3DSPRO Ltd.
Last Updated: April 24, 2023
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
These Buyer Terms and Conditions (the “Agreement”) govern your (“You” or “Your”) use of 3DSPRO Ltd.’s (“3DSPRO”) website (the “Website”). PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE, INCLUDING PLACING AN ORDER WITH 3DSPRO FOR MANUFACTURING SERVICES (THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH 3DSPRO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES. 3DSPRO’s General Terms and Conditions available at: www.3DSPRO.com/terms (“General Terms”) are incorporated herein by reference.
PLEASE NOTE that 3DSPRO may modify these terms and conditions at any time, and such modifications shall be effective immediately upon posting of the modified version on the Website for orders placed after such modifications have been posted. 3DSPRO will also update the “Last Updated” date at the top of this Agreement. If 3DSPRO makes any material changes, and You have registered with 3DSPRO to create an Account (as defined below), 3DSPRO may also send You an email to the last email address You provided pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting or providing notice of such changes on the Website for existing users (whichever is earlier). 3DSPRO may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or Services is permitted. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website and/or Services. Otherwise, Your continued use of the Website and/or Services shall be deemed Your conclusive acceptance of the modified terms and conditions.
3DSPRO only uses Your information as described in the Privacy Policy. We view protection of users’ privacy as a very important community principle. You represent and warrant to us that any data, information, records and files that You load, transmit to or enter into the Website will only contain Personal Information, as defined in the Privacy Policy, for which You have provided all necessary notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to make available the Services.
1. SERVICES.
1.1 About the Services. 3DSPRO hosts and maintains an online platform available at the Website that enables 3DSPRO’s buyers to upload their three-dimensional (3D) models for their manufacturing projects. 3DSPRO maintains a vendor manufacturing program consisting of a network of third-party manufacturers (each, a “Partner”) capable of performing end-to-end services in order to offer our buyers great efficiencies including manufacturability, quotations, lead times, and certifications while striving for excellent quality manufacturing services. When a buyer uploads their Specifications (as defined below) for a manufacturing project, 3DSPRO will either manufacture, or subcontract with one of 3DSPRO’s Partners to have manufactured, the parts, assemblies, or items to be delivered pursuant to the buyer’s order (each, a “Part”).
1.2 Responsibilities When Using the Services. By using the Services, You agree to:
l Comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, privacy any export control laws;
l Upload and disseminate only content or information that You own all required rights to under law, are authorized to disseminate (and are not subject to any confidentiality obligations), and do so only consistent with applicable law and as permitted by any agreements to which You are bound;
l Use reasonable efforts to prevent unauthorized access to or use of the Services;
l Monitor and control all activity conducted through Your Account in connection with the Services; and
l Promptly notify 3DSPRO if You become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving Your Account, including any loss, theft, or unauthorized disclosure or use of Your Account.
If 3DSPRO has reason to believe that You have failed to comply with the above, 3DSPRO may without notice suspend or terminate Your access to the Services and refuse any and all current or future use of the Services (or any portion thereof).
2. REGISTRATION. In order to use certain Services, You may be required to register for an account (“Account”). In registering for the Services, You agree to (1) provide true, accurate, current and complete information about You as prompted in the Website account details section (“Registration Data”); and (2) maintain and promptly update Your Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under Your Account, and 3DSPRO will not be liable for any loss or damage (of any kind and under any legal theory) to You or any third party arising from Your inability or failure for any reason to comply with these Terms and any applicable General Terms. You may not share Your Account or password with anyone, and You agree to (a) notify 3DSPRO immediately of any suspected or confirmed unauthorized use of Your password or any other breach of security; and (b) exit from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current, or incomplete, or 3DSPRO has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, 3DSPRO has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website and Service (or any portion thereof).
3. ORDERING PROCESS
3.1. Placing Orders. In order to place an order for a Part, You must upload an acceptable model for the Part that You would like to be produced pursuant to the terms of this Agreement. During the ordering process You may choose, from the list of available options, the material, color, surface, and size of the measurement (mm or inches) for your Part. Certain restrictions with respect to the thickness, material, color and surfaces may apply. For an additional fee, You may request material certifications and inspection reports for Your Parts during the ordering process. 3DSPRO WILL NOT ALTER, MODIFY OR CHANGE THE SPECIFICATIONS OF ANY PART WITHOUT OBTAINING WRITTEN APPROVAL FROM YOU. You will be able to see and review the order and the estimated costs (production, delivery, and other taxes when applicable) provided by 3DSPRO to You before finalizing the order (the “Quote”). No contract to manufacture any Part exists until 3DSPRO acknowledges Your acceptance of its Quote by a confirmatory email or other appropriate means of communication, as determined by 3DSPRO in its sole discretion. SINCE EACH ORDER IS CUSTOM MANUFACTURED, YOU MAY NOT CANCEL AN ORDER ONCE IT HAS BEEN PLACED. 3DSPRO, at its sole discretion, may permit a buyer to cancel an order and may charge a fee not to exceed 3% of the total order value if a buyer requests such a cancellation from 3DSPRO, provided that no work has been done for such an order as of the date of cancellation.
3.2 Specifications. If You accept 3DSPRO’s Quote by placing an order referencing the Quote using the Quote number, 3DSPRO will, subject to the terms herein, manufacture, or have manufactured, the Part(s) in accordance with the 3D geometry and features related to the Part(s) and to the tolerances as set forth in the Quote (except if located in the Notes section) (collectively, the “Specifications”). You are solely responsible for ensuring that the Specifications in the Quote and other information You submit in Your order is accurate and complete before paying for it. YOU MAY NOT AMEND OR MODIFY THE SPECIFICATIONS after YOU HAVE PLACED YOUR ORDER.
3.3 3DSPRO Cancellations. 3DSPRO may, at any time during the quotation, ordering and the manufacturing process, revoke and/or cancel any Quote/order, if there are technical or other reasons (such as a concern about intellectual property ownership of the design or the legality of the Part) to do so. In such case, 3DSPRO will reimburse You all monies paid for such Part, if any.
3.4 Limitations. 3DSPRO will manufacture Your Part(s) in accordance with the Manufacturing Standards set forth at www.3DSPRO.com/manufacturing-standards (the “Manufacturing Standards”), which are incorporated herein by reference, unless 3DSPRO has agreed to different standards in the Quote. Due to technical limitations of current technology, it may be impossible or commercially impracticable to manufacture certain Parts in accordance with Your Specifications. In such cases, 3DSPRO will use its commercially reasonable efforts to contact You. Upon written approval from You, 3DSPRO and its Partners reserve the right to either build the Part with a different specification and/or switch to another production technique and apply any modification to the order (such as modification of price, of terms/term of delivery, etc.) resulting from such decision. You agree to pay 3DSPRO additional compensation, if any, resulting from amended Specifications.
3.5 Subcontracting. You acknowledge and agree that 3DSPRO may subcontract or otherwise delegate any order you place for a Part to one of 3DSPRO’s Partners. As such, You acknowledge and agree that 3DSPRO may share Your Specifications with our Partners in order to process and manufacture your order. You will not have any obligation to pay any Partner directly.
3.6 Compliance with Export Controls. The data, items, deliverables, and Services may be subject to national, foreign, and international trade and export control laws and regulations (“Export Laws”). You shall identify any three-dimensional (3D) models and resulting items that are controlled under Export Laws at the time of providing them to 3DSPRO, including but not limited to identifying data and items that are controlled under the International Traffic in Arms Regulations (“ITAR”). NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, YOU SHALL BE LIABLE FOR ALL DAMAGES, LOSSES, AND LIABILITIES INCURRED BY 3DSPRO AS A RESULT OF YOUR NON-COMPLIANCE WITH EXPORT LAWS OR FAILURE TO ACCURATELY IDENTIFY APPLICABLE EXPORT LAWS. When required or requested by 3DSPRO, You will provide 3DSPRO with (a) any Harmonized Tariff Schedule (“HTS”) codes for any Parts, (b) the end use for any such Parts, and (c) the end user of such Parts, within two (2) days of 3DSPRO’s request for such information.
3.7 Prohibited Items. While 3DSPRO wants to give its buyers the freedom they need to produce the most creative, imaginative, and useful projects and Parts, 3DSPRO maintains the right to refuse any Part that is illegal or designed to harm human beings, or which 3DSPRO otherwise deems inappropriate in its sole discretion. As such, 3DSPRO prohibits the use of its Services to manufacture certain Parts designed for use or integration into firearms or for such Parts that require any licenses to manufacture.
4. PRICING AND PAYMENT; 3DSPRO REFERRAL PROGRAM
4.1. Payment. You agree to pay all fees or charges to Your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise expressly agreed in advance by 3DSPRO, all invoices are due thirty (30) days after the date of invoice or will be paid by credit card at the time order placement. 3DSPRO reserves the right to require payment in advance for certain orders. All invoices are due in full, without any deductions or offsets. All invoices will be deemed final and binding unless You object to an invoice, in writing, within ten (10) calendar days of receipt. All invoices not paid in full within such thirty (30) calendar day period shall bear interest at the rate of 1.2% per month or the highest rate permitted under law. 3DSPRO may also draw down on any 3DSPRO Credits held in your Account in the event you fail to pay any past due invoices within forty-five (45) days of their due date. If You choose to pay for an order by credit card, You must provide 3DSPRO with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing 3DSPRO with Your credit card number and associated payment information, You agree that 3DSPRO is authorized to immediately invoice your Account for all fees and charges due and payable to 3DSPRO hereunder and that no additional consent or notice is required. You agree to immediately notify 3DSPRO of any change in Your billing address or the credit card used for payment hereunder. 3DSPRO reserves the right at any time to change its prices and billing methods, either immediately upon posting notice on the Website or by email delivery to You. All prices are calculated in US Dollars and payment to 3DSPRO must be in the form of US Dollars.
4.2. Taxes and Costs. Unless otherwise stated, the price quoted with respect to the manufacture of any particular Part includes the cost for the Services rendered by 3DSPRO, the manufacturing of the Part and the standard shipping (as selected by You), as well as all applicable sales and use taxes. 3DSPRO issues the invoice under the Intercom 2020. 3DSPRO assists You in shipping by our Partners i.e., FedEx, DHL, or other types of shipping service Partners, to your designated destination under EXW/Ex Works. Additional fees may apply for any alternate shipping methods https://www.3DSPRO.com/service-agreement and/or shipping insurance. You will be liable for all other transaction duties and taxes. If Your order is exempt from sales tax, You must submit a valid sales tax exemption certificate.
4.3. Suspension of Services. 3DSPRO reserves the right to suspend performance hereunder (including the manufacture of the Part) in the event You fail to pay all outstanding amounts when due and 3DSPRO retains full legal title to Parts until it has received full payment with respect to such Parts and payment on any other Parts that You have ordered. 3DSPRO reserves the right to refrain from manufacturing additional orders, or additional components of an existing order, as long as the outstanding issued invoices remain unpaid.
5. SHIPMENT ESTIMATES; RISK OF LOSS IN TRANSPORT
5.1 Shipment Estimates. Quotations issued by 3DSPRO will contain an estimated date of shipment, calculated based on the input data. The term of delivery generated by the online ordering system gives a preliminary indication of planned schedule of shipment though it does not bind 3DSPRO in any way. The estimated shipment date is based on the working conditions applicable at the time the agreement is concluded and on the punctual delivery of the materials ordered by 3DSPRO for the performance of the work. Should a delay arise for which 3DSPRO is not responsible, as a result of a change in the aforementioned working conditions or because materials ordered in time for the performance of the work are not delivered on time, the shipment date may be extended and 3DSPRO will not be liable for such delay.
5.2 Risk of Loss. Unless otherwise agreed, all sales of Parts shall be under EXW/Ex Works Seller’s warehouses (Incoterms 2020). In the event that You require delivery of the Parts otherwise than EXW, You must contact 3DSPRO in writing in order to specify the requirements. 3DSPRO, at its discretion, shall arrange the delivery requirements including, without limitation, transport insurance, the mode of transport (3DSPRO reserves the right to vary the mode of transport if any regulations or other relevant considerations so require) and any special packaging requirements. All costs, taxes, duties, and charges related to fulfilling any of Your requests under this Section, shall be paid by You, unless otherwise agreed by both parties.
6. REPLACEMENT PARTS
6.1. No Warranty of Specifications. Upon delivery of a Part, You should inspect the Part carefully. All Parts will be deemed accepted upon delivery to You. You acknowledge and agree that 3DSPRO will use commercially reasonable efforts to manufacture or have the Part manufactured by our Partners, in accordance with Your Specifications. 3DSPRO does not warrant Part design or specifications. Since You are solely responsible for the Specifications, and the manufacture of certain Parts in accordance with your Specifications may be impossible or otherwise commercially impracticable, 3DSPRO does not warrant that Your Part can or will be manufactured in accordance with Your Specifications. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, 3DSPRO DOES NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE WEBSITE, SERVICES, PARTS, OR ANY MATERIALS PROVIDED BY 3DSPRO HEREUNDER, AND DOES NOT WARRANT THAT THE PART WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF ANY CERTIFICATIONS PROVIDED, OR BE WILL BE MERCHANTABLE OR FIT FOR YOUR PARTICULAR PURPOSE.
6.2. Specifications Warranty; Remedy. 3DSPRO represents and warrants for a period of three (7) calendar days[KC10] following the delivery of the Part (the “Warranty Period”), that the Part shall conform to the Specifications for such Part. In the event You notify 3DSPRO during the Warranty Period that the Part fails to comply with the applicable Specifications in all material respects, 3DSPRO will, as Your sole and exclusive remedy, replace such non-conforming Parts at 3DSPRO’s sole cost and expense, provided (i) You return the non-conforming Part(s) to 3DSPRO within three (7) calendar days of your notice of non-conformance, and (ii) 3DSPRO reasonably confirms such non-conformity. No returns will be accepted by 3DSPRO unless You have notified 3DSPRO within the Warranty Period. If You fail to contact 3DSPRO within the Warranty Period, 3DSPRO shall have no further obligations with respect to such Part and ALL SALES WILL BE DEEMED FINAL AND SUCH PARTS MAY NOT BE RETURNED TO 3DSPRO.
7. INTELLECTUAL PROPERTY
7.1. License. Subject to the terms herein, 3DSPRO grants to You a limited, revocable, non-exclusive license to use the Website for your personal or internal business purposes. 3DSPRO and its licensors retains all ownership and intellectual property rights to the Website and all content therein. You shall not or permit any third party to:
(i) reverse engineer, disassemble or decompile the Website, the pricing and matching algorithms of 3DSPRO, or 3DSPRO’s geometry parsing engine;
(ii) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website;
(iii) access the Website in order to build a similar or competitive website, application or service;
(iv) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;
(v) use the Website for any illegal or illicit purpose, including to manufacture certain products, components, goods or tools designed or intended for use in firearms;
(vi) Send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Website any data, information, pictures, videos, music or other materials or content that: (a) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) You do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (c) is false, intentionally misleading, or impersonates any other person, including reviews that are not representative of your experience; (d) is libelous, slanderous, defamatory, bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual; (e) is harmful to minors in any way or targeted at minors; (f) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (g) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability;
(vii) Share, transfer or otherwise provide access to an account designated for You to another person;
(viii) Misuse the 3DSPRO domain or use the 3DSPRO trademark;
(ix) Disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Website (e.g., a denial-of-service attack); or
(x) Gain unauthorized access to the Website or otherwise circumvent or violate the security of the Website, including without limitation: (a) accessing content that is not intended for You; (b) attempting to breach or breaching Website security or authentication measures; (c) restricting, disrupting or disabling service to Website users, hosts, servers or networks by any means, or (d) otherwise attempting to interfere with the proper working of the Website, including but not limited to by introducing any material that is malicious or technologically harmful.
Without limiting the foregoing, You acknowledge and agree that the pricing and matching algorithms, processes, and mechanisms used by 3DSPRO, along with 3DSPRO’s geometry parsing engine are the proprietary information and trade secrets of 3DSPRO. In the event You attempt to reverse engineer such pricing and matching algorithms, processes and/or mechanisms, or 3DSPRO’s geometry parsing engine, Your right to use the Website and Service shall immediately cease, and 3DSPRO will take any action it deems necessary or appropriate to protect its rights and interests.
7.2. Trademarks. The Website contains names, which are trademarks, service marks and/or brand names of 3DSPRO and may not be used without the written permission of 3DSPRO. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners.
7.3. Your Content. 3DSPRO does not claim any ownership over Your Specifications or any content, data, or other materials You upload to or otherwise make available on the Website (“Your Content”). You are solely responsible for the Content that You upload to the Website. You hereby grant 3DSPRO a non-exclusive, perpetual, royalty free, fully paid-up, sublicensable (to our Partners), right and license to reproduce and use Your Content for the purpose of designing, manufacturing and delivering Your Parts to You, and to provide You any other Services that You request. You may request the return or destruction of your Content at any time by written notice to 3DSPRO, provided that 3DSPRO may keep archival copies only to comply with applicable law or document retention policies. You further acknowledge and agree that 3DSPRO may use Your Content on an aggregated and anonymized basis to improve the Website and Services, including without limitation, to improve our pricing algorithms and help manufacture Parts in a more efficient and expedient manner. By submitting an order to 3DSPRO, You represent and warrant that You are the owner and/or You have obtained the rights necessary to grant 3DSPRO granted herein use without any violation of any intellectual property rights, or payment by 3DSPRO of any amounts to any third party. You further represent and warrant that Your Content does not infringe upon, misappropriate, or violate any third party’s rights, including intellectual property, privacy and publicity rights. If 3DSPRO, in its sole commercial discretion, determines that the Specifications You submit to the Website infringes upon the intellectual property rights of any third party, 3DSPRO reserves the right to refuse to manufacture the Part(s) based on your Specifications. 3DSPRO will use commercially reasonable efforts to protect the confidentiality of Your Content and to only share Your Content with third parties as reasonably necessary in connection with the provision of the Services or as otherwise permitted herein. Notwithstanding the foregoing, 3DSPRO may disclose Your Content if required by law.
7.4 Your Data. If You use the Service, You agree that 3DSPRO will be required to collect, use, and process data from Your organization for the purpose of providing the Services (“Buyer Data”), subject to our Privacy Policy and any applicable General Terms. You shall make available all billing and other required information and documentation in a format reasonably requested by 3DSPRO. 3DSPRO is not responsible for inability to perform the Services due to incorrect information, improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. You shall maintain an accurate backup copy of all data provided to 3DSPRO. You acknowledge that transferring Buyer Data in connection with the Services is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data, or damage to media that may give rise to loss or damage. You are responsible to adopt reasonable measures to limit the impact of such problems.
With respect to Buyer Data, you represent, warrant, and covenant that:
l The provision of the Buyer Data to 3DSPRO and 3DSPRO’s contemplated use thereof complies with all laws, and you have received all necessary third-party approvals and consents with respect to the Services; and
l The Buyer Data, and 3DSPRO’s use of the Buyer Data, does not and will not infringe or violate the intellectual property rights or other rights of any third party.
You shall exclusively own all Buyer Data. You hereby grant 3DSPRO a non-exclusive, non- transferable, sublicensable, royalty-free, worldwide right to handle Buyer Data to: (i) provide Buyer any Service, as defined herein and as set forth in any General Terms; (ii) generate aggregate data; (iii) sublicense solely to the extent necessary to in connection with the provision of the Services, including enabling other Partners to fulfill their obligations to 3DSPRO and to You, subject to any General Terms, if applicable.
8. INDEMNIFICATION BY YOU. You agree to indemnify and hold harmless 3DSPRO and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, and Partners, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by You of any undertaking, warranty, representation or agreement contained herein; (ii) arising out of a claim that a Part manufactured by 3DSPRO pursuant to an order hereunder violates any law, regulation or ordinance; (iii) arising out of a claim with respect to the Part (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Part; or (iv) arising out of any claim that any Specification, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party.
9. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE PARTS MANUFACTURED BY 3DSPRO PURSUANT TO AN ORDER SUBMITTED ON THIS WEBSITE AS WELL AS THE WEBSITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, AND ANY OTHER MATERIALS PROVIDED BY 3DSPRO, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. 3DSPRO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE, SERVICES AND PARTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT. 3DSPRO DOES NOT WARRANT THAT ANY SUCH PARTS OR THE USE OF THE WEBSITE OR SERVICES WILL BE UN INTERRUPTED OR ERROR FREE OR THAT ANY ERROR OR DEFECTS W ILL BE OR CAN BE CORRECTED. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS.
9.1. BECAUSE THE PARTS ARE BASED ON YOUR SPECIFICATIONS, 3DSPRO MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE PARTS WILL MEET YOUR USE REQUIREMENTS, (2) THE PARTS ARE FIT FOR ANY PARTICULAR PURPOSE, OR MERCHANTABLE, OR (3) THE PART DESIGN IS DEFECT OR ERROR-FREE-.
9.2. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. 3DSPRO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
9.3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 3DSPRO OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.4. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESS THROUGH THE WEBSITE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.5. YOU ACKNOWLEDGE AND AGREE THAT 3DSPRO IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD 3DSPRO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING FOR ANY PART MANUFACTURED BY A THIRD PARTY.
10. LIMITATION OF LIABILITY
10.1. Disclaimer of Certain Damages. 3DSPRO SHALL NOT IN ANY EVENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT 3DSPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, PARTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE OR SERVICES; (3) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, SPECIFICATIONS, TOLERANCES OR DATA; (4) YOUR PARTS; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE AND SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY .
10.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL 3DSPRO BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY 3DSPRO FROM YOU UNDER A GIVEN ORDER FOR ANY CLAIM RELATING TO A GIVEN ORDER.
10.3. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 3DSPRO AND YOU.
11. RELEASE OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE PARTS AND THEIR MANUFACTURE, ARE BASED ON SPECIFICATIONS PROVIDED BY YOU. ACCORDINGLY,
YOU AGREE THAT UNDER NO CIRCUMSTANCE WILL 3DSPRO BE LIABLE FOR ANY DAMAGE OR LIABILITY RESULTING FROM ANY PART, INCLUDING ANY PART DEFECT RESULTING FROM THE MANUFACTURE OF A PART IN ACCORDANCE WITH THE SPECIFICATIONS. You hereby release 3DSPRO and its affiliates, and their officers, directors, employees, agents, consultants, and Partners and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from Your Part(s), excluding any material defects in any Part(s) solely caused by the acts or omissions of 3DSPRO. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
12. TERM AND TERMINATION
12.1. Term. This Agreement commences on the date when You accept it (as described in the preamble above) and remains in full force and effect while You use the Services, unless terminated in accordance with the terms herein.
12.2. Termination of Services by You. Subject to the terms of Section 3.1, if You want to terminate the Services provided by 3DSPRO, You may do so by (a) notifying 3DSPRO at any time and (b) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to 3DSPRO’s address set forth below.
12.3. Termination of Services by 3DSPRO. 3DSPRO has the right to, immediately and without notice, suspend or terminate this Agreement or Your use of the Website and Services (with or without cause), including if 3DSPRO becomes aware of any possible violations by You of this Agreement. In the event 3DSPRO determines, in its sole discretion, that You have breached any portion of this Agreement, 3DSPRO reserves the right to: (i) warn You via email (to any email address you have provided to 3DSPRO) that You have violated this Agreement; (ii) delete Content provided by You or Your agent(s) to the Website; (iii) notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which 3DSPRO deems to be appropriate.
12.4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of Your password and all related information, files and Your Content associate with or inside Your Account. 3DSPRO will not have any liability whatsoever to You for any suspension or termination, including deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations and limitation of liability.
13 MISCELLANEOUS
13.1 Electronic Communications. The communications between You and 3DSPRO use electronic means, whether You visit the Website or send 3DSPRO e-mails, or whether 3DSPRO posts notices on the Website or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from 3DSPRO in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that 3DSPRO provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
13.2 Linked Sites. The Website may provide links or access to third party content, websites, or services. 3DSPRO does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non- infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under 3DSPRO’s control, and if You choose to access any such content, websites, or services, or to access the Website from such systems, You do so entirely at Your own risk. You acknowledge that You may be required to accept terms of use applicable to third party content, websites, services, or systems and agree to accept and comply with any such terms of use.
The Website may integrate with social networking services. You understand that 3DSPRO does not control such services and is not liable for the manner in which they operate. While we may provide You with the ability to use such services in connection with the Website, 3DSPRO is doing so as an accommodation and, like You, is relying upon those services to operate properly and fairly.
13.3 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without 3DSPRO’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Neither party shall be liable for any delay or failure to perform (excluding payment obligations) resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, pandemics, government-ordered shutdowns, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
13.5 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Website or Services, please contact us at: success@3DSPRO.com. We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, we invite You to let us know for further investigation.
13.6 Limitations Period. YOU AND 3DSPRO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.7 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 13.6 (“Arbitration Agreement”) carefully. It is part of Your contract with 3DSPRO and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by 3DSPRO 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. This Arbitration Agreement applies to You and 3DSPRO, 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 this Agreement.
(b) 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 3DSPRO should be sent to: info@3DSPRO.com. After the Notice is received, You and 3DSPRO will attempt to resolve the claim or dispute informally. If You and 3DSPRO do not resolve the claim or dispute within 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.
(c) Arbitration Rules. Arbitration shall be initiated through the China International Economic and Trade Arbitration Commission (“CIETAC”)[KC12] , an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If CIETAC 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 this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The arbitration shall be conducted by one to three, neutral arbitrators, at the discretion of 3DSPRO. 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 Shenzhen, People’s Republic of China, unless the parties agree otherwise. 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.
(d) Additional Rules for Non-appearance Based Arbitration: If non-appearance 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 mutually agreed by the parties.
(e) Time Limits. If You or 3DSPRO 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 CIETAC Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and 3DSPRO, 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 this Agreement. 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 3DSPRO.
(g) 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 BUYER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER BUYER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Agreement, neither You or 3DSPRO is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 13.6(n).
(h) 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.
(i) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
(j) Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with 3DSPRO.
(k) Small Claims Court. Notwithstanding the foregoing, either You or 3DSPRO may bring an individual action in small claims court.
(l) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Shenzhen, People’s Republic of China for such purpose.
13.8 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the People’s Republic of China, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.9 Independent Contractor . Your relationship to 3DSPRO under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between 3DSPRO and You. You agree to take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving 3DSPRO that is inconsistent with You being an independent contractor (and not an employee) of 3DSPRO. You are not an agent of 3DSPRO and are not authorized, and must not represent to any third party that You are authorized, to make any commitment or otherwise act on behalf of 3DSPRO.
13.10 Notice. Where 3DSPRO requires that You provide an e-mail address, You are responsible for providing 3DSPRO with Your most current e-mail address. In the event that the last e-mail address You provided to 3DSPRO is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, 3DSPRO’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to 3DSPRO at the following address: 7529 Standish Place, Suite 200, Derwood, MD 20855, Attn: Legal Dept. Such notice[KC14] shall be deemed given when received by 3DSPRO by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
13.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.12 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.13 Entire Agreement. This Agreement are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Unless otherwise specifically agreed to by the parties, in the event of any conflict between the terms of this Agreement, the General Terms, or any order for Parts, the order of precedence is as follows: (i) Manufacturing Standards; (ii ) this Agreement; (iii) the General Terms; and (iv) the order for Parts. Unless otherwise specifically agreed in a writing by the parties, the parties acknowledge that the pre- printed provisions on the reverse side of any quotation, order, acknowledgement, or invoice will be deemed deleted and of no effect whatsoever.
