Last Update: October 3, 2018
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The following is a legal agreement ("Agreement") between you ("Company", "you", or "your") and Shapeways, Inc. and its affiliates (collectively, "Shapeways", "we", "us" or "our"). This Agreement governs your participation in the Shapeways designer program ("Program").
By submitting an application to participate in the Program, you acknowledge you have read, understood, and agree to be bound by this Agreement, and to comply with all applicable laws and regulations. If you are submitting the application on behalf of a company or third party, you warrant that you are authorized to bind that company or third party to this agreement. If you do not agree to the terms of this Agreement, or are unable to agree to the terms on behalf of the company or third party, you should not participate in the Program.
1. Services. Company shall perform for Shapeways certain services consisting of quoting, managing, and delivering digital files suitable for 3D printing by Shapeways (collectively the "Services"). Shapeways shall propose individual assignments (the "Assignment(s)") in writing to Company. If Company accepts an Assignment, the production of the Assignment shall be governed by this Agreement.
2. Quoting Process. Shapeways shall deliver to Company an offer for specific design services ("Offer") via the Shapeways designer platform. Within the time allotted in the Offer, Company may deliver to Shapeways a proposal to create the model described in the Offer ("Quote"). The Quote shall include all elements requested in the Offer and be made in United States Dollars. Company shall not be under any obligation to provide a Quote for any Offer submitted by Shapeways.
3. Acceptance. Upon receipt of the Quote Shapeways may accept the Quote via written confirmation, thereby creating an order ("Order"). Such Order will be governed by this Agreement.
4. Rights in Design Files. Upon delivery by Company to Shapeways of the final model, Company hereby assigns all right, title, and interest in all files, designs, renders, and other work product created or used within the scope of this Agreement to Shapeways. This shall include right, title, and interest in all patent rights, copyrights, trademark rights, rights in trade secrets, database rights, and any other intellectual property rights (registered or unregistered) throughout the world. If applicable law prevents Company form transferring ownership of the rights described in this Section to Shapeways, Company grants Shapeways a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferable, worldwide license (with the right to sublicense) to make, use, import, offer for sale, sell, export any component of, reproduce, prepare derivative works of, distribute, publicly perform, and publicly display all files, designs, renders, and other work product created or used within the scope of this Agreement. If requested by Shapeways, Company will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in this Section. Company will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Deliverables and Developed IP, and will ensure that all of its personnel, subcontractors, and agents and other third parties who have moral rights in any files, designs, renders, and other work product created or used within the scope of this Agreement will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
5. Relationship of the Parties. The relationship between the parties shall be that of independent contractors. Neither party is, nor shall represent itself to be or act as if it were, an employee, agent, partner, fiduciary, joint venturer, co-owner or representative of the other. Company's status and the status of any personnel the Company supplies, including Company employee, agents, and subcontractors, shall be that of an independent contractor for which Company is solely responsible for Company's actions and inactions. Company shall act solely as an independent contractor. Neither party is authorized to enter into contracts or agreements, or to otherwise create obligations, on behalf of the other party, its parent corporation, subsidiaries, or affiliates. Company is responsible for providing its own workers' compensation and liability insurance (including but not limited to professional liability and general business liability insurance), and shall indemnify and hold the Shapeways harmless for any claim arising out of injury, disability or death of Company or any Company Representative. Company shall be responsible for withholding and/or pay when due any and all income or other taxes, FICA, or other employment taxes or fees in connection with any payments from Shapeways under the terms of this Agreement. Company warrants that Company has at least two clients in addition to Shapeways in any one year period.
6. Client Confidential and Proprietary Information. All information provided by Shapeways to Company relating to clients, orders, designs, and the internal operations of Shapeways under this Agreement shall be deemed Shapeways' Confidential Information. Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and share with employees, agents, or contractors with a need to know such information to support that purpose. Confidential Information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure. These obligations do not cover information that: i) was known or becomes known to Company without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) were disclosure is required by law or a government agency.
7. Payment. Upon delivery by Company of the final model, Company shall invoice Shapeways for payment in United States Dollars in accordance with the Quote. Shapeways shall pay the invoice on a net 30 basis. Shapeways shall only make payments to Company via bank or wire transfer. Nothing in the invoice provided by Company to Shapeways shall materially alter the terms of this Agreement.
8. Advertising. Company shall not without the Shapeways's prior written consent, use the names, characters, artwork, designs, trade names, copyrighted materials, trademarks or service marks of the Shapeways, its related companies or affiliates, any of its employees, or customers in any advertising, publicity or promotion; to express or imply any endorsement of Company's services; or in any manner other than expressly in accordance with this Agreement or otherwise agreed upon by the parties.
9. Limitation of Liability. Except for a party's indemnification, confidentiality or non-circumvention obligations herein, each party's total liability to the other party under this Agreement shall be limited to the total amount actually paid by Shapeways to Company under this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHAPEWAYS, SHAPEWAYS' SUBSIDIARIES, AFFILIATES OR ITS RESPECTIVE CLIENTS BE LIABLE TO COMPANY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DAMAGE CLAIMS BY EMPLOYEES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, AND INCLUDING ANY OF SUCH ALLEGED TO RESULT FROM SHAPEWAYS IN IT'S EXERCISE OF ITS RIGHTS UNDER THIS AGREEMENT). THE PARTIES UNDERSTAND AND AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY REPRESENT THE PARTIES' AGREEMENT AS TO ALLOCATION OR RISK BETWEEN THEM IN CONNECTION WITH THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT. THE FEES PAYABLE TO COMPANY REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
10. Indemnification. Each Party agrees to indemnify and hold harmless the other and each of its directors/officers, employees and agents, from any claims, damages, liabilities, expenses or losses of any kind arising from an alleged breach by the Other (or its employees, representatives or agents) of this Agreement or any claims against the party for breach of any confidentiality, consulting or employment agreement that the Party formerly executed and is still bound by. Company at its sole cost and expense shall indemnify, defend, and hold harmless Shapeways, its members, officers and employees, and customers from and against all claims, liabilities, penalties, sanctions, fines, causes of action, suits, losses, damages, and expenses, brought or threatened (including attorneys' and experts' fees and disbursements and any and all other costs of investigation and litigation) based on or arising from, directly or indirectly, out of any (i) default, act, omission, or activity of Customer, and its contractors, employees, agents, customers, or anyone claiming by or through the vendor, including but not limited to the operation of its business hereunder, claims of intellectual property infringement, and any accident, injury or damage whatsoever caused to any person by Company, its contractors, employees, agents, customers, or anyone claiming by or through the vendor, (ii) any grossly negligent or reckless act or omission or misconduct on the part of Company or its respective employees or agents, or (iii) any actual or alleged claim of personal injury, death or damage to person or property, including product liability claims, as the result of the use of files, designs, renders, and other work product created or used within the scope of this Agreement.
11. Applicable Law. This Agreement shall be governed by the laws of the State of New York without regard to conflicts of law or principles thereof. The parties consent to venue and jurisdiction in the state and federal courts located in New York.
12. Dispute Resolution. Any dispute arising out of or relating to this Agreement or the breach, termination, or validity hereof may, at the initiation of either party, be settled by binding arbitration held in New York County, New York. The arbitration proceeding will be conducted in accordance with the commercial arbitration rules of the American Arbitration Association by a single arbitrator selected in accordance with such rules. The arbitrator's decision will be conclusive and binding, and may be enforced as appropriate through a court of competent jurisdiction.
13. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof.
14. Conflicts of Interest. Company represents and warrants that there is no conflict of interest between services Company is performing on behalf of any other entity, or any other contracts, and the services to be performed under the Agreement. Company shall immediately advise Shapeways if a conflict arises in the future.
15. Severability. If any provision of this Agreement or its application to any person or circumstance is found to be invalid or unenforceable, such invalidity or unenforceability will have no effect on the other provisions of this Agreement. In its place, a suitable and equitable provision will be substituted to carry out, to the maximum extent as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision.
16. Assignability. This Agreement shall not be transferred or assigned in whole or in part by Company. Company's obligations are personal to Company, and Company acknowledges that Shapeways has entered into this Agreement in reliance on Company's ability and agreement to perform its obligations accurately, competently, and completely. Shapeways reserves the right to assign its rights and obligations hereunder, as it deems appropriate.
17. Notices. Unless otherwise specified in these Term and Conditions, all notices under these Terms and Conditions will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or when the notice is sent by Shapeways to the email address provided by Company in creating Company's designer profile. Electronic notices to Shapeways should be sent to email@example.com. Notices may also be mailed to the following address:
Attn: Legal Department
419 Park Ave. South
New York, NY 10016
18. Insurance. Upon request by the Shapeways, Company shall provide a certificate of insurance evidencing coverage for Commercial General Liability, Automobile Liability, Workers' Compensation, Professional Liability and other insurance coverage as may be required by Shapeways or its customers.
19. Miscellaneous. This Agreement supersedes all prior oral and written agreements between the parties and constitutes the entire agreement between the parties on the topics covered by this Agreement. This Agreement shall not be altered by terms or conditions added to quotes, invoices, or other such instruments sent by Company to Shapeways. Shapeways reserves the right to change this Agreement from time to time and will post all revisions to this page. Shapeways may also provide notice to you of these changes. Shapeways encourages you to check this agreement often to read the latest version. Shapeways may also transfer or transfer this agreement at any time. All transactions are subject to the version of this Agreement in effect at the time of the transaction.