Sales Terms and Order Specifications Agreement
Sales Terms and Order Specifications Agreement
This Raise3D Sales Terms and Order Specifications Agreement (“Sales Terms”) is effective as of 3rd of December, 2019 and governs any purchase of “Products” (as defined below) from any member of the “Raise3D Affiliated Group” (as defined below), including any purchase of Products by any end-user, distributor, reseller or other customer of any member of the Raise3D Affiliated Group.
A. For purposes hereof, “Raise3D Affiliated Group” means the group of companies under common ownership with Shanghai Fusion Tech Co., Ltd. (“Raise3D”) that are in the business of selling 3D printing products, services and customized solutions. Raise3D and Buyer desire to set forth the terms and conditions relating to Buyer’s purchase of these products.
Now therefore, in consideration of the foregoing recitals and the agreements of the parties contained herein, the parties do hereby agree as follows:
The parties agree that as used in these Sales Terms, the following terms shall have the meanings given them below:
“Buyer” means any purchaser of Products, and includes any end-user, distributor, reseller or other customer that purchases Products.
“Products” means Raise3D’s 3D products, services and customized solutions, as specified in a Purchase Order issued under these Sales Terms.
c. Purchase Order.
“Purchase Order” means a purchase order issued by Buyer to purchase Products from Raise3D. The term “Purchase Order” includes orders placed by Buyer by electronically completing an order form on Raise3D’s website. Buyer agrees that all Purchase Orders issued by it shall conform with the requirements of these Sales Terms.
2. Order of Precedence.
These Sales Terms shall govern all purchases of the Products by Buyer. Buyer agrees that the publication or distribution by Raise3D of any price sheet, to the extent it may constitute an offer by Raise3D, shall automatically be deemed to incorporate the terms hereof. Acceptance by Buyer of any offer by Raise3D to sell the Products, or delivery to Raise3D by Buyer of any Purchase Order, is limited to these terms and conditions, which take precedence over Buyer’s additional or different terms and conditions, if any, as set forth in a Purchase Order or other contractual document. Buyer expressly agrees that any conflicting terms or conditions in any Purchase Order that it may hereafter use to order Products will be superseded by the terms of these Sales Terms. Neither Raise3D’s commencement of performance nor delivery of the Products shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions, if any, to which notice of Raise3D’s objection is hereby given. Buyer’s purchase of Raise3D’s Products hereunder represents acceptance of these Sales Terms and any attachments thereto, which together constitute the entire understanding between the parties concerning the terms of sale of the Products and supersede any previous communications, representations or agreements by either party whether verbal or written. No change or modification of any of the terms or conditions herein shall be valid or binding upon either party unless in writing and signed by an authorized representative of each party.
3. Payment and Security Terms.
Unless otherwise agreed to in writing by Raise3D, Buyer shall pay all sales invoices before shipping of the Products, or rendition of services that constitute Products. All payments will be made in the currency indicated in the applicable Purchase Order. Raise3D reserves the right to change the payment terms with respect to orders not yet shipped at any time when, in Raise3D’s opinion, Buyer’s financial condition or previous payment record so warrants. Should Buyer become delinquent in the payment of any amount due to Raise3D, then after ten (10) days from the date of written notice to Buyer, Raise3D shall not be obligated to continue performance under any agreement with Buyer. Buyer hereby grants and Seller reserves a purchase money security interest in the Products purchased hereunder, and in any proceeds thereof, for the amount of its purchase price. Buyer hereby agrees to pay all costs of collection, including interest at the maximum rate allowable by law from the date of delinquency of payment, reasonable attorneys’ fees, costs and expenses, and the costs, if any, of financial or credit checks or investigations, on all accounts thirty (30) or more days past due.
4. Purchase Order Data Requirements.
All Purchase Orders that are not delivered through Raise3D’s website shall at minimum specify the following: SKU of product ordered, quantity ordered, listed prices, and delivery address, if different than billing address, name of agent to contact in the event of any questions, and additional comments, if necessary.
5. Shipment and Delivery Dates.
Shipments of any Products purchased hereunder will be prioritized based upon fulfillment of Raise3D’s payment terms. Raise3D shall not be liable for any failure to meet any expected delivery dates.
6. Delays in Performance.
Raise3D shall expressly not be liable for any delay in performance hereunder or with respect to any Purchase Order due to unforeseen circumstances or causes beyond its reasonable control including, but not limited to, acts of nature, acts of government, acts of terrorism, labor disputes, delays in transportation, and delays in delivery or inability to deliver by Raise3D’s suppliers. In the event of any such delay, Raise3D may at any time without liability to Buyer: (a) postpone performance under this contract or with respect to any Purchase Order, (b) make partial performance or cancel all or any portion of this contract or any Purchase Order, or (c) allocate available quantities of Products among its customers in any manner which Raise3D deems reasonable. Cancellation of any part of this contract or any Purchase Order shall not affect Buyer’s duty to pay for performance of any other part thereof.
7. Shipment and Risk of Loss.
a. Shipment. Unless otherwise agreed in writing by Raise3D, all Products shall be shipped Incoterms Ex Works (EXW) from the Raise3D Regional Office warehouse that corresponds to the Buyer’s location (as determined by Raise3D)(the “Applicable Warehouse”), and shall be packed, if appropriate, for shipment and storage in accordance with Raise3D’s standard practices. Accordingly, Buyer assumes the burden of, and therefore agrees to pay, all transportation costs. Buyer shall also bear all other risks to the Products while in transit. Raise3D assumes no obligation whatsoever concerning damage in transit to Products ordered hereunder. Buyer shall be solely responsible for insuring any shipment of Products from the Raise3D’s warehouse.
b. Risk of Loss. Upon Raise3D’s delivery of the Products to the carrier, the carrier shall be deemed to be an agent of Buyer and all risk of loss, damage, liability and responsibility for the Products ordered hereunder shall thereafter be on the Buyer. Buyer shall pay for the Products ordered by Buyer notwithstanding any loss that occurs after delivery to the carrier.
8. Changes and Cancellations.
a. Changes. Unless otherwise agreed to in writing, if Buyer issues a change order less than seven (7) days prior to a scheduled shipment, Buyer agrees to pay, and Raise3D is entitled to charge, a five percent (5%) surcharge based upon the total invoice amount for that order, with a minimum surcharge of $25.00 (U.S.), or the equivalent amount in the currency of the order. In addition, any such change in delivery dates caused by Buyer establishing a delivery date greater than thirty (30) days from Buyer’s original delivery date shall constitute a new order for the affected Products in determining the appropriate price. Any changed order must continue to comply with the order requirements set forth herein.
b. Cancellations. Buyer may cancel an order, prior to shipment, only with the prior written consent of Raise3D, which Raise3D may give or withhold in its sole discretion. Raise3D may condition any such consent upon the payment of cancellation charges established by it, with a minimum cancellation charge equal to the greater of the following amounts: ten percent (10%) of the cancelled order’s purchase price or $100.00 (U.S.), or the equivalent amount in the currency of the order . If no such consent is provided, any cancellation of an order shall constitute a breach by Buyer of its agreement with Raise3D with respect to such order, entitling Raise3D to all applicable legal remedies. Any outstanding amounts and cancellation charges not paid within thirty (30) days of such cancellation notice shall bear interest at the maximum rate permitted by law on the entire unpaid balance.
9. Product Recalls.
Buyer agrees that the email address Buyer makes available to Raise3D may be used by Raise3D for any required notification to Buyer related to Product recalls. Buyer agrees to cooperate with any Product recall and to comply with Raise3D’s reasonable instructions in connection with a Product recall. In extreme cases, Buyer may be instructed to disconnect a Product from its power source and to not use the Product, and Buyer agrees to comply with such instructions. Buyer agrees that Raise3D will not be liable for any damages resulting from Buyer’s failure to comply with such instructions.
10. Modification of Products.
If Buyer alters or modifies the Products, all warranty rights with respect to the altered or modified Product shall immediately terminate. In addition, neither Raise3D nor any of its affiliates shall have any liability to Buyer or any third party with respect to any injury or damage caused by any Product that has been altered or modified by Raise3D or any other party.
11. Non-Approved Consumables.
Buyer’s use of consumables that have not been approved by Raise3D is at Buyer’s sole risk. Raise3D makes no warranties concerning, and is not responsible for, damages or other adverse outcomes resulting from the use of non-approved consumables with the Products. The use of non-approved consumables may cause lower quality results. In addition, Buyer’s use of non-approved consumables will void the Raise3D Product warranty, if such non-approved consumable is defective.
Unless otherwise agreed to in writing, all taxes, import duties, and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the Products (other than income taxes imposed on Raise3D) shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Raise3D from and against all liabilities for such taxes and other charges, including charges and attorneys’ fees or costs incurred by Raise3D in connection therewith.
13. Warranty and Disclaimer.
a. Terms. The warrant(ies) for the Products are posted on Raise3D’s website at www.Raise3D.com. Raise3D’s Product warranties may be changed from time to time, and the applicable warranty terms will be those reflected on Raise3D’s website at the time of Buyer’s purchase of the Products. Buyer acknowledges that it has reviewed such warranty terms, and hereby agrees to them. SUCH WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH RAISE3D HEREBY DISCLAIMS.
b. Distributors and Resellers. If Buyer is an authorized Raise3D distributor or reseller, Raise3D authorizes Buyer to assign its warranty rights to its end-user customers. All warranties as assigned shall be subject to the terms of Section 14 below, and Buyer shall notify each assignee of such terms (provided that such terms shall continue to be in effect regardless whether Buyer notifies the assignee thereof). Once assigned to an end-user, such warranty rights cannot be further assigned and any attempted further assignment shall be void.
14. Limitation of Liability.
Except to the extent expressly set forth in the Raise3D’s written warranties, which are posted on Raise3D’s website at www.Raise3D.com, Raise3D shall not be liable for any (a) special, indirect, incidental, or consequential damages arising from or related to the Products purchased hereunder (or the use thereof), including, without limitation, damages arising from loss of revenue or profits, failure to realize savings or other benefits, and claims against Buyer by any third party, even if Raise3D has been advised of the possibility of such damages, (b) personal injury or property damage, (c) damages (regardless of their nature) caused in whole or in part by Buyer’s negligence or failure to fulfill its obligations under these Sales Terms, (d) damages (regardless of their nature) for any delay or failure by Raise3D to perform its obligations hereunder due to any cause beyond its reasonable control, (e) damages or losses resulting from the use of items that are manufactured with Raise3D’s Products, or (f) to the extent this limitation is legally enforceable, claims made the subject of a legal proceeding against Raise3D more than one year after any such claim first arose. The limitations and other provisions of this Section shall apply equally to Raise3D’s affiliates, and their respective related parties and officers, employees and other agents.
15. Confidential Information.
Each party acknowledges that except as described below all information concerning the other party is “Confidential and Proprietary Information.” Each party agrees that it will not permit the duplication, use or disclosure of any such Confidential and Proprietary Information to any person (other than its own employee who must have such information for the performance of his obligations under these Sales Terms), unless authorized in writing by the other party. “Confidential and Proprietary Information” does not include any information which, at the time of disclosure, is generally known by the public. Neither party shall use the name(s), trademark(s) or trade names(s), whether registered or not, of the other party in publicity releases or advertising or in any other manner, including customer lists, without the prior written approval of the other party.
16. Legal Compliance.
a. Illegal Activities. Buyer shall not use the Products to manufacture any goods if such manufacture is prohibited by applicable law. Raise3D has no liability whatsoever with respect to the goods that are manufactured with its Products. In connection with Buyer’s use of the Products, Buyer shall comply with all applicable laws.
b. Notification to Authorities. Buyer agrees that Raise3D may provide information to any law enforcement or other governmental agency regarding Buyer’s purchase of Products (including information relating to Buyer’s identity and the nature of the Products purchased by Buyer), and such information shall not be Confidential and Proprietary Information under these Sales Terms. Such information may be provided by Raise3D even if it is not legally obligated to do so.
Buyer shall defend, indemnify and hold harmless Raise3D, its officers, directors, agents, and employees (collectively, “Indemnitees”) from and against any loss or damage sustained by the Indemnitee, and from and against any and all claims asserted against the Indemnitee concerning the Products furnished hereunder arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to following specifications, instructions, warnings, or recommendations furnished by Raise3D, (b) failure of Buyer, its agent, employees or customers to comply with all applicable legal requirements, (c) misuse of the Products by the Buyer, its agents, employees or customers, (d) misrepresentations by Buyer, its agents, employees or customers, (e) Buyer’s breach of any of its agreements under these Sales Terms, or (f) the sole or contributing negligence of Buyer, its agents, employees or customers.
18. Intellectual Property.
a. Website. Raise3D’s website is at www.Raise3D.com. This website is owned and maintained by Raise3D. Raise3D has no responsibility for other websites with similar names and that are not owned, sponsored or endorsed by Raise3D, nor does Raise3D have responsibility for products or services purchased through such other websites.
b. Use of Raise3D Intellectual Property. Buyer agrees not to use or duplicate any trademarks, tradenames, or other intellectual property reflected on Raise3D’s website. Buyer shall not reverse engineer, decompile, duplicate, sell or transfer the software used in Raise3D’s Products, nor shall Buyer infringe on any of Raise3D’s intellectual property rights.
a. Assignment. Except as set forth in Section 13(d), Buyer shall not assign these Sales Terms or any other contract with Raise3D or rights against Raise3D without Raise3D’s prior written consent.
b. Attorneys’ Fees and Arbitration of Disputes.
i.Attorneys’ Fees. In any arbitration or action by either party to enforce or interpret these Sales Terms or to recover damages or injunctive relief, the parties agree that the successful or prevailing party or parties shall be entitled to reasonable attorneys’ fees, expert witness fees and other reasonable costs in addition to any other relief to which it or they may be entitled.
ii.Arbitration of Disputes. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be at the closest JAMS office to the Applicable Warehouse. The language to be used in the arbitral proceedings will be English, unless the parties otherwise agree in writing. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
c. Notices. Any notices shall be given in writing at the physical or electronic address of each party set forth on the face of these Sales Terms, or to such other address as either party may substitute by written notice to the other.
d. Governing Law. These Sales Terms shall be construed and enforced in accordance with the laws of the jurisdiction in which the executive office of the Raise3D company that has executed these Sales Terms and Conditions is located.
e. Severability. If any provision of these Sales Terms shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of these Sales Terms are intended to be and shall be deemed severable.
f. Waiver. Waiver by any party of any breach or failure to exercise any right under these Sales Terms shall not be deemed a waiver of any other breach or right. The failure of any party to take action at the earliest possible time to redress any such breach or to exercise any such right shall not deprive such party of the right to take action at any subsequent time while such breach or condition giving rise to such right continues.
g. Entire Agreement. These Sales Terms contain the entire understanding of the parties hereto with respect to the subject matter hereof and may be amended only by a written instrument executed by Buyer and Raise3D or their respective authorized successors or assigns.