GENERAL TERMS AND CONDITIONS FOR 3D PRINTED PARTS
Last updated December 20, 2021
- DEFINITIONS.
“Agreement” means these Terms and Conditions, the signed BMF Quotation, the Customer Purchase Order and any other attachments thereto.
“Customer” means the entity or person identified as such on the Customer Order Form.
“BMF” shall mean BMF Precision, Inc., a Delaware corporation.
“Product” and “Products” means 3D printed parts.
“Quotation” means the BMF Quotation to the customer for Products.
- PURCHASE AND SALE OF PRODUCTS.
2.1 BMF shall sell and the Customer shall purchase the Products in the quantities and at the prices indicated on the applicable Quotation. All orders are firm and may not be cancelled without the prior written consent of BMF.
2.2 BMF shall arrange for shipment of the Products to the Customer’s premises, using a carrier selected by BMF, and invoice Customer for all costs of shipping and insurance or through a carriers selected by the Customer, who would then assume responsibility for all costs of shipping and insurance. BMF will not be responsible for delays in shipment. Risk of loss of and damage to the Products shall pass to the Customer upon delivery to the common carrier by BMF (as applicable). Title to Products passes to Customer upon receipt of full payment by BMF.
- PRICE AND PAYMENT.
3.1 Customer will pay BMF based upon the terms specified in the applicable Quotation or invoice. BMF may charge Customer interest on overdue amounts from the date such amount became due at the lesser of the rate of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law.
3.2 Customer shall pay all applicable taxes (including sales taxes, use taxes, duties and other taxes of all kinds), or governmental levies, which are payable in connection with the sale or supply of products under the Agreement. For international transactions, all payments shall be made free of any tax withholding. In the event that any tax withholding is due on payments under this Agreement, such tax shall be an additional cost for the Customer who shall promptly provide BMF with a certificate of all tax paid. Customer shall pay all transportation, customs, duties, insurance and freight charges from BMF’s point of shipment.
3.3 Customer shall inspect all Products upon delivery by BMF, and should any of the Products be nonconforming, Customer must notify BMF, in writing, within forty-five (45) days of delivery of the Products describing the nature of any nonconformity. BMF shall have the right and option to replace any nonconforming Products. BMF shall not have any obligation to repair, replace or otherwise compensate Customer for nonconforming Products if Customer fails to notify BMF in writing that the Products are nonconforming within forty-five (45) days of BMF’s delivery of the Products.
- WARRANTIES; DISCLAIMER.
4.1 BMF assumes no responsibility for the design of the Products that are the subject of this transaction. To the extent BMF’s personnel recommend design modifications or provide design analysis, simulation or advice, they do so only to help meet the requirements of BMF’s own manufacturing process. The Customer retains sole legal responsibility for the design specifications and performance of the Products that are the subject of this transaction. Customer is solely responsible for ensuring the Products and services purchased from BMF meet applicable regulatory requirements. The Customer represents and warrants to BMF that no information furnished or to be furnished by the Customer to BMF constitutes information classified by the U.S. federal government as confidential, secret or top secret or similar designation by any international government.
4.2 BMF MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO ANY PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
4.3 Without limiting the generality of the foregoing, BMF assumes no responsibility or liability for the selection of any materials for the Products that are the subject of this transaction. The Customer is solely responsible for ensuring that materials selected for Products to be manufactured by BMF meet any applicable regulatory requirements or specifications including but not limited to Directive -2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS Directive) together with any national legislation implementing such Directive, ISO, FDA, UL, CSA, CE, TUV, FCC, NSF, and USP. Any statements made by BMF personnel or specifications provided by BMF regarding materials should be verified by the Customer with the manufacturer of that material.
- INTELLECTUAL PROPERTY RIGHTS.
5.1 . All intellectual property rights to text, illustrations, software files and other materials (“BMF Materials”) provided by BMF to Customer are retained by BMF. Customer will not, without prior written approval of BMF (which may be withheld for any reason), remove any of BMF’s markings or change in any way the Materials
5.2 All text, illustrations, software files and other materials (“Customer Materials”) provided by Customer to BMF, any deliverables, designs, or works of authorship in any form, including modifications or derivative works thereof, that may be created or produced for Customer during the course of BMF’s performance of services shall be deemed the sole property of Customer and all right, title and interest therein shall be held solely by Customer.
- CONFIDENTIAL INFORMATION.
Each party agrees not to use or disclose to any third party, except for the purpose of performing this Agreement, any business and technical information of the other party which, in the exercise of reasonable judgment, should be recognized by such party as confidential (“Confidential Information”). These obligations of confidentiality shall not apply to information which: (a) is or becomes part of the public domain through no fault of the receiving party; (b) is furnished by the disclosing party to others without restrictions on use and disclosure; (c) becomes known or available to the receiving party without restriction from a source other than the disclosing party without breach of any agreement with the disclosing party; (d) is disclosed with prior written approval of the disclosing party; (e) is independently developed by the receiving party without the use of any Confidential Information; (f) is previously known to the receiving party on a non-confidential basis; or (g) is required by court order or government agency to be disclosed, in which case, the receiving party shall give the disclosing party as much notice as is reasonably practical so that the disclosing party may seek a protective order or other confidential protection as the disclosing party, in its sole discretion, may elect and the receiving party shall reasonably cooperate with the disclosing party in disclosing party’s efforts to obtain such order or protection.
7. LIMITATION OF LIABILITY.
7.1 IN NO EVENT SHALL BMF BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER FOR BREACH OF ANY WARRANTY, FOR BREACH OF ANY OTHER TERM OR CONDITION, FOR NEGLIGENCE, ON THE BASIS OF STRICT LIABILITY, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT THE ESTIMATED AND ACTUAL FEES AND CHARGES PAID FOR THE SERVICES REFLECT THIS LIMITATION OF LIABILITY AND ALLOCATION OF RISK. THE TOTAL LIABILITY OF BMF OR ITS SUPPLIERS TO CUSTOMER UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL SUMS PAID BY CUSTOMER TO BMF FOR THE ORDER GIVING RISE THE LIABILITY.
7.2 BMF accepts no liability for any damages or injuries suffered by any person in connection with use or misuse of the Products, except to the extent proximately caused by BMF’s negligence or willful misconduct. Customer shall defend, indemnify and hold harmless BMF from and against any claims, liabilities, damages, losses, costs, expenses and attorneys’ fees (“Liabilities”) arising in connection with any death, bodily injury or tangible property damage arising in connection with Customer’s use or misuse of the Products, except to the extent proximately caused by BMF’s negligence or willful misconduct in which case BMF shall defend, indemnify and hold harmless Customer from such demands, claims or losses. A party seeking indemnification under this paragraph shall provide the indemnifying party with prompt notice of any third party claim and allow the indemnifying party the sole control of the defense and settlement of the claim.
- GENERAL
8.1 BMF is, and shall act as, an independent contractor and not as an agent or employee of Customer. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, agency or franchise relationship.
8.2 In the event the Customer desires to export any Products or from the United States, it is the Customer’s responsibility to obtain all such consents and licenses as may be required from time to time under the laws and regulations of the United States and under the laws and regulations of any other country that may affect or regulate such export since exporting and re-exporting contrary to such laws and regulations is expressly prohibited.
8.3 These Terms and Conditions, the BMF Quotation, and any other attachments thereto, shall constitute the complete agreement between the parties with respect to its subject matter and supersedes all representations, promises, quotes and proposals, whether they be oral or written, between the parties. Unless otherwise explicitly agreed in writing by the parties, all orders placed by Customer are subject to the terms and conditions set forth in these Terms and Conditions irrespective of the means by which the orders are placed or the form used. If there is any conflict between any provision of these Terms and Conditions and the Customer Purchase Order and any other attachment thereto, these Terms and Conditions shall prevail. These Terms and Conditions may be modified only by written instrument. No terms or conditions hereof shall be deemed waived and no breach or default excused unless such waiver or excuse is in writing and signed by the party to be charged.
8.4 BMF will not be liable for any delay or for failure to perform its obligations hereunder resulting from any cause beyond BMF’s reasonable control (a “Force Majeure”), including, but not limited to: Customer’s failure to timely supply BMF with necessary data and information if in fact Customer has agreed to supply any such data or information to BMF; any changes in any such data or information made by Customer; acts of God; Internet blackouts or brownouts; severe weather; fire; explosions; floods; strikes; work stoppages; slowdowns or other industrial disputes; accidents; riots or civil disturbances; acts of war, sabotage or terrorism; dangerous conditions which present a threat to the safety or health of BMF personnel; acts of government; inability to obtain any license or consent necessary in respect of any third party software; and delays by suppliers or material shortages.
8.5 This Agreement, including all disputes arising out of or related hereto, shall be governed by the laws of the Commonwealth of Massachusetts without regards to principles on conflicts of law. The parties agree to exclude, in its entirety, the application of the United Nations Convention on Contracts for the International Sale of Products.
8.6 In the event that any one or more provisions contained in this Agreement should be held to be unenforceable, its unenforceability shall not affect any other provisions of this Agreement. The unenforceable provision shall be replaced by an enforceable provision most nearly effecting the intention of the parties.
8.7 The headings in this Agreement are for convenience only, and shall not constitute a part of or be referred to in interpreting this Agreement.