Terms and Conditions

This MASTER SERVICES AGREEMENT (“Agreement”) is dated December 4th, 2016 (“Effective Date”) and entered into between Voxel Magic, Fast and Friendly 3d Printing (“Service Provider”) and (“Client”).

Definitions

1.1 Confidential Information means any and all information disclosed by either party, unless otherwise noted in writing, including this Agreement and any other information or data related to the Services.

1.2 Services mean those services to be provided by Service Provider as specified in the applicable Statement of Work.

1.3 Statement of Work (SOW) means the written description of the Services and Deliverables to be provided by Service Provider in a project under this Agreement. Each project shall be reflected in a separate Statement of Work.

1.4 Client Property means any content, technology, software and hardware of Client provided to Service Provider for use in the performance of the Services or incorporation into the Deliverables.

1.5 Deliverable means the physical items, software (in object code form), technology, works of authorship and other intellectual property developed or created by Service Provider for the Client pursuant to a SOW.

1.6 Service Provider Property means any and all software, technology, works of authorship and other intellectual property that (a) Service Provider uses in performing the Services under this Agreement or includes in a Deliverable, (b) is either owned solely by Service Provider or licensed to Service Provider and (c) is in existence prior to the initiation of Services for Client, or that was developed or created by or for Service Provider outside of the performance under this Agreement or any SOW.

1.7 Effective Date means the date the Client agreed to these terms and conditions by electronic submission.

      2.    

          Services and Performance Schedule.

2.1 Services. Subject to the terms and conditions of this Agreement, Service Provider shall perform the Services agreed to by both parties as described in the SOW. Each SOW shall be deemed incorporated into 

this Agreement. Each SOW will identify the scope of work for the Services, (b) the terms of compensation, and (c) performance schedule. Additionally, Client agrees that Service Provider may deny any services outlined in the SOW that could be found in violation of State or Federal Law.

2.2 Performance Schedule. Client acknowledges that the schedule set forth in any SOW is an estimate only and is subject to change as the Services proceed and that such schedule shall be subject to availability of Service Provider’s personnel.

2.3 Changes to Scope. In order to change the scope of work in an SOW, the party requesting the change must submit a written change order to the other party for approval specifying the change requested (“Change Order”). Each party agrees that a Change Order may necessitate a change in the delivery schedule and fees due under the applicable SOW. Each SOW and Change Order will be governed by the terms of this Agreement. In the event of a conflict between the terms and conditions of this Agreement and those of a SOW or Change Order, the terms and conditions of this Agreement will control, unless specifically stated otherwise in the SOW or Change Order.

2.4 Client Assistance. Client shall provide Service Provider with such resources, information and assistance as Service Provider may reasonably request in order for Service Provider to perform the Services for Client. Client acknowledges and agrees that Service Provider’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Client of the information, resources and assistance requested. Service Provider shall have no liability for deficiencies in the Services resulting from the acts or omissions of Client, its agents or employees or performance of the Services in accordance with Client’s instructions.

      3.

            Compensation and Payment Schedule.

3.1 Compensation? Expenses. In return for Service Provider’s provision of the Services, Client will pay to Service Provider the compensation stated in the terms section of the SOW (“Compensation”).

3.2 Payment. Service Provider will provide Client with invoices detailing the fees and expenses for the applicable Services, and will provide receipts for expenses upon request. Unless otherwise set forth in the applicable SOW, Client shall pay Service Provider within the timeframe stated within the SOW. Balances that are more than thirty days overdue will accrue simple interest at the rate of 1.5% per month, or the maximum amount permitted by applicable law, whichever is less. Service Provider may assign the collection of any unpaid balance to a collection agency or attorney for collection and Client will pay all costs associated with the collection effort in addition to the outstanding balance. If project delays of 4 weeks or longer are caused by client, a 5% of the total contracted amount will assessed to restart the project. If project delays of 4 weeks or longer are caused by Service Provider, a 5% of the total contracted amount will be credited to the client.

3.3 Changes in Rates/Scope. The Client via email, facsimile, or through the MakerOS platform can approve any changes to the rates, scope or number of resources to a team in any respective SOW.

3.4 Taxes. All fees due hereunder are exclusive of, and Client shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Service Provider’s net income. The parties intend that the Compensation will be paid in exchange for services rather than tangible goods. However, if any portion of the Compensation is subject to any sales, use or other tax, the amount of such tax will be added to the amount of the Compensation and paid by Client.

     4.

           Delivery and Acceptance

4.1 Delivery. Service Provider shall deliver to Client the Deliverables as set forth in the SOW. Unless specifically and expressly agreed in writing in this Agreement or specified in the applicable SOW, Service Provider will not deliver source code or object code.

4.2 Acceptance. Without limiting any applicable warranties set forth in Section 6, the Services will be deemed accepted upon performance and any Deliverables delivered pursuant to a SOW will be deemed accepted upon delivery to Client. If Client determines that any Services performed are unsatisfactory or that a Deliverable is deficient, then Client shall, within three business days after the date of the unsatisfactory performance or delivery of the Deliverable, deliver to Service Provider written notice, including email notification (the “Deficiency Notice”), specifying the nature of the deficient performance or Deliverable. Service Provider shall use reasonable commercial efforts to promptly take steps to correct any deficient performance of Deliverable in accordance with the applicable SOW. If Service Provider fails to correct the deficient performance within thirty days after Service Provider’s receipt of the Deficiency Notice, Client may, as it sole and exclusive remedy, terminate this Agreement. Client shall pay Service Provider for all Services performed under this Agreement up to the date such termination notice is received by Service Provider. If Client does not provide a Deficiency Notice with such three business day period or the Deliverable is used by Client in any commercial context then such Deliverable will be deemed accepted.

    5.

         Ownership and License Grants.

5.1 Rights to Deliverables. Upon Service Provider’s delivery of each Deliverable as provided in the SOW, unless otherwise expressly and specifically agreed by the parties in writing in an SOW, and subject to the full satisfaction of all Client payment obligations to Service Provider associated with each Deliverable, Client shall own all right, title and interest in such Deliverables, except as provided for by Section 5.2. In the event of termination of this Agreement prior to completion of all Services, Client shall, upon payment of the applicable fees then due, retain ownership of all such Deliverables developed by Service Provider prior to termination.

5.2 Restrictions. Client acknowledges that any Service Provider Property incorporated into any Deliverables, and the respective structure, organization and files of any Service Provider Property, constitute valuable trade secrets and proprietary assets of Service Provider and its subcontractors and suppliers. Accordingly, Client agrees not to: (a) sublicense, lease, sell, rent, loan or otherwise transfer any Service Provider Property to any third party? (b) reverse-engineer, decompile, disassemble or otherwise attempt to derive the source code for the Deliverables or Service Provider Property? or (c) otherwise use or copy Service Provider Property except as expressly allowed by this Agreement. This Agreement is not intended and will not be construed to transfer any copyrights, patent rights, resale rights or distribution rights in the contents or functionality of any Service Provider Property and all such rights will be retained by Service Provider.

5.3 Client License Grant. Client hereby grants to Service Provider a nonexclusive, royalty-free license to use, reproduce, modify, adapt and prepare derivative works of any Client Property or other proprietary information provided by Client to Service Provider solely for the purpose of providing Services to Client or for incorporation into any Deliverables produced under this Agreement.

5.4 Ownership of Client Property. Client shall retain exclusive ownership interest in all Client Property and any other proprietary materials or content that it supplies to Service Provider during performance under this Agreement or any SOW.

5.5 Ownership of Service Provider Property. Service Provider shall retain exclusive ownership interest in all Service Provider Property and any other proprietary materials or content that it supplies to Client during performance under this Agreement or any SOW, whether or not such Service Provider Property is incorporated into any Deliverables.

5.6 Services for Others. Client recognizes that Service Provider and its personnel that provide services to Client under this Agreement may perform similar services from time to time for other persons or entities, and this Agreement shall not prevent Service Provider from using such personnel (or equipment) for the purpose of performing such similar services for such third parties during the Term or thereafter.

5.7 Third Party Vendors. Client recognizes that Service Provider may use the services of other third parties and consents to the disclosure of proprietary and Confidential Information by Service Provider to those third parties.

      6.

           Warranties? Disclaimer.

6.1 Representation and Warranty Regarding Materials Submitted by the Parties. Each party represents and warrants to the other that (a) it has the full power to enter into this Agreement and grant the licenses rights set forth herein and (b) it has the right to provide to the other party any text, graphics, photos, designs, trademarks processes or other graphics, software or material furnished by such party for inclusion in any Deliverable under this Agreement (“Content”).

6.2 Service Provider Warranties. Service Provider represents and warrants that: (a) the Services shall be performed in a professional manner? and (b) the Services and Deliverables will be provided according to any specific standards expressly described in an applicable SOW, and if no standards are set forth in the applicable SOW, according to generally accepted industry standards. Service Provider shall, as its sole obligation and Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section, re-perform the Services or correct the Deliverable which gave rise to the breach provided that Client notifies Service Provider in writing of the breach within three days following performance of the defective Services or delivery of the defective Deliverables, specifying the breach in reasonable detail.

6.3 Disclaimers. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND THE DELIVERABLES, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS OR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Client ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF SERVICE PROVIDER’S SUPPLIERS. SERVICE PROVIDER MAKES NO WARRANTY THAT THE DELIVERABLES WILL BE ERROR FREE OR THAT THE AVAILABILITY OF THE DELIVERABLES WILL NOT BE INTERRUPTED, AND IS NOT LIABLE FOR THE CONTENT OF THE DELIVERABLES OR THE LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CLIENT.

      7.

           Confidentiality.

The parties hereby agree to hold in strict confidence and to use all reasonable efforts to maintain the secrecy of any and all Confidential Information disclosed by one party to the other under the terms of this Agreement without the express, written consent of the Disclosing Party, with the exception of the following:

(a) information which, after disclosure, becomes available to the public by publication or otherwise, other than by breach of this Agreement by the Receiving Party?

(b) information that the Receiving Party can establish by prior record was already known to it or was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Disclosing Party or its Affiliates?

(c) information that the Receiving Party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however, that in such case the Receiving Party shall immediately give notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other remedy from said court or tribunal. In any event, the Receiving Party shall disclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal?

(d) information that the Receiving Party obtains from a third party? provided however, that such information was not obtained by said third party, directly or indirectly, from the Disclosing Party or its Affiliates under an obligation of confidentiality toward the Disclosing Party?

(e) information that is independently developed by the Receiving Party or its Affiliates and such independent development can be properly demonstrated by the Receiving Party? provided, however, that Confidential Information shall not be deemed to be excluded from the application of this Section 2 on the basis of one or more of the above exceptions merely because such Confidential Information is related to or broadly covered by general disclosures in the public domain or general information in the possession of the Receiving Party prior to disclosure (as the case may be); or

(f) information disclosed pursuant to Section 5.7 of this Agreement.

      8.

           Termination.

8.1 Termination by Service Provider. If Client fails to pay an invoice when due, Service Provider, in its sole discretion, shall have the right to immediately terminate this Agreement or the SOWs to which such invoices apply.

8.2 Effect of Termination.

(a) Upon the termination or expiration of this Agreement or any SOW, Client shall be liable for all fees, charges and expenses for all Services performed prior to such termination, unless the Termination was initiate by Service Provider the client should not be responsible for charges. Upon full payment of all fees, charges and expenses due, Service Provider shall promptly deliver to Client all materials and information supplied by Client in connection with the terminated SOW, together with all work in progress on the date of termination, whether complete or partially complete.

(b) In the event of termination or expiration of this Agreement for any reason, Sections 5, 6, 7, 9, and 10 shall survive termination or expiration.

       9.

            Limitation of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND THE DELIVERABLES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THE APPLICABLE SOW DURING THE PRECEDING SIX MONTH PERIOD DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED.

9.1 Warranty? Exclusive Remedy. Service Provider warrants to Client that the Services hereunder will be performed in a professional manner. THIS WARRANTY IS THE ONLY WARRANTY GIVEN BY SERVICE PROVIDER. Client’s sole and exclusive remedy, and Service Provider’s exclusive obligation and liability, with respect to the warranty contained in this Agreement, is for Service Provider to re-perform the applicable Services, correct the deficiencies or redeliver the Deliverables. Any modification of the Deliverables or the Services by anyone other than Service Provider shall terminate any obligation of Service Provider under this Section to correct any deficiencies with respect to such Deliverables or Services.

9.2 Third Parties. Except for gross negligence or willful misconduct, neither party’s liability, including but not limited to claims of contribution related to third party claims, for any losses, injury or damages arising out of or in connection with this Agreement and for any other claim, whether in contract, tort, statute, or otherwise, shall exceed the sum of fees paid by Client for the Services giving rise to the liability during the one-year period immediately preceding the date the liability arose. Except for gross negligence or willful misconduct or for claims regarding indemnification, neither party shall be liable for any special, indirect or consequential losses, lost profits, or punitive damages.

9.3 No Consequential Damages. Under no circumstances shall Service Provider be liable for the costs of procurement of substitute services or deliverables, or for any special, indirect, incidental or consequential damages of any kind or nature whatsoever, arising out of or in any way related to this Agreement, a Statement of Work, any Services or any Deliverable or the use or inability to use any Services or Deliverables, including, without limitation, lost goodwill, lost profits, work stoppage or impairment of other goods, and whether arising out of breach of warranty, breach of contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such damage or if such damage could have been reasonably foreseen, and notwithstanding any failure of essential purpose of any exclusive remedy provided herein, except only in case of bodily injury or death where, and then only to the extent that, applicable law requires such liability.

      10.

             General Provisions.

10.1 Amendment: The terms and conditions of this Agreement may not be changed except by an amendment in writing, including email, which references this Agreement and is signed by an authorized officer of each party.

10.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.

10.3 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause, which is beyond the reasonable control of such party.

10.4 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, facsimile, or certified or registered mail, (postage prepaid and return receipt requested) to the other party. Additionally, electronic mail and facsimile may not be used for providing legal notices, but may be used to distribute routine communications and to obtain approvals and consents.

10.5 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the resident state and country of the Service Provider without reference to its choice of law rules.

10.6 Relationship of the Parties. The parties acknowledge that Service Provider is an independent contractor of Client, and its employees are not employees of Client. Nothing in this Agreement or any SOW will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in this Agreement is intended to confer any rights or remedies on any other person or entity, which is not a party to this Agreement. 

10.7 Compliance with Laws. Each party shall comply with those laws and regulations that are specifically applicable to the applicable party notwithstanding this Agreement.

10.8 Waivers. 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. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.

10.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.

10.10 Notices: All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon delivery to the other party, and must be delivered in person, by facsimile, by national overnight courier, or by postal service postage prepaid, return receipt requested. All notices shall be sent to the address stated in this Agreement or at such other address as either party may provide by advance written notice in accordance with this subsection.

Entire Agreement. This Agreement, including any SOW and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement sets forth the general terms and conditions applicable to all Services provided by Service Provider to Client under the specific terms and conditions set forth in the applicable SOW. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any SOW, the provisions of the SOW shall govern. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of Service Provider and Client by their duly authorized representatives.