MAINTENANCE SERVICE TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING OR USING ANY POST-WARRANTY MAINTENANCE OR OTHER REQUESTED SERVICES (“MAINTENANCE SERVICES” or “SERVICES”) FROM STRATASYS, LTD. AND/OR ITS AFFILIATES (COLLECTIVELY, “STRATASYS”) INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE (“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 commercially reasonable efforts to provide the Maintenance Services, which shall include the corresponding service elements for the applicable Maintenance Service Level Package, selected and purchased by Customer, and as summarized in the Direct Service Plan Chart incorporated below (the “Service Level Package”):
A. Correcting, repairing and/or replacing, as applicable, a non-conforming or defective Stratasys® 3D printer or related product (“Product”), as determined by Company in its sole discretion, which Product may include proprietary Company software (“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 below).
B. 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.
C. Technical phone and email help desk support, to be made available on non-holiday weekdays between the hours of 7:00A.M. and 5:00P.M. Central Time (“Working Hours”).
D. 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.
E. 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.
F. Providing Company-developed Software maintenance/update releases provided from time to time for Customer’s installation, in Company’s sole discretion, throughout the Product life cycle (“Software Releases”).
G. Other Product updates and/or modifications, as deemed necessary by Company, will be installed when available as part of these Maintenance Services.
H. User training courses (where Customer is the original Product purchaser), to be made available at Company’s corporate headquarters or regional offices, subject to the terms and conditions of the Customer’s applicable Service Level Package.
2. Consumables and Spare Parts
A. Customer acknowledges that, unless otherwise provided in the Service Level Package, Maintenance Services (and the prepaid fees) do not include the replacement of any Product consumables and disposable materials, such as thermoplastics, resins, printing heads, build trays, cleaning fluid, wiping cloths, gloves and other similar items (collectively, “Consumables”), made available for purchase separately at Company’s then current rates.
B. Company warrants that all maintenance spare parts manufactured and supplied by Company hereunder shall be free from material defects in material and workmanship for a period of ninety (90) days following installation thereof, and Customer acknowledges that spare parts may be reconditioned parts.
C. ANY 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 AMOUNTS RECOVERED BY COMPANY UNDER WARRANTIES GIVEN BY ITS SUPPLIER(S), IF ANY.
D. Customer acknowledges that use of parts and/or consumables not manufactured or certified by Stratasys may result in damage to Products. In the event Stratasys reasonably determines that damage to a Product has been caused by the use of non-Stratasys-manufactured or non-Stratasys supplied parts and/or consumables, Stratasys reserves the right to: (1) void and terminate Customer’s rights to any further Maintenance Services, and/or (2) offer to diagnose and repair the Product or its components at Stratasys’ then-current maintenance restoration rates. Use of non-Stratasys-manufactured or non-Stratasys supplied parts and/or consumables may also disqualify Customer from receiving any discounts on other Stratasys services, Parts and Consumables
3. Customer Responsibilities
A. 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; (v) [Optional – maintain the automated online data connection between the Product and Stratasys’s central servers; and (vi)?] return to Company at its cost and expense, within thirty (30) days of Company’s request, all replaced spare parts.
B. 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.
C. Customer shall be solely responsible for Product failures (as well as for the necessary remedies therefor) 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 with any User Instruction; or (ii) unauthorized modification or replacement of, or repair to, the Product or any part thereof.
D. Company’s warranty obligations hereunder shall not apply to any Project repairs and/or replacement necessitated in whole or in part by fault or negligence of the Customer, improper or unauthorized use including without limitation, use of any non-Stratasys thermoplastics, resins or spare parts, 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 Product installation site or other failure to comply with the User Instructions.
E. Moreover, nothing in this Agreement 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 catastrophic causes (collectively “Extraordinary Repairs”). If requested and made available, all Extraordinary Repairs will be billed to and paid by Customer at Stratasys’s then-current repair rates.
F. 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.
G. 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 and/or part production, or any data or part production reconstruction costs.
H. Any services provided by Company (a) not otherwise expressly identified hereunder as included Maintenance Services; (b) which are any Extraordinary Repairs, and/or (c) provided outside of 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 invoiced to and payable by Customer.
4. Limitation of Liability
EXCEPT FOR THE LIMITED WARRANTY PROVIDED BY STRATASYS WITH ANY PRODUCTS AT TIME OF PURCHASE, AND THE LIMITED WARRANTY SET OUT IN SECTIONS 2B AND 2C WITH RESPECT TO SPARE PARTS, STRATASYS MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED REGARDING ITS PRODUCTS, SOFTWARE, REPLACEMENT PARTS AND/OR ANY SERVICES SUPPLIED HEREUNDER, AND STRATASYS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE FOR ALL PARTS AND SERVICES PROVIDED HEREUNDER.
CUSTOMER AGREES THAT, AS A MATERIAL AND ESSENTIAL CONDITION OF STRATASYS’S WILLINGNESS TO OFFER AND PROVIDE MAINTENANCE SERVICE, IN NO EVENT WILL STRATASYS OR ANY AUTHORIZED RESELLER OR OTHER THIRD PARTIES ENGAGED TO PROVIDE SERVICES HEREUNDER BE LIABLE FOR ANY INDIRECT DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, DOWNTIME, LOST SAVINGS OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND AND HOWEVER CAUSED, EVEN IF STRATASYS OR ANY OF ITS RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER FURTHER AGREES TO ACCEPT A REFUND OF ANNUAL MAINTENANCE FEES HEREUNDER IN THE EVENT AND TO THE EXTENT THAT A COURT OF COMPETENT JURISDICTION IMPOSES ANY DIRECT OR OTHER DAMAGE LIABILITY IN EXCESS OF SUCH AMOUNT, AND CUSTOMER ACKNOWLEDGES THAT THIS PROVISION IS BOTH REASONABLE AND A MATERIAL FACTOR IN THE ESTABLISHMENT OF MAINTENANCE RATES HEREUNDER, AND THAT SUCH RATES WOULD BE SIGNIFICANTLY HIGHER IN ABSENCE OF CUSTOMER’S VOLUNTARY AGREEMENT TO LIMIT THE POTENTIAL MAXIMUM DAMAGE LIABILITY HEREUNDER.
CUSTOMER’S REMEDIES HEREUNDER AND THE MAXIMUM AGGREGATE LIABILITY OF STRATASYS OR ANY THIRD PARTIES PROVIDING SERVICE ARE STRICTLY LIMITED AS EXPRESSLY STATED HEREIN.
5. Maintenance Fees; Renewal Term
In exchange for Customer’s payment of a one-time, nonrefundable prepaid maintenance fee payment (plus all applicable taxes) prior to the Effective Date, Stratasys will provide Maintenance Services for a one year period from and after the Effective Date. Stratasys shall not be obligated to provide any Maintenance Services of any kind until and unless such payment is received. Additional Maintenance Services can be acquired by Customer upon payment of Stratasys’ then-current renewal fee prior to expiration of the current Maintenance Services term. In the absence of any renewal, Customer agrees to pay Stratasys’ then-current rates for any repair or maintenance services provided following expiration or other termination of the term of prepaid Maintenance Services. Company may terminate, or suspend the provision of Maintenance Services under these Terms with immediate effect if Customer is in breach of any material provision of these Terms, is in default on any payment to Company; or insolvency or bankruptcy proceedings are initiated by or against Customer, including appointment of a receiver or liquidator.
Customer agrees to hold all Software and other confidential or proprietary information (including, without limitation, technology, ideas, know-how, processes, specifications, technical data, configurations, algorithms and trade secrets) which is disclosed by Stratasys in providing Services (collectively, “Confidential Information”) in strictest confidence, and agrees not to use any Confidential Information for any purpose outside the purchase, sale and use of Products or licensed Software, or the receipt of Services hereunder. Customer shall not disclose the Confidential Information to any third party, except to those employees of Customer who are bound by written restrictions at least as protective of Stratasys’s Confidential Information as those provided herein, and who must be given access to the Confidential Information solely to facilitate use of the Products or Software, or the provision of Services in accordance with these Terms. Upon execution of a non-disclosure agreement satisfactory to Stratasys, its Confidential Information may also be disclosed to Customer’s qualified consultants who have been retained to perform non-maintenance services in connection with the Products, provided that Customer shall remain liable for any breach of such non-disclosure agreement, or damage or loss incurred as a result of such breach, by any such consultants.
These Terms and Stratasys’s provision of Services will be governed in all respects by the internal laws of the State of Minnesota, without regard to applicable conflicts of law principles. With respect to any dispute, controversy or claim arising out of or relating to any Maintenance Services or these Terms, Stratasys and Customer agree and consent to the jurisdiction of and exclusive venue in the federal or state courts located in Hennepin County, Minnesota. Customer hereby agrees to the exclusivity of such applicable jurisdiction and irrevocably waives any personal, subject matter, inconvenient forum or other objections thereto. Notwithstanding the foregoing, Customer also hereby consents to the jurisdiction of any court(s) of competent jurisdiction in which Stratasys seeks equitable or injunctive relief for the breach of any of these Terms, and in all cases waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by Stratasys (including attorneys’ fees or other costs) in connection with the collection of any past due amounts owed by Customer, or any action to enforce or administer these Terms.
These Terms (including any addenda or other exhibits) express and memorialize the parties’ complete and exclusive understanding, and supersede all prior oral or written agreements regarding post-warranty maintenance or other professional services provided or to be provided by Stratasys. These Terms 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 or communication tendered by Customer, all of which additional or conflicting Terms and conditions are hereby rejected by Stratasys. Further, Customer acknowledges and agrees that any purchase order issued for maintenance or other professional services will only establish payment authority for internal accounting purposes, and is rejected as a counteroffer and in all other respects in the event and to the extent it proposes any Terms or conditions outside of those set forth herein.
Any waiver of one or more of the Terms or any default hereunder shall not be deemed a waiver of the remaining Terms, 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.
Any provision of these Terms which is, or is deemed to be, unenforceable in any jurisdiction shall be severable form this Agreement in such jurisdiction without in any way invalidating the remaining Terms, and such unenforceability shall not make that provision unenforceable in any other jurisdiction. Provisions which by their nature should survive termination of the parties’ business relationship and any agreements between or among them, shall so survive these Terms indefinitely.
Stratasys reserves the right to engage others in a subcontractor status to perform the work hereunder.
Neither party shall be liable for any delays in performance hereunder due to circumstances beyond its control, including, but not limited to, acts of nature, acts of governments, delays in transportation, and 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.
8. Revocation and Replacement
Stratasys reserves the rights to amend, revoke and/or replace these Terms at any time and without prior notice to Customer, and by posting such then-current Terms to http://www.stratasys.com/legal/maintenance-services-terms-and-conditions. 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.