Axtra3D, Inc.  
TERMS AND CONDITIONS OF SALES
Effective March 01, 2024

 

THESE TERMS AND CONDITIONS OF SALE (“TERMS”) OF AXTRA3D, INC. AND/OR ITS AFFILIATES (COLLECTIVELY, “AXTRA3D”), APPLY TO ANY SALE OF AXTRA3D PRODUCTS, LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS”, SOFTWARE” AND “SERVICES”, AS DEFINED BELOW).  YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS THE AUTHORITY AND IS OF A LEGAL AGE TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE, ORDER, OR USE BY CUSTOMER OF ANY AXTRA3D PRODUCTS, SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS.  IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS, DELETE OR RETURN LICENSED SOFTWARE AND NOT USE ANY RELATED SERVICES.

PLEASE REVIEW THE DISPUTE RESOLUTION PROVISION SET FORTH BELOW CAREFULLY. CUSTOMER IS REQUIRED TO RESOLVE DISPUTES WITH axtra3d ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THESE TERMS, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREEs THAT CUSTOMER HAS READ AND UNDERSTAND THE TERMS OF THE AGREEMENT AND the CONSEQUENCES THEREOF.

  1. SALE AND PURCHASE; LICENSE; USAGE DATA
    • Products. Axtra3D agrees to sell to Customer, and Customer agrees to purchase, the system(s) (“System”), System parts (“Parts”), materials (“Materials”), proprietary resins and thermoplastics and/or other consumables (Materials and other consumables are collectively referred to as “Consumables”), and/or other ancillary products (the System, Parts, and Consumables are collectively referred to as the “Products”) and/or Services (as defined in Section 1.3 below) that are set forth in any purchase order or any other Axtra3D-approved written purchase agreement tendered to Axtra3D (each a “Purchase Order”), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer documentation.  No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of Axtra3D. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects.
    • Software and Documentation. If a Product includes the licensure of any Axtra3D-provided software, which term shall include program code together with applicable technical documentation, containing specifications, instructions, and/or other information, accompanying such software or made available by Axtra3D from time to time (collectively “Software”), Axtra3D hereby grants to the Customer a non-exclusive, nontransferable, revocable, and limited license to use the Software for its internal purposes and solely in conjunction with the use of Product to which it relates. Customer acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which 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, as identified by Axtra3D in writing.
    • Services. From time to time, Axtra3D agrees to offer and provide services related to the Products (“Services”) that are identified in a Purchase Order, and Customer agrees that such services are offered and provided at all times subject to, and in accordance with, these Terms.  Notwithstanding the foregoing, certain Services, including support and maintenance services, may be offered under, and made subject to, additional terms or conditions in a separate agreement (the “Services Agreement”), which, on full execution, shall control and govern to the extent necessary to resolve any conflict with these Terms.
    • Restrictions on Use. Customer agrees that it shall not directly or indirectly:  (i) modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof; (ii) reverse engineer the Products, any part thereof, or any composition made using the Products; (iii) rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire System; (iv) copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by Axtra3D in writing; (v) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software); (vi) make or permit use of any trademark, trade name, service mark or other commercial symbol of Axtra3D without its prior written consent; (vii) operate or make use of the Products in any way in violation of applicable laws and regulations; and/or (viii) take or permit any other action which could impair Axtra3D’s rights, or damage the image or reputation of quality inherent in the Products, Axtra3D’s business, reputation, Intellectual Property (defined below) or other valuable assets or rights. In the event Customer rents, leases, sells or otherwise transfers the Products to a third party, Customer agrees that it will require such third party to be bound by Sections 1.2 (Software and Documentation), 1.4 (Restrictions on Use), and 8 (Proprietary Rights) hereof as a condition of such rental, lease, sale or other transfer.
    • Usage Data. Customer acknowledges and agrees that Axtra3D may monitor Customer’s use of the Products, Software, and Services and collect and compile Usage Data. “Usage Data” means the statistical and performance information related to the provision and operation of the Products, Software, and Services, such as errors, warnings, machine turn on or off, job start/stop/end/fail/kill, calibration updates, data from sensors, etc. Axtra3D does not scan or collect the content of any file or information that is uploaded to the Products. As between Axtra3D and Customer, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Axtra3D. Please see Axtra3D’s Privacy Policy (https://axtra3d.com/privacy-policy/) for more information about Axtra3D’s data collection and use practices.
  2. PAYMENT
    • Payments and Credit. Customer shall pay for the Products, Software and/or Services as and within the timeframes or on or before the date(s) specified in the Purchase Order and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by Axtra3D. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to Axtra3D in its discretion.  Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars.
    • Remedies. In the event Customer is in default in the payment of any sum invoiced by Axtra3D, then, without prejudice to Axtra3D’s other rights and remedies:  (a) all outstanding sums shall immediately become due and payable to Axtra3D, notwithstanding any credit terms previously granted by Axtra3D to the Customer; (b) Axtra3D may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer; (c) Axtra3D may retain any amount already paid to it by Customer; and (d) Axtra3D may recover its reasonable attorneys’ fees and other expenses incurred in enforcing its rights and remedies hereunder.  Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
    • Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase, lease or license of the Products, Software and/or Services, except for those taxes imposed upon Axtra3D’s net income.
  3. CANCELLATION & RETURNS OF PARTS, MATERIALS AND CONSUMABLES
    • Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to Axtra3D within three (3) business days after submission of the Purchase Order to Axtra3D. Thereafter, Customer may not cancel or change any Purchase Order without Axtra3D’s prior written consent.
    • Returns of Parts (includes Accessories). Returns of unused and unopened Parts must be made within thirty (30) days of receipt of the applicable Part and will be at the discretion of Axtra3D. Not all Parts may be returned. Prior written return merchandise authorization (“RMA”) is required from Axtra3D to return Parts. Customer is responsible for the cost of the return shipment, including any insurance, fees, or tariffs. Once the items are received by Axtra3D, the items will be inspected for any use or damage. Provided there has been no use or damage to the items, a refund or credit will be issued to Customer minus a 10% restocking fee. Parts received without the necessary RMA information will not be entitled to receive credit or refund and will not be returned to Customer.
    • Returns of Consumables (except for Materials). Returns of unused and unopened Consumables (except for Materials, which are only returnable as provided in Section 3.4 below) must be made within thirty (30) days of receipt of the applicable Consumable and will be at the discretion of Axtra3D. Not all Consumables may be returned. Prior written RMA is required from Axtra3D to return Consumables.  Customer is responsible for the cost of the return shipment, including any insurance, fees, or tariffs. Once the items are received by Axtra3D, the items will be inspected for any use or damage. Provided there has been no use or damage to the items, a refund or credit will be issued to Customer minus a 10% restocking fee. Consumables received without the necessary RMA information will not be entitled to receive credit and will not be returned.
    • Return of Materials. Materials cannot be returned unless they are defective or otherwise in non-conformance with the specifications for such Material pursuant to the terms of Section 7 (Warranty). Customer must request an RMA with respect to any non-conforming Materials and shall deliver a sample of non-conforming Materials to Axtra3D for testing to Axtra3D at Customer’s expense. Axtra3D shall complete testing of such Materials and if the Materials do not meet the conformance specifications, Axtra3D shall provide the remedy described in Section 2 (Limited Warranty Remedies). 
  4. TITLE, DELIVERY AND RISK OF LOSS
    • Transfer Terms. Delivery is made available Ex Works (Incoterms 2020) at Axtra3D’s designated facility, unless agreed otherwise by the parties in the respective order, with respect to shipping costs, risk of loss and title transfer, except that regardless of the delivery method, no title transfer shall ever occur for any licensed Software associated with any Product sale.  Notwithstanding delivery and the passage of risk and whether or not credit is extended for any Product purchase, the following shall apply:
      • To the maximum extent permitted by applicable law, title to Products shall remain with Axtra3D, and shall not pass to Customer, until Axtra3D has received payment of the full price and license fees (if applicable) for (a) all Products, Software and/or Services that are the subject of these Terms, and (b) all other goods and/or services supplied by Axtra3D to Customer under any contract whatsoever. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Axtra3D and Customer.  Moreover, Customer shall keep the Products identified as retained until such retention lapses.
      • If the applicable law does not permit the arrangement described in Section 4.1(a) above, Axtra3D hereby reserves in the Products (as well as all proceeds resulting from any sale thereof), and Customer grants and agrees that the Products shall remain fully subject to, a first priority purchase money security interest, until Axtra3D has received payment of the full price and license fees (if applicable). Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Axtra3D and Customer. Moreover, Customer hereby covenants that (i) no hindrance to its granting of the above security interest exists in any of its third party contracts; or (ii) in the event such a hindrance does exist, Customer shall assist Axtra3D in exercising, and shall take all actions necessary to protect and maintain, such security interest.
    • Delivery. Axtra3D will attempt to cooperate with Customer’s requested delivery dates or other related delivery requests but cannot and does not warrant quoted shipment or delivery dates or time frames and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefor shall be Customer’s sole obligation and expense; and that Axtra3D, shall not be liable for any direct, indirect or consequential damage or loss that the Customer may incur resulting from any delivery failure or delay.  Customer will notify Axtra3D in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products and licensed Software shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Axtra3D, if no such notice is received.
  5. Products that do not require installation by Axtra3D may be installed by Customer and used at any time following delivery. Axtra3D (or its authorized technical representative) will install those Products (including Software) or Parts designated as requiring installation by Axtra3D or its authorized technical representative (such Products or Parts, “Axtra3D Installed Products/Parts”), at Customer’s designated facility following receipt of all applicable payments related thereto.  Prior to such installation, Customer, at its expense, shall complete all applicable Product site preparations for installation, as specified by applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall thereafter provide such other assistance, services and facilities as may be requested by Axtra3D (or its authorized technical representative) to complete such installation. Axtra3D Installed Products/Parts shall not be handled, operated, opened, dismantled or used at any time prior to completion of required installation thereof, and then, initially in the presence and under the supervision of authorized Axtra3D technical personnel.  Where applicable and required by Axtra3D, Axtra3D (or its authorized technical representative) will perform a standard test of the Products and present a certificate of installation (“COI”) upon completion of the required installation.
  6. During any Product installation required to be performed by Axtra3D (or its authorized technical representative), and in consideration for Customer’s payment of charges due (unless otherwise specified in the Purchase Order acceptance), Axtra3D shall make available to qualified personnel of Customer basic training in the use and operation of the Products according to the applicable Product documentation. Subsequent to any such required Product installation, Axtra3D may offer and provide such training services from time to time, in its sole discretion.
  7. WARRANTY
    • Limited Warranty and Warranty Period. Solely during the then-current standard limited Axtra3D warranty period applicable to the System, Software, Parts, Consumables, and Services, which periods (if any) are expressly identified as published by Axtra3D in System Warranty Period, the Product literature, the Purchase Order, Purchase Confirmation, the Services Agreement and/or, in the case of Consumables, on the label attached thereto (each such period, as applicable, the “Warranty Period”) (in the event there is any discrepancy between the Warranty Period stated in System Warranty Period and on any other document, the Warranty Period stated in System Warranty Period shall prevail over any other document, unless expressly otherwise agreed by Axtra3D in writing), Axtra3D warrants as follows: (a) the System (excluding the Software), Parts and/or Consumable shall be free from defects in materials and workmanship; (b) the Software shall perform substantially in accordance with its published documentation, and (c) the Services shall be performed in a professional and workmanlike manner.
    • Limited Warranty Remedies. In respect of a valid warranty claim under Section 7.1 (Limited Warranty and Warranty Period) above, Axtra3D, as its sole obligation and as Customer’s sole remedy hereunder shall (A) in the case of the System (excluding Software), a Part, or Consumable, either repair or replace, at Axtra3D’s sole option, any such System, Part or Consumable with a new or refurbished conforming System, Part or Consumable, as determined by Axtra3D in its sole discretion, provided that (i) Axtra3D, in its discretion, shall be entitled to re-acquire (at no cost to Axtra3D except as expressly provided in clause (ii) below) the ownership of any such defective System, Part or Consumable that has been replaced; (ii) at Axtra3D’s request and cost and expense, Customer shall return to Axtra3D any such replaced System, Part and/or Consumable within thirty (30) days; and (iii) Axtra3D will be entitled to invoice the Customer for any such items not returned within this time period; (B) in the case of the Software, make commercially reasonable efforts to resolve inconsistencies between the functionality of such software and its published specifications; and (C) in the case of Services, as (and if) expressly set out in the applicable Services Agreement. Prior written RMA is required from Axtra3D for any warranty claims related to the System, Parts, or Consumables.
    • Exclusion of Warranties. Axtra3D’s limited warranty obligations hereunder shall terminate and shall not apply where any Product or Software failure or other breach of warranty was caused by: (i) catastrophe, fault or negligence of the Customer; (ii) operation or use of the Products in violation of applicable laws or regulations; (iii) improper or unauthorized use including, without limitation, use prior to receipt of a COI (where applicable); (iv) use of any unauthorized consumables (polymer resins, powder, filaments, support material & fluids or any other polymer suitable to be used by the Product), printing heads or Parts; (v) installation, modification or repair other than by Axtra3D or its authorized technical representatives; (vi) removal of the Products from the original installation site, unless authorized by Axtra3D in writing; (vii) unusual stress; (viii) power failure; (ix) deviation from Axtra3D’s recommended maintenance procedures; (x) failure to maintain the prescribed environmental or other conditions at the installation site or any other failure to comply with applicable Product instructions and/or documentation; or (xi) Customer’s usage of the override state.
    • WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 7 (PRODUCT WARRANTY) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, ALL PRODUCTS, SOFTWARE, AND SERVICES ARE PROVIDED “AS-IS”. AXTRA3D DISCLAIMS THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS THEREIN WILL MEET OR SATISFY THE CUSTOMER (OR USER’S) REQUIREMENTS OR INTENDED USE.  THE REMEDIES PROVIDED IN SECTION 7.2 (LIMITED WARRANTY REMEDIES) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF AXTRA3D TO CONFORM WITH SUCH LIMITED WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST AXTRA3D OR ANY OTHER MANUFACTURER, SUPPLIER OR LICENSOR OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES, WHETHER BASED IN CONTRACT, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE.  REPAIR OR REPLACEMENT OR REFUND (AS ELECTED BY AXTRA3D) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF AXTRA3D WITH RESPECT TO ITS LIMITED WARRANTY, AS WELL AS FOR ANY CLAIMS BASED ON OR RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS.  CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR SELECTION OF THE PRODUCT(S), SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS OR FOR CUSTOMER’S PARTICULAR APPLICATIONS.
    • Use of Unauthorized Parts and Consumables. In the event Axtra3D determines that damage to a Product has been caused by the use of unauthorized Parts and/or Consumables, the warranty in Section 7.1 shall be void, however, Axtra3D may offer to diagnose and repair the Product or its components at Axtra3D’s then current maintenance restoration rates.
  8. LIMITATION OF LIABILITY.

To the fullest extent permitted by applicable law:

  • LIMITATION OF LIABILITY FOR DIRECT DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION AXTRA3D’S INDEMNIFICATION LIABILITY UNDER SECTION 11, IN NO EVENT SHALL AXTRA3D, 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, SOFTWARE OR SERVICES OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE SAME INSTALLATION OR OTHER USE OF PRODUCTS OR THE PROVISION OF SERVICES, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) OR RELATED SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED (PROVIDED THAT FOR ANY SERVICES, THE AMOUNT SHALL BE LIMITED TO THE AMOUNT PAID FOR SAID SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM), 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.
  • EXCLUSION OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL AXTRA3D OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONTRACTS, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOOD WILL, LOSS OF REPUTATION, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF IT IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND 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.
  • EXCLUSION OF LIMITATION OF LIABILITY. THE LIMITS ON LIABILITY SET OUT IN SECTIONS 8.1 AND 8.2 ABOVE SHALL NOT APPLY IN RESPECT OF: (I) ANY LIABILITY FOR DEATH OF OR INJURY TO ANY PERSON RESULTING FROM THE AXTRA3D’S NEGLIGENCE; (II) ANY LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION BY THE AXTRA3D; AND (III) ANY OTHER LIABILITY RESULTING FROM INTENTIONAL OR GROSSLY NEGLIGENT BEHAVIOR.
  • LIMITATION OF PRODUCT LIABILITY IN CASE OF COMMERCIAL USE AND OF IMPROPER USE. Axtra3D shall not be liable for any damages, losses or liabilities relating to or caused by (i) a Product used for commercial purposes (ii) the use of a Product in violation of the instructions of use of such Product, (iii) Customer’s use of the override state for a Product or Software; and/or (iv) any other use which is otherwise considered to constitute an improper use of the Product.
  • LIMITATION OF LIABILITY FOR PRODUCT SAFETY. CUSTOMER IS AWARE THAT THE PRODUCT AND/OR ITS USE CAN BE HAZARDOUS AND CAN CAUSE DAMAGE TO HEALTH, PROPERTY, ENVIRONMENT ETC. CUSTOMER THEREFORE SHALL USE THE PRODUCT ONLY IN FULL COMPLIANCE WITH ALL INSTRUCTIONS PROVIDED WITH THE PRODUCT AS WELL AS IN COMPLIANCE WITH ALL PROVISIONS OF LOCAL LAW APPLICABLE ON SUCH PRODUCT AND ITS USE. AXTRA3D SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED DUE TO THE NON-COMPLIANCE OF CUSTOMER’S OBLIGATIONS ACCORDING TO THIS PROVISION.
  • EXCLUSION OF LIABILITY FOR THIRD PARTIES PRODUCTS. AXTRA3D IS ONLY LIABLE FOR THE PRODUCTS MANUFACTURED BY AXTRA3D AND ONLY TO THE EXTENT PURSUANT TO THESE TERMS.  FOR AVOIDANCE OF DOUBT, TO THE EXTENT PERMITTED BY LAW, ANY NON-AXTRA3D MANUFACTURED PRODUCTS (“THIRD-PARTY PRODUCTS”), EVEN IF SUCH THIRD-PARTY PRODUCTS ARE SOLD BY AXTRA3D OR RECOMMENDED TO CUSTOMER BY AXTRA3D, ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, OTHER THAN THOSE WARRANTIES EXPRESSLY PROVIDED TO AXTRA3D BY THE PROVIDER OF THE APPLICABLE THIRD-PARTY PRODUCT, TO THE EXTENT THAT THESE CAN BE PROVIDED BY AXTRA3D. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS RESPONSIBLE FOR REVIEWING THE SAFETY DATA SHEETS FOR ANY SUCH THIRD-PARTY PRODUCTS AND FOR FOLLOWING THE SAFETY PROTOCOLS DESCRIBED THERE. AXTRA3D IN NO EVENT SHALL BE LIABLE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGE OR LOSS THAT THE CUSTOMER MAY INCUR RESULTING FROM PURCHASING, INSTALLATION AND/OR USE OF THIRD-PARTY PRODUCTS. IF AXTRA3D RECOMMENDS OR OTHERWISE MAKES AVAILABLE A THIRD-PARTY PRODUCT, SUCH SUGGESTION DOES NOT CONSTITUTE AN ADVERTISEMENT OR ENDORSEMENT IN FAVOR OF SUCH THIRD-PARTY PRODUCT. CUSTOMER SHALL REMAIN FULLY RESPONSIBLE FOR ANY USE OF THIRD-PARTY PRODUCTS. IF CUSTOMER ACQUIRES A THIRD-PARTY PRODUCT, CUSTOMER SHALL ENTER INTO ALL NECESSARY AGREEMENTS AND USE THE PRODUCT IN COMPLIANCE WITH ALL APPLICABLE TERMS.
  • LIMITATION OF ACTIONS. Any action against Axtra3D relating to any alleged breach of warranty or any other alleged Product failure, must be brought within twelve (12) months after the cause(s) of action accrue(s).
  1. PROPRIETARY RIGHTS
    • Customer acknowledges that Axtra3D is the sole owner of all Intellectual Property (as defined below) and trade secrets that relate to the Products and/or Software and the use thereof. No right or license in Intellectual Property is granted to Customer by implication, estoppel or otherwise other than that expressly set forth herein or in other written documentation provided by Axtra3D. Except as required by law or as set forth in other written documentation provided by Axtra3D, (a) Intellectual Property directed to all or part of a Product is licensed only upon purchase of the Product from Axtra3D or its approved reseller and only for use of the specific Product so purchased; (b) Intellectual Property directed to a combination of Products (such as a System and Consumables) is licensed only upon purchase of the entire combination from Axtra3D or its approved reseller and only for use of the combination of specific Products so purchased; (c) Intellectual Property directed to a method of using a Product is licensed only upon purchase of the Product from Axtra3D or its approved reseller that necessarily performs the method and only for use in connection with the specific Product so purchased; and (d) Intellectual Property directed to a method of using a combination of Products (such as a System with Consumables) is licensed only upon purchase of the entire combination from Axtra3D or its approved reseller that collectively necessarily perform the method and only for use in connection with the combination of specific Products so purchased.  As used herein, “Intellectual Property” shall mean any and all Axtra3D copyrights, patents, trademarks, trade names, logos, Software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the Products.  Notwithstanding any other provision of these Terms, any use herein of the terms “sale” or “purchase”, or a similar term in connection with the Software, shall only refer to a “license in accordance with these Terms” of such Software.
    • Customer hereby grants to Axtra3D a fully paid-up, royalty-free, worldwide, non-exclusive, irrevocable, transferable right and license in, under, and to any patents and copyrights enforceable in any country, issued to, obtained by, developed by or acquired by Customer that are directed to 3D printing equipment, the use or functionality of 3D printing equipment, and/or compositions used or created during the functioning of 3D printing equipment (including any combination of resins, such as combinations relating to multi-resin mixing, color dithering or geometrical resin-mixture structure of the resin) that is developed using the Products and that incorporates, is derived from and/or improves upon the Axtra3D Intellectual Property and/or trade secrets. As far as such rights cannot be licensed as a matter of law, Customer hereby waives any right to enforce such rights toward Axtra3D. Such license shall also extend to Axtra3D’s customers, licensors and other users of Axtra3D’s Products in connection with their use of Axtra3D’s Products.
  2. 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.
  3. INDEMNITY
    • Subject to the restrictions identified below, Axtra3D shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that an unaltered Product (including its Software) or any Part thereof, furnished pursuant to these Terms infringes upon the third party’s registered copyright, trademark or patent; provided, however, that Axtra3D 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 Axtra3D of Customer’s reasonable out-of-pocket expenses. Without derogating from the foregoing obligation, if Axtra3D believes that any Product (including its Software) may infringe, then Axtra3D, at its election, may: (a) substitute or modify such Product which is alleged or determined to infringe so that it becomes non-infringing, while providing substantially similar performance; (b) obtain license rights for the continued use of the Product by Customer (at no additional cost to Customer); and/or (c) refund to Customer the purchase price paid for the infringing Product, less a depreciation allowance of twenty percent (20%) per year from the date of delivery. This Section 11.1, states Customer’s entire remedy, and Axtra3D’s entire liability subject to the limitations on liability set out in Section 8.1 (Limitation of Direct Damages), 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 Axtra3D, 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. Axtra3D shall have no liability or obligation under this Section 11.1 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 (polymer resins, powder, filaments, support material & fluids or any other polymer suitable to be used by the Product) (including resins), supplies, equipment, device or software not authorized by Axtra3D; (D) the use of any Product which has been modified by Customer or any third party without obtaining Axtra3D’s prior written authorization; (E) the result of Axtra3D’s compliance with any of Customer’s requested designs or specifications; (F) circumstances giving rise to one or more warranty exclusions under Section 7.3 above; and/or (G) Customer’s continued use of any Product after receipt of notice of infringement (collectively, “Exclusions”).
    • Customer shall defend, indemnify, and hold harmless Axtra3D 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 Axtra3D’s rights or interests without Axtra3D’s prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, Axtra3D shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer’s sole cost and expense.
  4. Customer will obtain and maintain adequate liability insurance on the Products against loss or damage from any external causes.
  5. EXPORT COMPLIANCE. Customer shall comply with all applicable laws, rules, and regulations with respect to, but not limited to, the use of the Product and/or Software. In addition, Customer expressly agrees to abide by all applicable foreign trade/export restrictions or similar rules as stated herein or referred to herein. Customer shall not transfer, re-transfer, export or re-export any Product (including any Software, Part, or consumable) or any related technology except in full compliance with all applicable export controls administered by the United States of America, Canada, Israel and other countries, as well as any applicable import and use restrictions, which laws, regulations, controls and restrictions may change from time to time. Without limiting the generality of the foregoing, Customer shall not transfer, re-transfer, export or re-export such items to anyone on any Denied Parties List of any governmental entity, including but not limited to the list of Specially Designated Nationals of the U.S. Department of the Treasury; Denied Persons List or Entity List of the U.S. Department of Commerce’s; or any lists maintained by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury or the U.S. Department of Homeland Security; or any such lists which may be revised from time to time, or for any use in chemical or biological weapons, sensitive nuclear end uses, missiles, etc.  Customer represents it is not located in, under control of, or a national or resident of any country on any such list.  Customer shall be solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any products or technologies, including outside of the U.S., Canada or Israel, and Axtra3D shall be under no obligation to notify Customer of any changes or updates to any laws, regulations, controls, restrictions or lists contemplated hereby.  Customer shall immediately inform Axtra3D of any trade/export restrictions, whether they be of E.U., U.S., Israel or other origin, which may impact Axtra3D’s compliance with internationally respected legislation, rules, protocols, advice or recommendations relating to trade/export restrictions.  For clarity, in the event of any conflict between legislation of local origin and of U.S. origin, legislation of U.S. origin will prevail unless prohibited by mandatory legislation of local origin.
  6. US GOVERNMENT USE. If Customer is part of an agency, department, or other entity of, owned or created by the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product or Software is further restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies, and the Defense Federal Acquisition Regulation Supplement as applied to defense and military agencies, for “commercial items,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use thereof by the Government shall be governed solely by these Terms.
  7. All notices and communications between the parties shall be in writing and addressed and sent by: (i) email where delivery is verifiable by automated receipt; or (ii) by national or international overnight courier service where delivery receipt is provided to the addresses set forth in the Purchase Order, or to such other replacement addresses as may be provided from time to time by each party by written notice given in accordance with this Section 15.  Any notice to Axtra3D shall be to the attention of CEO or other authorized contact identified in the applicable Purchase Order acknowledgment.  Notice shall be deemed to have been duly received by a party as of the date such notice was delivered in accordance with any of the methods prescribed herein.
  8. ENTIRE AGREEMENT. These Terms: (i) constitute the entire agreement and understanding between the parties regarding the terms of each Product sale, and supersede all prior and contemporaneous representations, promises, statements, agreements, and understandings, written or oral, regarding the subject matter hereof; and (ii) may only be modified and/or waived by a written agreement executed by both parties. Notwithstanding the foregoing, these Terms may be modified by Axtra3D from time to time and in its discretion (with legal effect only for all sales agreed after publication and not for previous agreements), by delivery of replacement Terms to Customer, or by posting such then-current Terms at https://www.axtra3d.com/sale-terms-conditions.
  9. DISPUTE RESOLUTION. Please read this Arbitration Agreement carefully. It is part of your contract with Axtra3D and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
    • Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Axtra3D that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Axtra3D, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
    • Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Axtra3D should be sent to p.tummala@axtra3d.com. We will send Notice to you using the email address that we have for you in our records. After the Notice is received, you and Axtra3D may attempt to resolve the claim or dispute informally. If you and Axtra3D do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
    • Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879.  The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
    • Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
    • Time Limits. If you or Axtra3D pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim. NOT WITHSTANDING THE FOREGOING, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE PURCHASE OF AN AXTRA3D PRODUCT, SOFTWARE OR SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
    • Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Axtra3D, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Axtra3D.
    • Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Axtra3D in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND AXTRA3D WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
    • Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY USER. 
    • Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
    • Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
    • Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
    • Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Axtra3D. 
    • Small Claims Court. Notwithstanding the foregoing, either you or Axtra3D may bring an individual action in small claims court.
    • Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
    • Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
    • Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within the State of North Carolina, for such purpose.
  10. The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other. Customer may not assign or transfer these Terms or the rights granted hereunder, except with Axtra3D’s prior written consent. Subject to the foregoing, Customer’s rights or obligations under these Terms shall be binding upon and inure to the benefit of each party’s respective permitted successors and assigns. Designated third-party beneficiaries may also enforce the Terms relating to their rights.  Axtra3D reserves the rights to terminate and revoke these Terms and terminate its relationship with Customer at any time following Customer’s breach of any of these Terms, and such termination shall be effective immediately upon written notice thereof to Customer.  Upon termination for any reason, Customer shall immediately cease use of any Software not embedded within the Systems, delete or destroy all copies in its possession, including that which may have been provided to contractors or consultants, and execute and deliver to Axtra3D a certification evidencing same.  The unenforceability of any provision or part of provision of these Terms adjudged by any court of competent jurisdiction shall in no way affect the enforceability of any other provision hereof, which shall remain in full force and effect.  Any failure by either party to exercise any right or remedy under the Terms does not constitute a waiver, or signify acceptance, of the event giving rise to such right or remedy.  Any waiver or other alleged modification or amendment by Axtra3D of any provision of these Terms must be in writing and signed by an authorized officer of Axtra3D to be valid.  Provisions which by their nature should survive termination of the parties’ business relationship and any agreements between or among them, including, but not limited to, Sections 1.4 (Restrictions on Use), 2 (Payment and Cancellation), 4.1 (Transfer Terms), 7.3 (Exclusion of Warranties), 7.4 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Proprietary Rights), 10 (Confidentiality), and 13 (Export Compliance) through 17 (Dispute Resolution) and 18 (General) shall so survive indefinitely.  To the extent that these Terms are accepted electronically, Customer hereby waives any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.  Additionally, Axtra3D may request modifications to Customer’s purchase orders as it relates to shipping terms, risk of loss and/or payment terms without affecting or negating the enforceability of the remaining provisions set forth herein. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder.

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