In these conditions:
(a) “Company” means Protolabs, Limited; (b) “seller” means the person who agrees to sell the Goods to Company; (c) “the Goods” means any and all goods of whatever nature to be delivered to Company by Seller under the Contract; and (d) “the Contract” means the contract formed by Company's purchase order and Seller's acceptance thereof on these Conditions.
1. FORMATION OF CONTRACT:
All sales to Company will be subject to these Conditions and the provisions set out in Company's written purchase order. No other items, representations, warranties or statements shall be binding on Company and oral orders shall not be binding unless confirmed in writing. These conditions may be varied expressly in writing by a duly authorised representative of Company but not otherwise. Any terms set out in Seller's documentation shall be disregarded and inapplicable. Without prejudice to any prior acceptance, express or implied, delivery of the Goods to Company shall constitute acceptance of these Conditions by Seller.
(i) Goods shall be ready for shipment on the date or in accordance with the flow rate specified in the order and Seller shall ship Goods without delay. It is also critical that all proofs, drafts and samples of the Goods, whether to be supplied under the Contract or under a separate sample purchase order, be received on the specified date. If delivery is delayed for any cause or if any delay is anticipated, Seller shall report such fact to Company immediately.
(ii) Except where otherwise agreed in writing, Seller shall deliver the Goods to the delivery address specified by Company, in its order or thereafter, and shall bear all transport costs to such address.
The Goods shall be suitably packed in non-returnable packaging so as to avoid damage, destruction or theft in transit and, where Company is to bear transport costs, to secure the lowest transportation rates. Where applicable each consignment shall be accompanied by a consignment note or a packaging sheet showing quantity, order number and contents.
(c) Title and Risk:
Title and Risk of loss or damage to the Goods shall pass to Company on receipt by Company at the specified delivery address. Any risk of loss or damage prior to such time shall be born solely by Seller.
(d) Quality, Inspection and Acceptance:
(i) All Goods shall be of first class quality and will be subject to inspection and testing by Company. Inspection will normally take place within 10 working days of receipt and Company will in no circumstances be deemed to have accepted the Goods prior to inspection. Any Goods which do not comply with the requirements of the Contract in all respects may be rejected. Inspection or failure to inspect or payment for Goods by Company shall not affect its right to reject any Goods which are subject to hidden defects or any other rights to claim under the Contract.
(ii) Rejected Goods will be held and returned at Seller's risk and expense.
(iii) If Goods are rejected, Seller will at Company's option either credit or reimburse Company. Seller shall only replace rejected Goods if so instructed in writing by Company.
(iv) Any rejection or termination by Company hereunder and any acceptance of credit, reimbursement or replacement by Company shall be without prejudice to Company's other rights in respect or the defect or other failure of the Goods to comply with the requirements of the Contract.
(e) Conflict Minerals:
(i) Seller acknowledges there is a regulatory focus on use of minerals sourced from areas identified as conflict regions, including the Democratic Republic of the Congo (“DRC”) and Central Africa. Metals that have been identified of interest from these regions include gold (Au), tantalum (Ta), tungsten (W) and tin (Sn), and are termed (“Conflict Minerals”) as stated in Section 1502 of the United States, Dodd-Frank Wall Street Reform and Customer Protection Act and Securities Exchange Commission’s regulations implanting the Act (codified at 17 C.F.R. Parts 240 and 249b) (the “Rule”).
(ii) Seller agrees to assist Company with any requests for information, certifications, or other such similar documents as Company may reasonably request to ensure materials purchased from Seller complies with this section. Seller agrees to notify Company promptly upon discovering or having reason to believe that any materials fail to comply with the representation and warranty stated below in this Section.
(iii)Seller represents and warrants that no Conflict Minerals that originated in the DRC or an adjoining country are present in any material sold to Company. For purposes of making such representation and warranty, Seller will use procedures that meet the reasonable country of origin inquiry described in the Rule and the relevant best practices developed by industry. Seller will indemnify, defend, and hold Company, its subsidiaries and their respective officers, directors, employees, agents, successors, harmless from and against any and all claims, damages, losses, and liability costs and expenses (including reasonable attorneys’ fees) which arise out of any materials actual or alleged Conflict Minerals content or Seller’s noncompliance with this section.
3. PAYMENT AND PRICE:
(a) Invoices and accounts must be sent to the address specified, on the order or otherwise, by Company or, failing such specified address, to:- Accounts Department, Protolabs, Limited, Halesfield 8, Telford, Shropshire TF7 4QN. And must quote Order Number and delivery note number where applicable.
(b) Goods received will be invoiced on or after the date of receipt and will be paid 60 days following the month during which the invoice is dated.
4. COPYRIGHT AND CONFIDENTIALITY:
(a) Seller shall not without the prior written consent of Company disclose the existence or terms of any order or contract with Company or reproduce, disclose or use any information contained therein or any confidential information relating to Company's business or affairs.
(b) Designs, patterns, specifications, drawings and any other items delivered or communicated to Seller shall remain the property of Company, shall be used only in the performance of obligations to Company and shall be returned to Company on demand. Copyright in any designs, patterns, specifications, photographs, drawings or other items developed or provided by Company or developed or provided by Seller for Company on Company's instructions or developed by Seller pursuant to the Contract shall belong to and remain the sole property of Company and Company shall be entitled to copyright immediately it arises. Seller will do all acts and execute all documents as may be necessary to vest full right title and interest in any copyright in Company.
5. INDEMNITY BY SELLER:
Seller shall indemnify Company against all claims, damages, expenses and losses (including loss of profits) arising directly, indirectly or consequentially out of:
(a) any infringement or alleged infringement of any trademark, letters, patent, copyright or other rights of any third party arising out of any action of Seller or the use or publication of the Goods for any purpose.
(b) any failure of the Goods or Seller to comply with the Contract in all respects and any damage or injury caused by Seller, its agents, subcontractors or employees and any damage or injury caused to Seller's subcontractors or employees except as a result solely of Company's gross negligence. Seller agrees on the written request of Company to undertake, at Seller's expense, the defence of any claims or actions in respect of any of the above matters.
Without prejudice to any other provisions of these Conditions or any other rights of Company, Company may without any liability whatsoever to Seller terminate any Contract under which Goods are provided on a regular or continuing basis by 30 days' prior written notice. In addition, any undelivered part of the Contract may be terminated by Company forthwith in the event of any breach by Seller of the Contract or of any other contract with Company or if Seller becomes bankrupt, goes into liquidation, has a receiver or manager appointed, makes any composition or arrangement with its creditors generally or is unable to pay its debts as they fall due.
7. FORCE MAJEURE:
Company shall not be liable for any delay or failure to take delivery of any Goods caused by any event beyond its reasonable control. Seller shall arrange suitable storage and insurance for any such Goods. Without prejudice to any other rights of Company, if Company is delayed or prevented by any such matter from utilizing the Goods covered by any Contract at the time, and for the purpose intended by Company, Company at its option, without any liability whatsoever to Seller, may terminate the Contract or reduce the quantities of Goods to be supplied by notice to Seller in respect of such Goods as have not yet been delivered; alternatively Company may extend the delivery period to such dates as may be considered appropriate by Company.
No relaxation forbearance delay or indulgence by Company in enforcing any of the terms and conditions of any Contract or granting of time by Company to Seller shall prejudice, affect or restrict the rights and powers of Company, nor shall any waiver by Company of any breach operate as a waiver of any subsequent or continuing breach. No waiver shall be binding on Company unless in writing signed by its duly authorized representative.
If any of these Conditions or any other provisions of any Contract shall be held to be invalid in whole or in part by any court or other competent authority, the remainder of the Conditions and the Contract and of the provision affected shall remain in full force and effect.
10. LAW AND JURISDICTION:
All contracts shall be governed by and constructed in accordance with the law of England to the exclusion of any conflicting usage of the trade, and the parties agree to submit to the exclusive jurisdiction of the English courts in respect of any dispute or difference relating to any Contract. However Company may at its option bring any such dispute or difference before any other court having jurisdiction.
11.(a) All machinery and machine components to be supplied to Company shall satisfy the relevant essential health and safety requirements as laid down in the European Community's Council Directive 89/392 of 14 June 1989 on the approximation of the laws of the Member States relating to machinery, as amended, and in particular Annex l thereof.
(b) In the event of non-compatibility of machinery and machine components, as referred to under paragraph (a), or be supplied to Company, Company reserves the right to rescind the purchase order and/or contract by serving notice to the supplier. In the event of non-compatibility of machinery already delivered Company reserves its right to rescind the contract within a period of 60 days following the delivery of the product concerned and to send the goods back to the seller at no cost to Company and irrespective of whether payment has been made.