General Terms and Conditions of Purchase
(last update 24/07/2020)
Xometry Europe GmbH
The following terms and conditions of purchase constitute all contractual conditions which Xometry Europe GmbH of Ada-Lovelace-Str. 9, D-85521 Ottobrunn, registered in commercial register B of the Munich District Court under HRB256172, represented by its managing directors Albert Belousov and Dmitry Kafidov (hereinafter referred to as “XOMETRY”) uses and applies accordingly to its suppliers.
The following terms and conditions are valid in their German text. The English or any other translation is provided for information purposes only.
I. Terms and Conditions of Purchase
1. Validity and Contractual partner
1.1. All deliveries, services and quotes of contractors, service providers and corporate suppliers of XOMETRY (hereinafter referred to as "Partner(s)") are exclusively based on these General Terms and Conditions of Purchase. These constitute a part of all contracts which XOMETRY concludes with its partners for the supply or performance of products of services offered by them. They also apply to all future deliveries, services or quotes for XOMETRY, even in cases where they are not explicitly agreed upon again.
1.2. Terms and conditions of partners or third parties do not apply, even if XOMETRY does not dispute their validity in any individual case. Even if XOMETRY refers to a letter which contains or refers to terms and conditions of the partner or a third party, this does not constitute any agreement with the validity of those terms and conditions.
2. Orders and Contracts
2.1. XOMETRY will provide the partner with drawings or 3D files of a metal or polymer part to be manufactured (hereinafter referred to as "Product" or "Products") or make the designs or 3D files available for review via XOMETRY's website. Based on these drawings and 3D files, the partner submits a quote to XOMETRY in order to conclude a manufacturing contract. The partner shall be bound by this quote for fourteen (14) calendar days. XOMETRY shall be entitled to accept the quote within this period. The date and time at which the partner is notified that the XOMETRY accepts the quote shall determine whether this time period has been adhered to. The manufacturing contract is concluded when XOMETRY accepts the quote. In that case, XOMETRY will issue a Purchase Order to the partner and assign an order number to them.
2.2. XOMETRY shall be entitled to change the time and place of delivery as well as the type of packaging at any time by written notification with a notice period of at least ten (10) calendar days before the agreed delivery or acceptance date. The same shall apply to changes to product specifications insofar as these can be implemented within the scope of the partner's normal production process without significant additional expenditure, whereby in such cases of additional expenditure and pursuant to the previous clause, the period of notice shall be at least two (2) weeks before the agreed delivery or acceptance date. XOMETRY will reimburse the partner for the respective proven and reasonable additional costs arising from the change. If such changes result in delays in delivery which cannot be avoided with reasonable efforts in the partner's normal production and business operations, the originally agreed delivery or acceptance date shall be changed as appropriate. The partner shall notify XOMETRY in writing of the additional costs or delays in delivery or acceptance to be anticipated by XOMETRY, following careful assessment, in due time before the delivery or acceptance date, but no later than five (5) working days after receipt of our notification in accordance with Section 2.1.
2.3. XOMETRY is entitled to terminate the contract at any time by written notice with reason for termination included, if XOMETRY cannot use the ordered products in its business operations due to circumstances that arise after the conclusion of the contract. In this case, XOMETRY will compensate the partner for their partial fulfilment of the order based on the costs incurred as evidenced in writing.
3. Prices/Payment Terms and Invoice Information
3.1. In the absence of a written agreement to the contrary, the price shall include material, manufacturing equipment, tools, delivery and transport (including packaging) to the shipping address specified in the contract.
3.2. If the agreement made does not include the costs of packing and the payment for the packaging (which is not only provided on the basis of a loan) is not expressly determined, it shall be invoiced at the verifiable cost price. Upon XOMETRY's request, the partner shall take the packaging back at their own expense.
3.3. Unless otherwise agreed upon, XOMETRY shall pay the purchase price within 20 days net from receipt of goods providing they are free from defects, pass any potential acceptance inspection and the corresponding invoice is received. The timeliness of payments owed by XOMETRY shall be determined by the receipt of the transfer order issued by XOMETRY's bank. If there are undue delays to delivery, XOMETRY shall pay the purchase price within 40 days net from the date of delivery. If the product is found to be defective after any given quality inspection, XOMETRY shall not be obligated to pay the partner for the product until this defect is rectified. XOMETRY shall pay the purchase price within 40 days net from the rectification date of the quality defect.
3.4. The order number, delivery quantity and delivery address must be stated in all delivery documents and invoices. Should one or more of these details be missing and should this delay the processing by XOMETRY within the scope of our normal business transactions, the payment deadlines mentioned in Section I.3.3 will be extended by the relevant period of the delay.
3.5. Unless otherwise agreed, one invoice per order must be issued to XOMETRY by the partner. Invoices must specify the XOMETRY order number. Invoices must show a breakdown of costs charged for each individual product.
3.6. Invoices, delivery documents and any other relevant documents must be sent to XOMETRY no later than the day after the delivery has been made.
3.7. In case of default of payment, XOMETRY shall pay debt interest to the sum of five percent over the base rate in accordance with § 247 BGB.
4. Delivery and Acceptance Times / Delivery and Acceptance Inspection / Transfer of Risk
4.1. The delivery or acceptance time stated in the quote (delivery/acceptance date or period) is binding. Early deliveries are not permitted without XOMETRY's prior written consent.
4.2. After half of the stipulated delivery time has elapsed, the partner is obliged to update XOMETRY on the production status. The partner is obliged to immediately inform XOMETRY in writing if circumstances occur or become apparent that jeopardise the delivery or acceptance time.
4.3. Should the latest date on which delivery is due to occur based on the contract passes and delivery is made, then the partner falls into default automatically without the need for a complaint or reminder issued from XOMETRY.
4.4. In case of delivery delays, XOMETRY shall be entitled to unrestricted legal claims, including the right to withdraw from the contract and the claim for damages instead of the fulfilment of the order following failure to meet deadline and deliver the commissioned products. If the delay in delivery lasts longer than one (1) week, XOMETRY shall be entitled to withdraw immediately without giving prior notice.
4.5. XOMETRY shall be entitled to demand a contractual penalty of 0.5 % to 5 %, (maximum) of the respective order value for each new week of delay after issuing prior written warning to the partner with regard to delivery delays or circumstances where deliveries cannot be taken on the agreed date because the product has yet to be completed. The contractual penalty is to be set off against the damages for delay and are to be paid by the partner.
4.6. The partner is not entitled to partial deliveries without the prior written consent of XOMETRY.
4.7. Even if shipment has been agreed upon, the risk shall not pass to XOMETRY until the product is handed over to XOMETRY or has been accepted at the agreed location.
4.8. The partner is obligated to load the packed products onto the chosen means of transport when XOMETRY collects the products.
4.9. Outside packaging, as well as individual products shall be packed neutrally and without indication of and references to the partner, the name of the partner, any address of the partner, place of manufacturing, logotypes, trade marks, websites, email addresses and so on. If not agreed otherwise, any packaging unit shall be shipped without any accompanying documentation both inside as well as outside except transportation instructions.
5. Ownership Protection / Transfer of Rights
5.1. The property and/or copy rights of XOMETRY apply to orders, contracts as well as information, designs, images, calculations, descriptions and other documents made available to partners and third parties. XOMETRY reserves these rights. The partner shall not give third parties access to them without the express consent of XOMETRY or use or reproduce them themselves or allow them to be used or reproduced by third parties. The partner shall return these documents in their entirety to XOMETRY upon their request if they are no longer requisite to ordinary business operations or if negotiations do not lead to the conclusion of a contract. In this case, any copies made by the partner are to be destroyed; the only exceptions to this are storage within the scope of statutory data retention obligations and the storage of data for backup purposes within the scope of normal data backup.
5.2. Tools, equipment and models which XOMETRY makes available to the partner o are manufactured for contractual purposes and which are charged separately to XOMETRY by the partner shall remain or become the property of XOMETRY. The partner must mark them as the property of XOMETRY, store them with care, secure them against damages of any kind and only use them for the purpose of performing the contract. Unless otherwise agreed upon, the Contractual partner shall bear half of the maintenance and repair costs of these items. However, insofar as these costs are attributable to defects in such items manufactured by the partner or to improper usage by the partner, its employees or other vicarious agents, then such costs are the sole responsibility of the partner. The partner shall immediately notify XOMETRY of any damages to these items that are considered to be more than minor damages. Upon request, the partner is obliged to hand these objects over to XOMETRY in proper condition if they are no longer needed for the fulfilment of the contract entered into with XOMETRY.
5.3. Retention of title rights of the partner shall only apply insofar as it relates to XOMETRY's payment obligation of respective products or goods of which the supplier reserves the right of ownership. In particular, extended or prolonged retentions of title are not permitted.
5.4. At the time of creation, but no later than the conclusion of the contract, the partner irrevocably transfers all use rights to XOMETRY without restriction of territory, time or content and are transferable to third parties which have or will come into being or are acquired or are to be acquired by them in connection with the fulfilment of the order. Without restriction XOMETRY is entitled to copy, process (combine software with other programs, redesign, convert into other programming languages and for other operating systems), transfer into other forms of presentation and otherwise change, continue and supplement the work products, distribute them in unchanged and changed form, reproduce them in wired and wireless form and make them publicly available, grant sub-licenses and transfer all granted rights of use against payment and free of charge.
5.5. Insofar as work products are created which can be protected by industrial property rights, the partner is obliged to immediately inform XOMETRY in writing. XOMETRY is entitled to register these property rights under XOMETRY or under third parties appointed by XOMETRY. The partner shall provide its full support to XOMETRY in this respect, in particular the partner shall immediately provide XOMETRY with the information required for this purpose and shall make all necessary declarations and take all necessary measures to fulfil this obligation. The partner is not permitted to make a corresponding entry in their own name or via a third party or by directly or indirectly supporting third parties in doing so.
5.6. XOMETRY may enter into a separate agreement with partners regarding confidentiality, ownership protection and transfer of rights. If such an agreement is concluded, it shall then take precedence over Section 5.1. to 5.5. of these Terms and Conditions of Purchase.
6. Warranty Claims
6.1. XOMETRY shall be entitled to all statutory rights if goods are defective. The warranty period for all products is hereof declared as 36 months.
6.2. If it becomes apparent that the partner has made false statements, e.g. regarding weight, the partner shall be obliged to bear the resulting additional costs.
6.3. If XOMETRY's inspection of the product shows that it is defective, XOMETRY may, at its own discretion, rectify the defect itself or commission a third party to do so. If the defect cannot be rectified in this way, XOMETRY may request a new delivery from the partner or withdraw from the contract at its own discretion. XOMETRY reserves these rights and is not required to define a deadline in this respect. Should XOMETRY withdraw, they are no longer liable for any payment obligations.
6.4. If the partner is commissioned to resolve defects, the completion date for resolving any issues must be communicated to XOMETRY by the partner within 2 working days of the order to fix such defects.
6.5. Defects in quality and quantity shall be deemed to have been notified in good time if XOMETRY notifies the partner of them within fifty (50) working days after receipt of the products by XOMETRY. Notice of hidden material defects shall be deemed to have been given in good time if the notification is made to the partner within sixty (60) working days of discovery.
6.6. XOMETRY does not waive warranty claims by acceptance or approval of submitted samples or models.
6.7. The receipt of XOMETRY's written notification of defects to the partner shall suspend the statute of limitations under the warranty. In case of replacement delivery and rectification of defects, the warranty period for replaced and repaired parts restarts, unless XOMETRY concludes that the partners actions were not carried out due to contractual obligations, but only carried out the replacement delivery or rectification of defects out of goodwill or similar reasons.
6.8. Credit notes for complaints made by XOMETRY regarding the quality of work should be issued by the partner no later than 3 days after any such issues have been verified. If any such credit note is not sent to XOMETRY, XOMETRY may independently offset the credit note amount of the original invoice.
6.9. If product testing carried out by XOMETRY leads to additional costs incurred due to increased workload, and if after such testing it is determined that the product is defective, XOMETRY is entitled to charge these additional costs to partners.
7. Product Liability
7.1. The partner is liable for all claims asserted by third parties due to personal injury or damage to property, which can be reasonably traced back to a defective product delivered by the partner and are obliged to exclude XOMETRY from the resulting liability. If XOMETRY is required to recall products from third parties due to a defect of a product delivered by a partner, the partner shall bear all costs connected with the product recall.
8.1. The partner is obliged to keep the conditions of the order and all information and documents made available for this purpose (with the exception of publicly accessible information) confidential for a period of three (3) years after conclusion of the contract and must only use them to fulfil the order. The partner will immediately return them to XOMETRY upon request after the completion of orders or after the processing of orders.
8.2. Without the prior written consent of XOMETRY, the partner may not to refer to the business relationship in advertising material, brochures, etc. and may not exhibit deliverables, products or goods manufactured for XOMETRY
8.3. The partner is bound to its subcontractors in accordance with Section I.8.
The partner is not entitled to assign claims from the contractual relationship to third parties. This does not apply to monetary claims.
10. Final Provisions
10.1. Applicable Law / Court of Jurisdiction
The law of the Federal Republic of Germany shall apply. To the extent permissible by law, the place of jurisdiction is Munich.
10.2. Contractual Language
All contract-relevant communication shall take place in German.
10.3 Ancillary Agreements / Written Form
Verbal ancillary agreements do not apply. Amendments to these terms and conditions must be made in writing. This also applies to waiving the requirement for making amendments in writing.
10.4. Invalidity of Individual Clauses
Should individual provisions of these conditions be deemed invalid, this shall not affect the validity of the remaining provisions. In the case of an invalid provision, it shall be replaced by one which is as economically close as possible to the unenforceable provision. The same applies to any contractual omissions.