Legal documents

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”):

1. 1. 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).
   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"). 
   3. Technical phone and email support available on (non-holiday) Monday through Thursday between the hours of 8:00 A.M. and 5:00 P.M. Central European Time and on Friday between 8:00 A.M. and 4:00 P.M. ("Working Hours"). 
   4. 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.
   5. 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.
   6. 1.6. Company-developed software maintenance releases provided from time to time, in Company’s sole discretion, throughout the Product life cycle (“Software Releases”).
   7. Other Product updates and/or modifications, as deemed necessary by Company will be installed when available throughout the Maintenance Term (defined below).
   8. 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
   1. 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, cleaning fluid, wiping cloths, gloves and other similar items (collectively, "Consumables"), which Consumables the Customer may purchase separately at Company’s then current rates.
   2. Company warrants that all spare parts supplied and manufactured by Company hereunder shall be free from material defects in material and workmanship for a period of one (1) year following installation thereof, and 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.
   3. 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.
   4. CUSTOMER ACKNOWLEDGES THAT THIS AGREEMENT 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 THIS AGREEMENT; (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
   1. 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.
   2. 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.
   3. 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.
   4. 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 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 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 causes (collectively "Extraordinary Repairs").
   5. 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.
   6. 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.
   7. 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 Care Center), and will be due and payable by Customer within thirty (30) days of receipt of Company’s invoice.
   8. In the event that Company determines that any Product covered under this Agreement is in need of repair and/or replacement but that, immediately prior to the Effective Date of this Agreement, 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 Care Center).
4. Discontinued Product                                                                                                If at any time Company announces the “end of life” of a Product, Company will provide the Customer with six (6) months' prior notification. Customer acknowledges that at the end of such six (6) month period, the Product for which the end of life has been announced shall be considered discontinued (each, a "Discontinued Product"). Company shall make good faith efforts to provide the Maintenance Services with respect to a Discontinued Product, provided however, that Company shall have no liability hereunder, and Customer no claim, against Company or its affiliates, manufacturers, suppliers or licensors, if Company decides not to provide the Maintenance Services therefor.
5. Warranty Disclaimer
   1. 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. 
   2. IN RESPECT OF ANY SERVICES SUPPLIED HEREUNDER, COMPANY SHALL ONLY BE LIABLE FOR INTENTIONAL MISCONDUCT AND GROSSLY NEGLIGENT ACTS. 
   3. THE COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTA-BILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT FOR SAME. 
6. Maintenance Fees                                                                                          Customer agrees to pay to Company on the Effective Date the nonrefundable Maintenance Fee. Such will entitle Customer to receive the Maintenance Services for the Term. Notwithstanding anything herein to the contrary, this Agreement and the obligations of Company hereunder shall not be effective until such Maintenance Fee payment is received by Company.
7. Confidentiality; Intellectual Property.
   1. 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) the terms of this Agreement 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.
   2. 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:
   1. 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.
   2. 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.
   3. 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 VOLUN-TARY AGREEMENT TO LIMIT THE POTENTIAL MAXIMUM DAMAGE LIABILITY HEREUNDER.
   4. CUSTOMER’S REMEDIES AND THE MAXIMUM LIABILITY OF COMPANY OR ANY THIRD PARTY PROVIDING THE MAINTENANCE SERVICES ARE STRICTLY LIMITED AS EXPRESSLY STATED HEREIN.
   5. CUSTOMER AGREES TO PROMPTLY ADVISE COMPANY IN WRITING OF ANY CLAIM FOR DAMAGES ALLEGED TO HAVE ARISEN UNDER THIS AGREEMENT 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.
9. Term and Termination
   1. The initial term of this Agreement shall be the period provided initially in this Agreement and commencing on the Effective Date (the "Initial Term"). Unless earlier terminated as provided herein, the Initial Term can be renewed for additional, successive twelve (12) month renewal periods (each, a "Renewal Term"), provided that Customer pays its then-current Maintenance Fee, as invoiced by Company for each Renewal Term (the Initial Term and each Renewal Term, collectively, the “Maintenance Term”). In the absence of any renewal following expiration of the Maintenance Term, Customer agrees to pay Company’s then-current rates for any repair or maintenance services provided by Company.
   2. Company may terminate, or suspend the provision of Maintenance Services under, this Agreement (i) with immediate effect if any of the following events occurs: (a) Customer is in breach of any material provision of this Agreement 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.
   3. 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 10 (General) shall so survive indefinitely.
10. General
    1. This Agreement 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 this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by the competent courts in Geneve, Switzerland-
    2. This Agreement is made solely upon the terms and conditions hereof, 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 by it in accordance with this Agreement 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 the terms of this Agreement. 
    3. 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.
    4. Any waiver of one or more of the terms and conditions of this Agreement 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.
    5. Any provision of this Agreement 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 provisions of this Agreement, 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.
    6. The French version is a non-binding convenience translation only. For the avoidance of doubt, in case of any conflict between the English and the French versions of this Agreement, the English version shall prevail.