TERMS AND CONDITIONS OF SALES AND DELIVERY
Particle3D Terms and Conditions of Sale
Rev. December 2020
- Delivery and Performance
- Use of Products
- Inspection and Rejection of Nonconforming Products
- Price and Payment
- Limited Warranties
- Limitation of Liability and Indemnification
- Compliance with Laws
- Confidential Information
- Force Majeure
1.1 These terms and conditions of sale (these “Terms”), any Sales Documents accompanying or referencing these Terms, and Supplemental Terms, if any, comprise the entire agreement (the “Agreement”) between Particle3D LtD. or an affiliate thereof (“Seller”) and the purchaser (“Purchaser”) with respect to the purchase and sale of products (“Products”) indicated on Sales Documents. “Sales Documents” means any document, print or digital, provided by Seller in the purchase and sale process, including but not limited to quotations, invoices, documents confirming, acknowledging, or accepting an order (“Order Confirmation”) and shipping documents. If the parties have signed a contract applicable to the sale of certain Products, the terms of such contract shall prevail to the extent they are inconsistent with these Terms.
1.2 These Terms prevail over any Purchaser’s terms regardless of when such terms are provided. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and does not serve to modify or amend these Terms.
1.3 Certain Products may be subject to additional terms (“Supplemental Terms”) not contained herein, which, when applicable, may be referenced on or provided with Sales Documents or Seller’s websites or provided by Seller upon request.
1.4 The Agreement between Seller and Purchaser is created when Seller confirms, acknowledges, or begins to fulfill Purchaser’s order. Purchaser may not modify or cancel the Agreement without Seller’s express written consent. Modification or cancellation may require payment by Purchaser of certain costs incurred by Seller.
2. Delivery and Performance
2.1 Delivery dates provided by Seller are non-binding and time of delivery is not of the essence. Seller shall not be liable for any delays, loss, or damage in transit.
2.2 Unless otherwise agreed in writing, Products are shipped using Seller’s standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed upon in writing by the parties or set forth on an Order Confirmation, delivery of Products shall be made Ex Works (INCOTERMS® 2010). With respect to Products, title and risk of loss passes to Purchaser upon delivery.
3. Use of Products
3.1 Purchaser shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by Seller, including but not limited to product data, product information, safety data sheets, limited use information and labeling (“Use Documents”), and (b) properly test and use Products.
3.2 Purchaser acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents. Purchaser is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of Products, (b) compliance with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary testing and verification, including for fitness for the intended purpose.
3.3 If the applicable Use Documents, including but not limited to the limited use label license, indicate that the Products are offered and sold for research purposes only, Purchaser has no express or implied authorization from Seller to use such Products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Purchaser shall not market, distribute, resell, or export Products for any purpose, unless otherwise agreed by Seller in writing.
4. Inspection and Rejection of Nonconforming Products
4.1 Purchaser shall inspect Products no later than five (5) days after receipt (“Inspection Period”). Purchaser will be deemed to have accepted the received Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period, furnishing evidence or other documentation if required. “Nonconforming Products” means only those delivered Products, or quantity thereof, which are different than identified in the Order Confirmation.
4.2 If notified in accordance with Section 4.1, Seller shall, in its sole discretion, (a) replace such Nonconforming Products with conforming Products, or (b) credit the price for such Nonconforming Products or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. Seller reserves the right to inspect Products. Purchaser acknowledges and agrees that the remedies set forth herein are the exclusive remedies for delivery of Nonconforming Products.
4.3 Any returns, if authorized, shall be handled in accordance with Section 7 below.
5. Price and Payment
5.1 Purchaser shall purchase Products and Services from Seller at the prices offered by Seller, including but not limited to prices in a valid quotation or prices on a published price list valid as of date of the applicable Order Confirmation.
5.2 All prices are exclusive of all sales, use, and excise taxes, duties, customs, tariffs, and any other similar taxes or charges of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such taxes and charges; provided, however, that Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
5.3 Purchaser shall pay all invoiced amounts within thirty (30) days from date of invoice to the specified bank account or as otherwise instructed.
5.4 Purchaser shall pay interest on all late payments at the lesser of (a) the rate of one-and-a-half percent (1,5%) per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law, Seller may, without notice to Purchaser, delay or postpone delivery of Products and may, at its option, change the terms of payment with respect to any undelivered Products.
5.5 Purchaser shall not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with Seller.
6. Limited Warranties
6.1 Seller warrants to Purchaser that Products will conform to Seller’s published specifications for (a) one (1) year from the date of shipment of Products or (b) the remaining shelf life or the period prior to the expiration date of Product, whichever is shorter.
6.2 Except for the warranties set forth in Section 6.1, Seller makes no warranty whatsoever with respect to Products (including any uses thereof) or any technical assistance or information that it provides, including (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. Any suggestions by Seller regarding use, selection, application, or suitability of Products shall not be construed as an express or implied warranty.
6.3 The limited warranties set forth above do not apply unless: (a) Purchaser gives written notice of the defect(s) to Seller immediately upon discovery; (b) if applicable, Seller is given reasonable opportunity to examine the relevant Products, and (c) the defect(s) are verified by Seller.
6.4 The limited warranty set forth in Section 6.1 does not apply if: (a) a defect arises as a result of a breach of the obligations in Section 3; or (b) Products are used beyond the shelf life or expiration date as set forth in the applicable Use Documents.
6.5 The limited warranty set forth above does not apply if an equipment failure or defect results directly or indirectly from the following: (a) non-compliance with Use Documents; (b) any misuse, theft, neglect or wrongful act by Purchaser, its contractors, or agents; (c) accidents or shipping related damage; or (d) vandalism, explosion, flood or fire, weather, or environmental conditions).
6.6 Subject to the conditions set forth above in this Section, Seller shall, in its sole discretion either replace Products or credit the price of such Products. The remedies set forth herein shall be Purchaser’s sole and exclusive remedy and Seller’s entire liability for any breach of its warranty.
Purchaser shall not return Products without Seller’s prior written consent. Seller reserves the right to inspect Products at Purchaser’s site and/or require disposal instead of return. All returns must be in compliance with Seller’s instructions.
8. Limitation of Liability and Indemnification
8.1 Purchaser assumes all risk and liability for loss, damage, or injury to persons or to property of Purchaser or others arising out of the transport, storage or use of Products, including infringement of any third-party intellectual property rights resulting from Purchaser’s specific use of Products. If Seller’s performance of its obligations is prevented or delayed by any act or omission of Purchaser, its agents or subcontractors, Seller shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Purchaser or others, in each case, to the extent arising directly or indirectly from such prevention or delay.
8.2 Purchaser shall indemnify and hold Seller, its affiliates, and their respective agents, employees, and representatives, harmless from and against all claims, damages, losses, costs and expenses (including attorney’s fees) (a) arising from or in connection with the transport, storage, sale or use of Products, (b) resulting from Purchaser’s breach of the Agreement, and/or (c) arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors.
8.3 Except as otherwise expressly provided herein, Seller shall not indemnify nor be liable to Purchaser or any person or entity for any claim, damage or loss arising out of the Products, including the sale, transport, storage, failure, use or distribution thereof, regardless of the theory of liability, including but not limited to warranty, negligence or strict liability. In addition, Seller shall not be liable for incidental, consequential, indirect, exemplary, or special damages of any kind, including, without limitation, liability for loss of use, loss of work in progress, loss of revenue or profits, cost of substitute equipment, facilities or services, downtime costs, or any liability of Purchaser to a third party. The total liability of Seller hereunder shall not exceed the purchase price of Products involved. Without limiting the provisions regarding and limiting warranty claims hereunder, all claims must be brought within one (1) year of delivery of Products regardless of their nature.
9. Compliance with Laws
Purchaser shall comply with all applicable laws, regulations, and ordinances. Purchaser shall maintain in effect all required licenses, permissions, authorizations, consents, and permits. Purchaser shall comply with all applicable export and import laws in its purchase of Products hereunder and assumes all responsibility for all shipments governed by such laws. Seller may terminate the Agreement or suspend delivery if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
In addition to any other remedies provided hereunder, Seller may immediately terminate the Agreement upon written notice if Purchaser: (a) fails to pay any amount when due; (b) has not otherwise performed or complied herewith, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against its proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
11. Confidential Information
All non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” is confidential and may not be disclosed or used by Purchaser for its own use, including but not limited to filing any patent applications disclosing or based on such confidential information, unless authorized in advance in writing by Seller. Upon request, Purchaser shall promptly return or destroy all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
12. Force Majeure
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling any term of the Agreement (other than payment obligations) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such party including, without limitation, acts of God, flood, fire, earthquake, governmental actions, war, terrorist threats or acts, riot or other civil unrest, national emergency, revolution, embargos, trade wars, epidemics, strikes or other labor disputes, restraints or delays affecting carriers, inability or delay in obtaining adequate or suitable materials, telecommunication breakdown, power outage, or production failure, provided that, if the event in question continues for a period in excess of one hundred and twenty (120) days, either party shall be entitled to give notice in writing to terminate the Agreement.
13.1 No Waiver. No waiver by Seller of any provisions of the Agreement is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement operates, or may be construed, as a waiver thereof.
13.2 Relationship of the Parties. The relationship between the parties is that of independent contractors.
13.3 Governing Law and Venue. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of Denmark without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted at the Maritime and Commercial High Court of Copenhagen, Denmark.
13.4 Survival. Provisions hereof which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: Sections 3, 6, 8, 11 and 13.4.