of SHIFT GmbH, Zwickauer Straße, 45, 04639, Gößnitz, Germany (further referred to as Xometry Europe ) for the production and delivery of products and services.
Xometry Europe accepts enquiries from customers through the websites (https://xometry.de/ and others) with the information provided in the enquiries.
Once a customer has made an enquiry of Xometry Europe, Xometry Europe determines whether the requested product is technically feasible. If Xometry Europe considers the product technically infeasible, or if there are doubts on the matter, Xometry Europe will inform the customer thereof directly. Under no circumstances will Xometry Europe determine whether the requested product in the form desired by the customer is usable for the purposes of the customer. Xometry Europe then offers the manufacturing of the desired product to the customer at a particular price. The customer then has the opportunity to accept or reject this offer. With the acceptance by the customer, the contract between the customer as Principal and Xometry Europe as Contractor becomes effective.
Xometry Europe is entitled to have the orders placed with and executed by other parties; no notification of such outsourcing needs to be provided to the Principal.
Xometry Europe notes that the manufacture of parts intended for or capable of being used in weapons violates statutory prohibitions, and is therefore void in accordance with § 135 BGB [the German Civil Code]. If Xometry Europe becomes aware that an order involves the production of such parts, all activities related to the invalid order shall be terminated immediately.
After acceptance by the Principal, Xometry Europe will generate an invoice for the amount of the order. The payment date will be stated on the invoice. The customer is obligated to pay the amount of the invoice to Xometry Europe, in full and without additional cost to Xometry Europe.
If a customer wishes to dispute an invoice, the notice of a such must be made in writing or via email within 8 days of receipt of the disputed invoice.
Xometry Europe shall not be responsible for delays in the delivery of goods or performance of contractual obligations resulting from force majeure or from circumstances making delivery significantly more difficult or impossible for Xometry Europe (in particular, war or states of emergency, civil unrest, labour disputes, lockouts, decrees by public authorities, raw material shortages, or sickness, whether affecting Xometry Europe or its suppliers), even in the case of dates and deadlines agreed with binding effect. Such circumstances entitle Xometry Europe to delay delivery for the period such circumstances are in effect, plus a reasonable warm-up period, or to abrogate the contract in whole or in part. This also applies in the event that the delay in delivery is due to the actions of Xometry Europe's suppliers, provided that Xometry Europe makes reasonable efforts to ensure immediate delivery.
In cases in which Xometry Europe makes uses of its right to abrogate the contract for the reasons given above, Xometry Europe is only obligated to repay the amount that had already been remitted. All other claims are excluded.
Delivery shall be carried out through shipment to the delivery address provided by the Principal. Xometry Europe's obligations shall be fulfilled once the properly packaged item to be delivered is handed over to the transport company. Shipment shall constitute delivery, and thus the fulfilment of Xometry Europe's contractual obligations.
The Principal is obligated to examine the delivered product for defects promptly after receipt. Any defects must be promptly reported to Xometry Europe by the Principal in writing or by email, at the latest 8 days after receipt of delivery. Rejected parts are to be sent free of charge to Xometry Europe for evaluation.
In the event that a defect is found, Xometry Europe has the right to undertake subsequent performance. Xometry Europe may elect to remedy the defect by means of reworking or replacement. Xometry Europe shall be permitted three attempts to remedy a defect. The obligation to remedy defects shall be void if the defective part or parts have been modified by the Principal or by third parties, or have been subjected to attempts at temporary repair. The Principal shall be responsible for costs incurred by Xometry Europe resulting from spurious warranty claims.
Xometry Europe's obligation to fulfil warranty claims shall, in any event, be limited to the obligation to remedy the defect in-house or by a company engaged by Xometry Europe for such purpose. If the reworking or replacement fails to be completed within a reasonable period, the Principal is entitled to rescind the request or demand a reduction in price.
The costs for remediation of legitimate defects, including costs for shipping, shall be borne by Xometry Europe.
The Principal's right to assert warranty claims against Xometry Europe expires one year after the delivery date.
Xometry Europe shall not be liable for losses resulting from the proper use of a defective product unless the product defect resulted from gross negligence or tortuous conduct on the part of Xometry Europe or its employees or suppliers, or from the simply negligent violation of a material contractual obligation.
Xometry Europe shall not be liable for the use as intended by the Principal of the product manufactured in accordance with the Principal's specifications. Accordingly, Xometry Europe shall also not be liable for losses resulting from the use in accordance with the Principal's intentions of the product manufactured to the Principal's specification in the event that losses resulting from such use.
Compensation for damages shall in all cases be limited to the number of losses that are typical and foreseeable.
Information, technical descriptions, and recommendations in writing form or as an image from Xometry Europe, whether publicly available or provided personally, as well as verbal or telephonic replies to questions of all types, are made to the best of Xometry Europe's knowledge and belief but are without obligation. No liability attaches to Xometry Europe as a result of such communications.
Xometry Europe shall retain ownership of all parts manufactured by Xometry Europe or on its behalf until all claims arising from the business relationship have been settled in full. If Xometry Europe's ownership rights are merged with others' as a result of incorporation, amalgamation, or processing, Xometry Europe shall become a co-owner of the item into which the items supplied by Xometry Europe have been incorporated or amalgamated or into which they have been processed, in proportion to the value of the items supplied.
Xometry Europe shall retain the rights to publish images of the produced product ordered by Principal on Xometry Europe’s websites and social accounts without prior request of the Principal if no trademark (logo or name) is presented on the image nor in any way readable on the product and the product itself doesn’t disclose its application and function. In all other cases, Xometry Europe will request the Principal’s permission before any publications.
Xometry Europe shall have a right of retention to all the Principal's parts for all claims arising from the relevant order.
This right of retention also arises if claims from previously completed orders remain unsettled.
The Principal may not offset claims for payment vis-à-vis Xometry Europe or assert a right of retention unless the Principal's claims are not disputed or have been established with legally binding effect.
The place of jurisdiction for disputes arising under this agreement shall be the city of Jena in the Federal Republic of Germany.
This agreement shall be governed by the laws of the Federal Republic of Germany.
Claims of the Principal arising from this agreement may not be transferred or assigned unless such claims are undisputed or have been established with legally binding effect.
If individual provisions of this agreement shall become or be found to be invalid, or should their validity be excluded by agreement, the validity of the remaining provisions shall remain unaffected thereby. Should individual provisions become or be found to be ineffective, the parties shall be obligated to agree upon a term or terms corresponding most closely to the ineffective provision(s).
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