing to the other party during the Term.

16. ENTIRE AGREEMENT. These Maintenance Terms set forth the entire agreement and understanding between the parties regarding post-warranty maintenance services or other professional services provided by or to be provided by Axtra3D, and merges all prior discussions between them, and none of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to such subject matter other than as expressly provided herein.

17. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. These Maintenance Terms and Axtra3D’s provision of Maintenance Services will be governed in all respects by the internal laws of the State of North Carolina, without regard to applicable conflicts of law principles. With respect to any dispute, controversy or claim arising out of or relating to any Maintenance Services or these Terms, Axtra3Dand Customer agree and consent to the jurisdiction of and exclusive venue in the federal or state courts located in Mecklenburg County, North Carolina. Customer hereby agrees to the exclusivity of such applicable jurisdiction and irrevocably waives any personal, subject matter, inconvenient forum or other objections thereto. Notwithstanding the foregoing, Customer also hereby consents to the jurisdiction of any court(s) of competent jurisdiction in which Axtra3D seeks equitable or injunctive relief for the breach of any of these Maintenance Terms, and in all cases waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by Axtra3D (including attorneys’ fees or other costs) in connection with the collection of any past due amounts owed by Customer, or any action to enforce or administer these Maintenance Terms. Any claim or action against Axtra3D based upon breach of contract or any other theory, including tort, negligence, or otherwise must be commenced within twelve (12) months from the date of the alleged breach or other alleged event, without regard to the date of discovery. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE MAINTENANCE TERMS OR THE SERVICES CONTEMPLATED HEREBY.

18. FORCE MAJEURE. Axtra3D will not incur any liability to Customer, nor will these Maintenance Terms be cancellable for Axtra3D’s failure or delay in the performance of the Services hereunder, to the extent such failure or delay is due to causes beyond Axtra3D’s reasonable control including, without limitation, fires, floods, storms or other severe weather events; strikes or other labor disputes; wars, riots, or acts of terrorism; accidents; governmental regulations or interference; shortages of labor or unavailability of parts or materials; delays in transportation; quarantines or other public health crisis; and other causes beyond Axtra3D’s reasonable control. If the force majeure continues for a period of 30 consecutive days, either party may terminate these Maintenance Terms upon written notice to the other.

19. The failure of by Axtra3D at any time to require strict performance of any provision of these Maintenance Terms will not affect the right to require full and strict performance thereof at any time thereafter, and the waiver by Axtra3D of any breach, default or deficiency of any such provision will not operate as nor constitute a waiver of any subsequently occurring breach, default or deficiency of the same or any other provision. Customer may not assign its rights hereunder in whole or in part without the prior written consent of Axtra3D. These Maintenance Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The obligations in these Maintenance Terms pertaining to payment, taxes, warranties, indemnification, limitation of liability, and all other provisions that by their nature are intended to extend beyond the termination or expiration of these Maintenance Terms shall so survive such expiration or termination of these Maintenance Terms. If any part or provision of these Maintenance Terms is declared invalid by a competent authority, such declaration shall not have the effect of invalidating or voiding the remainder of these Maintenance Terms. The parties agree that the part(s) of these Maintenance Terms so held to be invalid, void or unenforceable shall be modified to the extent required to make it enforceable, or, if necessary, these Maintenance Terms shall be deemed to be amended to delete the unenforceable part or provision, and the remainder shall have the same force and effect as if such part or provision had never been included herein.