MAINTENANCE SERVICE TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, OR USING NY POST -WARRANTY MAINTENANCE OR OTHER REQUESTED SERVICES (“MAINTENANCE SERVICES” OR “SERVICES”) FROM STRATASYS LTD. AND/OR ITS AFFILIATES (COLLECTIVELY “STRATASYS” AND/OR “COMPANY”) INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF MAINTENANCE ("TERMS") WHICH APPLY TO THE PROVISION OF ALL SERVICES BY STRATASYS. ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER COMMUNICATION ARE EXPRESSLY REJECTED AND HAVE NO FORCE OR EFFECT ON THESE TERMS AND CONDITIONS. YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, "CUSTOMER"), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY ACCEPTANCE OR USE BY CUSTOMER OF ANY STRATASYS SERVICES SHALL CONSTITUTE CUSTOMER’S IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY AND FULLY DECLINE AND REFUSE THE PROVISION OF ANY SERVICES.
1. Service Level Features
Company shall exercise due care to provide the Maintenance Services, which shall include the following, unless otherwise specified in the applicable Maintenance Service Level Package purchased by Customer, as specified in Appendix A (the “Service Level Package”):
- Correcting, repairing and/or replacing, as applicable, a non-conforming or defective Product, as determined by Company in its sole discretion, which Product may include software embedded therein or otherwise licensed to Customer in connection with the sale or use of the Product, and any part thereof (excluding Consumables, as specified in Section 2).
- Preventive maintenance performed by authorized Company technical representatives at factory-recommended maintenance intervals. Preventive maintenance procedures may be completed in conjunction with unscheduled or emergency service visits. Preventive maintenance shall not be deemed or relied upon as a substitute or replacement for routine maintenance required to be performed by Customer (or its trained personnel) in accordance with the instructions contained in the user manual or other technical documentation and/or instructions (including by phone and email support) provided to Customer by Company (collectively, the "User Instructions").
- Technical phone and email support available on non-holiday weekdays between the hours of 7:00A.M. and 5:00P.M. Central European Time ("Working Hours").
- On-site service visits where Company determines, in its sole discretion, that phone and email support cannot be rendered to resolve the problem, subject to the terms and conditions of the Service Level Package.
- Priority service scheduling whereby Customer will receive priority scheduling of a Company authorized technical representative after a problem is reported to the Company call center and the need for an on-site service visit is determined.
- Company-developed software maintenance releases provided from time to time, in Company’s sole discretion, throughout the Product life cycle (“Software Releases”).
- Other Product updates and/or modifications, as deemed necessary by Company, will be installed when available throughout the Maintenance Term (defined below).
- User training courses available at Company (applicable only where Customer is the original purchaser of the Product). Training to be held at Company’s corporate headquarters or regional offices subject to the terms and conditions of the Service Level Package.
2. Consumables and Spare Parts
- Customer acknowledges that, unless otherwise provided in the Service Level Package, Maintenance Services (and the Maintenance Fee) do not include the replacement of consumables and disposable materials, such as resins, printing heads, Tips, Build sheets cleaning fluid, wiping cloths, gloves and other similar items (collectively, "Consumables"), which Consumables the Customer may purchase separately at Company’s then current rates
- Customer acknowledges that spare parts may be reconditioned parts. Company’s warranty obligations hereunder shall not apply to repair or replacement necessitated in whole or in part by catastrophe, fault or negligence of the Customer, improper or unauthorized use including without limitation, use of resins or spare parts unauthorized by Company, installation, modification or repair other than by Company or its authorized technical representatives, removal of the Product from the original installation site, unusual stress, power failure, deviation from recommended maintenance procedures, or failure to maintain the prescribed conditions at the installation site or other failure to comply with the User Instructions.
- COMPANY CERTIFIED SPARE PARTS SUPPLIED BUT NOT MANUFACTURED BY COMPANY ARE PROVIDED BY COMPANY “AS IS”. COMPANY’S LIABILITY PERTAINING TO SUCH PARTS SHALL BE LIMITED TO DEFECTS KNOWN BY COMPANY BUT NOT DISCLOSED INTENTIONALLY AND IN SUCH CASES TO THE AMOUNTS RECOVERED BY COMPANY UNDER WARRANTIES GIVEN BY ITS SUPPLIER(S), IF ANY.
- CUSTOMER ACKNOWLEDGES THAT THESE TERMS AND THE FEES PAYABLE HEREUNDER FOR MAINTENANCE SERVICES ARE SUBJECT TO CUSTOMER’S AGREEMENT TO USE ONLY COMPANY MANUFACTURED OR COMPANY CERTIFIED RESINS AND SPARE PARTS. IF, DURING THE MAINTENANCE TERM, CUSTOMER USES NON COMPANY-CERTIFIED CONSUMABLES AND/OR SPARE PARTS, COMPANY RESERVES THE RIGHT TO: (I) TERMINATE THESE TERMS; (II) REFUSE TO REPAIR OR REPLACE THE PRODUCT OR ITS COMPONENTS; (III) OFFER TO FURNISH THE MAINTENANCE SERVICES AT COMPANY’S THEN CURRENT MAINTENANCE RESTORATION RATES; AND/OR (IV) CEASE TO PROVIDE DISCOUNTS ON STRATASYS MAINTENANCE SERVICES AND SUPPLIES.
3. Customer Responsibilities
- Customer shall, at its expense (except as otherwise provided below), (i) perform all routine maintenance procedures and maintain the Product and the prescribed conditions at its site in accordance with the User Instructions and applicable law; (ii) promptly install and maintain all Software Releases and procure any additional equipment or software that may be required for, or as a result of, such installation or maintenance, all in accordance with the User Instructions; (iii) provide Company’s personnel with access to the Product during normal business hours; (iv) provide assistance, information, services, Consumables, and facilities as may be requested by Company to perform the Maintenance Services; and (v) return to Company at its cost and expense, within thirty (30) days of Company’s request, all replaced spare parts.
- Unless otherwise permitted in accordance with the User Instructions, Customer shall not (i) permit any person, other than Company’s authorized technical representative, to perform the Maintenance Services or other support or maintenance of the Product; or (ii) attempt any repair to, or replacement of, the Product.
- Customer shall not directly or indirectly: (i) modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form or otherwise circumvent any technological measure that controls access to or permits derivation of the source code of, any repaired or replaced Product, or spare part or any Software Release; (ii) rent, lease, sell, transfer, assign, or sublicense any software, including Software Releases, provided by Company hereunder; (iii) copy any part of the Software Releases except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by Company in writing; (iv) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of the Software Releases); (v) make or permit use of any trademark, trade name, service mark or other commercial symbol of Company without its prior written consent; and/or (vi) take or permit any other action which could impair Company’s rights, or damage the image or reputation of quality inherent in the Products, Company’s business, reputation, intellectual property or other valuable assets or rights.
- Customer shall be solely responsible for Product failures (as well as for the necessary remedies therefore) caused directly or indirectly by: (i) acts or omissions of the Customer, its employees or third parties that are inconsistent with Customer's obligations contemplated hereunder or any User Instruction; or (ii) modification or replacement of, or repair to, the Product or any part thereof without Company’s prior written authorization. Moreover, nothing in these Terms will require Company to provide any external electrical work; equipment reconditioning or refurbishing; repairs or adjustments due to abuse, modification, or alteration, or equipment operation or maintenance contrary to Company’s published instructions or due to any external causes such as fire, flood or other intervening causes (collectively "Extraordinary Repairs")
- Customer will make at least one trained staff person fully available to Company personnel for purposes of assisting Company with any telephone or on-site Maintenance Services to be provided hereunder.
- Customer will remain solely liable for ensuring that its data and files are adequately documented for backup purposes and Customer agrees that Company will not be liable for any lost data or any data reconstruction costs.
- Any services provided by Company (a) not expressly identified hereunder as Maintenance Services; (b) which are any Extraordinary Repairs, and/or (c) after Working Hours, will be charged on a time and materials basis according to Company’s then-current repair rates (such information available through Company’s call center), and will be due and payable by Customer within thirty (30) days of receipt of Company’s invoice.
- Customer shall not replace or self-install a polyjet printing head, except as expressly instructed by Company in writing. Company recommends that such printing head will be replaced by Company authorized technical representative present at the Customer's site.
- In the event that Company determines that any Product covered under these Terms is in need of repair and/or replacement but that, immediately prior to these Terms coming into effect, the Product was not covered under the initial Product warranty or any support or maintenance agreement with Company (or any of its then current affiliates), Company shall not be responsible for the present or future repair, replacement and/or operability of such Product until such time as its condition reaches an acceptable condition, as determined solely by Company. Without limiting the generality of the foregoing, Company, in such cases, may condition repair or replacement on Customer paying (a) the applicable Maintenance Fee for the period during which the Product was not covered as aforementioned; or (b) the fees and costs to correct, repair, and/or replace any Product (including installation of Software Releases, if applicable) or part, at Company’s then-current rates (such information available through Company’s call center).
4. Discontinued Product
Stratasys will issue a product notification (“Product Notification”) indicating when a product will no longer be eligible for service (“End of service”). Following End of service date and subject always to Customer paying Services fees and having a Service contract in place, Service contracts will be offered by Stratasys for a minimum of four (4) years and a maximum of six (6) years from the date of printer purchase date depending on the specific product in Stratasys’ sole discretion.
5. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY PROVIDED BY COMPANY WITH THE PRODUCT AT THE TIME OF PURCHASE AND THE LIMITED WARRANTY SET OUT IN SECTIONS 2B AND 2C IN RESPECT OF SPARE PARTS, COMPANY MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT, SOFTWARE, CONSUMABLES, OR SPARE PARTS.
IN RESPECT OF ANY SERVICES SUPPLIED HEREUNDER, COMPANY SHALL ONLY BE LIABLE FOR INTENTIONAL MISCONDUCT AND GROSSLY NEGLIGENT ACTS.
THE COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT FOR SAME.
6. Maintenance Fees
- In exchange for Customer’s payment ofone-time prepaid maintenance fee payment prior to the Effective Date, Stratasys will provide Maintenance Services for a one year period from the Effective Date. Notwithstanding anything herein to the contrary, these Terms and the obligations of Company hereunder shall not be effective until such Maintenance Fee payment is received by Company.
- In addition, Customer agrees to pay when due (or, if necessary, reimburse Company for) any applicable taxes payable (or paid by Company) in relation to the Maintenance Services, including without limitation sales, use, property, and excise taxes (other than taxes based upon Company’s net income).
- Company may terminate, or suspend the provision of Maintenance Services under these Terms with immediate effect if any of the following events occurs: (a) Customer is in breach of any material provision of these Terms or default on any payment to Company; or (b) insolvency or bankruptcy proceedings are initiated by or against Customer, including appointment of a receiver or liquidator.
- Provisions which by their nature should survive termination of the parties’ business relationship and any agreements between or among them, including, but not limited to, Sections 3(C) (Customer Responsibilities), 5 (Warranty Disclaimer), 6 (Maintenance Fees), 7 (Confidentiality; Intellectual Property), 8 (Limitation of Liability), and 9 (General) shall so survive indefinitely.
7. Confidentiality; Intellectual Property
Customer shall hold in confidence and trust, and not disclose, directly or indirectly, any Confidential Information (as defined below) to any person other than Customer's employees, who have a need-to-know for purposes of using and maintaining the Product in accordance with the User Instructions and not in a manner which could reasonably be construed as competitive with Company. As used herein, "Confidential Information" means (i) these Terms or any quotation or purchase order hereunder; or (ii) any information disclosed by Company that has been created, discovered, or developed by or on behalf of Company or that has been made known to Company by a third party and that is not generally known by any person other than Company and/or its employees.
Customer shall not make use of any trademark, trade name, logo or other intellectual property of Company or its affiliates, manufacturers, suppliers, licensors, resellers, or third party service providers without the prior written consent of Company.
8. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW:
- NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS, LICENSORS, RESELLERS OR THIRD PARTY SERVICE PROVIDERS HEREUNDER, BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONTRACTS, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; DOWNTIME, LOSS OF GOOD WILL OR REPUTATION, OR LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE OR OTHER SIMILAR DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE,, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT, OR OTHER STRICT, LIABILITY, TRADE PRACTICES, OR OTHERWISE, EVEN IF COMPANY OR ANY OF SUCH PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
- NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS, LICENSORS, RESELLERS OR SERVICE PROVIDERS HEREUNDER, BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE MAINTENANCE SERVICES THAT DIRECTLY GAVE RISE TO THE AMOUNTS CLAIMED DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT, OR OTHER STRICT, LIABILITY, TRADE PRACTICES, OR OTHERWISE, EVEN IF COMPANY OR ANY OF SUCH PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
- CUSTOMER ACKNOWLEDGES THAT THIS SECTION 8 IS BOTH REASONABLE AND A MATERIAL FACTOR IN THE ESTABLISHMENT OF THE MAINTENANCE FEE HEREUNDER, AND THAT SUCH FEE WOULD BE SIGNIFICANTLY HIGHER IN THE ABSENCE OF CUSTOMER'S VOLUNTARY AGREEMENT TO LIMIT THE POTENTIAL MAXIMUM DAMAGE LIABILITY HEREUNDER.
- CUSTOMER’S REMEDIES AND THE MAXIMUM LIABILITY OF COMPANY OR ANY THIRD PARTY PROVIDING THE MAINTENANCE SERVICES ARE STRICTLY LIMITED AS EXPRESSLY STATED HEREIN.
- CUSTOMER AGREES TO PROMPTLY ADVISE COMPANY IN WRITING OF ANY CLAIM FOR DAMAGES ALLEGED TO HAVE ARISEN UNDER THESE TERMS, AND AGREES THAT TIME IS OF THE ESSENCE IN REPORTING OR RESOLVING SUCH CLAIMS IN A MANNER CALCULATED TO AVOID OR MINIMIZE DAMAGES ARISING THEREFROM.
- These Terms and Stratasys Provision of Services shall be governed by the internal laws of Switzerland without reference to its International Private Law. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder.
- Any dispute, controversy or claim arising out of or relating to these Terms, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one. The arbitrator shall be admitted to the bar in Switzerland with professional experience of at least 8 years. The seat of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in the English language.
- Customer shall be liable for all costs incurred by Company (including attorneys’ fees and costs) in connection with the collection of any past due amounts owed by Customer.
- These Terms (including any addenda or other exhibits) is the parties' complete and exclusive understanding, and supersedes all prior oral or written agreements regarding post-warranty maintenance services. These Terms or any parts thereof can only be waived, modified or amended via a written addendum signed by authorized representatives of each party.
- All Maintenance Services are offered and provided solely upon these Terms, notwithstanding any additional or conflicting terms and conditions that may be contained in any purchase order or other form provided by Customer, all of which additional or conflicting terms and conditions are hereby rejected by Company. Further, Customer acknowledges and agrees that any purchase order issued for maintenance or other professional services will only establish payment authority for Customer’s internal accounting purposes. Any such purchase order will not be considered by Company to be a counteroffer or other amendment to these Terms.
- Neither party shall be liable for any delays in performance hereunder due to circumstances beyond its reasonable control, including, but not limited to, acts of nature, fires, floods, wars, sabotage, civil unrest, accidents, labor disputes or shortages, acts of governments, laws, rules, regulations, whether valid or invalid, inability to obtain, or delays obtaining, material, hardware or transportation, incorrect, delayed or incomplete specifications, drawings, or data supplied by the Customer or third parties, and/or delays in delivery or inability of suppliers to deliver. In the event of delayed performance due to any such cause, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome such delay.
- Any waiver of one or more of the terms and conditions of these Terms or any default hereunder shall not be deemed a waiver of the remaining terms and conditions hereof, or of any prior or subsequent default hereunder. No failure or delay by either party in exercising or enforcing any right hereunder or under any applicable law shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder or under any applicable law.
- Customer shall not assign, delegate or transfer these Terms, or any of the rights and obligations hereunder, without Company’s prior written consent, which consent will not be unreasonably withheld. Company may assign, delegate or transfer these Terms to an affiliate or qualified third party without the consent of the Customer. Company reserves the right to engage its authorized third party service providers to perform the Maintenance Services hereunder.
- Any provision of these Terms which is, or is deemed to be, unenforceable in any jurisdiction shall be severable form these Terms in such jurisdiction without in any way invalidating the remaining provisions of these Terms, and such unenforceability shall not make that provision unenforceable in any other jurisdiction. In the jurisdiction in which a provision is unenforceable such provision shall be replaced by a rule which is regarding its purpose as close as possible to the unenforceable provision.
- Any headings of sections and paragraphs herein are inserted for convenience purposes only and shall not be construed or interpreted to affect the scope, meaning or intent of the provisions of these Terms.
- Revocation and Replacement Stratasys reserves the rights to amend, revoke and/or replace these Terms at any time and by providing 15 days prior notice to Customer, and by posting such then-current Terms to www.stratasys.com/legal/emea-maintenance-service-terms. Where practicable, Stratasys will use its commercially reasonable efforts to honor, or to provide a reasonable substitute, for the balance of the Customer’s prepaid Maintenance Services term, in the event it terminates or adversely alters any specific Term offered to Customer.