Terms and Conditions of Sale – Proto Labs, Limited
Seller. As used herein, “Seller” means Proto Labs, Limited (company no. 05366160 / VAT No. GB180 9946 67), a UK incorporated company with a registered office at Protolabs, Halesfield 8, Telford, Shropshire, TF7 4QN.
Protolabs Quotes. Protolabs provides a Quote for the Buyer’s part(s) based on a 3D CAD model submitted by Buyer to Seller. Any change to the 3D CAD model requires an updated Quote. Quotes are valid for 30 days, after which pricing may change without notice. Seller reserves the right to correct clerical and other typographical errors in any quotation.
Offer and Contract Acceptance. These Terms and Conditions of Sale, together with a valid Quote provided by Seller, form a legally binding agreement (the “Agreement”) and contain the entire agreement and understanding between Buyer and Seller for the goods and services provided by Seller and supersede any and all other agreements, representations, arrangements and understandings of the parties relating to its subject matter, whether oral or in writing. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract. These Terms and Conditions of Sale shall be deemed to have been accepted when the Buyer accepts a Quote or issues a purchase order or other writing expressing the Buyer’s intent to proceed with the Agreement in response to Seller’s Quote. This Agreement will govern any orders Seller accepts from Buyer and/or Buyer’s authorised purchasers based on the Quote provided to Buyer. The terms and conditions contained herein shall be the only terms that shall govern the purchase and sale of the goods and services between Buyer and Seller, and no other terms and conditions shall apply and are hereby expressly excluded, including, without limitation, any terms contained in a request for quotation, purchase order, website, or elsewhere. The only additional terms in a request for quotation, purchase order, website or other writing that shall apply, if accepted by Seller, shall be terms regarding the description, price, quantity, and shipping destination for goods produced, and any and all other terms and conditions shall be excluded and deemed inapplicable. After Seller accepts an order, Buyer is responsible for any delivery delays or charges, in addition to the original price, due to a Buyer requested change that is agreed to in writing by Seller. If Seller is unable to accept Buyer’s order it will inform Buyer in writing and will not charge Buyer for the goods. This may be because of unexpected limits on Seller’s resources which Seller could not reasonably plan for or because Seller is unable to meet a delivery deadline specified by Buyer.
Changes to the Goods by Buyer. If Buyer wishes to make a change to the goods Buyer has ordered please contact Seller. Seller will let buyer know if the change is possible. If it is possible Seller will let Buyer know about any changes to the price of the goods, the timing of supply or anything else which would be necessary as a result of Buyer’s requested change and ask Buyer to confirm whether Buyer wishes to go ahead with the change. If Seller cannot make the change or the consequences of making the change are unacceptable to Buyer, Buyer may terminate an order in accordance with the ‘Termination for Convenience’ section below.
Changes to the Goods by Seller. Seller may change the goods to reflect changes in relevant laws and regulatory requirements and/or to implement minor technical adjustments and improvements. Seller may also make any changes agreed in advance as set out in the Quote. If Seller makes any other changes, Seller will notify the Buyer and Buyer may then contact Seller to end the contract before the changes take effect and receive a refund for any goods paid for but not received.
Termination for Convenience. Buyer may terminate an order in whole or in part at any time by written notice to [email protected] effective upon receipt by Seller. In the event of termination, Seller reserves the right to invoice Buyer for all goods produced or services performed prior to receipt of notice of termination as well as for any materials, including materials purchased to make Buyer’s parts which Seller is unable to return. This section shall not limit or affect the Buyer’s right to cancel this order for breach by Seller.
Seller manufactures the goods ordered by the Buyer individually according to the Buyer’s individual specifications and therefore the Buyer has no statutory right of cancellation under consumer protection legislation.
Termination by Seller. Seller may terminate this Agreement in whole or in part at any time by written notice to Buyer if (a) Buyer does not make any payment when it is due and such payment remains outstanding for more than 30 days after Seller’s notice to Buyer; (b) Buyer does not, within a reasonable period of time, provide Seller with information that is necessary for Seller to provide the products; or (c) Buyer does not, within a reasonable time, allow Seller to deliver the products to Buyer or collect them from Seller.
Delivery; Quantity; Title. Goods will be delivered as soon as reasonably possible in accordance with the estimated delivery date set out in the Quote. Seller reserves the right to limit quantities at any time. Partial shipments may be delivered to Buyer where this is agreed in a Quote. The Order confirmation will state if freight is prepaid or collect. All parts shipped collect are shipped FCA (Incoterms 2020) at Seller’s facilities and title passes to the Buyer at the time and place of delivery to the carrier. All parts shipped prepaid are shipped DAP (Incoterms 2020) and title passes to the Buyer upon delivery at Buyer’s destination.
Price and Terms of Payment. All prices are quoted and payments shall be made in British pound sterling or Euro and are exclusive of freight, shipping, special packaging or handling, duties, and unless specifically stated, Value Added Tax or any other sales, excise, or use taxes arising in connection with this transaction (other than taxes based solely on Seller’s taxable income). No discounts are authorised. Payment may be made by Visa, MasterCard, Discover, American Express, or a form of prepayment acceptable to Seller. Upon credit approval, goods or services may be invoiced and all sums are due and payable according to the terms of the invoice. To the extent Buyer desires Seller to present invoices or other information electronically via Buyer’s or a third party’s electronic payment website, any costs associated with such access will be borne by Buyer.
Nonconforming Goods. Buyer shall inspect all goods upon delivery by Seller, and should any of the goods be nonconforming goods, Buyer must notify Seller, in writing, within ninety (90) days of delivery of the goods describing the nature of any nonconformity. Seller shall have the right and option to repair or replace any nonconforming goods. Seller shall not have any obligation to repair, replace or otherwise compensate Buyer for nonconforming goods if Buyer fails to notify Seller in writing that goods are nonconforming within ninety (90) days of Seller’s delivery of the goods.
Warranties. Seller assumes no responsibility for the design of the goods that are the subject of this transaction. To the extent Seller’s personnel recommend design modifications or provide design analysis, simulation or advice, they do so only to help meet the requirements of Seller’s own manufacturing process. The Buyer retains sole legal responsibility for the design specifications and performance of the goods that are the subject of this transaction. Buyer is solely responsible for ensuring the goods and services purchased from Seller meet applicable regulatory requirements. The Buyer represents and warrants to Seller that no information furnished or to be furnished by the Buyer to Seller constitutes information classified under local laws as confidential, secret or top secret or similar designation.
Except as expressly set out in this Agreement, all warranties, terms, conditions and undertakings, express or implied are excluded to the fullest extent permitted by law, including but not limited to any warranty of satisfactory quality, fitness for purpose or non-infringement.
Without limiting the generality of the foregoing, Seller assumes no responsibility or liability for the selection of any materials for the goods that are the subject of this transaction. The Buyer is solely responsible for ensuring that materials selected for goods to be manufactured by Seller 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 Seller personnel or specifications provided by Seller regarding materials should be verified by the Buyer with the manufacturer of that material.
Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller (and its employees, representatives and agents) from and against all claims, liabilities, losses, damages, penalties, fines and sanctions of any kind (including, without limitation, interest, attorneys’ fees and expenses penalties or any other governmental sanctions of any kind) resulting from or arising out of a breach of any provision of this Agreement or any third party claim for infringement of intellectual property rights, including patent rights, trademarks, copyrights or misuse of trade secrets or confidential information.
Force Majeure. Seller shall not be liable for any failure to perform or delay in performance under this Agreement if such failure or delay is caused by acts of God, fire, storm, strikes, pandemics, blackouts, labour difficulties, riots, inability to obtain materials, equipment, labour or transportation, governmental restrictions, or any other event beyond Seller’s reasonable control. In the event of any shortage of raw materials or other supplies, Seller may allocate materials and supplies among its buyers in such manner as Seller may determine in its sole discretion, and shall have no liability to the Buyer on account of any delay or cancellation on account thereof.
Buyer-Supplied Materials. If Seller agrees to use material supplied by the Buyer, the Buyer shall be solely responsible for supplying and delivering such materials in a timely manner at no cost or expense to Seller, of sufficient quality and in sufficient quantity (including allowances for loss, waste, or scrap that may occur for any reason) as Seller deems necessary to complete its obligations. Seller will not return waste, scrap (including sprues and runners) or de minimis amounts of material. Seller shall not be liable for, and the Buyer shall be obligated to pay any previously negotiated delivery premiums notwithstanding, any failure or delay in delivering any goods to be provided hereunder if such failure or delay is caused by the Buyer’s failure to supply and deliver such materials in a timely manner or of such quality or in such quantity as Seller deems necessary. Seller’s Buyer-supplied material storage policy is such that after one year of inactivity, Seller may destroy the Buyer-supplied material, in its discretion.
Service Levels – Injection Moulding. Each Quote for injection moulding services indicates a mould life that applies to that Quote. If the Quote indicates a “Limited” mould life, which is also known as “Prototyping” Service Level, all Custom Tooling and Proprietary Components shall be and remain the property of the Seller. However, Seller shall not use Custom Tooling in the production of goods for any other buyer of Seller without the Buyer’s express permission. As long as Seller is making parts for Buyer in Seller’s facility, Seller will maintain Buyer’s Prototyping Tooling to guarantee production of at least two thousand parts (“shots”) produced. Subject to the Prototyping Tooling storage policy below, Seller will, in its discretion, repair or replace worn or damaged Tooling at Seller’s expense until at least two thousand parts have been produced. Seller’s Prototyping Tooling storage policy is such that after an eighteen (18) month period of inactivity on the Prototyping Tooling, Seller may destroy the Prototyping Tooling, in its discretion. The Prototyping Tooling guarantee does not apply to projects accepted on a “best effort” basis as agreed between the parties.
If the Quote indicates an “Unlimited” mould life, which is also known as “On-Demand Manufacturing” Service Level, all Custom Tooling shall be the property of the Buyer, however reusable Proprietary Components will remain the property of the Seller and all Custom Tooling will remain at Seller’s production facility. As long as Seller is making parts for Buyer in Seller’s facility, Seller will guarantee Buyer’s On-Demand Manufacturing Tooling for the life of the project with no limitation on the number of parts produced. Subject to the On-Demand Manufacturing Tooling storage policy below, Seller will, in its discretion, repair or replace worn or damaged Tooling at Seller’s expense with no limitation on the number of parts produced. Seller’s On-Demand Manufacturing Tooling storage policy is such that after a three-year period of inactivity on the On-Demand Manufacturing Tooling, Seller may destroy the On-Demand Manufacturing Tooling, in its discretion. The On-Demand Manufacturing Tooling guarantee does not apply to projects accepted on a “best effort” basis as agreed between the parties.
As used in this Agreement, “Custom Tooling” means tooling and moulds developed specifically for the Buyer such as an A-side (cavity) block or insert, a B-side (core) block or insert, cam faces if the Tooling requires side actions, and inserts if the Tooling requires inserts. “Proprietary Components” means all proprietary or reusable components developed by Seller including fixturing, B-Side rails, pillars, insert carrier frames, cam sliders and angle pins, cooling jackets, heating jackets, alignment gimbals, cross-slides and vernier adjusters, setup jigs, sprue bushings, mould locks, reconfigurable ejectors, ejector pin plates and custom cut ejector pins, ejector clamps, shims, wedges, screws and springs or other reusable parts needed to make the Tooling ready for production. Due to the proprietary nature of Seller’s process, Tooling is generally not compatible with or transferable to other equipment.
On-Time Expedited Delivery Guarantee. If Buyer selects an expedited quick-turn option, Seller guarantees the on-time delivery for the date selected. If Seller is unable to meet the selected date, Seller will refund a prorated portion of the expedite fee to reflect the delivery date actually achieved. For instance, for an injection moulding order, if Buyer selects a quick-turn expedite of five business days, but the order actually ships in seven business days, Seller will refund the difference between the 5-day expedite fee and the achieved 7-day expedite fee. The On-Time Expedited Delivery Guarantee does not apply to standard lead times, projects accepted on a “best effort” basis, or limited availability services.
Buyer Intellectual Property. Buyer shall retain sole ownership of the copyright in files, all text, illustrations, software files and other materials provided by Buyer to Seller as well as of any deliverables, designs, including modifications or derivative works thereof, that may be produced for Buyer during the course of Seller’s performance of services.
Seller Intellectual Property. Seller retains sole ownership in all proprietary software, processes, and procedures developed by Seller for the quoting, analysis, design, automation, and manufacturing of machined parts, injection moulds, injection moulded parts, and 3D printed parts. Seller retains ownership of the copyright in all text, illustrations or other materials provided by Seller to Buyer in a Quote. Buyer will not, without prior written approval of Seller (which may be withheld for any reason), remove any of Seller’s markings or change Seller’s Intellectual Property in any way.
Country of Origin. Seller makes no country of origin certification under this Agreement unless specifically agreed to in writing. Seller specifically disclaims any “passive” certifications included in any of Buyer’s documents or communications related to this Agreement.
Confidentiality. “Confidential Information” means any information that Buyer discloses to the Seller that is proprietary to the Buyer and not generally known to the public. The Seller will not use any Confidential Information for any purpose except for the purposes of carrying out its obligations pursuant to this Agreement. The Seller will use the same degree of care (but no less than a reasonable degree of care) to protect the secrecy of and avoid disclosure and unauthorised use of the Confidential Information as the Seller employs with respect to its own confidential and proprietary information. Upon Buyer’s written request, the Seller will destroy all documents containing or representing Confidential Information and all copies thereof, and erase any such Confidential Information from the Seller’s computer systems except electronic copies that are electronically archived and not readily accessible. If requested by Buyer, Seller will provide written confirmation of such return or destruction and erasure to Buyer.
Export Compliance Policy. Buyer and Seller will comply with all applicable export, restrictions and regulations with respect to the goods or services that are subject to this Agreement. In order for Seller to conduct appropriate export control checks, the Buyer agrees to identify any export controlled goods in writing to Seller and to provide all pertinent information pertaining to the intended use of goods. Seller reserves the right to stop shipping or providing goods if Seller has reason to believe that any shipment or sale of goods may violate any export control law.
Buyer understands that Seller does not accept technical data related to parts that are (1) controlled under the Common Military List of the European Union, (2) any EU Member State equivalent, (3) EU Dual Use Regulation 428/2009 controlled at any level beyond XXXXX, or (4) [UK Equivalents?]. (“Export Control Laws”) Buyer must notify Seller prior to transmitting any technical data subject to Export Control Laws.
Buyer represents and warrants that export information provided to Seller is accurate and the goods provided by Seller will not be directly or indirectly (1) used for any purpose connected with chemical, biological or nuclear weapons; (2) re-exported, diverted or otherwise re-sold or transferred to any destination, entity or person prohibited by the laws or regulations of the European Union, any Member State, the United Kingdom, and/or Buyer’s local jurisdiction, or (3) re-exported, diverted or otherwise re-sold or transferred if it is known or suspected that the intended use of the goods would be prohibited by the laws or regulations of the European Union, any Member State, the United Kingdom, and/or Buyer’s local jurisdiction.
Prohibited Purposes. Buyer warrants that the goods that are the subject of this transaction will not be implanted in a human body and are not subject to inspection by any regulatory authorities. Buyer certifies that its designs (e.g., 3D CAD models) submitted to Seller and the manufacture and delivery of goods according to the Buyer’s design will not yield goods that are in violation of any firearms laws.
Limitation of liability. In no event shall Seller be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit or any indirect or consequential loss of any kind. Buyer acknowledges that the estimated and actual fees and charges paid for the services reflect this limitation of liability and allocation of risk. The total aggregate liability of Seller or its suppliers to Buyer under this agreement shall in no event exceed the total sums paid by buyer to Seller for the order giving rise the liability.
Neither party shall be taken to limit or exclude its liability in respect of death or personal injury caused by its negligence, fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, defective products under the Consumer Protection Act 1987 or any other statutory or other liability that cannot be excluded or limited under UK law. The Seller remains liable for any foreseeable loss and damage caused by the Seller.
Patents. The goods and/or services that are the subject of this quote/order may be quoted and/or produced under one or more of the following US Patents: 6,701,200; 6,836,699; 7,590,466; 7,496,528; 7,123,986; 7,089,082; 7,630,783; 7,299,101; 7,574,339; 7,836,573;
7,840,443; 7,957,830; 8,140,401; 8,295,971; 8,239,284; 8,745,517.
Miscellaneous. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this section shall not affect the validity and enforceability of the rest of this Agreement. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this transaction. The parties agree to the exclusive jurisdiction of the English courts for all purposes relating to the Agreement and any dispute or claim brought in relation to it. A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce the benefit of any term of this Agreement.
English Language. All documents, notices and legal proceedings executed, given or instituted pursuant to or relating directly hereto shall be in the English language, and the meaning of all words and phrases of this offer shall be defined, construed and interpreted in the English language.
Protolabs Rev 12-2020