PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS USING THE PRINTING HOUSE ("TPH") 3D PRINTING SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS. BY PLACING AN ORDER OR MAKING A PURCHASE, CUSTOMER ON BEHALF OF ITSELF OR ITS EMPLOYER, REPRESENTS AND WARRANTS THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. CUSTOMER PLACING AN ORDER OR MAKING A PURCHASE OF TPH 3D PRINTING SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL NOT ORDER OR PURCHASE TPH 3D PRINTING SERVICES.
In consideration of TPH providing Customer with 3D printing services, Customer agrees to the following:
1. PAYMENT TERMS
Customer agrees to pay all of TPH's charges and expenses (plus applicable taxes) for the 3D printing services in accordance with TPH's standard payment terms.
2. CUSTOMER AUTHORIZATION, WARRANTY AND INDEMNITY TO TPH
For TPH to provide Customer with 3D printing services, Customer may be providing TPH with a model, likeness, image, part, photograph, drawing, software code, data, electronic files, specifications or other materials (collectively, "Customer Property"). TPH SHALL NOT BE RESPONSIBLE IN ANY WAY FOR CUSTOMER PROPERTY, INCLUDING WITHOUT LIMITATION ANY LOSS, DAMAGE OR INJURY. For 3D Selfie services, Customer authorizes TPH to photograph and scan Customer and to use Customer's name, image and likeness in connection with the 3D printing services. Customer releases TPH from any claims in relation to such photographs and scans. Customer represents and warrants that Customer has all of the rights (such as ownership rights and intellectual property rights, including but not limited to copyrights, personality rights, moral rights, privacy rights, patent rights, trade-mark rights, etc.) necessary to provide TPH with Customer Property and to allow TPH to use Customer Property for the 3D printing services. Customer further represents and warrants that Customer is not violating any applicable laws, regulatory guidelines, court orders, infringing or misappropriating the rights of any other person or entity, or violating the terms of any contractual agreement with, or duty Customer has to, anyone else, in providing TPH with Customer Property and in TPH's performance of the 3D printing services for Customer. Customer grants to TPH a non-exclusive, worldwide, royalty-free, fully paid up license to exercise all of the rights in Customer Property that are necessary for TPH to perform the 3D printing services for Customer and to retain electronic file copies of Customer Property. Customer represents and warrants that the Customer Property is free from any viruses, back doors, time bombs and other harmful programs.
IN THE EVENT THAT ANYONE EVER CLAIMS TPH OR ITS DIRECTORS OR EMPLOYEES DID NOT HAVE THE RIGHTS TO PERFORM THE 3D PRINTING SERVICES FOR CUSTOMER USING CUSTOMER PROPERTY, OR IF TPH HAS VIOLATED OR INFRINGED SOMEONE ELSE'S RIGHTS OR ANY APPLICABLE LAW OR REGULATION, OR IF ANY CLAIM OR CHARGE IS BROUGHT AGAINST TPH OR ITS DIRECTORS OR EMPLOYEES, OR IF TPH OR ITS EMPLOYEES OR DIRECTORS SUFFER ANY DAMAGES, FOR ANYTHING RELATING TO CUSTOMER PROPERTY OR THE PRODUCTS AS DEFINED BELOW (INCLUDING WITHOUT LIMITATION CLAIMS FOR PRODUCT LIABILITY, STRICT LIABILITY, CRIMINAL LIABILITY, ENVIRONMENTAL LIABILITY, HEALTH AND SAFETY VIOLATIONS, NEGLIGENCE, TORT, PERSONAL INJURY OR DEATH), CUSTOMER AGREES TO DEFEND, INDEMNIFY, HOLD HARMLESS AND COMPENSATE TPH AND ITS DIRECTORS AND EMPLOYEES, FOR ALL OF THEIR LIABILITY, LOSSES, DAMAGES, FINES, PENALTIES, EXPENSES AND COSTS, INCLUDING BUT NOT LIMITED TO, ALL COSTS OF DEFENDING ANY CLAIMS, LITIGATION COSTS, SETTLEMENT COSTS, ALL JUDGMENTS AWARDED, ALL SETTLEMENT AMOUNTS AND LAWYERS' FEES.
CUSTOMER SHALL ASSUME ALL RISKS IN THE PRODUCTS OR OUTPUT OF THE 3D PRINTING SERVICES INCLUDING WITHOUT LIMITATION THE COMPOSITES USED IN THEM (COLLECTIVELY, THE "PRODUCTS"). UPON PAYMENT IN FULL, THE PRODUCTS SHALL BE OWNED BY CUSTOMER. TPH RETAINS ALL RIGHTS, TITLE AND INTEREST INCLUDING INTELLECTUAL PROPERTY RIGHTS, IN THE WEBSITE, THE 3D PRINTING SERVICES, PROCESSES, MACHINERY, EQUIPMENT, TECHNOLOGY, METHODOLOGIES, KNOWHOW, AND UNDERLYING SOFTWARE USED TO CREATE THE PRODUCTS AND PERFORM THE SERVICES. SINCE THE PRODUCTS ARE CREATED AT THE CUSTOMER'S REQUEST, AS CUSTOMER DIRECTS AND USING CUSTOMER PROPERTY, TPH DOES NOT AND CANNOT WARRANT THE SUITABILITY OR USABILITY OF THE PRODUCTS FOR ANY PURPOSE OR THAT THE PRODUCTS WILL MEET CUSTOMER'S REQUIREMENTS OR INTENDED USE. THE PRODUCTS ARE DELIVERED AND ACCEPTED "AS IS" AND TPH DOES NOT MAKE ANY ENQUIRIES INTO THE ENGINEERING OF CUSTOMER PROPERTY OR PRODUCTS. TPH DOES NOT WARRANT THE MATERIALS, STRENGTH, TOLERANCES, CHARACTERISTICS, USE, SAFETY, SECURITY, ACCURACY, RELIABILITY, COMPLETENESS, PERFORMANCE, DURABILITY, SUITABILITY, EXPORTABILITY, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR 3D PRINTING SERVICES AND TPH DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE ARISING UNDER STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR THE SELECTION OF CUSTOMER PROPERTY, THE PRODUCT(S), SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER INTENDED RESULTS, OR FOR CUSTOMER'S PARTICULAR APPLICATIONS.
4. LIMITATION OF LIABILITY
TPH'S AND ITS DIRECTORS AND EMPLOYEES' MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS WHATSOEVER, HOWSOEVER CAUSED, WHETHER ARISING FROM BREACH OF CONTRACT, FUNDAMENTAL BREACH, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, BREACH OF EXPRESS OR IMPLIED WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO, AS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, A REDO OF THE APPLICABLE SERVICE AND IN ANY EVENT SHALL NOT EXCEED THE FEES CUSTOMER PAID TO TPH FOR THE 3D PRINTING SERVICES. NO CLAIMS CAN BE BROUGHT BY CUSTOMER AFTER NINETY (90) DAYS FROM THE ACCEPTANCE OF THESE TERMS. IN NO EVENT SHALL TPH, ITS DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOST MATERIALS, ERRORS OR OMISSIONS, EVEN IF TPH OR ITS EMPLOYEES ARE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
TPH SHALL NOT BE LIABLE FOR A BREACH OF ITS OBLIGATIONS HEREUNDER TO THE EXTENT THAT SUCH BREACH IS CAUSED BY ANY EVENT OUTSIDE ITS CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, TERRORISM, WAR, DISASTER, THEFT, THIRD PARTY FAILURES, POWER OR SECURITY FAILURES, DATA BREACH, FLOOD OR FIRE.
CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE A MATERIAL AND ESSENTIAL CONDITION OF THIS AGREEMENT AND THAT THE PRODUCTS AND SERVICES WOULD NOT BE MADE AVAILABLE, OR WOULD BE MADE AVAILABLE ON DIFFERENT TERMS, IN THE ABSENCE OF THESE CONDITIONS.
Either the Customer or TPH may terminate these Terms and Conditions at any time upon written notice to the other party, but all orders previously submitted and confirmed shall remain binding upon the parties unless prohibited by applicable law. Sections 2 through 6 shall survive the termination or expiry of this Agreement.
This agreement shall be governed by the laws of the province of Ontario, Canada and shall be treated in all respects as an Ontario contract without regards to conflicts of law principles. In the event of any dispute, Customer agrees to submit to the exclusive jurisdiction of the courts of the province of Ontario, in Toronto.
These Terms and Conditions embody the entire agreement and understanding between the parties regarding the subject matter hereof, and supersede any prior understanding and agreements between and among them respecting the subject matter hereof. TPH may at any time change or modify these terms publishing such additional or replacement terms on its purchase orders, on the website or upon notice to Customer. If the Customer does not agree with any change or modification, the Customer may terminate this Agreement in accordance with Section 5.
The parties hereto are independent contractors and are not, and shall not represent themselves as, principal and agent, partners or joint venturers. No party shall attempt to act, or represent itself as having the power, to bind another party or create any obligation on behalf of another party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.
The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the provincial International Sale of Goods Acts, as amended, replaced or re-enacted from time to time.
The Customer shall not assign the rights and obligations under this agreement without the written consent of TPH. Any assignment in breach of this provision shall be void.
Customer agrees to waive any right Customer may have to: (i) a trial by jury; and (ii) commence or participate in any class action against TPH, its directors, officers, or its affiliates, related to TPH's services or the Products and, where, applicable, Customer also agrees to opt out of any class proceedings against TPH, its directors, officers or its affiliates.
In the event that any part of these Terms and Conditions are determined by a court of competent jurisdiction to be unenforceable, invalid, void or illegal, that part shall be modified to the extent permissible in order to protect TPH from liability and if not modifiable, shall be severed from this agreement and shall not affect the enforceability of the remaining terms of this agreement. The parties have required that this agreement and all documents relating thereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
By placing an order or making a purchase for 3D printing services, Customer hereby agrees and accepts to be bound by these Terms and Conditions which form a legally binding contract between Customer as an individual or the entity that Customer represents and TPH.
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