Agreement for Provision of Services to Customers
EFFECTIVE SEPTEMBER 14, 2017
Your use of our services provided on this website is subject to the terms of this legal agreement between you and us, as amended from time to time (this “Agreement”). The term “You” or “you” means the person or entity who or which is acquiring the right to use the Service under this Agreement; ” we” or “us” means Paperless Parts, Inc., a Delaware corporation, and “both of us” means both you and us.
We may provide other products or services under the terms of a separate agreement with you (each, an “Other Agreement”). Our obligations with respect to any product or service that we makes available to you under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and this Agreement shall not be deemed or construed to alter the terms of such Other Agreements.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITE (THE “SITE”), INCLUDING PLACING AN ORDER WITH US FOR MANUFACTURING SERVICES (THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICES.
About Our Services
We host and maintain an online platform available at the Site that enables you to upload your three dimensional (3D) models for your manufacturing projects. We maintain a vendor manufacturing program consisting of a network of third party manufacturers (each, a “Fabricator”) capable of performing manufacturing services in order to offer you greater efficiencies and the best pricing and quality of manufacturing services. When you upload Specifications (as defined below) for a manufacturing project, you will select one of our Fabricators to have manufactured, the parts or items to be delivered pursuant to you order (each, a “Part”). If you are using the service to obtain Parts you are sometimes referred to herein as a “Purchaser”.
Our role is solely to facilitate the ability of Purchasers to obtain Parts from Fabricators. Parts ordered through the Service are subject to the Manufacturing Terms specified below (“Standard Manufacturing Terms”), or a custom agreement (“Custom Manufacturing Terms”), if one is separately entered into, each of which will be between the Purchaser and the Fabricator(either the Standard Manufacturing Terms or Customer Manufacturing terms being referred to as the “Manufacturing Terms”). We do not provide manufacturing services and are not responsible for the fabrication or delivery of the Parts and we are not party to any agreements entered into between Fabricators and Purchasers.
We do not verify the credentials of any Fabricators. You understand and acknowledge that Fabricators are not employees or agents of ours but are independent service providers using the Site to market their services to Purchasers. You acknowledge that we will not be liable for any loss or damage caused by your reliance on information provided by us.
THE SERVICE IS INTENDED TO BE USED TO FACILITATE INTERACTION BETWEEN PURCHASERS AND FABRICATORS. WE CANNOT AND DO NOT CONTROL OR GUARANTEE THE INFORMATION PROVIDED BY FABRICATORS. WE ARE NOT RESPONSIBLE FOR AND DISCLAIM ANY AND ALL LIABILITY RELATED TO SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH USE OF THE SERVICE.
In order to use certain Services, you may be required to register for an account (“Account”). In registering for the Services, you agree to (1) provide true, accurate, current and complete information about you as prompted in the Site account details section (“Registration Data”); and (2) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (x) notify us immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Site and Service (or any portion thereof).
In order to place an order for a Part, you must upload an accepted three dimensional (3D) model for the Part that you would like to be produced. During the ordering process you may choose, from the list of available options, the fabricator, manufacturing process, material, color, surface finish and size of the measurement (mm or inches) for your Part. Certain restrictions with respect to the manufacturing process, thickness, material, color and surfaces may apply.
Upon specification of options, we will provide to you on behalf of Fabricators, one or more quotes for you to select from, setting forth the costs (production, delivery, and other taxes when applicable) (the “Quote”). The 3D geometry and features related to the Part(s) and the tolerances will be as set forth in the Quote and are referred to herein as the “Specifications”.
You are solely responsible for ensuring that the Specifications in the Quote and other information you submit in your order are accurate and complete before accepting any Quote. Paperless Parts is not responsible for errors or omissions in the 3D models that are uploaded to the site.
A Quote is valid for the lesser of the duration of your visit to the site or 2 hours (or such other time frame as is specified in the Quote); your failure to accept a Quote within that time frame will void that Quote. YOU MAY NOT AMEND OR MODIFY THE SPECIFICATIONS AFTER YOU HAVE ACCEPTED A QUOTE.
No contract to manufacture any Part exists unless and until the Fabricator has acknowledged your acceptance of a Quote by a confirmatory email or other appropriate means of communication, as determined by us in our sole discretion. Once the Fabricators has acknowledged acceptance of your Quote, the Quote becomes an “Order”.
SINCE EACH ORDER IS CUSTOM MANUFACTURED, YOU MAY NOT CANCEL AN ORDER ONCE YOU HAVE ACCEPTED THE QUOTE; provided, if a Fabricator has not acknowledged your acceptance of a Quote within 10 days (or such other time frame as is specified in the Quote) after you have accepted the Quote, you may cancel the Quote.
Cancellation by Us
We may, at any time during the quotation, ordering and the manufacturing process, revoke and/or cancel any Quote/Order, if we reasonably believe there are technical or others reasons (such as a concern about intellectual property ownership of the design or the legality of the Part) to do so. In such case, we will refund to you all monies you paid us in connection with such Quote/Order, if any, provided you will still be liable below under “Release of Liability; Indemnification” with respect to any claims subject thereto.
Upon confirmation of your acceptance of a Quote, the Fabricator will, subject to the terms herein, cause the Fabricator to use commercially reasonably efforts to have the Part(s) manufactured in accordance with the Order and the Manufacturing Agreement.
STANDARD MANUFACTURING TERMS
ACCEPTING A QUOTE FOR THE MANUFACTURING OF A PART CONSTITUTESTHE ACCEPTANCE OF THE MANUFACTURING AGREEMENT BY THE PURCHASER WITHTHE FABRICATOR.
The following terms are the “Manufacturing Agreement” and apply between a Fabricator and a Purchaser with respect to any Order in the absence of Custom Manufacturing Terms. As noted above, Paperless Parts, Inc. is not party to these terms and has no responsibility with respect to them.
A. Delivery Estimates. Quotes will contain an estimated date of delivery, calculated on the basis of the input data. The term of delivery generated by the online ordering system gives a preliminary indication of planned date of shipment though does not bind Fabricator in any way. The estimated shipment date is based on the working conditions applicable at the time the Order is concluded and on the punctual delivery of the materials ordered by Fabricator for the performance of the work. Should a delay rise for which Fabricator is not responsible, as a result of a change in the aforementioned working conditions or because materials ordered in time for the performance of the work are not delivered on time, the shipment date shall be extended as required and Fabricator will not liable for such delay.
B. Risk of Loss. Unless otherwise agreed, all sales of Parts shall be ex-works (Incoterms2000). In the event that Purchaser requires delivery of the Parts otherwise than ex-works, Purchaser must contact Fabricator in order to detail its requirements. Fabricator, in its discretion, shall arrange the delivery requirements including, without limitation, transport insurance, the mode of transport and any special packaging requirements. Fabricator reserves the right to vary the mode of transport if any regulations or other relevant considerations so require. All costs, taxes, duties and charges related to fulfilling any ofPurchaser’s requests under this provision, shall be paid by Purchaser, unless otherwise agreed by bothparties.
C. Limited Warranty; Remedy. Fabricator represents and warrants to the Purchaser (and not to any third party) that for a period of ten (10) business days following the delivery of the Part (the “Warranty Period”), that the Part shall conform to the Specifications for such Part. Fabricator’s entire liability and Purchaser’s exclusive remedies under this warranty shall be as follows: In the event Purchaser notifies Fabricator during the Warranty Period that the Part fails to comply with the applicable Specifications in all material respects, Fabricator will, as Purchaser’s sole and exclusive remedy, at Fabricator’s option either : (1) provide Purchaser a replacement Part that confirms to the Specifications or (2) refund the amount paid by Purchaser for the affected Part in exchange for the return of the nonconforming Parts at Fabricator’s sole cost and expense. No returns will be accepted by Fabricator unless Purchaser has notified Fabricator within the Warranty Period. If Purchaser fails to contact Fabricator within the Warranty Period, Fabricator shall have no further obligations with respect to such Part.
D. AS IS; DISCLAIMER. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED HEREIN, THE PARTS PROVIDED UNDER STANDARD MANUFACTURING TERMS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. FABRICATORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND RELATING TO THE PARTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PURCHASER FROM FABRICATOR OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL PURCHASERS.
E. Indemnification. Purchaser agrees to indemnify and hold harmless Fabricator and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by Purchaser of any undertaking, warranty, representation or agreement contained herein; (ii) arising out of a claim that a Part manufactured by the Fabricator pursuant to an order hereunder violates any law, regulation or ordinance; (iii) arising out of a claim with respect to the Part (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Part; or (iv) arising out of any claim that any Specification, or Part made in compliance with the Specification, or the manufacturing of the Part, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party.
F. Disclaimer of Certain Damages. FABRICATOR SHALL NOT IN ANY EVENT BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE, WHETHER OR NOT FABRICATOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THE PARTS, OR THE FAILURE TO PROVIDE THE PARTS IN COMPLIANCE WITH THE STANDARD MANUFACTURING TERMS; (2) THESE STANDARD MANUFACTURING TERMS; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, PARTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED UNDER THE STANDARD MANUFACTURING TERMS; OR (4) ANY OTHER MATTER RELATED TO THE PARTS OR STANDARD MANUFACTURING TERMS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
G. Cap on Liability. UNDER NO CIRCUMSTANCES WILL FABRICATOR BE LIABLE TO PURCHASER FOR MORE THAN THE GREATER OF (I) THE AMOUNT PAID BY PURCHASER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, OR (II) ONE HUNDRED DOLLARS ($100). CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO PURCHASER, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO PURCHASER, AND PURCHASER MIGHT HAVE ADDITIONAL RIGHTS.
Pricing and Payment
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. For most Services, we will charge your designated Payment Method upon your acceptance of the Quote, but some charges are billed on a different schedule. Because orders are for custom work, all payments are nonrefundable except as expressly stated in this Agreement.
You must provide us with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Method”). By providing us with your Payment Method information, you agree that we are authorized to charge your Payment Method for all fees and charges due and payable to us hereunder and that no additional consent or notice is required. We reserve the right at any time to change our prices and billing methods, either immediately upon posting notice on the Site or by email delivery to you.
You are responsible for all charges incurred, including applicable taxes and purchases made by you or anyone who is using an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment. This means that, unless your account or Payment Method information is obtained unlawfully or fraudulently, you will be responsible for all usage and purchases made on your Payment Method.
Use of Stripe
Payment processing services for Fabricators and Purchasers on our Service are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). These terms can be found at https://stripe.com/us/connect-account/legal and https://stripe.com/us/legal respectively. By agreeing to this Agreement or continuing to operate as Purchaser or Fabricator in connection with the Service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of our enabling payment processing services through Stripe, you agree to provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.
All prices are calculated in US Dollars and payment to us must be in the form of US Dollars. Unless otherwise stated, the price quoted with respect to the manufacture of any particular Part includes the cost for the Services rendered by us, the manufacturing of the Part and the standard shipping (as selected by us), as well as all applicable sales and use taxes. Additional fees may apply for any alternate shipping methods and/or shipping insurance. You, and not us, are responsible for any such taxes, levies, or duties related to your transactions, excluding only our United States federal or state income taxes. Parts provided through the Site may be subject to sales tax. Prior to your acceptance of our Quote, you will see an estimate of the tax to be collected. The amount of tax actually charged on your order will depend on various factors, including the shipment destination.
Suspension of Services
We reserve the right to suspend performance hereunder (including causing the Fabricator to suspend the manufacture or delivery of any Part) in the event you fail to pay all outstanding amounts when due. The Fabricator retains full legal title to Parts until we have received full payment with respect to such Parts and payment on any other Parts that you have ordered.
You should let us know about any billing problems or discrepancies within 30 days after they first appear on your account statement. If you do not bring them to our attention within 30 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this Section.
As Is; Disclaimer
Any warranty provided to a Purchaser relating to Parts or the delivery thereof is provided solely by the Fabricator in the Manufacturing Agreement, and we are not responsible for any such warranty. THE SITE AND SERVICES, AND ALL INFORMATION AND CONTENT THEREIN, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND RELATING TO THE SERVICE OR THE PARTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Reviews and Comments.
You may use comment or other features, if provided via the Site, to provide reviews of product, suggestions or other communications (your “Reviews and Comments”), but in providing Reviews and Comments to us with the Site you grant us the nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such Reviews and Comments throughout the world in any media. You promise us that you own or otherwise control all of the rights to the Reviews and Comments that you make and have the right to submit it for this purpose; that the content is accurate; that use of the Reviews and Comments you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify us for all claims resulting from content you supply. We have the right but not the obligation to monitor and edit or remove any activity or content. We take no responsibility and assumes no liability for any content posted by you or any third party.
Ownership and Use of Content Submitted or Made Available for Inclusion on the Service
We do not claim any ownership over your Specifications or any content, data or other materials you upload to or otherwise make available on the Site (“Content”). You are solely responsible for Content that you upload to the Site. You hereby grant us a non-exclusive, royalty free, fully paid-up, sublicensable (to our Fabricators), right and license to reproduce and use your Content for the purpose of designing, manufacturing and delivering your Parts to you, and to provide you any other Services you request. Further, the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. By submitting an order to us, you represent and warrant that you are the owner and/or you have obtained the rights necessary to grant us the rights granted herein without any violation of any intellectual property rights, or payment by us of any amounts to any third party. You further represent and warrant that your Content does not infringe upon, misappropriate, or violate any third party’s rights, including intellectual property, privacy and publicity rights.
Use of Content
We will not use the Content other than to provide the Service to you, and we will use reasonable commercial efforts to keep it confidential. We may provide the Content to Fabricators and other third parties that perform operation and development services for us for technical purposes, subject to confidentiality agreements between us and such third parties, or as required by law. In addition, we may use data stored on the Service (and statistics about the use of the Service) in order to operate the Service, including for the purpose of verification of compliance with this Agreement. Upon request by you in connection with the termination of this Agreement, we will destroy or discard all Content, provided we shall not be required to destroy, discard or alter any computer archival and backup tapes or archival and backup files, but such archival and backup materials shall be kept confidential in accordance with this Agreement.
Access to Content
Notwithstanding the foregoing, we may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our (or our other customers’ or the public’s) rights, property, or personal safety.
Our Proprietary Rights
The Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. All right, title and interest (including copyright) in and to the Service and the Software, including any inventions, creations and improvements thereto, whether or not patentable or copyrightable, conceived or made in connection with the performance of our obligations hereunder, shall remain ours.
You may voluntarily provide (in connection with use of the Service, use of our products or otherwise) suggestions, comments or other feedback to us with respect to items or information provided by us on the Service or otherwise. We are not required to hold such feedback in confidence, and such feedback may be used by us for any purpose without obligation of any kind; provided, that we will not disclose the source of specific feedback without your consent; and nothing in this Agreement restricts the use by you of such feedback or ideas that you provide to us.
Limitations on Access and Use
You may not access the Service by any means other than through the interface that is provided by us for use in accessing the Service. You may not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your account name), use of the Service, or access to the Service.
In general, the Service is provided in a manner which does not result in your downloading or using any of our Software. In the event that we do, however, provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer in connection with your access to the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You may not modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
The Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
We (and not you or any third party) are the sole determinant of the features and capabilities of the Service, and the schedule for releasing those features. Any feature or capability described as being developed or being available at some future date shall be understood as subject to implementation risks, and the unavailability of any such feature shall not be considered unless and until we have confirmed in writing that such feature has been actually implemented. We reserve the right to modify, replace, or add to the features of the Service in our discretion at any time, without notice. In addition, we have the unrestricted right to make changes (including removing features) required to comply with applicable law or minimize the potential for liability for defects without prior notice if necessary.
Notwithstanding any provision of this Agreement to the contrary, this Agreement does not prohibit either party from using for any purpose the “Residual Knowledge” (as defined below) resulting from access to or work with confidential information, provided that such party shall maintain the confidentiality of the confidential information as provided herein. “Residual Knowledge” means information in a non-tangible form that is retained in the unrefreshed memory of the persons who have had access to the Confidential Information, including concepts, know-how or techniques contained therein; with respect to machine learning “Residual Knowledge” means modifications to processing criteria or processes of a software programs based on processing of information without retaining the information processed.
Privacy Policies and Use of Data
Rights to End User Data and Key Word Materials
“End User Data” means Registration Information, Customer Service Communications or Log Information. “Registration Information” is any information provided when voluntarily registering for use of the Service, including, but not limited to, username and password and email address, and which may include Personal Information. “Customer Service Communications” is any information that is reported to us about the operation of the Service, including bug reports or requests for enhancements. “Log Information” is information servers automatically record relating to the usage of the system which may include information such as end user messages, Internet Protocol address, other addressing information, the date and time of requests and authentication tokens used to validate the identity of a user.
“Queries” means information which you enter into the Service to identify or search for materials to view through the Service. Accordingly, we may use results of your queries as suggestions for other users of the Service, and we may provide the content linked to or contained in those feeds to other users.
“Key Word Materials” means classificatory information relating to Content that end users access or upload (which may include “key words”, “tags” or other such indications), aggregates, or otherwise combinations of such information into various kinds of classificatory or definitional schemes.
“Aggregated Non-Personal Information” is information that about users (which may be derived from End User Data) and collected or combined in such manner so that it no longer reflects or references you or any individually identifiable user.
“Personal Information” is information that you or an end user provides to us which personally identifies an individual, such as by name, email address or billing information.
The Service (and any advertising on the Service, if applicable) may include links to third-party content or resources (“External Resources”) including, without limitation, web pages. Similarly, we may, from time to time, inform you of External Resources that can be used by you in connection with the Service, and you may opt to use these or other third-party services in connection with the Service. We may have no control over External Resources.
“External Resources” for this purpose includes without limitation all Fabricators and services provided by them.
Your use of any External Resources in connection with the Service or otherwise, and any terms, conditions, representations and/or warranties associated with such use, are solely between you and such third-party service provider. We expressly disclaim any responsibility for the availability of any External Resources. We make no representation or warranty with regard to any External Resources, even if the provider of such is certified by us or selected as a premier provider (or similar designation) by us, and we shall not be responsible to you or any other person in any manner for any such External Resources. We expressly disclaim any responsibility for any inaccuracy in any information or other materials contained in any External Resources and any defective products or services provided by, or advertised on, any External Resources, or the fact that use of External Resources may result in access to and use of your and your users’ data by third parties. You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability (or lack of availability) of those External Resources, or as a result of your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from or through any External Resource.
We will make reasonable attempts to backup data. However, because the success of this process depends on equipment, software and services over which we have at best limited control, you agree that we have no responsibility or liability for the deletion or failure to store any data or other Content or communications maintained or transmitted by the Service. We take reasonable steps to secure Content and other data. However, we cannot guarantee that the Content and data transmitted by you will remain secure. You acknowledge that we may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service, the maximum number and size of postings that may be made through an account on the Service, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. We have no responsibility or liability for the deletion or failure to store any posting and other communications or other Content maintained or transmitted by the Service. We may modify these general practices and limits from time to time in our discretion.
Limitation of Liability
Disclaimer of Certain Damages
WE SHALL NOT IN ANY EVENT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR FOR LOSS OF INCOME, BARGAIN, REVENUE, CONTRACTS, GOODWILL, USE, ENJOYMENT, TIME, DATA, OR ELECTRONICALLY TRANSMITTED ORDERS OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, PARTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES; (3) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, SPECIFICATIONS, TOLERANCES OR DATA; (4) YOUR PARTS; OR (5) ANY OTHER MATTER RELATED TO THE SITE AND SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability
UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (I) THE AMOUNT RECEIVED BY US FROM YOU DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, OR (II) ONE HUNDRED DOLLARS ($100).
Exclusion of Damages
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Release of Liability; Indemnification
YOU ACKNOWLEDGE AND AGREE THAT THE PARTS AND THEIR MANUFACTURE, ARE BASED ON SPECIFICATIONS PROVIDED BY YOU. ACCORDINGLY, YOU AGREE THAT UNDER NO CIRCUMSTANCE WILL WE BE LIABLE FOR ANY DAMAGE OR LIABILITY RESULTING FROM ANY PART, INCLUDING ANY PART DEFECT RESULTING FROM THE MANUFACTURE OF A PART IN ACCORDANCE WITH THE SPECIFICATIONS. You hereby release us and our affiliates, and their officers, directors, employees, agents, and consultants and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arises from your Part(s).
If you are a California resident, you hereby waive California Civil Code Section 1542, which states,
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
You agree to indemnify and hold harmless us and its officers, directors, shareholders, agents, licensees, employees, successors and assigns, from and against any and all damages, liabilities, awards, losses, costs and expenses including, without limitation, reasonable attorneys’ fees and court costs: (i) arising out of any breach by you of any undertaking, warranty, representation or agreement contained herein; (ii) arising out of a claim that a Part manufactured by a Fabricator pursuant to an order hereunder violates any law, regulation or ordinance; (iii) arising out of a claim with respect to the Part (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Part; or (iv) arising out of any claim that any Specification, infringes upon or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party.
Term and Termination
This Agreement commences on the date when you accept it (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated in accordance with the terms herein.
Termination of Services by you
If you want to terminate the Services provided by us, you may do so by (a) notifying us at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to our address set forth below.
Suspension or Termination by Us
We may, at any time, stop (permanently or temporarily) providing the Service (or any features within the Service) to you at our sole discretion, and/or terminate this Agreement or all or some of your rights under this Agreement if:
you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you or your personnel do not intend to, or are unable to comply with the provisions of this Agreement) and have not cured that breach within 15 days of notice, in which case we shall have no obligation to refund to you any fees already paid; or
there is an attack on the Service, the Service is accessed or manipulated by a third party without our consent, or there is another event for which we reasonably believe that the suspension of your access to the Service is necessary to protect our network or our other customers or we are required to do so by law (for example, where providing you or your personnel access to the Service may be, or become, unlawful).
Effect of Termination
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also include deletion of your password and all related information, files and your Content associate with or inside your Account. We will not have any liability whatsoever to you for any suspension or termination, including deletion of your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, payment obligations, indemnification obligations and limitation of liability.
All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to this Agreement will be in writing (and shall be deemed to have been duly given upon receipt), will reference this Agreement and shall be sent by mail, express courier, hand delivery, email or fax transmission, addressed if to you at the address provided by you in your Registration Data and if to us at:
Paperless Parts, Inc.
50 Milk Street, Floor 16
Boston, MA 02109
Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
With respect to notice given by email or fax transmission, the recipient shall be obligated to confirm such notice by equivalent means promptly (and in no even less than one business day); in the event that such confirmation has not been received by the sending party within such one business day period, the sending party may thereafter provide notice by the other means permitted hereunder (physical mail/delivery) with reference to the email or fax transmission, and such notice shall (upon delivery in accordance with the above procedures) be deemed to have been given on the date on which such original email or fax transmission was sent.
If either of us is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
This Agreement constitutes the entire agreement between both of us and governs your use of the Service, superseding any prior agreements between both of us with respect to the Service (specifically excluding any Other Agreement).
Choice of Law and Forum
This Agreement and the relationship between both of us shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. Your exclusive forum for bringing any claim or cause of action against us is the courts located in the City of Boston, Massachusetts U.S.A. You hereby accept and submit to the personal and exclusive jurisdiction of such courts in any proceeding or action. With respect to any such proceeding or action brought in such courts, you hereby irrevocably waive, to the fullest extent permitted by law: (a) any objection you may have now or in the future to such jurisdiction or venue, and (b) any claim that such action or proceeding has been brought in an inconvenient form. Nothing limits our right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or any other form of relief.
Statute of Limitations
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Waiver and Severability of Agreement
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
No Third Party Beneficiaries
Except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
Restrictions on Assignment
This Agreement and all of the rights, interest or obligations hereunder may be not assigned, directly or indirectly, including, without limitation, by operation of law, by either of us, without the prior written consent of the non-assigning party, not to be unreasonably withheld, delayed or conditioned; provided, however, either party may assign this Agreement without any such requirement of consent, in whole or in part to any affiliate, subsidiary or successor in interest in the event of a merger, consolidation, acquisition, reorganization, change in control or otherwise, provided that: (i) the assigning and acquiring entity notify the non-assigning party at the time of such assignment and the acquiring entity agrees in writing to be bound by this Agreement, and (ii) the acquiring entity is no a competitor of the non-acquiring entity.
Use of Company Name and Logo
You agree to have your company name and logo used in marketing materials.
Accepting This Agreement
Agreement to This Agreement
In order to use the Service, you must first agree to this Agreement. You may not use the Service if you do not accept this Agreement. You can accept this Agreement by clicking to accept or agree to this Agreement, where this option is made available to you by us in the user interface for any service; or by actually using the Service. You agree that we will treat your use of the Service as acceptance of this Agreement from that point onwards.
Eligibility to Use the Service
You may not use the Service and may not accept this Agreement if (a) you are not of legal age (either under the laws of the Commonwealth of Massachusetts or the laws of the jurisdiction of which you are a resident or from which you use the Service) to form a binding contract with us, or (b) you are a person barred from using the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service.
Use by Minors
Due to restriction on the storage and use of personal information, no person under the age of 13 may use the Service. Any individual under the age of 18 years (“Minor”) must have a parent or guardian accept this Agreement in order for such Minor to use the Service. A parent or guardian who accepts this Agreement on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with this Agreement, including any payment obligation. A parent or guardian who accepts this Agreement on behalf of a Minor will continue to be primarily liable for the obligations mentioned in this Agreement even when the Minor has attained the age of 18, unless the parent or guardian obtains the Company’s express written consent to the contrary.
Acceptance of This Agreement by an Organization
If you are entering into this Agreement on behalf of a company or other organization, you must have the authority to bind your company or organization to this Agreement and commit funds on its behalf. Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager. We may reject this Agreement if we determine, in our sole discretion, that you do not have the appropriate authority. In any case, if you are entering into this Agreement on behalf of a company or other organization, you represent that you have the authority to bind it to this Agreement and commit funds on its behalf, and the terms “you” and “your” will refer to that company or organization.
Representation of Eligibility
In any of the above cases, case, you represent that you satisfy all of the above eligibility conditions. If you do not satisfy the above conditions, or if you do not agree with this Agreement, you may not use the Service or any portion thereof; in that case, we may also terminate your use of the Service immediately without liability to you.
Amendment and Updating of This Agreement; Electronic Signatures
We may desire to make changes to this Agreement from time to time to update it, for example to add references to different products and services, or provide for payment for the use of the Service. We may specify amended or updated terms that apply to the use of Service after the effective date of such amendment or update, and we will make a new copy of this Agreement available to you and may require you to accept it as a condition to the continued provision of the Service to you. In addition, the continued use of the Service after receipt of such amended Agreement shall constitute your agreement to such amended Agreement. In addition, any modification, amendment, or waiver of any provision of this Agreement shall be effective if in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the Service. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.