Last Revision Date: October 12, 2020
These Terms and Conditions (the “Agreement”) are a legal agreement between Xometry, Inc. (“Xometry”), and you and any person or organization for which you act. This Agreement governs your use of the Xometry Payment Service (the “Payment Service”) and the Xometry Advance Card (the “Card”), each of which are enabled by a platform owned and administered by Stripe, Inc. (“Stripe”) (the Payment Service and the Card, together, the “Services”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY SERVICES. If you do not agree to this Agreement, do not use the Services. This Agreement supplements, but does not replace, the Manufacturing Services Agreement, located at https://www.xometry.com/partner-terms-and-conditions (the “Manufacturing Services Agreement”), any Work Order (as defined in the Manufacturing Services Agreement), and other applicable agreements between you and Xometry, including, without limitation, any Vendor Tooling and Materials Purchase Agreement between you and Xometry, if any.
As used in this Agreement, the words “you” and “your” refer to you in your capacity as a Business Partner (defined below) and the party agreeing to this Agreement. The words “we,” “us,” “our” and any other variation thereof refer to Xometry. Any reference to Xometry in this Agreement also includes, as applicable, our affiliates, directors, officers, employees, contractors, owners and agents. Any references to “days” in this Agreement mean calendar days unless otherwise indicated.
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT. See Section 10 (Arbitration Agreement; Class Waiver; Waiver of Trial by Jury) below.
1. ACCEPTANCE OF AGREEMENT.
By using the Services, you agree to, and are bound by, the terms and conditions of this Agreement. If you do not agree to this Agreement, do not use the Services. You represent and warrant to us that you have authority to enter into this Agreement on your own behalf and on behalf of any person or organization for which you act.
Xometry may modify this Agreement at any time and in its sole discretion by updating this posting at the Xometry website located at http://www.xometry.com/shop-finances-terms-and-conditions. The revised version will be effective at the time we post it. You will be notified of any changes to this Agreement in the manner provided by applicable law prior to the effective date of the change; provided, however, that if the change is made for security purposes, we can implement such change without prior notice. We may suspend the Card or this Agreement at any time. Your continued use of the Services for any fifteen (15) calendar days (that need not be consecutive) after a modification signifies your agreement to the modification; provided, that, if you do not agree with any such change, you may terminate this Agreement upon written notice, with immediate effect, to Xometry. Your termination of this Agreement will not affect any of our or Stripe’s rights or your obligations arising under this Agreement prior to termination. If you have any questions about this Agreement, or desire to terminate this Agreement as set forth in this Section 2, please contact us at: email@example.com.
3. OVERVIEW OF SERVICES.
3.1. Purpose of the Payment Service. The Payment Service is offered to members of the Xometry Manufacturing Network (“Business Partners”). Within Xometry’s Partner Portal, you will have the opportunity to opt-in to the Payment Service at any time. The purpose of the Payment Service is to facilitate the payout (the “Payout”) of compensation to the Business Partner upon completion of a job accepted by such Business Partner (a “Job”) on Xometry’s online Job Board (the “Job Board”, the date of completion, the “Completion Date”). The Payout shall be an amount equal to (a) the fee for the Job (the “Fee”), less (b) the portion of any Advance (as defined below in Section 3.2) that has been spent by the Business Partner as of the Completion Date. The Payment Service enables Business Partners to receive Payouts via automated clearinghouse (“ACH”) to a bank account designated by you (the “Bank Account”). Only Business Partners who opt-in to the use of the Payment Service when they agree to accept the Job on the Job Board will receive the Job through the Payment Service.
3.2. Purpose of the Card. Within Xometry’s Partner Portal, Business Partners will have the opportunity to opt-in to the Card at any time. The purpose of the Card is to enable Business Partners to receive advances (each, an “Advance”), in an amount equal to 30% of the Fee for each eligible Job (“Advance-Eligible Job”) for which you are engaged (such eligibility to be signified in the posting on the Job Board for the applicable Job), subject to a maximum Advance of $7,500 per Advance-Eligible Job, as advances against future account receivables due and owed to you (Advance Against Account Receivables), for spending on materials, tools, supplies, or other legitimate business purposes of Business Partner. Advances for more than one Advance-Eligible Job may be issued to the same Card. Only Business Partners who elect to opt-in to use of the Card will receive the Card.
4. SETTING UP YOUR ACCOUNT AND CARD; AUTHORIZED USERS
4.1. Account Information; Authorized Users.
a) Payment Service. If you opt-in to the use of the Payment Service, we will set up an account (“Account”) to enable you to access and use the Payment Service and to enable us to maintain records of your access and use of the Payment Service. You will be prompted to provide the following information: (a) business name, (b) business email address, (c) business phone number, (d) business address, (e) name of a business contact person, (f) routing number for the bank at which your Bank Account is located, (g) account number for your Bank Account, (h) if you are an entity, your EIN, (i) if you are a natural person, (1) your date of birth, (2) your social security number, (3) your state ID number, (4) your personal phone number, and (5) any other information we determine is necessary to establish your Account ((a) through (i) collectively, your “Account Information”).
b) Card. If you opt-in to the use of the Card, you will be prompted to confirm your eligibility for the Card. You are eligible for the Card if: (a) your business is domiciled in and operates principally in the United States; (b) you are currently approved to take work from the Job Board; and (c) you have opted in to use of the Payment Service. If you opt-in to the use of the Card, you will be prompted to provide additional information, including (i) cardholder name, (ii) phone number, (iii) email address, (iv) billing address, and (v) shipping address; such information shall be deemed additional Account Information.
c) Account Information Updates. You agree to provide true, accurate and complete Account Information and to notify us promptly if any of your Account Information changes.
d) Authorized Users. Subject to this Agreement, you may or you may authorize employees on your behalf (“Authorized Users”) to, access your Account and/or to use the Card to make business-purpose Card Transactions reasonably in furtherance of the completion of the Advance-Eligible Job. You are responsible for the compliance of each Authorized User with this Agreement, and any breach of this Agreement by an Authorized User shall be deemed a breach of this Agreement by you directly.
a) Payment Service. You acknowledge that Xometry partners with Stripe for the administration of the Payment Service. If you opt-in to the use of the Payment Service, all Account Information provided by you to Xometry will be automatically shared with Stripe. By providing your Account Information to Xometry, you consent to Xometry automatically sharing that Account Information with Stripe.
You understand that your Account is a “Stripe Account” under that certain Stripe Connected Account Agreement located at https://stripe.com/connect-account/legal (the “Connected Account Agreement”). By using the Payment Service, you agree to be bound by and comply with the terms and conditions of the Connected Account Agreement in all respects.
b) Card. You acknowledge that Xometry partners with Stripe for the administration of the Card. If you opt-in to the use of the Card, Stripe will automatically receive all information relating to Card Transactions, as defined below (“Transaction Information”), and Stripe will share your Transaction Information with Xometry. By using your Card, you consent to Stripe's provision of all Transaction Information to Xometry. “Card Transaction” means a request initiated by you to make a payment with a Card to a merchant for the purchase of goods and services.
You agree to comply with the obligations of “Authorized Users” set forth in Sections 13-17 of Stripe’s Commercial Card Program Agreement located at https://stripe.com/card-program/legal, as the same may be updated by Stripe from time to time (the “Card Agreement”), as if you were a direct counterparty to such agreement, and you agree that Stripe may take any and all actions described in Sections 13-17 of the Card Agreement with respect to your Account and your Card. Stripe may seek to enforce the provisions of Sections 13-17 of the Card Agreement against you directly as if you were a direct counterparty to the Card Agreement.
4.3. Identity Authentication. You authorize Xometry, directly or through third parties including but not limited to Stripe, to make any inquiries we consider necessary to verify your identity or the identity of any of your Authorized Users. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address, financial instruments, or information associated with your business, and verifying your or your Authorized Users’ Personal Data or other information against third party databases or through other sources. If we cannot verify your identity or the identity of one or more of your Authorized Users, Xometry reserves the right to deny you use of the Services or to limit your use of your Account or Card.
b) Business Partner’s Affirmations Relating to Privacy.
(i) You affirm that you are now and will continue to be compliant with all laws governing the privacy, protection, and your use of Personal Data that you provide to us or access through your use of the Services.
(ii) You affirm that you have obtained all necessary rights and consents under all applicable laws to disclose to Xometry – or allow Xometry to collect, use, retain, and disclose to Stripe – any Personal Data that you provide to us or authorize us to collect, including data that we may collect directly from Authorized Users. As may be required by applicable law and in connection with this Agreement, you are solely responsible for disclosing to Authorized Users that Xometry may receive Personal Data from you and may disclose the same to Stripe. Additionally, where required by applicable law or Card Network rules, we may, or we may authorize Stripe to, delete or disconnect an Authorized User’s Personal Data from your Account when requested to do so by the Authorized User.
c) Notice of Compromise of Personal Data. If we become aware of an unauthorized acquisition, disclosure or loss of Personal Data on our systems, we will notify you consistent with our obligations under law. We will also notify you and provide you sufficient information regarding the unauthorized acquisition, disclosure or loss to help you mitigate any negative impact on you or the applicable Authorized User.
a) If you opt-in to the Payment Service, the Payouts for the Jobs that you complete will be delivered automatically to your Bank Account within a reasonable time period after the respective Completion Dates, not to exceed 60 days after the respective Completion Dates, without any action on the part of the Business Partner. For the avoidance of doubt, if you have multiple Advance-Eligible Jobs that are pending at the same time, your Card Transactions will be deducted from your Payouts in the order that they occur. This may result in an overall reduction of the timing and amount of the Payouts for your earlier Advance-Eligible Jobs.
b) If you opt-in to the use of the Card, when you make a Card Transaction, the amount of the Credit Transaction will be deducted from the aggregate prospective Payout for all then-active Jobs. Card Transactions and the corresponding deductions from the prospective Payout will be viewable on your Account Statement. “Account Statement” means a report detailing Card Transactions, and amounts owed or credited to your Account.
4.6. Responsibilities of Business Partner.
a) Securing and Safeguarding Account Information; Liability for Card Transactions. You are responsible for securing and safeguarding your Account information, your Card, and all Account and Card access and/or security features (including the CVV) from unauthorized access, use, theft, copying, or other misuse or fraud. You are responsible for reviewing your Account Statements regularly, and you understand that Card Transactions may take up to four (4) weeks to be reflected on an Account Statement. You understand that it is your responsibility to monitor any suspicious or unauthorized activities on the Card, as well as any errors on your Account Statement. You understand and agree that you are liable for all Card Transactions, unless: (a) the Card Transaction is successfully disputed through the Visa card network (“Card Network”) transaction dispute process; or (b) an unauthorized Card Transaction occurs after Xometry has been successfully notified that the applicable Card has been lost, stolen or compromised. You will be liable to Xometry for any fees, charges, costs, amounts, expenses or other losses that result from your or your Authorized Users’ actions or inactions.
b) Disputed Card Transactions and Errors. If you believe a Card Transaction was made in error or was unauthorized (a “Disputed Card Transaction”), or if you believe your Account Statement contains any errors, please notify Xometry, through a communication on the Shop Finances page of your Account interface on Xometry’s website (“Dispute Notice”). You must submit a Dispute Notice with respect to a Disputed Card Transaction or error no more than forty-five (45) days after the Disputed Card Transaction is posted to your Account. Xometry will not be obligated to facilitate the initiation of an investigation by the Card Network into any Disputed Card Transactions or errors for which a Dispute Notice is submitted more than forty-five (45) days after the Disputed Card Transaction or error is posted to your Account. Dispute Notices must specify your details, details about the Authorized User, details about the Disputed Card Transaction or error, and an explanation of your belief that the Disputed Charge or error was made in error or was unauthorized.
Upon timely receipt of a Dispute Notice, Xometry will promptly communicate information relating to the Disputed Card Transaction or error to Stripe, and Stripe will convey such information to the Card Network. You agree and consent to the foregoing communications, and you agree that all Card disputes will be investigated solely by the Card Network and in accordance with the Card Network’s rules. You hereby agree to accept the Card Network’s resolution of any such investigation.
Xometry may, but shall have no obligation to, offer you a courtesy credit (a “Credit”) on the Card during the pendency of the Card Network’s investigation into a Disputed Card Transaction or error. Should the Card Network determine that you are responsible for the Disputed Card Transaction or error, the amount of the Credit will be deducted from any Payout due to Business Partner for another Job within the following thirty (30) days; provided, that, if no Payouts having at least the value of the Credit are due to you over the thirty (30) day period following the resolution of the Card Network’s dispute process, then Xometry will invoice you for the amount of the Credit and you shall reimburse Xometry for the Credit. Should the dispute be decided by the Card Network in your favor, Xometry shall deliver funds to your Account in the amount of the Disputed Card Transaction or error less the Credit within forty-five (45) days of the resolution of the dispute.
c) Failure to Complete Advance-Eligible Job. If you use the Card and then fail to complete the applicable Advance-Eligible Job in a satisfactory manner, as determined in Xometry’s reasonable discretion, for any reason, then you shall repay to Xometry any portion of the Advance that you have spent. Repayment shall be due in full within fifteen (15) calendar days of after Xometry notifies you that you have not completed the Advance-Eligible Job in a satisfactory manner and will no longer be expected to complete the Advance-Eligible Job. If you fail to fully repay the spent portion of the Advance by the due date, you will be charged interest at a rate of 1.5% monthly, accrued daily, on the unpaid amounts until they are fully paid; provided, that, Xometry may deduct any such unpaid amounts from Payouts otherwise due to you in connection with other Jobs. If you fail to fully repay the applicable portion of the Advance-Eligible Job, together with all interest accrued thereon, within 90 days of the due date, your nonpayment shall be considered a material breach of this Agreement and Xometry may take legal action to recover the applicable funds. Xometry may pursue any legal or equitable remedy available to us under applicable law in connection with such recovery.
4.7. Representations, Warranties, and Covenants. You hereby represent, warrant, and covenant the following:
a) This Agreement has been authorized by all corporate action on the part of Business Partner, or, if Business Partner is a natural person, you have the authority to enter into this Agreement personally;
b) If you are a natural person (i) you are at least 18 years of age (or older if you reside in a state where the majority age is older); (ii) you are a U.S. citizen or legal alien residing in the fifty (50) United States or the District of Columbia; (iii) you have provided us with a verifiable U.S. street address (not a P.O. Box); (iv) the Account Information that you provide to us in connection with the Services is true, correct and complete; (v) you received a copy of this Agreement and agree to be bound by and to comply with its terms;
c) Your entry into this Agreement does not conflict with any laws or regulations, or with any contractual obligation between you and any third party;
d) Neither you or any of your Authorized Users is currently, and neither you nor any of your Authorized Users will become, subject to a U.S. Office of Foreign Asset Control (“OFAC”) list, or any law or other government agency list that prohibits or limits Xometry from providing the Card to you or from otherwise conducting business with you;
e) You shall, and you shall cause your Authorized Users to, only use the Card to make Card Transactions for the purpose set forth in Section 3.2;
f) You shall not, and you shall cause each of your Authorized Users to not, use the Services for personal, family, or household purposes or for cash advances or withdrawals;
g) You shall not, and you shall cause each of your Authorized Users to not, use the Card to facilitate illegal transactions or otherwise in violation or potential violation of applicable law, regulation, rule, or legal interest, including, without limitation, to send or receive potentially fraudulent funds, or in the course of any activity regulated by the Financial Crimes Enforcement Network (FinCEN) or any other relevant regulatory body; and
h) Your Card is not your property. Upon a written request from Xometry, you shall return your Card to Xometry or, if indicated in Xometry’s request, to Stripe;
i) You shall not, and you shall cause each of your Authorized Users to not, transfer any rights granted to you under this Agreement.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL XOMETRY, OUR AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “XOMETRY PARTIES”) BE LIABLE FOR LOST PROFITS (WHETHER THEY ARE DIRECT OR CONSEQUENTIAL DAMAGES) OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY KIND INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT XOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, AND/OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
6. DISCLAIMER OF WARRANTIES
6.1. THE XOMETRY PARTIES EACH PROVIDE THE SERVICES “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE XOMETRY PARTIES EACH SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NONE OF THE XOMETRY PARTIES ARE RESPONSIBLE FOR YOUR FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, XOMETRY, OR ANY THIRD PARTY.
6.2. Xometry does not guarantee continuous, uninterrupted or secure access to any part of our Services, and operation of our site may be interfered with by numerous factors outside of our control. Xometry will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Xometry makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
8. XOMETRY’S SUSPENSION AND TERMINATION RIGHTS
8.1. We may cancel, revoke, repossess or restrict the use of your Card at any time. We may, at any time, limit the merchants with whom Card Transactions can be made, or set or change any maximum spending limits on the Card. Further, we may decline to authorize or reverse charges on the Card, and we may suspend Cards, for any reason including violation of this Agreement, suspected fraud, or creditworthiness issues. We may condition the reactivation of suspended Cards or Accounts upon payment of amounts owed or may require you to provide financial and other information reasonably necessary to comply with legal or regulatory requirements and our risk policies.
8.2. You may close your Account or opt-out of use of Card by providing notice to us through your Account. You must pay all amounts owed under this Agreement prior to closure of the Account.
8.3. We are not responsible for losses resulting from declined or reversed charges on the Card. Merchants typically accept all Card Network-branded cards; however, we are not responsible and will have no liability if a merchant refuses to honor a Card or accept a Card Transaction.
9. Limitations Period. YOU AND XOMETRY AGREE THAT ANY CAUSE OF ACTION THAT BUSINESS PARTNER MAY HAVE AGAINST XOMETRY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE XOMETRY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 10 (“Arbitration Agreement”) carefully. It is part of Your contract with Xometry and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
10.1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Xometry, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
10.2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Xometry should be sent to: firstname.lastname@example.org. After the Notice is received, you and Xometry will attempt to resolve the claim or dispute informally. If you and Xometry do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
10.3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a three, neutral arbitrators. Any claims or disputes where the total amount of the award sought is less than TEN THOUSAND U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is TEN THOUSAND U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Wilmington, Delaware, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
10.4. Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
10.5. Time Limits. If You or Xometry pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
10.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Xometry, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Xometry.
10.7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Xometry in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND XOMETRY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
10.8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Agreement, neither you or Xometry is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 10.13.
10.9. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
10.10. Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
10.11. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Xometry.
10.12. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court located within Montgomery County, Maryland in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
10.13. Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, any and all suits must be filed in state or federal courts located within Montgomery County, Maryland.
11. Governing Law and Forum. This Agreement and any action related thereto will be governed and interpreted exclusively by and under the substantive and procedural laws of the State of Maryland, consistent with the Federal Arbitration Act, without giving effect to any principle or rule of law that provides for the application of the law of another jurisdiction, including any jurisdiction’s law of conflicts . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.1. Complete Agreement. This Agreement together with any other Xometry documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Xometry with respect to the Services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 5 (Limitation of Liability), 6 (Disclaimer of Warranties), 7 (Indemnification), 9 (Limitations Period), and 10 (Arbitration Agreement; Class Waiver; Waiver of Trial by Jury). If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
12.2. Intellectual Property. “Xometry”, and all logos related to Xometry, are either trademarks or registered trademarks of Xometry or its licensors. You may not copy, imitate or use them without Xometry's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Xometry. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Xometry website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Xometry and its licensors.
12.3. Force Majeure. Xometry shall not be liable for any issues or delayed performance caused by circumstances beyond Xometry’s reasonable control, including without limitation, acts of God, acts of government, changes in applicable law, pandemic, floods, fires, pandemics, epidemics, power failures, earthquakes, civil or military disturbances, acts of terror, strikes or other labor problems, computer failure and any such circumstances beyond Xometry’s reasonable control as may cause interruption, loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service, and service provider failures or delays.
12.4. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Xometry’s prior written consent, and any purported transfer or assignment in violation of this Section 12.4 shall be null and void as if never undertaken. Xometry reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time to any person.
12.5. Confidentiality; No Public Announcements. The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required by applicable law or in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed to a governmental authority by judicial or administrative process or otherwise by applicable law. No public release or statement concerning the subject matter of this Agreement shall be made by either party without the express written consent and approval of the other party.
12.6. Severability. If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
12.7. No Waiver. If Xometry fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
12.8. Contacting Xometry. Unless otherwise stated in this Agreement, notices, inquiries, and requests to Xometry should be emailed to email@example.com. Please note that email communications sent to Xometry for Account- or Card-related matters must come from the email address listed in your Account. Account- or Card-related communications initiated via other channels may require identity verification in order to obtain information or change settings.
Xometry is offering a limited-time incentive for partners who sign up for the Xometry Advance Card, beginning October 13, 2020. To qualify for this incentive, partners must activate their Xometry Advance Card and make at least $500 of eligible purchases on their Xometry Advance Card within 60 days of signing up for their card. Partners who do so will receive a $100 credit on their Xometry Advance Card to use for future eligible purchases. Credits will be awarded about 30 days after the promotional period ends. Unused promotion credits may be paid out after 90 days. Eligible purchases include all categories not explicitly excluded in the Xometry Advance Card Terms and Conditions. Refunded and disputed transactions do not count toward the $500 in required purchases. Partners must be in good standing with Xometry to take advantage of this promotion. Xometry reserves the right to modify or cancel this promotion at any time.