Last Updated: September 4, 2019
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
This Customer Agreement (the “Agreement”) is made and entered between Xometry, Inc. (“Xometry”) and you (“You” or “Your”), as of the date that You accept this Agreement as provided in this preamble. PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING Xometry’s website (the “WEBSITE”), INCLUDING placing an order with Xometry for manufacturing services (the “Services”), CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH XOMETRY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES. Xometry’s General Terms and Conditions available at: www.xometry.com/terms (“General Terms”) are incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the General Terms, the terms of this Agreement shall supersede and control to the extent of any such conflict.
PLEASE NOTE that Xometry may modify these terms and conditions at any time, and such modifications shall be effective immediately upon posting of the modified version on the Website for orders placed after such modifications have been posted. Xometry will also update the “Last Updated” date at the top of this Agreement. If Xometry makes any material changes, and You have registered with Xometry to create an Account (as defined below), Xometry may also send you an email to the last email address You provided pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting or providing notice of such changes on the Website for existing users (whichever is earlier). Xometry may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or Services is permitted. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website and/or Services. Otherwise, Your continued use of the Website and/or Services shall be deemed Your conclusive acceptance of the modified terms and conditions.
1. About the Xometry Request for Quote (“RFQ) ON-DEMAND SERVICE. Xometry hosts and maintains an online platform available at the Website (www.xometry.com) that enables secure business-to-business communications between customers and Partners of manufacturing services. The platform allows customers to deliver Requests for Quotes (“RFQ”) through the secure platform to Partners to participate in submitting bids in response to the RFQs (Partners). Xometry’s customers may upload their three dimensional (3D) models, two-dimensional drawings, and other documentation for their manufacturing and / or supporting service projects.
2. REGISTRATION. In order to use certain Services, you may be required to register for an account (“Account”). In registering for the Services, You agree to (1) provide true, accurate, current and complete information about You as prompted in the Website account details section (“Registration Data”); and (2) maintain and promptly update Your Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (x) notify Xometry immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Xometry has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Xometry has the right to suspend or terminate your Account and refuse any and all current or future use of the Website and Service (or any portion thereof).
3. Xometry RFQ ON-DEMAND Process
3.1 Use of the Xometry’s RFQ On-Demand Service. In order to make use of Xometry’s RFQ On-Demand Service, a user must first upload files and other details into the RFQ creation form. This information can be stored in a user’s RFQ History indefinitely. Order details, such as quantity, secondary processes, material specifications, delivery address and lead time must be specified by the user in order to initiate and RFQ event. Once all of the information is complete, a user can initiate the RFQ event. The RFQ will be sent to Xometry Partners who meet the criteria of the RFQ. Customer must specify the amount of time Partners have to respond to an RFQ. If a Partner has questions concerning the RFQ, a Partner may contact the User directly through the application. The aggregated results of the RFQ event will be presented on the Quote Overview page. The User can contact any of the responding Partners directly. If a User and Partner come to an agreement, this takes place outside of the Xometry Platform, and Xometry will have no visibility or involvement in the transaction moving forward.
3.2 Specifications. The Xometry RFQ On-Demand Service is to be used to collect bids and information relevant to each RFQ. The subsequent activities and placement of contracts or supply of goods or services and payment collection is solely the responsibility of the Customer. The specification of the application includes:
Means of managing the active project, in the case a Partner’s bid is awarded an opportunityXometry is not NOT responsible for:
4. Pricing and Payment; Xometry Points
4.1 Payment. By awarding an opportunity to a Partner who has submitted a bid to your RFQ, you agree to pay all fees or charges to Your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise expressly agreed in advance by Xometry, all invoices are due upon award of a job to a Partner who submitted a bid to the RFQ.. You agree that Xometry is authorized to immediately invoice your Account for all fees and charges due and payable to Xometry hereunder and that no additional consent or notice is required. You agree to immediately notify Xometry of any change in your billing address or the credit card used for payment hereunder. Xometry will hold the funds in escrow, and will not release the funds until completed delivery of the goods and services. Xometry reserves the right at any time to change its prices and billing methods, either immediately upon posting notice on the Website or by email delivery to you. All prices are calculated in US Dollars and payment to Xometry must be in the form of US Dollars.
4.2 Taxes and Costs. You will be liable for all other transaction duties and taxes associated with services outlined in your RFQ (other than taxes based on Xometry’s net income).
4.3 Suspension of Services. Xometry reserves the right to suspend performance in the event of your failure to pay all outstanding amounts when due.
5.1 No Warranty of Specifications Since You are solely responsible for the Specifications, and the manufacture of certain Parts in accordance with your Specifications may be impossible or otherwise commercially impracticable, Xometry does not warrant that your RFQ can or will be manufactured in accordance with Your Specifications. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, XOMETRY DOES NOT WARRANT THAT THE PARTS YOU HAVE ORDERED THROUGH THE RFQ ON-DEMAND SERVICE WILL MEET YOUR REQUIREMENTS OR BE WILL BE MERCHANTABLE OR FIT FOR YOUR PARTICULAR PURPOSE.
5.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE PARTS MANUFACTURED PURSUANT TO AN ORDER SUBMITTED ON THIS WEBSITE AS WELL AS THE WEBSITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. XOMETRY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE, SERVICES AND PARTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INTERFERENCE OR INFRINGEMENT. XOMETRY DOES NOT WARRANT THAT ANY SUCH PARTS OR THE USE OF THE WEBSITE OR SERVICES WILL BE UN INTERRUPTED OR ERROR FREE OR THAT ANY ERROR OR DEFECTS WILL BE OR CAN BE CORRECTED. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS.
5.3 BECAUSE THE PARTS ARE BASED ON YOUR SPECIFICATIONS, XOMETRY MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE PARTS WILL MEET YOUR REQUIREMENTS, (2) THE PARTS ARE FIT FOR ANY PARTICULAR PURPOSE, OR MERCHANTABLE, OR (3) THE PARTS ARE DEFECT OR ERROR-FREE.
5.4 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. XOMETRY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
5.5. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM XOMETRY OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5.6. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESS THROUGH THE WEBSITE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
5.7.YOU ACKNOWLEDGE AND AGREE THAT XOMETRY IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD XOMETRY LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING FOR ANY PART MANUFACTURED BY A THIRD PARTY.
6. Intellectual Property
6.1 License. Subject to the terms herein, Xometry grants to You a limited, revocable, non-exclusive license to use the Website for your personal or internal business purposes. Xometry and its licensors retains all ownership and intellectual property rights to the Website and all content therein. You shall not or permit any third party to: (i) reverse engineer, disassemble or decompile the Website, the pricing and matching algorithms of Xometry, or Xometry’s geometry parsing engine; (ii) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website; (iii) access the Website in order to build a similar or competitive website, application or service; (iv) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; or (v) use the Website for any illegal or illicit purpose, including to manufacture any products, components, goods or tools designed or intended for use in firearms. Without limiting the foregoing, You acknowledge and agree that the pricing and matching algorithms, processes and mechanisms used by Xometry, along with Xometry’s geometry parsing engine are the proprietary information and trade secrets of Xometry. In the event You attempt to reverse engineer such pricing and matching algorithms, processes and/or mechanisms, or Xometry’s geometry parsing engine, Your right to use the Website and Service shall immediately cease, and Xometry will take any action it deems necessary or appropriate to protect its rights and interests.
6.2 Trademarks. The Website contains names, which are trademarks, service marks and/or brand names of Xometry and may not be used without the written permission of Xometry. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners.
6.3 Your Content. Xometry does not claim any ownership over your Specifications or any content, data or other materials you upload to or otherwise make available on the Website (“Your Content”). You are solely responsible for Your Content that You upload to the Website. You hereby grant Xometry a non-exclusive, perpetual, royalty free, fully paid-up, sublicensable (to our Partners), right and license to reproduce, and use Your Content for the purpose of designing, manufacturing and delivering your Parts to You, and to provide you any other Services you request. You further acknowledge and agree that Xometry may use Your Content on an aggregated and anonymized basis to improve the Website and Services, including without limitation, to improve our pricing algorithms and help manufacture Parts in a more efficient and expedient manner. By submitting an order to Xometry, You represent and warrant that You are the owner and/or You have obtained the rights necessary to grant Xometry granted herein use without any violation of any intellectual property rights, or payment by Xometry of any amounts to any third party. You further represent and warrant that Your Content does not infringe upon, misappropriate, or violate any third party’s rights, including intellectual property, privacy and publicity rights. If Xometry, in its sole commercial discretion, determines that the Specifications You submit to the Website infringes upon the intellectual property rights of any third party, Xometry reserves the right to either not manufacture the Part(s) based on your Specifications.
7. Indemnification by You. You agree to indemnify and hold harmless Xometry and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by You of any undertaking, warranty, representation or agreement contained herein; (ii) arising out of a claim that a Part manufactured by a Partner selected on the Xometry RFQ On-Demand Service pursuant to an order hereunder violates any law, regulation or ordinance; (iii) arising out of a claim with respect to the Part (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Part; or (iv) arising out of any claim that any Specification, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party.
8. Limitation of Liability
8.1 Disclaimer of Certain Damages. XOMETRY SHALL NOT IN ANY EVENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT XOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT OR THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, PARTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE OR SERVICES; (3) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, SPECIFICATIONS, TOLERANCES OR DATA; (4) YOUR PARTS; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE AND SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL XOMETRY BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (I) THE AMOUNT RECEIVED BY XOMETRY FROM YOU DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, OR (II) ONE HUNDRED DOLLARS ($100).
8.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XOMETRY AND YOU.
9. Release of Liability. YOU ACKNOWLEDGE AND AGREE THAT THE PARTS AND THEIR MANUFACTURE, ARE BASED ON SPECIFICATIONS PROVIDED BY YOU. ACCORDINGLY, YOU AGREE THAT UNDER NO CIRCUMSTANCE WILL XOMETRY BE LIABLE FOR ANY DAMAGE OR LIABILITY RESULTING FROM ANY PART, INCLUDING ANY PART DEFECT RESULTING FROM THE MANUFACTURE OF A PART IN ACCORDANCE WITH THE SPECIFICATIONS. You hereby release Xometry and its affiliates, and their officers, directors, employees, agents, and consultants and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from your Part(s). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
10. Term and Termination
10.1 Term. This Agreement commences on the date when You accept it (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated in accordance with the terms herein.
10.2 Termination of Services by You. If You want to terminate the Services provided by Xometry, You may do so by (a) notifying Xometry at any time and (b) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to Xometry’s address set forth below.
10.3 Termination of Services by Xometry. Xometry has the right to, immediately and without notice, suspend or terminate this Agreement or Your use of the Website and Services (with or without cause), including if Xometry becomes aware of any possible violations by You of this Agreement. In the event Xometry determines, in its sole discretion, that You have breached any portion of this Agreement, Xometry reserves the right to: (i) warn you via email (to any email address you have provided to Xometry) that you have violated this Agreement; (ii) delete Your Content provided by You or Your agent(s) to the Website; (iii) notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which Xometry deems to be appropriate.
10.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also include deletion of Your password and all related information, files and Your Content associate with or inside Your Account. Xometry will not have any liability whatsoever to You for any suspension or termination, including deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations and limitation of liability.
11.1 Electronic Communications. The communications between You and Xometry use electronic means, whether You visit the Website or send Xometry e-mails, or whether Xometry posts notices on the Website or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Xometry in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Xometry provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
11.2 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Xometry’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
11.3 Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.4 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Website or Services, please contact us at: [email protected] We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, we invite You to let us know for further investigation.
11.5 Limitations Period. YOU AND XOMETRY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
11.6 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section 13.6 (“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.
11.7 Notice. Where Xometry requires that You provide an e-mail address, You are responsible for providing Xometry with Your most current e-mail address. In the event that the last e-mail address You provided to Xometry is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, Xometry’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Xometry at the following address: [email protected] Such notice shall be deemed given when received by Xometry by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
11.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.9 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.10 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Unless otherwise specifically agreed to by the parties, in the event of any conflict between the terms of this Agreement, the General Terms, or any order for Parts, the order of precedence is as follows: (i) the Ordering Terms; (ii) Manufacturing Standards; (iii) this Agreement; (iv) the General Terms; and (v) the order for Parts. Unless otherwise specifically agreed, the parties acknowledge that the pre-printed provisions on the reverse side of any quotation, order, acknowledgement or invoice will be deemed deleted and of no effect whatsoever.