This Agreement sets forth the terms and conditions on which rapid prototyping services and quotations for such services (“Services”) are made available via this website. The Services available through this website are provided by Xpress3D and by other third party service providers who have appointed Xpress3D as their agent to provide quotations and accept orders through the website. In this Agreement, the entity providing Services to a Customer is called a “Service Bureau”.

1.  PROTOTYPE SERVICES.

1.1  QUOTATIONS.  From time to time the Customer may request price quotations (“Quote”) from the Service Bureaus for the production of a rapid prototype (a “Prototype”) by completing the “Instant Price Quote” form on this website. The Instant Price Quote requires the Customer to submit its specifications (“Specifications”) for the Prototype to Xpress3D using 128-bit encryption, or alternatively to allow Xpress3D to measure the size of the Specifications data file on the Customer’s computer by accepting the Xpress3D Browser plug-in. Xpress3D will provide all Quotes promptly after receipt of the Customer’s request. Each Quote is only valid for seven days from the date that the Quote is issued. However, the Service Bureaus reserve the right to change a Quote if the Customer makes changes to the applicable Specifications.

1.2  ORDERS.  Once the Customer has obtained a list of Quotes, the Customer may accept a Quote from one of the Service Bureaus and may submit an online order (an “Order”) requesting such Service Bureau to produce the Prototype quoted. The total fees for each Order shall include the applicable Quote, all applicable taxes and all shipping charges (the “Fees”). To submit an Order, the Customer must either pay the Fees in advance online by providing Xpress3D with valid credit card details or agree to pay the Fees directly to the applicable Service Bureau upon receipt of a Prototype purchased by the submission of a purchase order to such Service Bureau through this website. Once electronic confirmation of the Order has been delivered to the Customer, the Order is binding on both the Customer and the Service Bureau and may not be cancelled except by agreement. Customer acknowledges that, in cases where the Service Bureau providing a Prototype is a third party service provider and not Xpress3D, a contract will be formed between the Service Bureau and the Customer on the terms of this Customer Agreement. Xpress3D shall not be a party to such contract and shall not be responsible for any act or omission of the Service Bureau in connection with such contract. The Service Bureaus reserve the right to reject any Order for any reason within twenty-four (24) hours of the placement of such Order on this website.

1.3  DELIVERY.  The Service Bureaus shall provide all Prototypes to the Customer in accordance with this Agreement and within the timeframe indicated on the applicable Order. The Service Bureaus shall not be responsible for delays caused by the Customer.

2.  CUSTOMER SATISFACTION.  If a Service Bureau fails to provide Services or to produce a Prototype that meets the Customer’s reasonable satisfaction and the Customer notifies such Service Bureau within two business days of receiving such Prototype, the Customer may return the Prototype to such Service Bureau at the Customer’s own expense and receive a full refund of the Fees for that Prototype (exclusive of taxes and charges). Failure to return a Prototype during such two business day period shall be deemed acceptance of the Prototype by the Customer. If a Service Bureau is unable to deliver a Prototype to the Customer within the time period provided in the applicable Order, the Service Bureau must notify the Customer prior to the promised delivery date that the Order will be late. If the Customer and the Service Bureau cannot come to a written agreement on a new delivery date, the Customer’s sole remedy and the Service Bureau’s sole liability for such lateness shall be a 25% credit on the price of the Prototype (excluding taxes and shipping).

3.  OWNERSHIP OF INTELLECTUAL PROPERTY

3.1  CUSTOMER OWNERSHIP.  The entire right, title and interest, including all copyright, patent, trade secret, mask work and trademark rights (“Intellectual Property”), in and pertaining to any Specifications and the applicable Prototype shall be owned solely by the Customer. Xpress3D and the Service Bureaus hereby assign and agree to assign to the Customer all Intellectual Property created by any Service Bureau in the production of a Prototype.

3.2  XPRESS3D RIGHTS.  Notwithstanding Section 3.1, Xpress3D shall retain all right, title and interest, including all Intellectual Property, in the website and in the underlying software, technology, methodologies and know-how used by Xpress3D in performing its Services and producing a Prototype. Each other Service Bureau shall retain all right, title and interest, including all Intellectual Property, in the underlying software, technology, methodologies and know-how used by such Service Bureau in performing its Services and producing a Prototype.

4.  CONFIDENTIALITY.  Xpress3D and the Service Bureaus acknowledge and agree that any Specifications and documentation and communications pertaining thereto may contain valuable proprietary information, ideas, and expressions of the Customer (“Confidential Information”). Accordingly, Xpress3D and the Service Bureaus shall use no less than a reasonable degree of care (and require that its employees use such care) to keep such Confidential Information confidential, and shall not use or disclose such Confidential Information except as required to perform the Services. The foregoing obligations of confidentiality shall not apply to information in Xpress3D’s or any Service Bureaus’ possession before disclosure by the Customer, information independently disclosed to or developed by any Service Bureau, information that is generally publicly available, nor to any disclosure of information required by law or court order.

5.  WARRANTIES.

5.1 DISCLAIMER.  The Customer acknowledges the following limitations of the Prototypes: (a) each Prototype is not a precise replica, but only a geometric representation that is not exact in terms of material composition and surface quality; (b) each Prototype is for visual purposes only and is not intended for functional testing, tooling or fixturing, or any actual use; and (c) any uses that the Customer makes of a Prototype are entirely the Customer’s responsibility.

5.2  SERVICE BUREAU WARRANTIES.  The Service Bureaus hereby warrant that the Services will be performed with reasonable skill and care and, subject to the foregoing disclaimer, each Prototype will conform to the Specifications provided by the Customer. The Customer’s sole remedy, and the Service Bureaus’ sole liability, for breach of the foregoing warranty shall be re-performance of the Services or re-delivery of such Prototype, or alternatively refund in accordance with Section 2.

THE SERVICE BUREAUS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THIS AGREEMENT AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

5.3  CUSTOMER WARRANTIES.  The Customer hereby warrants that (a) it has the right to provide the Specifications to Xpress3D and the Service Bureaus; (b) the Service Bureaus’ use of the Specifications and such other materials provided by the Customer to produce a Prototype will not violate or infringe any Intellectual Property of any third party; and (c) any software delivered by the Customer to Xpress3D and any Service Bureau will be free of any viruses, time bombs and other harmful programming routines.

6.  LIABILITY.

6.1  LIMITATION OF LIABILITY.  THE SERVICE BUREAUS HEREBY EXCLUDE ALL LIABILITY FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT AND CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING IN CONNECTION WITH THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH DAMAGES ARISE BY CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.

6.2  LIMITATION OF AGGREGATE DAMAGES.  ANY SERVICE BUREAU’S AGGREGATE LIABILITY FOR ANY DAMAGES SUFFERED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER ARISING BY CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY THE CUSTOMER FOR THE APPLICABLE PROTOTYPE.

6.3  INDEMNITY.  The Customer shall indemnify, defend and hold harmless Xpress3D, the Service Bureaus and their directors, officers, employees and agents from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) that they may suffer as a result of any claims, demands, actions or other proceedings made or instituted by any third party against any of them and arising out of: (i) any claim that any Specifications, Prototypes or any other materials provided to a Service Bureau in connection with an Order infringe the Intellectual Property of any third party; or (ii) any use of a Prototype by the Customer or its employees, agents or contractors.

7.  ACCESS AND INTERFERENCE.  The Customer shall use its e-mail address and a password to log on to the Xpress3D website. The Customer must not disclose its password to third parties. The Customer is responsible for all access to and use of the Xpress3D website using its e-mail address and password. If an employee, agent or any person uses the Customer’s e-mail address and password to access the Xpress3D website, the Customer will be deemed to have authorized any access, use or misuse of the Xpress3D website (including without limitation all orders placed) by such employees or agents or any other person using the Customer’s e-mail address and password. The Customer will not use any robot, spider, other automatic device or manual process to monitor or copy Xpress3D’s web pages or the content contained herein without the express written permission of Xpress3D. The Customer will not interfere or attempt to interfere with the proper working of the Xpress3D site or any activities conducted on the Xpress3D site. The Customer will not take any action that imposes an unreasonable or disproportionately large load on Xpress3D’s infrastructure. The Customer will not copy, reproduce, alter, modify, create derivative works of, or reverse engineer the Xpress3D website or publicly display any content from the Xpress3D website without the prior express written consent of Xpress3D.

8.  TERMINATION.  Either the Customer or Xpress3D may terminate this Agreement at any time upon written notice to the other party, but all Orders previously submitted and confirmed shall remain binding upon the parties. Section 4 (Confidentiality) shall survive the termination of this Agreement.

9.  MISCELLANEOUS PROVISIONS. 

9.1  GOVERNING LAW.  This Agreement and all Orders shall be governed by and construed in accordance with the internal laws of the State of Minnesota, applicable to contracts to be accepted and performed wholly within Minnesota. By placing any Order, Customer irrevocably consents to the jurisdiction of the applicable federal or state courts located in Hennepin County, Minnesota, and agrees that such courts shall be the exclusive forums for the resolution of any disputes hereunder.

9.2  FORCE MAJEURE.  Neither the Customer, Xpress3D, nor the Service Bureaus shall be liable for a breach of its obligations hereunder to the extent that such breach is caused by factors outside its reasonable ability to foresee and avoid (provided that such party makes diligent good faith efforts to remedy the breach as soon as possible), including without limitation war, acts of God, terrorism, natural disaster, or third party communications or encryption failure.

9.3  DISPUTE RESOLUTION.  Neither the Customer, Xpress3D, nor the Service Bureaus shall seek relief from a court with respect to any dispute arising in connection with this Agreement, its subject matter or an Order (except for any application for urgent equitable relief) unless such dispute has first been referred to voluntary mediation by an independent third party agreed to by the parties, and, if such mediation is not successful, has been submitted to arbitration conducted by a panel of three arbitrators sitting in Boston, Massachusetts. Each party shall choose one arbitrator and those two shall choose the third. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association and the decision of the arbitrators shall be binding and enforceable in any court of competent jurisdiction. The arbitrators shall have no power to award punitive damages nor any damages measured other than by the actual losses suffered by the parties.

9.4  ENTIRE AGREEMENT.  This Agreement and any accompanying Orders embody the entire understanding between the parties and supersede any prior understanding and agreements between and among them respecting the subject matter hereof. Xpress3D may at any time change or modify the terms of this Agreement by providing the Customer with 30 days written notice of such change or modification. If the Customer does not agree with any change or modification, the Customer may terminate this Agreement on notice to Xpress3D.

9.5  INDEPENDENT CONTRACTORS.  The parties hereto are independent contractors and are not, and shall not represent themselves as, principal and agent, partners or joint venturers. No party shall attempt to act, or represent itself as having the power, to bind another party or create any obligation on behalf of another party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.

9.6  SEVERABILITY.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. The parties agree that (a) the provisions of this Agreement shall be severable in the event that any of the provisions hereof are for any reason whatsoever invalid, void or otherwise unenforceable, (b) such invalid, void or otherwise unenforceable provisions shall be automatically replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions shall remain enforceable to the fullest extent permitted by law.

9.7  ASSIGNMENT.  The Customer shall not assign the rights and obligations under this Agreement without the written consent of Xpress3D. Any assignment in breach of this provision shall be void.