Terms & Conditions
The following Purchasing Terms and Conditions apply to your use of this software, and our website, and the information and content and products available for purchase through our website/software, as well as your use of any interactive features on the software and/or website.
By visiting, accessing, reviewing and/or otherwise using our software/website, its information and content and services, and various interactive features you accept, without limitation or qualification, the following Purchasing Terms and Conditions, which constitutes an Agreement between you and Axial3D. We may change these terms from time to time. Please read and review these Purchasing Terms and Conditions carefully. Before using this software/website you must agree to these Purchasing Terms and Conditions. Once you have read these Purchasing Terms and Conditions, you must check the checkbox acknowledging you have read and agreed to the Purchasing Terms and Conditions. If you Agree to the Purchasing Terms and Conditions, click the “I Agree” button. If you do not agree to these Purchasing Terms and Conditions, you may not access or use the software/website or purchase our products.
THIS PURCHASING TERMS AND CONDITIONS AGREEMENT is dated as of the date you entered your contact information into the web portal and agreed to these Purchasing Terms and Conditions (the Purchasing Terms and Conditions is also referred to as our “Agreement”).
AXIAL MEDICAL PRINTING LIMITED, a company registered in Northern Ireland under company number NI618621 and with our registered office at 17a Alexander House, Belfast, BT2 8HD. (“Axial3D”).
You and your entity are referred to as the “Purchaser”.
Each a “Party” together the “Parties”.
Axial3D is in the business of providing 3D printing services.
Purchaser wishes to obtain and Axial3D wishes to provide 3D printing products and/or services on the terms set out in this Agreement. Unless otherwise agreed in writing, Purchaser will use such products and/or services solely for educational, research, and/or demonstration purposes and not for the purposes of patient diagnosis, management, or treatment.
If Purchaser has a relationship with a Reseller, or submits its request and specification through a Reseller, Purchasers sole recourse is to seek remedy from the Reseller. Purchaser will have no recourse or remedy from Axial3D for any break, including a breach of warranties as set forth in Clause 10. Purchaser's sole remedy will be to seek recourse against the Reseller/ Purchaser will have the same rights and remedies against Reseller as set forth in this Agreement, unless limited or modified by its contractual relationship with the Reseller.
1. INTERPRETATION
The definitions and rules of interpretation in this Clause apply in this Agreement.
1.1 Definitions:
1.1.A Agreement: means these Purchasing Terms and Conditions and the Request submitted by the Purchaser.
1.1.B Commencement Date: means the date which the Purchaser entered their contact information into the web portal and agreed to these Terms of Use.
1.1.C Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.1.D Delivery Location: the Purchaser Premises or such other location (physical or virtual) as Purchaser specifies in its Request and which has been accepted by Axial3D in the Request Confirmation.
1.1.E Intellectual Property Rights: means any and all intellectual property rights related to the Products and Relevant Software, including procedures, designs, inventions and rights to invention, discoveries, know-how, show-how and works of authorship, all patents issued or issuable thereon, all copyrights and other rights in works of authorship, collections and arrangements of data, moral rights, business and domain names, rights in get-up and trade dress, mask work rights, trade secrets on a worldwide basis, trademarks, trade names, and other forms of corporate or product identification, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world in or associated with the Products or the Relevant Software, and any division, continuation, modification, enhancement, derivative work or license of any of the foregoing. The definition includes, without limitation, any intellectual property rights in software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information owned or used by Axial3D to provide its Products.
1.1.F Prices: the prices for the Products and services provided pursuant to this Agreement, as set forth in response to a Request in the Request Confirmation (subject to Clause 5). Purchaser agrees that Axial3D may update and modify its pricing for new orders in its sole discretion. The prices that are in effect at the time that a Request Confirmation is provided by Axial3D will apply to the Products sold thereby.
1.1.G Products: means the medical models or other products created within a 3D printed workflow (physical and virtual) to be provided by Axial3D to Purchaser. Except as otherwise explicitly set forth in this Agreement, the term “Products” does not include Axial3D’s Equipment, Relevant Software, or any Intellectual Property Rights. The definition of “Products” includes digital models as well as physical.
1.1.H Request: an order for Products submitted by Purchaser to Axial3D and accepted by Axial3D in accordance with Clause 4.
1.1.I Request Confirmation: a request confirmation sent by Axial3D to Purchaser, agreeing to fulfill the request and identifying the relevant request by its request Reference. The Request Confirmation may have pricing information. All Request confirmations will be sent via axial3DInsight once Purchaser has provided access to relevant medical imaging.
1.1.J Request Reference: the reference applied to a product Request by Axial3D on receipt of the Request.
1.1.K Relevant Software: means axial3Dinsight, which is a web-based platform to manage the transfer of medical images for 3D printed models.
1.1.L Specification: the specification of the Products provided by Purchaser and set out in the Request or any other specification agreed in writing between the Party from time to time, inclusive of any design, drawing, or input data.
1.1.M Term: means the duration of the Agreement as set out in Clause 2.
1.1.N Purchaser Premises: means the delivery address that you specify (if Axial3D agrees to deliver to the same).
1.1.O Reseller means a third-party contracted with Axial3D to obtain and resell Axial3D Products and/or services related to the Products.
1.2 Reference to a Clause is to a Clause of or to this Agreement, unless the context requires otherwise.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Words in the singular include the plural, and in the plural include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate law or regulations for the time being in force made under it.
1.6 Unless the context otherwise requires, the words “including” and “include” and words of similar effect will not be deemed to limit the general effect of the words which precede them.
1.7 The headings in this Agreement are for ease of reference only and will not affect its construction or interpretation.
2. COMMENCEMENT AND DURATION
2.1 This Agreement commences on the Commencement Date and will continue related to any Product that you purchase, unless terminated earlier in accordance with Clause 18 (the “Term”). In the event that the Term is expired, and Axial3D accepts a Request, the relationship created thereby will be governed by this Agreement for that Product only.
2.2 By accepting this Agreement, Purchaser is also agreeing to Axial3D’s website Terms and Conditions and Axial3D’s website Privacy Policy
3. SALE OF PRODUCTS
3.1 Subject to Clause 4.4 during the Term and subject to the provisions of this Agreement, Axial3D will provide Purchaser with agreed quantities of the Products as have been ordered by Purchaser in a Request, provided that such Request is accepted pursuant to a Request Confirmation.
3.2 Axial3D may at Purchaser’s request also provide any additional services based on the prices quoted on request. Such purchases will be subject to the terms of this Agreement.
4. REQUEST PROCESS
4.1 Upon accepting these Terms and Conditions, Purchaser may place a Request for Products by submitting a Specification using the Relevant Software.
4.2 A Request will be treated as an intention by Purchaser to use services from Axial3D, but will not be binding until accepted by Axial3D in accordance with Clause 4.5. Axial3D may, at its sole discretion, accept amendments to a Request after acceptance in accordance with Clause 13.
4.3 Axial3D, via the Relevant Software, will apply a Reference to each Request received from Purchaser and inform Purchaser of the Reference as soon as reasonably possible. Each Party will use the Reference to identify each Request and subsequent service.
4.4 Axial3D, via the Relevant Software, will provide a quote (the “Quote”) to the Purchaser detailing the cost to complete the Request. Purchaser may, at its discretion, accept the terms of the Quote.
4.5 Upon Purchaser’s acceptance of the Quote, Axial3D may, at its discretion, accept the Request using a Request Confirmation and this Request Confirmation will be treated as acceptance of Request.
4.6 Axial3D will report on the status of Requests via the Relevant Software.
4.7 Axial3D will arrange delivery of the Products to the Delivery Location in accordance with Purchaser’s instructions specified in the Request.
5. PRICES; PAYMENT; SECURITY INTEREST
5.1 Pricing will be set forth during the ordering process, either in a Quote or a Request Confirmation or otherwise. By proceeding, Purchaser accepts and agrees to the pricing.
5.2 Payment is due and payable immediately. Purchaser will be liable for any and all costs associated with the recovery of such payment, including court costs and reasonable legal fees.
5.3 Fees/costs do not include do not include sales, use, excise or other applicable taxes (other than taxes based on Axial3D’s net income), and Purchaser will pay or reimburse Axial3D for all such taxes. If Purchaser is a tax-exempt entity, Purchaser will have no tax obligations under this Agreement for so long as Purchaser maintains such status, provided that Purchaser delivers to Axial3D a copy of its certificate of tax-exempt status or other similar evidence that is reasonably satisfactory to Axial3D.
5.4 Time for payment will be of the essence and no payment will be deemed to have been made until Axial3D has received payment in cleared funds to its nominated bank account (details of which will be provided to Purchaser).
5.5 If Purchaser fails to make any payment due to Axial3D under this Agreement by the due date for payment, then, without limiting Axial3D’s remedies under this Agreement or otherwise, Purchaser will pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate but at 4% a year for any period when that base rate is below 0%. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Purchaser will pay the interest together with the overdue amount. Notwithstanding the foregoing, to the extent that the interest rate identified herein exceeds the maximum rate of interest permitted by applicable law, then such interest rate will be reduced to the maximum legally-permissible rate. Additionally, Axial3D may refuse additional Requests, in its sole discretion, until full payment has been made.
5.6 All amounts due under this Agreement will be paid by Purchaser to Axial3D in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.7 Purchaser agrees that Axial3D will have a first priority security interest in the Products, which will serve as collateral for payment of the purchase price. Such security interest will be extinguished upon payment in full for all Products ordered by Purchaser.
6. SPECIFICATION OF THE PRODUCTS
6.1 The Products will be manufactured by Axial3D specifically for Purchaser according to the Specification. Axial3D will use its reasonable endeavors to reproduce the Products so that they reflect that Specification as accurately as possible, however Purchaser acknowledges that the nature of the Products is such that it is impossible to reproduce a model which is one hundred percent accurate and there will be discrepancies from time to time.
7. DELIVERY OF THE PRODUCTS
7.1 Axial3D will ensure that:
7.1.A each delivery of the Products is accompanied by a delivery note which shows the date of the Request, all relevant reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any), and, if the product requested is being delivered in installments, the outstanding balance of Products remaining to be delivered;
7.1.B if Axial3D requires Purchaser to return any packaging materials to them, that fact is clearly stated on the delivery note. Purchaser will make any such packaging materials available for collection at such times as Axial3D will reasonably request. Returns of packaging materials will be at Axial3D’s expense;
7.1.C Axial3D will deliver the Products to the Delivery Location at any time after Axial3D notifies Purchaser that the Products are ready; and
7.1.D Delivery of the Products will be completed on the Products’ arrival at the Delivery Location.
7.2 Axial3D will not be liable for any delay in delivery or non-delivery of the Products that is caused by a Force Majeure Event or Purchaser’s failure to provide Axial3D with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
8. PURCHASER’S OBLIGATIONS
8.1 Purchaser will:
8.1.A appoint a manager for the Products. That person will have the authority to contractually bind Purchaser on matters relating to the Products (including by submitting Requests under Clause 4 and proposed changes under Clause 13);
8.1.B provide to Axial3D in a timely manner all documents, information, items and materials in any form (whether owned by Purchaser, or another third party) required under a Request or otherwise reasonably required by Axial3D in connection with the Products and ensure that they are accurate and complete in all material respects; and
8.1.C obtain and maintain all necessary licenses, permits, and consents and comply with all relevant laws as required to enable Axial3D to provide the Products as warranted.
8.2 If Axial3D’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Purchaser or its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Axial3D will be allowed an extension of time to perform its obligations equal to the delay caused by such act or omission.
9. AXIAL3D’S RESPONSIBILITIES
9.1 Axial3D will use commercially reasonable efforts to supply the Products to Purchaser in accordance with the Specifications and this Agreement in all material respects.
10. AXIAL3D’S WARRANTIES & DISCLAIMERS
10.1 Axial3D warrants to Purchaser that on delivery the Products will:
10.1.A Conform in all material respects with the Specification; and
10.1.B Be free from material defects in material and workmanship.
10.2 All Products are provided as-is/where-is. Axial3D disclaims all warranties and representations and conditions of any kind or nature, express or implies (either in fact or by operation of law) statutory or otherwise all to the maximum extent permitted by applicable law, including but not limited to warranties of merchantability, quality or fitness for a particular purpose and any warranty implied by custom or trade or course of dealing, any warranty against hidden defects, and/or any warranty regarding title and any warranty arising from conduct, course of dealing, law, custom or usage in trade. Axial3D disclaims any warranty against infringement except as specifically set forth in clause 14.2 and subject to the remedies set forth therein.
10.3 Axial3D further disclaims any/all warranties as to any third parties. The Parties further agree that there are no third part beneficiaries that may rely on or have any expectation of any benefit as the result of Axial3D's performance under this Agreement.
10.4 Subject to Clause 10.5, Purchaser’s sole and exclusive remedies for breach of the warranties set forth in Clause 10.1 must be pursued as and are limited as follows:
10.4.A The Parties agree that, based on the nature of the Products, a reasonable inspection period will be the greater of ten (10) days or the minimum inspection period required by applicable law;
10.4.B If Purchaser discovers a breach of Clause 10.1 within ten (10) days after any specific Product is delivered, then Purchaser must notify Axial3D in writing immediately thereafter, or within the minimum reasonable time required by law;
10.4.C Thereafter, unless otherwise agreed, the Purchaser must promptly return such Products breaching Clause 10.1 to Axial3D’s place of business at Purchaser’s expense;
10.4.D Axial3D will be given a reasonable opportunity to examine any allegedly defective Products for a period of ten (10) days after delivery of the Products to its place of business; and
10.4.E Axial3D will, at its sole option, and as Purchaser’s sole and exclusive remedy, either (a) repair or replace any defective Products, or (b) refund the price of the defective Products in full.
10.5 Axial3D will not be liable for Products’ failure to comply with the warranty set out in Clause 10.1 in any of the following events:
10.5.A Purchaser, or any other person makes any unintended use of, or alterations to, the Product; or
10.5.B the defect arises as a result of Axial3D following any drawing, input data, design, or Specification supplied by Purchaser.
10.6 This Clause 10 will apply to any repaired or replacement Products supplied by Axial3D.
11. PURCHASER’S WARRANTIES & INDEMNIFICATION
11.1 Purchaser represents and warrants that the Products are being order, and will be used, for education or demonstration purposes only. The Parties acknowledge and agree that Axial3D does not provide medical or health care or legal services and is not responsible in any manner for overall patient care or outcomes or product legal admissibility. Axial3D makes no representation as to the quality of adequacy or medical services or course of treatment, accuracy of diagnosis or the appropriateness of medical evaluations or opinions rendered.
11.2 Purchaser represents and warrants that the Products and Relevant Software will not be used for and are not intended for use in the diagnosis of disease or other conditions or in the cure, management, mitigation, treatment or prevention of disease in man or other animal. Purchaser understand the products and relevant software are not medical devices and have not been approved or cleared to be marketed, sold, or used as a medical devices in the UK.
11.3 In most instances Products are not reimbursable Axial3D makes the representations to Purchaser regarding Purchaser's or Customer's ability to charge bill or seek reimbursement from any client, patient insurer or other third-party in relation to the Products. Purchaser agrees it is solely liable for the same and represents that it will exercise all reasonable efforts to comply with all applicable laws and regulations relating to billing, reimbursement or the collection for such Products.
11.4 Purchaser agrees and will require Customer to agree to identify defend and hold harmless Axial3D's officers, directors, managers, shareholders, principles, agents, employees, contractors, parents, subsidiaries and successors and assignees from and against all liabilities, costs, expenses, damages, claims, lawsuit, administrative actions or similar actions and losses (including but not limited to direct indirect or consequential losses loss of profits, loss of reputation and all interest, penalties and legal cost (calculated on the a full indemnity basis) and all other reasonable professional costs and expenses that a arise out or are related to any breach of this agreement; or (b) made by any Customer or end user of Products that were originally purchased from Axial3D by or through Purchaser. Purchaser and Customer will be jointly and severally liable for such indemnification and defence obligations.
11.5 If Purchaser has a relationship with a Reseller, or submits its request and specification through a Reseller, Purchasers sole recourse is to seek remedy from the Reseller. Purchaser will have no recourse or remedy from Axial3D for any break, including a breach of warranties as set forth in Clause 10. Purchaser's sole remedy will be to seek recourse against the Reseller/ Purchaser will have the same rights and remedies against Reseller as set forth in this Agreement, unless limited or modified by its contractual relationship with the Reseller.
12. TITLE AND RISK
12.1 Risk in the Products will pass to Purchaser on completion of delivery, and all risk of loss or damage to Products in transit is upon Axial3D. In the event that Axial3D purchases insurance, obtains a bond, or seeks other protection in relation to risks associated with the shipping or transfer of the Products, Axial3D will have the exclusive right to negotiate and adjust claims with the carrier, surety, and/or insurer and Purchaser will cooperate with all related processes.
12.2 If Purchaser fails to give Axial3D written notice of a defect in the Products within the time period for inspection set forth in Clause 10.4.A, the Products will be deemed to have been delivered complete, undamaged, without a defect, conforming to Purchaser’s Request and accepted by Purchaser, and Purchaser waives rejection or revocation of acceptance of such Products. Purchaser’s sole remedies for any defects are those identified in Clause 10.4.E.
12.3 Title to the Products will not pass to Purchaser until Axial3D receives payment in full (in cash or cleared funds) for the Products and any other Products that Axial3D have supplied to Purchaser in respect of which payment has become due, in which case title to the Products will pass at the time of payment of all such sums.
13. CHANGES TO REQUESTS
13.1 If Purchaser wishes to request a change to a Request:
13.1.A It will notify Axial3D and provide as much detail as Axial3D reasonably requires of the proposed changes, including:
13.1.A.I the timing of the proposed changes;
13.1.A.II the possible effect of the proposed changes on Axial3D’s pricing as set out in the Quote;
13.1.A.III the effect of the proposed changes on the timetable for provision of the Products; and
13.1.A.IV the effect of the proposed changes on the terms of this Agreement.
13.1.BAxial3D will, at its absolute discretion and as soon as reasonably practicable after receiving the required information at 14.1.A provide Purchaser with a decision as to whether the proposed changes are accepted.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 In relation to the Products and the Relevant Software and Axial3D’s Intellectual Property Rights:
14.1.A Purchaser agrees that all aspects of the Intellectual Property Rights, Relevant Software, and associated documentation, including, without limitation, the source and object code, and the design and structure of individual programs/services/solutions, the business model, patents (including patents pending), copyrights, trademarks, trade secrets and other aspects of the Products constitute Intellectual Property of Axial3D or its lessors/licensors. Purchaser will not in any manner use, disclose, provide, or otherwise make available, such Intellectual Property Rights, in any form to any third party, without the prior written consent of Axial3D. Purchaser will implement reasonable security measures to protect such Intellectual Property Rights. Axial3D and its licensors will retain sole ownership and title of all of its Intellectual Property Rights, including, without limitation, such rights in the Products and the Relevant Software.
14.1.B Except for the right to use the Product, this Agreement does not confer on Purchaser or others a license in, ownership of, or interest in Axial3D. Axial3D has developed its Intellectual Property Rights exclusively at its private expense. Purchaser agrees that all right, title, and interest in and to any aspect of the Intellectual Property Rights and all edits, improvements, additions, modifications, interfaces, and derivative works/information/data prepared from or relating to Axial3D are and will remain the exclusive property of Axial3D. Axial3D will have the unrestricted and permanent right to use and implement all ideas, advice, suggestions, enhancements, requests, improvements, recommendations, or proposals that Purchaser or its personnel may provide or disclose to Axial3D with respect to their products/services or the Products. The same may be incorporated into Axial3D’s offerings, and when incorporated, will be the sole and exclusive property of Axial3D;
14.1.C During the Term of this Agreement, and solely during the Term of this Agreement, Axial3D grants Purchaser, or will procure the direct or indirect grant to Purchaser of, a limited, fully paid, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use only, worldwide, the Relevant Software for the sole purpose of receiving and ordering the Products in its business on the relevant terms and conditions of the Relevant Software applicable when registering to use it; and
14.1.D Purchaser will not:
14.1.D.I use or disclose the Relevant Software or any portion of its underlying source code to any third-parties;
14.1.D.II sell, lease, give, license, sub-license, assign or otherwise transfer the rights granted in Clause 14.1.C;
14.1.D.III use any virtual or digital medical model provided by Axial3D pursuant to this Agreement in relation to the production of a physical model unless Purchaser orders such physical model from Axial3D;
14.1.D.IV reproduce or copy any Products without the express written permission of Axial3D; or
14.1.D.V sell, lease, give, license, sub-license, assign or otherwise transfer any Products to any third-parties without the express written permission of Axial3D.
14.2 Axial3D:
14.2.A warrants to Purchaser (and not to any other persons) that the receipt and use of the Products and Relevant Software by Purchaser will not infringe the rights, including any Intellectual Property Rights, of any third party; provided, however, that such warranty will not apply to the extent the infringement arises from:
14.2.A.I the use of the Specification in the development of, or the inclusion of the Specification in any Product;
14.2.A.II any modification of the Products, other than modifications made by Axial3D; and
14.2.A.III compliance with Purchaser’s Specifications or instructions or data input.
14.2.B Subject to Clause 14.2.A, if a claim is made that all or any portion of any Product infringes on the proprietary rights of a third party, Axial3D will, at its sole cost and expense and as the Purchaser’s sole and exclusive remedy, either procure for Purchaser the right to continue to use the Product or replace or modify the Product so that it becomes non-infringing, or, at Axial3D’s discretion, refund to Purchaser the cost of the Products up to the limits set forth in this Agreement.
14.3 Purchaser warrants that the receipt and use of the Specification(s) and the data provided by Purchaser to Axial3D in the performance of this Agreement by Axial3D, its agents, subcontractors or consultants will not infringe the rights of any third party, including any privacy rights or Intellectual Property Rights.
15. CONFIDENTIALITY
15.1 Purchaser agrees that it may not at any time during or after the Term of this Agreement use or disclose to any person any confidential information, including information concerning Axial3D’s business, affairs, customers, clients, or suppliers, except as permitted by Clause 15.2.
15.2 Purchaser may use or disclose Axial3D’s confidential information only:
15.2.A As set forth in this Agreement, and to exercise its rights and perform its obligations under or in connection with this Agreement;
15.2.B to its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising Purchaser’s rights or carrying out its obligations under or in connection with this Agreement. Purchaser will ensure that its employees, officers, representatives or advisers to whom it discloses Axial3D’s confidential information comply with this Clause 15; and
15.2.C As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Notwithstanding anything to the contrary, Purchaser agrees that Axial3D’s intellectual property, business plans, source code, protocols, methods of operation, know-how, marketing materials, and the identities of its customers, licensors, vendors, and suppliers as they each may exist occasionally, are valuable, special and unique assets of Axial3D and are deemed to be its “Trade Secrets.” Purchaser represents and warrants that it will protect and maintain in strict confidence any and all of Axial3D’s Trade Secrets and will never disclose such Trade Secrets without the express written consent of Axial3D. Purchaser further warrants that any employees, officer, representatives, or advisors will not be given access to Axial3D’s Trade Secrets unless each such person provides the same warranty.
16. DATA PROTECTION AND HIPAA
16.1 The Parties warrant that they will comply with all of their respective obligations under Data Protection Laws.
16.2 It is the intent of the Parties that in performing its duties hereunder, Axial3D will not have access to, and Purchaser will not deliver to or share with Axial3D any personal data or special category data. In the event that any personal data or special category data is shared, the Parties agree to enter into a separate Data Sharing Agreement.
16.3 Furthermore, Purchaser will endeavour to deliver to Axial3D the minimum amount necessary of any protected health information, and will attempt to de-identify any data that is provided to Axial3D.
17. LIMITATION OF LIABILITY
17.1 No claim against Axial3D of any kind under any circumstances will/may be filed more than one year after Purchaser first knows of, or in the exercise of reasonable care could know of, such claim or an act or omission of Axial3D that would give rise to such claim, regardless of whether or not Axial3D has been advised of the possibility of such claim or damages, and regardless of how such claim or damages were caused or alleged to be caused, and regardless of whether the allegation is grounded in warranty, negligence, tort, strict liability, breach of contract, civil liability or other cause of action or claim under or in connection herewith or the subject matter hereof, and regardless of whether made in the form of an allegation, demand, suit, action, or other proceeding of any kind. To the maximum extent permitted by law, Axial3D will under no circumstances whatever be liable to Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
17.1.A Any legal theory for indirect, exemplary, special, incidental, or consequential damages or losses; lost profits or interest or anticipated savings or revenue or goodwill or data or images or business opportunities or business interruption; loss of use; the cost of procurement of substitute items or services; cost of capital; or claims of third parties (including, but not limited to, claims related to legal or medical malpractice, medical diagnosis, or other liabilities from the use (intended or non-intended of the Products); or
17.1.B any loss that is an indirect or secondary consequence of any act or omission of Axial3D.
17.2 Axial3D’s total liability to Purchaser in respect of all other loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed one hundred and twenty percent (120%) of the Prices paid for the Product in question.
17.3 These limitations apply regardless of whether or not Axial3D has been advised of the possibility of damages, and regardless of how caused or alleged to be caused, and regardless of whether the allegation is grounded in warranty, negligence, tort, strict liability, breach of contract, civil liability or other cause of action or claim under or in connection herewith or the subject matter hereof, and regardless of whether made in the form of an allegation, demand, suit, action, or other proceeding of any kind. Purchaser hereby acknowledges that the limitations and the remedies set forth in this Agreement are reasonable and will not fail of their essential purpose.
18. TERMINATION AND CONSEQUENCES OF TERMINATION
18.1 Without affecting any other rights or remedies to which it may be entitled, either Party may give notice in writing to the other terminating this Agreement immediately:
18.1.A if the other Party commits a material breach of any obligation under this Agreement, and in the case of a breach which is capable of remedy fails to remedy it within fourteen (14) days of receipt of notice from the first Party of such breach and of its intention to exercise its rights under this Clause;
18.1.B Either Party may terminate this Agreement immediately upon written notice if the other Party will: (a) become insolvent or file or have filed against it a petition in bankruptcy (which is not dismissed within thirty (30) days after it is filed); (b) make an assignment for the benefit of creditors; or (c) dissolve or cease to do business in the ordinary course or as a going business;
18.1.C if the other Party has a receiver or administrative receiver or administrator or similar official appointed over all or any of its assets and not discharged within a period of thirty (30) days;
18.1.D if the other Party is declared insolvent or makes any general composition with its creditors; or
18.1.E if the other Party ceases or threatens to cease to carry on the whole or any material part of its business.
18.2 Axial3D may terminate this Agreement by giving Purchaser notice of the termination, effective immediately.
18.3 For the purpose of Clause 18.1.A a breach will be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to time of performance.
18.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement will remain in full force and effect, including but not limited to any provisions establishing a right to indemnification and any/all continuing warranties made by Purchaser and any/all confidentiality and intellectual property protections hereunder.
18.5 Termination or expiration of this Agreement will not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiration, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
19. FORCE MAJEURE
19.1 Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:
19.1.A acts of God, flood, storm, drought, earthquake, or other natural disaster;
19.1.B epidemic or pandemic or disease outbreak;
19.1.C terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
19.1.D nuclear, chemical or biological contamination or sonic boom;
19.1.E any law or any action taken by a government or public authority, including without limitation, laws imposing an export or import restriction, quota or prohibition;
19.1.F collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; and
19.1.G interruption or failure of utility service.
19.2 If a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party”), the Affected Party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations will be extended accordingly. For the avoidance of doubt, the timely payment obligations of a Party will not be excused as the result of a Force Majeure Event.
19.3 The Affected Party will:
19.3.A as soon as reasonably practicable after the start of the Force Majeure Event but no later than thirty (30) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement;
19.3.B use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and
19.3.C as soon as reasonably possible after the end of the Force Majeure Event, notify the other Party that the Force Majeure Event has ended and resume performance of its obligations under this Agreement.
19.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than six (6) weeks, the Party not affected by the Force Majeure Event may terminate this Agreement by giving written notice to the Affected Party
20. COMPLIANCE AND CORPORATE CITIZENSHIP.
20.1 Each Party will comply with applicable law. Each Party is responsible for its own compliance with the same, and neither Party is relying upon the other’s representations, warranties, or assertions with respect to the legality or propriety of the other Party’s operations.
20.2 The Parties intend that this Agreement comply at all times with, and not be interpreted in a manner that violates, all existing and future applicable laws including but not limited to the Data Protection Legislation, the Bribery Act 2010, the Criminal Finances Act 2017, and the Modern Slavery Act 2015. Neither Party is responsible for the other Party’s compliance with Applicable Laws related to fraud and abuse.
20.3 Each Party warrants that neither it nor any of its personnel to its knowledge: (i) has been convicted of any crime arising from claims or other transactions, financial relationships, or financial dealings in connection with health care; or (ii) has been excluded from any national or local health care program.
20.4 It is the policy of Axial3D to employ, train, compensate, promote and provide other terms and conditions of employment, without regard to a person’s race, colour, religion, national origin, sex (including pregnancy), sexual orientation, age, disability, or other characteristics protected by law.
21. ENTIRE AGREEMENT
21.1 This Agreement constitutes the complete and exclusive statement of agreement and understanding between the Parties, which supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written, with respect to the subject matter hereof.
21.2 The Parties acknowledge and agree that no representations were made prior to the entering into of this Agreement and that, in entering into this Agreement, they do not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to this Agreement or not) other than as expressly set out or referred to in this Agreement.
21.3 Without prejudice to the provisions of this Clause, the only remedy available to the Parties for breach of this Agreement will be for breach of contract under the terms of this Agreement.
21.4 No parol evidence of prior or contemporaneous agreements, understandings or negotiations will govern or be used to construe or modify this Agreement.
22. VARIATION
22.1 No amendment or variation of this Agreement will be effective unless it is in writing and signed by the Parties (or their authorised representatives).
23. ASSIGNMENT AND OTHER DEALINGS
23.1 This Agreement is personal to the Parties and neither Party will assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other Party (which will not be unreasonably withheld, delayed or conditioned).
23.1.A Notwithstanding the foregoing, Axial3D may assign this Agreement as part of a corporate reorganisation, consolidation, merger, acquisition, change of control with respect to its outstanding stock, or sale of substantially all of its assets, and provided further that Axial3D will remain liable for any unperformed obligations under this Agreement arising prior to the effective date of any such transaction.
23.2 Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Clause is void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
24. FREEDOM TO CONTRACT
24.1 The Parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this Agreement.
25. WAIVER
25.1 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.
26. CLASS ACTION WAIVER
26.1 Any dispute resolution proceedings whether in arbitration or attempted in court will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated representative unless both you and Axial3D specifically agree to do so in writing following the initiation of dispute resolution proceedings.
27. SEVERANCE
27.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause will not affect the validity and enforceability of the rest of this Agreement.
27.2 If one Party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties will negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
28. NOTICES
28.1 Any notice or other communication given to a Party under or in connection with this contract will be in writing and will be delivered by hand or by pre-paid/certified first-class mail or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
28.2 Any notice will be deemed to have been received:
28.2.A if delivered by hand, on signature of a delivery receipt;
28.2.B if sent by pre-paid first-class mail or other next working day delivery service at the time recorded by the delivery service on the return/delivery receipt.
28.3 Axial3D may also give notice under this Clause by any means provided by Purchaser as a method of contact during the signup process, including, without limitation, by fax or email.
28.4 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” does not include email.
29. THIRD PARTY RIGHTS
29.1 Except as explicitly identified herein, there are no third-party beneficiaries of this Agreement and a person who is not a party to this Agreement will not have any rights to enforce any term of this Agreement.
29.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
30. NO PARTNERSHIP OR AGENCY
30.1 Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the Parties, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
30.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
31. COUNTERPARTS
31.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered will constitute a duplicate original, but all the counterparts will together constitute the one agreement. Signatures to this Agreement or to any such counterpart, may be delivered by electronic means and will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version delivered in person.
32. ANNOUNCEMENTS
32.1 Purchaser hereby grants Axial3D the right to use/disclose Purchaser’s name and likeness on customer lists and in any communication to the general public or to current or potential customers. This use/disclosure will not affect the confidentiality of the remainder of the Agreement or any other confidential information. Except as set forth above, no Party will make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
33. CONFLICT
33.1 If there is any inconsistency between any of the provisions in the main body of this Agreement and any purchase orders issued by Purchaser, or any website terms and conditions or privacy policy or correspondences between the Parties, the provisions in the main body of this Agreement will prevail. Nothing in this agreement should be construed to modify the terms and conditions of the Relevant Software which will be read independent of this Agreement.
34. RIGHTS AND REMEDIES
34.1 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. If it becomes necessary for Axial3D to file suit to enforce this Agreement or any provision contained herein, Axial3D will be entitled to recover, in addition to all other remedies or damages, court costs, legal fees, and expenses of litigation.
35. SET-OFF
35.1 All amounts due under this Agreement will be paid in full without any set-off, delay, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Except as otherwise provided, fees are non-refundable and non-cancellable and the Products purchased cannot be decreased during the relevant Term.
36. GOVERNING LAW; INTERPRETATION; JURISDICTION
36.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of Northern Ireland, without regard to its conflicts of laws or choice of law rules, and further to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The language in this Agreement will be interpreted as to its fair meaning and not strictly for or against any party.
36.2 Each Party irrevocably agrees that the courts of Northern Ireland will apply its laws (excluding choice of law provisions) and its jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) and each Party waives any objection to venue therein.
Intending to be legally bound, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, as of the Parties have caused this Agreement to be sealed and executed (electronically or by other means, in one or more counterparts, which together will be treat as one original whole), by their duly authorised representatives.
ACKNOWLEDGMENT AND ACCEPTANCE
By checking the checkbox beside Terms of Use and clicking Submit, I acknowledge that I have read and agree to the Purchasing Terms and Conditions above, and I am agreeing to conduct transactions electronically, and intend for my proceeding to be a binding electronic signature/contractual obligation, and certify that I have no questions and/or have had my questions answered in full.
