General Terms and Conditions for 3D Printing and Delivery of Products
These general terms & conditions for printing and delivery of products shall govern the contractual relationship between Wacker Chemie AG (“WACKER“) and WACKER‘s customer (“Customer“) in case the Customer orders printing of 3D shaped parts specified by the Customer (“Products“) by means of the 3D silicone printing technology offered by WACKER (“ACEO® Technology“).
1.1 All services regarding the manufacturing of Products (“Printing“) by means of the ACEO® Technology (including, where required, minor repairs of provided CAD-Files) and the delivery of such Products by WACKER for any Customer shall be exclusively governed by the following general terms and conditions (“GTC“). Other provisions, in particular the Customer’s general terms and conditions shall not apply, even if WACKER has not explicitly rejected such conditions. These GTC shall apply exclusively also in the event that WACKER provides services unreservedly while being aware that contrary or deviating terms and conditions exist. These GTC, the product description and the Design Guidelines as provided by WACKER in the course of ordering process via the ACEO® Shop as specified below constitute the whole and entire agreement between WACKER and the Customer (“Agreement“).
1.2 Individual agreements between WACKER and the Customer made in a particular case (for example, a Framework Agreement for 3D Printing Services between WACKER and the Customer) shall take priority. Such arrangements, as well as any amendments and supplements to, or the cancellation of an arrangement including this Agreement between WACKER and the Customer require the written form to be effective. The same applies to the repeal of the requirement of written form.
1.3 These GTC apply only where the Customer qualifies as an entrepreneur according to Section 14 of the German Civil Code, a legal person under public law, or a special fund under public law. “Entrepreneur“ in this context means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade. The individual concluding this Agreement warrants and represents that he is legally entitled to conclude the Agreement on behalf of the Customer.
1.4 The Customer may not enter into Agreement with WACKER in case the Customer qualifies as a consumer according to Section 13 of the German Civil Code. “Consumer“ in this context is a natural person who enters into a legal transaction for purposes that predominantly are outside his/her trade, business or profession.
2 REGISTRATION AT THE ACEO® SHOP, ORDERING OF PRODUCTS AND CONCLUSION OF THE AGREEMENT
2.1 The Customer may order the Printing of Products via the “ACEO® Shop“ available online at www.aceo3d.com. For this purpose, the Customer shall register at the ACEO® Shop and set-up a user account. During the registration process the Customer shall provide its VAT identification number and its commercial register number. Individual user accounts will be provided for each Customer. WACKER reserves the right to refuse the registration of a Customer at the ACEO® Shop. After successful registration, the Customer will be able to use the ACEO® Shop, as provided by WACKER. WACKER does not guarantee a permanent availability of the ACEO® Shop.
2.2 After successful registration at the ACEO® Shop and for ordering a Printing job, the Customer shall upload via the ACEO® Shop a digital computer-aided design file containing the information of the Product (“CAD-File“) for Printing. The CAD-File must be provided in one of the data formats specified in the Design Guidelines or in a data format expressly allowed by WACKER. If the CAD-File is provided by the Customer in a data format that does not match the format required for Printing, as set forth in the Design Guidelines, WACKER is entitled to convert and will convert such CAD-File in a data format specified by WACKER, to the extent such conversion is technically possible and economically reasonable.
2.3 After receipt of such CAD-File or after converting the provided CAD-File into a data format required by WACKER for Printing, WACKER will inspect the CAD-File via an automatic computer based inspection algorithm in order to assess compliance with the sealed surface requirement necessary for Printing. In case WACKER determines that the provided CAD-File does not comply with the sealed surface requirement and that such compliance can be achieved by means of an automatic correction at the ACEO® Shop, WACKER will inform the Customer accordingly. The Customer shall declare its consent with such automatic correction in order to be able to proceed with the order process via the ACEO® Shop.
2.4 After successful evaluation of the sealed surface requirement of the CAD-File or after successful repair of such CAD-File, the provided CAD-File will be further examined by WACKER. WACKER may, at its sole discretion, fully reject the provided CAD-File, in particular but not limited to instances where WACKER, for example, has established that the Printing of the Product appears to be prohibited by law (e.g. where the CAD file appears to provide an instruction to print weapons or parts of weapons) or is against any WACKER policies or interests (in particular those described in the Design Guidelines) and inform the Customer of such rejection. In case of full rejection by WACKER, no legally binding contract is concluded between WACKER and the Customer.
2.5 After WACKER has determined that the provided CAD-File complies with the above requirements (in particular with the Design Guidelines), WACKER will submit to the Customer an offer for Printing via the ACEO® Shop which can be accepted by the Customer through clicking the corresponding button in the ACEO® Shop. Such acceptance shall constitute a legally binding contract.
2.6 While WACKER will not by any means review the CAD File for (i) neither its overall “fitness for purpose“ (ii) nor any anticipated or known Customer intended usage or desired specifications, WACKER may (but is not obliged to) inform the Customer by message feature via the ACEO® Shop that it recommends adaptations prior to the Printing of the CAD File if it appears obvious that the CAD File is generally not suitable for Printing. Further, in case the CAD-File contains minor deviations from the Design Guidelines (as determined by WACKER in its sole discretion) WACKER may inform the Customer about certain recommended adaptations and the consequences of Printing without such adaptations. If the Customer decides that the Printing of the Product shall be carried out irrespective of WACKER’s recommendation, i.e. without adaptation, then a legally binding contract shall be concluded at the moment of WACKER‘s receipt of such Customer‘s notice but Customer shall bear any and all risk (in particular with regard to warranty and liability) associated with using a CAD File not suitable for Printing.
2.7 If any adaptations are to be performed by WACKER, the Parties will need to agree on a separate development agreement.
2.8 The Customer must not order Products the Printing of which is not permissible by law (such as e.g. weapons or parts of weapons or which would infringe intellectual property rights of third parties) or which are not compliant with the Product categories named in the Design Guidelines.
3 STORAGE OF CAD-FILES AND PRINTING OF PRODUCTS
3.1 WACKER shall perform the Printing of the Products according to the instructions provided in the CAD-File and following the Agreement. The parties acknowledge that no additional details of Printing have been agreed upon.
3.2 In case minor repairs of the CAD-File are required prior to Printing of Products, WACKER shall perform such repairs. The Customer explicitly grants to WACKER any and all necessary rights and licenses to perform such repairs of the CAD-File, to convert the data format of the CAD-Files and to use the CAD-File in order to perform the Printing of the Products.
3.3 WACKER may store the provided CAD-Files in its CAD-Files archive for documentation and evidentiary purposes for a period of ten (10) years upon the date of Printing of the Product.
3.4 The Customer explicitly grants to WACKER any and all necessary rights and licenses to perform the Printing of the Products, to deliver the Products to the Customer, to store the Products for delivery to the Customer and to perform any other contractual services under the Agreement. With respect to any laws and regulations regarding preparation for Printing, the manufacturing of the Products, distribution, offering, sale, export or further use of Products, the Customer acknowledges that WACKER is deemed as a mere contractor and shall perform any of the services under the Agreement only to the extent and within the limits of an “extended workbench“ (“verlängerte Werkbank“).
4 QUALITY OF PRODUCTS, INFORMATION AND USE, GUARANTEES
4.1 As regards the quality of the Products, only the agreed upon specifications shall apply; such agreed upon specifications are strictly limited to the instructions regarding the Product as specified in the CAD-File. In particular, WACKER does not undertake any kind of obligation with regard to any intended, customary or specific use or purpose of the Products. Rather, the Customer shall be solely responsible for verifying that the Products are suitable or usable for the desired purposes; any information provided to WACKER by the Customer in any form during the order process regarding the intended use of the Product is for information purposes only and does not lead to any agreement on specifications of the Product. Also, any information provided by WACKER in writing, verbally or in any other form with regard to suitability, including application, processing or another use shall be deemed non-binding information only and shall not become part of any agreed specification of the Product. The information shall not release the Customer from verifying on its own behalf the suitability and usability of Products delivered by WACKER for the intended purposes. Application, processing and any other use of the Products are beyond WACKER‘s control and shall therefore be the Customer’s responsibility. Any Guarantee, particularly any guarantee with regard to the quality of Products shall be binding for WACKER only to the extent that concerning the individual case such guarantee (i) is included in an Offer or order confirmation, (ii) is referred to expressly as “guarantee“ or “guarantee of quality“, and (iii) WACKER‘s duties from such guarantee are expressly stated.
4.2 WACKER performs the Printing of the Products according to the instructions specified in the CAD-File by means of the ACEO® Technology. The Customer acknowledges that WACKER may, in its sole discretion and as required through the ACEO® Technology, align the Product during the process of Printing (i.e. print out the CAD-File horizontally or vertically) in the way which WACKER deems most suitable for the Printing of the specific Product. The Customer further acknowledges that the Product may display minor print production markings on the surface of the Products as an inevitable consequence of the ACEO® Technology (e.g. minor gradations or nuances); depending on the alignment of the Product during the process of Printing, such minor print production markings may occur on different sides of the Product.
5 DELIVERY OF PRODUCTS
5.1 Delivery terms and delivery dates specified by WACKER shall be non-binding, unless binding terms and dates were expressly agreed upon between the parties. In case of non-binding delivery terms or dates, WACKER shall be in default only if a reasonable time for delivery set in writing by the Customer lapses unsuccessfully. The Customer shall set the expiry of such a term to a date at least two weeks after the expiry of the non-binding delivery term or non-binding Delivery date.
5.2 WACKER shall be entitled to make partial deliveries provided that the acceptance of such partial deliveries is reasonable for the Customer and, in particular, if the delivery of the remaining Products ordered is ensured and no significant additional expenditure or additional cost arise for the Customer as a result thereof (unless WACKER agrees to bear such cost). Each partial delivery may be invoiced separately.
5.3 Unless otherwise agreed, deliveries shall be pursuant to CIP (Incoterms 2010) by a service provider chosen by WACKER. The charges specified for the Products ordered do not include shipping and packaging, which separate charges are as agreed by the parties during the purchase process. Unless otherwise specified by the Customer, WACKER selects the manner of shipping.
5.4 The risk of loss, theft or damage of Products shall pass to the Customer at the time at which WACKER hands over the Product to the respective forwarder, carrier or other person or body specified to carry out the shipment of the Product. In the event shipment is delayed due to circumstances over which the Customer has control, risk transfers to the Customer at the time the Customer is notified that the order is ready to be shipped.
5.5 The Customer is required to notify any complaints about the Product that has been delivered or the amount of the invoice to WACKER in writing and with an accurate substantiation within fourteen (14) days failing which the Customer will be deemed to have accepted the Products delivered or the amount of the invoice, respectively. Section 377 of the German Commercial Code and the provisions of Section 8.7 of these GTC remain unaffected.
6 PRICES AND PAYMENT
6.1 The price for Printing and delivery of the Product is agreed between the parties in the course of the order process via the ACEO® Shop.
6.2 Unless otherwise agreed, the invoices shall be paid in advance, i.e. WACKER shall commence Printing only after receipt of payment of the respective invoice. Invoices shall be paid without deduction and immediately after receipt via bank transfer into one of the accounts indicated by WACKER or via credit card. Unless otherwise agreed, payments shall be made in Euro. Place of fulfilment shall be the registered office of WACKER.
6.3 If the parties agree on a method of payment other than described in Section 6.2 and if the Customer exceeds the payment term, it shall be in default without further reminder. The timeliness of payment shall be determined by the date on which the invoiced amount is received on the account indicated. In case of delayed payment, WACKER shall be entitled to claim default interest in the amount of 9 percentage points above the then current base interest rate and an additional flat fee of EUR 40 for the payment reminder. The right to claim further damages shall remain unaffected.
6.4 If the Customer falls in arrears with at least two payments arising from the business relationship with WACKER, all of its effective payment obligations from all business relationships with WACKER shall become due immediately.
6.5 In case the Customer cancels the Printing order the agreed price shall be due without deductions. Section 649 of the German Civil Code shall not apply to the extent it provides for a deduction from the price due under the Agreement.
7 TITLE RETENTION
7.1 WACKER shall retain ownership of the Products delivered until the receipt of all payments arising from the business relationship. If an open account relationship exists, WACKER shall retain ownership of the goods delivered until the receipt of all payments from the approved balances. If the Customer acts in breach of the contract, in particular in case of delayed payment, WACKER shall be entitled to rescind from the Agreement and take back the Products delivered subject to title retention (“Reserved Goods“).
7.2 If the Reserved Goods are inseparably mixed or combined with other objects not owned by WACKER, WACKER shall acquire co-ownership of the new object at the ratio of the Reserved Goods’ value to the other mixed objects at the time of mixing or combination respectively. If objects are mixed or combined in such a manner that the Customer’s object is deemed to be the principal object, it shall be agreed that the Customer assigns prorate co-ownership. The Customer shall keep in safe custody the so created sole ownership or co-ownership for WACKER.
8 WARRANTY RIGHTS
8.1 The Customer‘s warranty rights shall be contingent on the Customer having performed an inspection of Products upon delivery and defects being duly notified in accordance with Section 377 of the German Commercial Code.
8.2 The Customer‘s warranty rights are entirely excluded in case the defect of the Product is due to any of the instructions provided by the Customer in the CAD-File.
8.3 Notification of defects shall be made in writing and specify the defect. Defects on account of incomplete delivery or other evident defects shall be notified to WACKER in writing without delay, or, at the latest within one week from delivery. Hidden defects shall be notified without delay or, at the latest within one week from their discovery. Belated claims for defects shall be excluded. The Customer shall bear the cost incurred from the inspection of Products. Defective Products shall be made available to WACKER for inspection on demand.
8.4 WACKER shall provide subsequent performance (“Nacherfüllung“) for defective Products by, at its sole discretion, either eliminating the defect (rectification of de-fects/“Nachbesserung“) or delivering Products free of defects (subsequent deliv-ery/“Nachlieferung“). If WACKER chooses to provide subsequent performance by eliminating the defect, the remaining part of the original statutory period begins as of the date the rectified Products are returned. The same applies in the case of subsequent delivery.
8.5 If subsequent performance fails, the Customer shall be entitled to rescind the Agreement. Additional claims for defects, regardless of the type of claim, are excluded, except for claims for damages, which are subject to the limitations set out in Section 11 of these GTC.
8.6 The Customer shall bear any reasonable cost incurred from an unjustified enforcement of warranty rights (for example, the Product was not defective); the same shall apply, if WACKER erroneously grants warranty rights without being obliged to do so.
8.7 The warranty period shall be one (1) year from delivery of the Product. However, this limitation shall not apply, if (i) a defect was fraudulently concealed or (ii) if a guarantee for the quality of a Products was provided, in which case the guarantee provision or limitation period as set out in the guarantee shall apply) or (iii) in the cases referred to in Section 438 (1) No. 2 German Civil Code. As for claims for damages, this limitation shall not apply in the cases described in Section 11.1 subclauses (i) through (vi) of these GTC.
9 INTELLECTUAL PROPERTY, ADHERENCE TO REGULATIONS, VIRUS-FREE CAD-FILES
9.1 The Customer warrants and represents that he is legally entitled to provide the CAD-Files to WACKER via the ACEO® Shop or via other communication methods. Further, the Customer warrants and represents that that the Customer has performed a full and comprehensive research with regard to a possible infringement of intellectual property rights of third parties and that all the contractual activities performed by WACKER under the Agreement, in particular but without limitation the use of the CAD-File, the repair and the converting of the format of the CAD-Files, the Printing of Products, the delivery of the Product and the storage of CAD-Files or Products by WACKER, do not violate any intellectual property rights (for example copyrights, trademarks, patents, utility models, designs or rights to the personal image) of any third party. WACKER has the right, with reasonable notice, to request the results of the above named research from the Customer and the Customer shall provide such results to the extent the results do not violate any confidential information of third parties and do not contain any personal data. The Customer shall be liable towards WACKER under such warranty with respect to any claim resulting from or relating to the infringement of any intellectual property right of a third party. WACKER may, at its own discretion, have full and complete authority for the defence of such claim, including without limitation, the right to settle the same. The Customer is obliged, upon notification and request by WACKER, to assist WACKER regarding the defence against any such claims, in particular but without limitation provide to WACKER all information and documentation necessary for such defence.
9.2 The Customer shall adhere to all legal regulations and official requirements as well as to all applicable laws and particularly to the export regulations and laws of the country in which the Customer is conducting business. The Customer shall obtain at its sole responsibility all required authorizations and licenses in due time as well as all other permissions, which are required as per such applicable laws for the preparation for Printing, Printing, distribution, offering, sale, export or any further or other use of Products. The Customer shall be solely responsible for any appropriate or legally required labelling of the Products (for example, CE-labelling); WACKER shall not label any Products on behalf of the Customer.
9.3 The Customer warrants and represents that the provided CAD-Files are free of any viruses, malware, spyware or comparable software components.
10.1 In case of any culpable breach of the warranties and representations in Section 9.1 of these GTC which results in the fact that any third party intellectual property rights are infringed by the provision, by use of the CAD-File, by repair of the CAD-Files, the converting of the format or storage of CAD-Files, by Printing of Products, by delivery to the Customer or storage of such Products, the Customer agrees to indemnify and hold WACKER harmless from and against all losses, damages and costs, including but not limited to, reasonable attorneys’ fees and court costs, which are suffered or incurred by WACKER through such claims or liabilities.
10.2 Further, the Customer agrees to fully assist WACKER in case during the performance of this Agreement WACKER will be required to obtain any governmental or other licenses, permissions or registrations directly resulting from the Printing or the delivery of the Products ordered by the Customer (for example, any Products subject to the German Medical Device Act “Medizinproduktegesetz“). Any costs or expenses arising in connection with such licenses, permissions or registrations shall be borne by the Customer.
10.3 In case of any culpable breach of the warranties and representations in Section 9.2 of these GTC, the Customer shall indemnify and hold WACKER harmless with respect to any governmental fines or penalties that will be imposed on WACKER as a result of WACKER’s performance of this Agreement.
10.4 In case of any culpable breach of the warranties and representations in Section 9.3 of these GTC, the Customer shall indemnify and hold WACKER harmless with respect to any losses, damages and costs which arise as a result of the CAD-Files containing any viruses, malware, spyware or comparable software components.
11.1 As a basic principle, WACKER shall be liable to the Customer in accordance with the legal requirements for all damages caused in connection with the performance of this Agreement. However, the following liability limitations set out under Section
11.2 through 11.4 shall apply for all claims for damages, independent of the legal base, but with the exception of claims raised by the Customer (i) based on damages that were caused intentionally, (ii) under the German Product Liability Act, (iii) due to fraudulently concealed defects, (iv) due to defects in regards to which a quality guarantee was provided, (v) resulting from the damage to life, body or health or (vi) due to gross negligence on the part of WACKER‘s management or executive staff. 11.2 In the case of slight negligence, WACKER shall be liable only for damages resulting from the violation of material contractual duties the performance of which is required for the due execution of the contract and the observance of which the Customer relies on and may rely on (Kardinalspflichten), regularly. In this case, however, WACKER‘s liability shall be limited to the typically foreseeable damage. This limitation of liability shall also apply to damages caused by gross negligence by WACKER‘s employees or representatives who do not belong to the management or executive staff.
11.3 Liability for cases specified under Section 11.2 shall be limited to the amount equal double the price paid by the Customer for Printing and delivery of the respective Product.
11.4 For cases specified under Section 11.2, the limitation period shall be one year after the date on which the claim arose and the Customer gained knowledge of the circumstances substantiating the claim. The statute of limitation for damage claims due to defects shall be determined in accordance with Section 8.7 of these GTC. All other claims shall be subject to statutory period of limitation.
12 DATA PROTECTION AND CONFIDENTIALITY
12.1 Any collection of personal and non-personal data shall be in accordance with the WACKER data protection policy which can be found here: http://www.wacker.com/cms/de/global_contents/disclaimer.jsp.
12.2 The Customer agrees that all information received from WACKER shall be kept confidential. This applies in particular to any information regarding the ACEO® Technology unless specifics have been yet disclosed to the public by WACKER, and the individual Printing process by WACKER.
13 DELETION OF ACCOUNT / SUSPENSION OF SERVICES
13.1 The Customer may request deletion of its account with the ACEO® Shop at any time. In such case, WACKER shall perform the Printing of Products ordered prior to such request for deletion. WACKER shall remain entitled to store the provided CAD-Files according to Section 3.3 of these GTC.
13.2 WACKER may suspend the Customer‘s account at the ACEO® Shop at any time, in case WACKER reasonably suspects that the Customer is in breach of his contractual obligations from this Agreement (in particular, with respect to its warranty and representations under Section 9 of these GTC or payment of the agreed price). The Customer’s right to provide counter proof remains unaffected.
14 FORCE MAJEURE
In the event of WACKER being unable to fulfill its contractual duties as a result of force majeure (i.e. mobilization, war, terrorism, insurgence, natural catastrophes, fire) or due to other unforeseeable circumstances for which WACKER bears no responsibility (i.e. strikes or lawful lockouts, operation or transport interruptions, difficulties with the procurement of raw material, inadequate delivery from suppliers), the delivery terms agreed on shall be extended by the duration of the obstruction plus an appropriate resumption time. Furthermore, WACKER shall not be held responsible for the circumstances mentioned if they occur during an already existing delay. WACKER shall notify the Customer as soon as possible of the start and expected end of such circumstances. If the obstruction lasts six months or longer, both parties shall be entitled to rescind the contract.
15 OFFSETTING, RIGHT OF RETENTION, SUBCONTRACTORS, ASSIGNMENT
15.1 The Customer shall not be entitled to either offset or exercise its right of retention on account of counterclaims which are contested or not yet stated as legally binding. Further, the customer shall not be entitled to exercise its right of retention to the ex-tent that the counterclaims are not based on the same contractual relationship.
15.2 WACKER shall be entitled to engage subcontractors for the performance of WACKER‘s obligations under this Agreement.
15.3 The Customer shall not be entitled to assign any of its rights and duties in conjunction with deliveries either in part or in full without obtaining prior written approval by WACKER. WACKER shall be entitled to assign its rights and duties in conjunction with deliveries particularly to affiliated companies as defined in Section 15 AktG.
16 FINAL PROVISIONS
16.1 All legal relationships between WACKER and the Customer shall be subject to German law under the exclusion of the UN Convention on Contracts for the International Sale of Goods (UN-CISG). This Agreement is concluded in the English language.
16.2 Exclusive jurisdiction and legal venue for all disputes resulting from or in connection with a delivery shall be Munich, Germany. However, WACKER shall be entitled to institute proceedings against the Customer at its place of business.
16.3 Should individual provisions of these GTC be or become null and void, the validity of the remaining provisions shall remain unaffected. In such event, WACKER and the Customer shall agree on a change of such provisions as to best accomplish the objectives of such invalid, illegal or unenforceable provision within the limits of applicable law.
16.4 All Printing and delivery by WACKER are made exclusively on the basis of the most recent version of the GTC set out above. These GTC can be viewed online at any time at www.aceo3d.com in a reproducible form that can be saved and printed out by the Customer.