Partner Terms and Conditions
This Manufacturing Services Agreement (the “Agreement”) is made and entered into between Xometry, Inc. (“Xometry”) and you (“You” and “Your”), as of the date that You accept this Agreement as provided in this preamble. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “I ACCEPT” BUTTON, CREATING AN ACCOUNT OR COMPLETING THE REGISTRATION PROCESS INCLUDING THROUGH XOMETRY’S WEBSITE OR MOBILE APPLICATION (COLLECTIVELY, THE “WEBSITE”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH XOMETRY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN XOMETRY’S PARTNER MANUFACTURING PROGRAM AS DESCRIBED BELOW. Xometry’s General Terms and Conditions available at www.xometry.com/terms (“General Terms”) are incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the General Terms, the terms of this Agreement shall supersede and control to the extent of any such conflict. Additionally, You agree to comply with Xometry’s Supplier Code of Conduct, Environmental Policy and Human Rights Policy, available at https://www.xometry.com/esg/.
Please note that Xometry may modify this Agreement at any time, and such modifications shall be effective immediately upon posting the modified version on the Website for orders you accept after such modifications have been posted. Xometry will also update the “Last Updated” date at the top of this Agreement. If Xometry makes any material changes, and You have registered with Xometry to create an Account (as defined below), Xometry may also send You an email to the last email address You provided pursuant to this Agreement. Xometry may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or participation in the Program is permitted. If You do not agree to the change(s), You shall stop using the Website and/or participating in the Program. Otherwise, Your continued use of the Website and/or participation in the Program shall be deemed Your conclusive acceptance of the modified Agreement.
- PARTNER MANUFACTURING PROGRAM.
1.1 Manufacturing Projects. Xometry hosts and maintains an online platform available at the Website that enables Xometry’s customers to upload their models, drawings or other files for their manufacturing projects (each, a “Manufacturing Project”). In order to offer its customers greater efficiencies and the best pricing and quality of manufacturing services, Xometry maintains a partner manufacturing program consisting of a network of third-party manufacturers capable of performing manufacturing services on Xometry’s behalf (the “Program”). As an approved participant in the Program, You will have access to Xometry’s software tool used to administer the Program (“WorkCenter”) and access to work orders, purchase orders or similar ordering documents from Xometry, from time to time, for the manufacture of certain Manufacturing Projects (each, a “Work Order”).
Each Work Order will identify: (a) shipping terms; (b) delivery location; (c) delivery date(s); (d) the parts, assemblies and items to be delivered (each, a “Part”); (e) the model and other written specifications related to the Part that have been agreed to by the customer submitting the Work Order (the “Customer”) and Xometry (the “Specifications”); and (f) compensation to be paid to You for successful completion of the Work Order; each Work Order also incorporates and is governed by the terms of this Agreement. Partner will be responsible for all costs and expenses associated with any Manufacturing Project, including the manufacture of the Part(s). If You indicate Your willingness to accept and are awarded the Work Order, You will perform the work specified in the Work Order in accordance with the terms herein, including Section 2.
1.2 Program Registration. In order to participate in the Program, You must register for an account on the Website (“Account”). In registering for an Account, You agree to (a) provide true, accurate, current and complete information about Yourself and Your manufacturing capabilities as prompted by the Program registration form (the “Registration Data”); and (b) maintain and promptly update the 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 (1) notify Xometry immediately of any unauthorized use of Your password or any other breach of security; and (2) exit from Your Account at the end of each session.
The company for which You register for the Program, create an Account, and provide Registration Data is the only entity that may perform work for any Work Order. Such work must be performed at the address in the Registration Data, except with respect to finishing processes to the extent permitted by Section 2 below. No other person or company may perform work for Your Work Orders without prior written approval from Xometry, including companies owned directly or indirectly by You, Your company, or Your family members.
If You provide any information that is untrue, inaccurate, misleading, not current or incomplete, or Xometry has reasonable grounds to suspect that such information is untrue, inaccurate, misleading, not current or incomplete, Xometry has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website and participation in the Program (or any portion thereof).
1.3 No Expectation of Work Orders. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RECEIVED ANY ASSURANCE THAT YOU WILL HAVE ACCESS TO OR BE AWARDED ANY PARTICULAR NUMBER OF WORK ORDERS OR RECEIVE ANY MINIMUM VOLUME OR COMPENSATION AS A RESULT OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM. XOMETRY WILL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY YOU ARISING FROM OR INCIDENT TO YOUR PARTICIPATION IN THE PROGRAM, OR ANY TERMINATION OF THIS AGREEMENT BY XOMETRY, WHETHER XOMETRY IS AWARE OF SUCH DAMAGES, LOSSES OR EXPENSES. - MANUFACTURE OF PARTS
2.1 Manufacture and Delivery. Partner agrees to perform the work specified in the Work Order pursuant to the terms therein and this Agreement, including manufacturing, testing, calibrating, inspecting, handling, identifying and otherwise producing the Part(s) in accordance with the Specifications, and for the price(s) provided by Partner in its quote for the manufacture and delivery of such Part(s) and accepted by the Partner in the Work Order. The Partner agrees to the use of statistical techniques for product acceptance and to comply with all related instructions for acceptance by Xometry. If tolerances are not specified in the Work Order, then Partner agrees to manufacture Part(s) to the current Xometry manufacturing standards which are are subject to change and available at www.xometry.com/manufacturing-standards (“Manufacturing Standards”) (which are incorporated herein by reference).
In accepting any Work Order, You represent, warrant and covenant that You: (a) have a suitable quality management system in place; (b) use measures to prevent foreign object damage; (c) ensure that You and any approved Subcontractors do not use any illegal or counterfeit parts, processes, products, materials, goods or supplies in connection with the manufacture of any Parts; (d) will ensure that Your directors, officers, employees, independent contractors (collectively “Personnel”) are aware of their contribution to Part conformity and product safety and that such Personnel are at all times working in a manner that is safe and ethical; (e) have updated your Registration Data and will notify Xometry of any further changes in processes, products or services, subcontractor or location; and (f) will immediately notify Xometry in writing in the event of any non-compliance with the terms of the Work Order and/or this Agreement.
You will respond timely, typically within twenty-four (24) hours, to Xometry’s requests for information about a Work Order including in WorkCenter. Failure to do so may result in suspension of Your account or termination of Your status as a Partner.
Partner shall not subcontract or delegate any of its obligations hereunder without the prior written consent of Xometry; provided, however that subcontracting and delegation of finishing processes (e.g., painting, plating, etc.) is permitted on Work Orders that are NOT subject to Trade Laws (defined below). You are solely responsible for any subcontractors, service providers, suppliers, licensors and/or manufacturers (collectively, “Subcontractors”) you engage to manufacture, calibrate, test and otherwise produce any Part, and will indemnify Xometry for any damages, liabilities, losses, judgments, penalties, settlements, costs and expenses, incurred by Xometry or its Customers as a result of any acts or omissions of such Subcontractors. If required by Xometry or the applicable Customer, you will solely use those Subcontractors designated by Xometry and/or the applicable Customer. You will ensure that all Subcontractors comply with this Agreement (through flow-down terms and conditions) and will immediately notify Xometry of any violation or potential violation by any Subcontractor.
All Parts shall be delivered FCA (Incoterms 2010) to the destination designated in the Work Order, or other place of shipment as specified by Xometry, and will be packaged in an adequate manner to protect and preserve the Part(s). All shipments of Parts shall be with an Xometry approved carrier and with adequate liability and replacement insurance coverage. Unless otherwise stated in the Work Order, all customs, duties, costs, taxes, insurance premiums, and other expenses relating to such transportation and delivery shall be at Partner’s expense. Title to the Parts furnished by Partner shall vest in Xometry or the Customer, as applicable, when Parts are inspected and accepted by Xometry or the Customer, as applicable, pursuant to this Agreement. If You are late shipping or delivering an expedited or DPAS Work Order, Xometry may, in its sole discretion, deduct a portion of the compensation up to the total amount of the Work Order, which amount may include any Customer penalties assessed for late delivery and/or the expedited fee charged to Xometry’s Customer.
2.2 Testing and Acceptance of Parts. The Parts made in accordance with this Agreement are subject to an acceptance test by Xometry and/or the applicable Customer (such party performing the testing, the “Examiner”) before acceptance. The Examiner may, in its sole discretion, reject any portion of any shipment of Parts which does not conform to the Specifications. In order to reject a shipment or Part, the Examiner must give notice of its intent to reject the shipment within one hundred eighty (180) days of the Examiner’s receipt of the shipment. After notice of intent to reject is given, Xometry will cooperate with Partner in determining whether rejection is necessary or justified. If no such notice of intent to reject is timely received, the Examiner shall be deemed to have accepted such Part (“Accepted”). In the event a Part or shipment is properly rejected in accordance with the terms herein, Partner agrees to promptly, on receipt of notice of rejection, use best efforts to provide replacement Parts at Partner’s sole cost and expense, including the cost of shipping the Parts to Partner for remaking or re-working, shipping the replacement Parts back to the Customer (in both cases expedited shipping may be required at Xometry’s direction and such additional cost shall be paid by Partner). Xometry may offset any costs to be paid by Partner pursuant to this Section 3.2 against any amounts owed to Partner by Xometry. The testing and examination process shall resume as set forth above, with the Examiner having twenty (20) business day testing period for the replacement Parts. If the Examiner determines that the replacement Parts still do not comply with the Specifications, the Examiner may (a) afford Partner the opportunity to repeat the correction and modification as set forth above at Partner’s sole cost and expense, (b) permit Xometry itself to correct the Part(s) (or engage a third party to do so) and deduct the costs and reasonable expenses associated with such correction from the compensation owed to Partner; or (c) cancel the Work Order in which case Xometry will not be responsible for the payment of any compensation, fees, costs or expenses to Partner.
You will maintain for at least five (5) years, or longer if required by applicable law, after the manufacture of a Part, complete and accurate books and records related to the manufacture, inspection, validity of inspection equipment, testing, reworking, repair, identification, traceability, and subcontracting, including books and records related to any retention periods and disposition requirements related thereto.
2.3 Audits and Site Visits. Partner agrees that, upon reasonable notice, Xometry and/or its designated representatives, including its Customers and their designated representatives, shall have the right to audit and inspect Partner’s facilities, operations, processes, and relevant books and records to verify compliance with the terms of this Agreement, including but not limited to quality standards, regulatory requirements, and production specifications. Such audits shall be conducted in a manner that minimizes disruption to Partner’s operations. Partner shall provide reasonable access to personnel, documentation, and production areas as necessary to facilitate the audit.
If any non-compliance is identified, Partner agrees to promptly implement corrective actions at its own expense and provide a written remediation plan within a mutually agreed timeframe. Partner may require auditors to comply with reasonable confidentiality, safety, and security procedures, provided such requirements do not materially restrict the audit rights granted herein. Unless otherwise agreed, each party shall bear its own costs associated with any audit; however, if a material breach or significant non-compliance is identified, Partner will reimburse Xometry for reasonable audit-related expenses.
2.4 Compliance with Laws. Partner shall comply, at its sole cost and expense, with all applicable statutes, regulations, rules, ordinances, codes and standards (collectively, “Laws”) governing the manufacture, assembly, transportation, import, export, reexport, trade, commerce, sale, or transfer of Parts, including but not limited to export control, economic sanctions, and anti-corruption / anti-bribery (collectively and with U.S. Trade Laws (defined below), “Trade Laws”). Partner is hereby on notice that data provided by Xometry or Customers may be subject to the U.S. International Traffic in Arms Regulations (“ITAR”), the U.S. Export Administration Regulations (“EAR”), the Office of Foreign Assets Control (“OFAC”) economic sanctions regulations (“U.S. Sanctions”), the Foreign Corrupt Practices Act, and/or other laws and regulations governing U.S. products and data (collectively, “U.S. Trade Laws”) as well as those of the United Kingdom and the European Union, among other Trade Laws. Partner agrees that neither it nor any of its Personnel, consultants or agents will export, re-export, transfer, or take any other related actions (collectively, “Release”) any Xometry or Customer data or items without first obtaining any required authorization required under the applicable Trade Laws, including but not limited to, ensuring that Xometry and Customer data or items shall be accessible only by persons authorized under the U.S. Trade Laws, which may limit access to U.S. citizens, lawful U.S. permanent residents or a person who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). Partner shall not Release any such data or items to any foreign national unless specifically authorized by Xometry in writing and otherwise in accordance with Trade Laws.
In addition to the foregoing, Partner shall not Release any data or items from Xometry or Customers to entities or individuals (a) organized or located in Russia or Belarus; (b) organized or located in an embargoed country or territory, including but not limited to, Cuba, Iran, Syria, North Korea, and the Crimea, Donetsk People's Republic, and Luhansk People's Republic regions of Ukraine; or (c) subject to sanctions under the Trade Laws (including, but not limited to, those on or covered by OFAC’s Specially Designated Nationals and Blocked Persons list (the “SDN List”), including those 50% or more owned directly or indirectly by one or more persons on the SDN List, any person on the Entity List or List of Denied Persons maintained by the U.S Department of Commerce’s Bureau of Industry and Security, as well as any person on or covered by EU and UK lists, including but not limited to, the European Union Sanctions List and United Kingdom Sanctions List, or any other applicable government authority list) (collectively, “Trade Sanction Lists”).
Further, without written approval from Xometry, Partner shall not process any input materials from Russia and/or Belarus in any Xometry orders and Partner shall fully comply with all applicable prohibitions in EU Regulation No. 833/2014 - Annex XVII and Annex XXI, which contain restrictions relating to steel and machinery production, as well as the use of certain steel or iron screws, bolts, and fittings.
Partner shall maintain appropriate procedures to: (1) ensure that Xometry Customer data or items are Released (a) only to persons authorized under the Trade Laws and (b) for shipment in accordance with the Trade Laws; (2) obtain and maintain any registration, license, agreement, or other authorization required under the Trade Laws, including but not limited to, ITAR and/or EAR, and (3) detect and appropriately address any potential breaches of compliance with the Trade Laws. Partner shall promptly notify Xometry of any changes to any registration, license or authorization under the Trade Laws.
Partner shall promptly notify Xometry of any actual or suspected violation of any Trade Laws, and Xometry may immediately suspend Partner in the event of such violation. Partner shall secure binding obligations from any independent contractors or other parties who have access to Xometry or Customer data or otherwise are performing services or activities in connection with this Agreement to comply with the terms of this Agreement.
Any Work Order showing a DPAS rating is a rated order certified for national defense use and You acknowledge and agree that you are required to follow all provisions of the Defense Priorities and Allocations System regulation (15 CFR 700) and shall be responsible for any delays or noncompliance thereunder.
2.5 Contact with Customers. Partner acknowledges and agrees that Customer satisfaction is extremely important to Xometry, and that in order to ensure such satisfaction, Xometry requires that all communications that take place with respect to any Customer’s Work Order, must take place exclusively on or via WorkCenter. From time-to-time Xometry may initiate direct communication between Partner and Customer on its platform to resolve Work Order specific questions (“Direct Comms”). As such, Partner covenants and agrees that all contact and communications with a Customer related in any way to any Work Order, shall be conducted solely through Direct Comms and shall follow all guidelines, including but not limited to, maintaining professionalism, anonymity and non-solicitation. Partner further acknowledges that it has no expectation of privacy on WorkCenter, and that Xometry may monitor such contact and communications at any time without notice for any business purpose and may in its sole discretion filter or delete any communication it deems inappropriate for any reason.
Additionally, Partner acknowledges that Xometry spends a great deal of time and money finding and developing customer leads and establishing relationships with Customers. Partner agrees it will not market to, solicit directly, contact, or communicate with Customers or prospective customers it learns of through Xometry or WorkCenter other than Direct Comms, nor will Partner include its own marketing materials or business cards inside packaging with Parts to be delivered to any Customer (collectively “Partner Prohibited Communications”). If Partner engages in any Partner Prohibited Communications, including any solicitation of business or other prohibited communications in any Direct Comms, in addition to any other remedies that Xometry may have under this Agreement, including but not limited to Partner’s termination from the Program, Partner shall pay Xometry $25,000 for each such Partner Prohibited Communication (“Prohibited Communication Fee”) which may be offset or deducted from any amount payable by Xometry to Partner. The Prohibited Communication Fee is reimbursement for the burden and cost of developing the Customer or prospective customer relationship and to mitigate damage to Xometry’s brand and sales. The Parties agree that the Prohibited Communication Fee is a reasonable estimate of the above-described costs and damages, which are otherwise difficult to ascertain.
2.6 Production Parts. The following terms apply to all Work Orders pursuant to which Partners are manufacturing production Parts for Customers (a “Production Work Order”):
a. Maximum Lead Time. A Production Work Order authorizes Partner to manufacture Parts solely based on the current production schedule for such Parts provided by Xometry (the “Schedule”). Partner must not exceed a production lead time of six (6) weeks unless otherwise permitted in the Production Work Order. Any production, whether complete or partial, beyond the Schedule may not be compensated and is undertaken at Partner’s sole risk and expense.
b. Maximum Material Purchases. A Production Work Order authorizes Partner to procure raw materials in accordance with the Schedule. Partner must not purchase raw materials or components in excess of those necessary for the lead time specified above plus an additional four (4) weeks. Any purchases made in excess of such amounts are made at Partner’s sole risk and expense.
c. Volume Guarantees. Projected demand and forecasts for raw material/component purchases provided by Xometry are for planning purposes only. Annual program volume and forecast durations are not guaranteed but represent Xometry’s best available information at a point in time.
d. Part Volume Changes. Customer may change Part volumes. Partner must notify Xometry in writing of any issues with such changes within 48 hours of receiving notice of such changes from Xometry or Customer.
e. Product Changes. Parts approved under the Production Part Approval Process (“PPAP”) must also be manufactured according to the specified and approved requirements within the PPAP. No deviations are permitted without written approval from Customer and Customer’s engineering department. Partner will work with Xometry and/or Customer on specific events, Part volume change requests, and product change requests, including any cost implications of such changes.
f. Productivity. Partner will proactively implement continuous improvement initiatives to enhance production efficiency and commercialization. - XOMETRY WORKCENTER. In addition to use by Xometry to manage the Program, WorkCenter also provides tools that enable Partners to manage and track work in progress. If You use a free trial or beta version of WorkCenter, You understand and agree that Your free access and use of WorkCenter is contingent upon Your status as a Partner in good standing in compliance with all WorkCenter terms of use. Should You cease to be Partner, Xometry may, in its sole discretion, charge You a fee for Your continued use of WorkCenter or disable Your access to WorkCenter. Xometry may also offer upgrades or enhancements to WorkCenter which may incur fees should You choose to upgrade Your free trial or beta version of WorkCenter. Finally, Xometry may choose to end its free trial or beta version of WorkCenter at any time by providing written notice to then-current users of WorkCenter.
Xometry may collect, access and use any data entered into WorkCenter for its business purposes, including but not limited to, in order to configure, provide, and maintain WorkCenter, and otherwise as necessary to comply with its obligations under this Agreement. Xometry may collect and use data generated by (or on behalf of) WorkCenter for its business purposes (including without limitation to report on the aggregate response rate and other aggregate measures of WorkCenter performance), so long as such data is presented in aggregated and de-identified form.
Non-Xometry initiated information, content, data, or other materials, including but not limited to work order data and related customer information entered into WorkCenter by You that is not related to any Work Order (“Partner WorkCenter Data”) shall be owned by You. Xometry shall not use Partner WorkCenter Data to market Xometry services to Your customers. Notwithstanding the foregoing, You acknowledge that Xometry may have existing relationships with Your customers or such customers may seek out Xometry services independent from Your use of WorkCenter. - FEES AND PAYMENTS
4.1 Fees and Payment. Subject to the terms herein, Xometry will pay Partner, as its sole compensation for the performance hereunder, including the manufacture and delivery of the Parts, the compensation set forth in the applicable Work Order within forty (40) days after the Part(s) have been Accepted.
4.2 Taxes. All applicable taxes (including but not limited to sales/use taxes) and other charges (such as duties, customs, tariffs, imposts and government-imposed surcharges), shall be the responsibility of Partner, and Partner shall remit all such taxes and/or charges to the appropriate tax authority.
4.3 Offsets. You agree that in addition to Xometry’s rights of setoff contained herein, Xometry shall have the right to setoff or withhold any amounts due to Xometry or its affiliates without notice or demand, and that any amounts owed to Xometry or its affiliates for goods and services provided outside of this Agreement that is more than 180 days late may be deducted by Xometry from any payments owed to you for Work Orders and You hereby authorize such deduction. - CONFIDENTIALITY AND INTELLECTUAL PROPERTY
5.1 Confidentiality. The following outlines the confidentiality obligations between Xometry and You.
a. “Confidential Information” means proprietary or confidential information of any nature and in any form (including, without limitation, written, magnetic or optical media, and oral and visual disclosures) disclosed by Xometry, or disclosed by an independent contractor, consultant, agent or customer of Xometry, to You in connection with this Agreement whether or not marked or otherwise identified as proprietary or confidential at the time of disclosure. Confidential Information shall not include any such information that is public through no action on Your part, that is already lawfully and rightfully known to you or becomes known to you outside of this Agreement and without restriction, or is or was independently developed by you without reference to any Confidential Information as evidenced by written records.
b. You agree to maintain all Confidential Information in confidence, and restrict disclosure to Your Personnel, consultants or agents who require access related to any Project, and who are subject to obligations of confidentiality (which for any third party must be pursuant to a written agreement that is no less restrictive that the obligations in this Section 5.1 and extend to the Confidential Information that you may receive under this Agreement).
c. You agree to only use the Confidential Information to perform your obligations under, and as permitted by, this Agreement. Further, you agree not to modify, reverse engineer, decompile, disassemble or create derivative works from any such Confidential Information.
d. If you are required by order of a court or by order of a governmental agency with jurisdiction over You to disclose any Confidential Information, you agree to provide Xometry with prompt written notice (to the extent permitted by applicable law) and to reasonably cooperate with Xometry or to otherwise contest the ordered disclosure or seek confidential treatment of the information. If you are ultimately required to disclose any Confidential Information, you agree to restrict your disclosure to only the information that satisfies the order.
e. All rights in the Confidential Information are reserved, and the disclosure of any Confidential Information hereunder shall not be construed as expressing or implying any other rights, including but not limited to, any rights of ownership of the Confidential Information, or any rights to any invention, patent, copyright or other intellectual property right heretofore or hereafter owned, acquired, developed or licensable by us. Further, no disclosure of the Confidential Information shall constitute any representation, warranty, assurance, guarantee or inducement by us with respect to infringement or patent or any other rights of any third parties, and any reliance on Confidential Information by you shall be exclusively at your own risk.
f. This does not prevent you from developing, or having developed for you, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in such Confidential Information, provided that you do not violate your obligations under this Agreement in connection with such development.
5.2 Xometry Ownership. As between Xometry and You, Xometry’s pricing algorithms, processes and mechanisms, the Website, WorkCenter, and all content therein (collectively, the “Xometry IP”) and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of Xometry and/or its licensors. All rights in and to Xometry IP not expressly granted to You in this Agreement are reserved by Xometry and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to You regarding Xometry Properties or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
5.3 Models; Drawings. The models, drawings, information and specifications provided within the Work Order (“Work IP”) are the Confidential Information and exclusive property of Xometry or Customer. Partner is hereby granted a non-exclusive, non-transferable, non-sublicensable, limited license to use the Work IP for the sole purpose of performing its obligations hereunder. Partner agrees that within 18 months upon the completion of its obligations for any Work Order, or upon request from Xometry, it will return or destroy the Work IP.
5.4 Partner Information. To the extent You upload any Partner WorkCenter Data, You hereby grant Xometry a perpetual, irrevocable, royalty- free, fully paid-up, non-exclusive license to reproduce and use such Partner WorkCenter Data for the purpose of providing our services and the Xometry IP to You, other Partners and our Customers; provided that, Xometry may use such Partner WorkCenter Data on an aggregated and anonymized basis to provide, improve and market the Xometry IP.
5.5 Trade Secrets. You acknowledge and agree that Xometry’s pricing and matching algorithms, processes and mechanisms, along with Xometry’s geometry parsing engine are the intellectual property and trade secrets of Xometry. Accordingly, You shall not, and shall not encourage or assist any third party, directly or indirectly, in reverse engineering, decompiling or disassembling any such algorithms, processes, mechanisms, or engines.
5.6 Remedies. You agree expressly that any breach or threatened breach of the obligations set forth in this Section 5 may cause Xometry and our Customers to suffer irreparable harm and that monetary damages may be inadequate compensation. Accordingly, Xometry shall have the right to seek injunctive relief upon Your breach or threatened breach without posting bond. Further, Xometry shall be entitled to recover its costs and expenses (including without limitation reasonable attorneys’ fees and court expenses and costs) incurred in connection with enforcing its rights hereunder. These remedies are in addition to any other remedies that may be available in law or equity or otherwise. In the event you breach or attempt to breach this Section, Your right to participate in the Program will immediately cease, and Xometry will take any action it deems necessary or appropriate to protect its rights and interests. - WARRANTIES AND DISCLAIMERS
6.1 By Partner. Partner represents and warrants that (a) Partner has the authority to enter into this Agreement personally (if Partner is a natural person), or on behalf of the entity entering into this Agreement, and to bind that entity; (b) the Registration Data is true and correct, (c) title to the Parts shipped or sold to Xometry or the applicable Customer pursuant to any Work Order or this Agreement will pass to Xometry or the Customer, as applicable, free and clear of all liens, charges, encumbrances, restrictions or other third party rights; (d) Parts shipped under Work Orders pursuant to this Agreement will be manufactured from new and unused components; (e) the Parts will comply with the Specifications and be free from defects in material and workmanship at the time of delivery to Xometry or the Customer, as applicable; (f) Partner will comply with all Laws applicable to its manufacture and delivery of Part(s); (g) Partner, its affiliates, and their financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the Trade Sanctions Lists; and (h) Partner and its affiliates have not been suspended, debarred, or declared ineligible by any agency or Department of the Government and You shall provide immediate notice to Xometry in the event of being suspended, debarred, or declared ineligible by any agency of Department of the Government, or upon receipt of a notice of proposed suspension or debarment from any agency or Department of the Government.
6.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE AND CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND XOMETRY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF CONFIDENTIAL INFORMATION OR THE USE, MISUSE, OR INABILITY TO USE THE WEBSITE (IN WHOLE OR IN PART) OR ANY OTHER PARTS OR SERVICES PROVIDED TO YOU BY XOMETRY. XOMETRY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. - INDEMNIFICATION. You will indemnify, defend, and hold harmless Xometry, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Xometry Parties”) against any and all costs, expenses (including reasonable attorneys’ fees), losses, damages, claims, liabilities, demands, penalties, forfeitures, suits and judgments, which the Xometry Parties may hereafter incur, become responsible for or pay, as a result of (a) Your breach or other violation of this Agreement; (b) Your negligent or willful acts, errors or omissions; or (c) any death or bodily injury to any person, destruction or damage to any property, contamination of or adverse effects on the environment and any cleanup costs in connection therewith. Xometry reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Xometry in asserting any available defenses. If You decline, or fail to undertake and diligently pursue, the defense of any claim subject to indemnification hereunder, the Xometry Parties shall have the right to immediately assume the defense thereof, including the right to settle or compromise the claim, and You shall remain obligated to pay all costs (including reasonable attorneys' fees) and any resulting damages, judgments, or settlements.
- LIMITATION OF LIABILITY
8.1 Disclaimer of Certain Damages. THE PARTIES UNDERSTAND AND AGREE THAT IN NO EVENT SHALL XOMETRY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE XOMETRY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT XOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
8.2 Liability Limit. UNDER NO CIRCUMSTANCES WILL THE XOMETRY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY XOMETRY AS A RESULT OF YOUR USE OF THE XOMETRY WEBSITE OR WORKCENTER IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER. - TERMS AND TERMINATION
9.1 Term. This Agreement commences on the date when You accept it (as described in the preamble above) and shall remain in full force and effect while You use the Xometry Properties, unless terminated earlier in accordance with this Agreement. You further agree that any Work Order You accept incorporates the then-current version of this Agreement by reference, which shall replace this version for all Projects in process.
9.2 Termination of Agreement by You. If You want to terminate the Agreement, You may do so by (a) notifying Xometry at any time and (b) closing Your Account. Your notice should be sent, in writing, to Xometry’s address set forth below.
9.3 Termination of Agreement by Xometry. Xometry has the right to, immediately and without notice, remove You from the Program, or suspend or terminate this Agreement or Your use or participation in the Website, Program and any services provided thereunder at any time and for any reason (with or without cause), including but not limited to, if You have or may have breached any provision of this Agreement, or if Xometry is required to do so by law. You agree that all suspensions and terminations shall be made in Xometry’s sole discretion, and that Xometry shall not be liable to You or any third party for removing you from the Program or any suspension or termination of Your Account.
Prior to or in connection with termination, Xometry may choose to: (i) warn you via email (to any email address you have provided to Xometry) that you have violated this Agreement; (ii) delete the Partner WorkCenter Data; (iii) notify and/or send Partner WorkCenter Data to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) pursue any other action which Xometry deems to be appropriate, including but not limited to, terminating a pending Work Order or terminating Your participation in the Program.
If Xometry removes You from the Program, You are prohibited from attempting to rejoin under a different company name or entity. Should You attempt this and accept Work Orders, Xometry may, at its sole discretion, cancel any Work Orders that are in progress or have been shipped but not yet been paid. In such cases, you hereby waive any right to payment for those Work Orders.
9.4 Effect of Termination. Termination of this Agreement includes deletion of Your password and all related information, files and content associated with or inside Your Account (or any part thereof). Upon termination of this Agreement, Your right to use the Website and participate in the Program will automatically terminate immediately. All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, confidentiality and ownership provisions, warranty disclaimers, arbitrations, waivers, indemnification, and limitation of liability. Notwithstanding any other provision to the contrary, the obligations regarding the use restrictions and confidentiality obligations regarding Confidential Information received hereunder shall survive and remain in full force and effect (1) for so long as any trade secret has protections under applicable state law, and (2) for any non-trade secret Confidential Information for an additional five years after termination. - INSURANCE. Without limiting or qualifying any liabilities, obligations or indemnities otherwise assumed by You pursuant to this Agreement, You shall maintain appropriate insurance policies, at Your sole cost and expense, in amounts adequate to cover Your obligations and responsibilities under this Agreement. Xometry will be named as an additional insured on all such policies and will receive 30 days’ written notice prior to the termination, reduction or modification of coverage with respect to any such insurance policy. Upon Xometry’s request, You will promptly furnish to Xometry written evidence of Your insurance coverage.
- GENERAL PROVISIONS
11.1 Electronic Communications. The communications between You and Xometry may occur by electronic means, on the Website or WorkCenter or directly via e- mail. For contractual purposes, You (1) consent to receive communications from Xometry in any electronic form, and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Xometry provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.
11.2 Assignment. This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Xometry’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. In the event of a permitted assignment, you shall also remain responsible for the confidentiality obligations set forth herein.
11.3 Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.4 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Website or WorkCenter, please contact us at: info@xometry.com.
11.5 Limitations Period. YOU AND XOMETRY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE XOMETRY IP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
11.6 Arbitration ; Class Waiver; Waiver of Trial by Jury. Please read this Section carefully. It is part of Your contract with Xometry and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Disputes and Arbitration All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Xometry that cannot be resolved informally or in small claims court shall be settled by binding arbitration on an individual basis under these terms. Notwithstanding the foregoing, either You or Xometry may bring an individual action in small claims court and/or may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations hereunder.
b. Notice Requirement and Informal Dispute Resolution. Before a party may seek arbitration, it must first send the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Xometry should be sent to legal@xometry.com. After the Notice is received, the parties will attempt to resolve the claim or dispute informally. If the claim or dispute is not resolved within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator.
c. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, or if AAA is not available, the parties shall select another established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. The rules of AAA (or if applicable, the ADR Provider) shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The arbitration shall be conducted by one to three neutral arbitrators, at the discretion of Xometry. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the applicable arbitration rules. Any hearing will be held in Rockville, Maryland, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of AAA / the ADR Provider, although the arbitrator may award to the prevailing party when appropriate, as determined by the arbitrator, the fees and costs relating to AAA/ the ADR Provider.
d. Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
e. Time Limits. If You or Xometry pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim. The award shall be made within six (6) months of the filing of the Notice, and any arbitrator(s) shall agree to comply with this schedule before accepting appointment; however, this time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and Xometry, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim, to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator may issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Xometry.
g. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration hereunder. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between You and Xometry in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND XOMETRY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Agreement, neither You or Xometry is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes (and in any other circumstance where the parties are permitted to litigate in court) will then be resolved by litigation, and the parties hereby agree to submit to the personal jurisdiction of the courts located within Montgomery County, Maryland for such purpose.
11.7 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Maryland, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.8 Independent Contractor. The partiesare acting as independent contractors. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, agency, teaming, fiduciary or employer-employee relationship between Xometry and You. Neither party shall have the authority to bind the other party to any obligation or commitment, express or implied.
11.9 Notice. All notices required by this Agreement will be in English. Where Xometry requires that You provide an e-mail address, You are responsible for providing Xometry with Your most current e-mail address. In the event that the last e-mail address You provided to Xometry is not capable of receiving any notices required/ permitted by this Agreement, Xometry’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give electronic notice to Xometry at the following address: info@xometry.com. Written notice shall be deemed given when received by Xometry by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
11.10 Waiver. No waiver, modification, or deletion of any provision of this Agreement shall be binding or effective for any purpose whatsoever unless and until reduced in writing and executed by authorized representatives of each Party. Any waiver or failure or delay to enforce any provision of this Agreement on one occasion shall operate as a waiver thereof or of any other provision or of such provision on any other occasion, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
11.11 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and be enforced as fully as possible, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.12 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter, except in the event of a confidentiality agreement that is more restrictive than the obligations set forth herein in which case the terms of such confidentiality agreement shall be incorporated herein. Unless otherwise specifically agreed to by the parties, in the event of any conflict between the terms of this Agreement, the Manufacturing Standards, the General Terms, or any Work Order, the order of precedence is as follows: (i) the Manufacturing Standards; (ii) this Agreement; (iii) the General Terms; and (iv) the Work Order. Unless otherwise specifically agreed, the parties acknowledge and agree that any non-negotiated or pre-printed provisions (including on the reverse side) of any quotation, order, acknowledgement or invoice You submit to Xometry will be deemed deleted and of no effect whatsoever.