Termini e condizioni

General Terms and Conditions of Sale for Partners and General Terms and Conditions of Business for End Customers including Warranty Conditions

Xometry Europe GmbH, Ada-Lovelace-Str. 9, 85521 Ottobrunn, Germany

Preamble

The following terms and conditions of sale and business 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 customers.

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 Sale

1. Scope and Contractual Partners

1.1 These following general terms and conditions of sale and business (hereinafter referred to as “GTCs”) apply to all contracts for the supply of products and services relating to the production of individually manufactured parts produced from metals, polymers or other materials (hereinafter referred to as “Product” or “Products”) which XOMETRY provides to its contractual partners.

These GTCs constitute a part of all contracts which XOMETRY concludes with its contractual partners for the supply or performance of products and services, even in cases where they are not explicitly agreed upon again.

1.2 Contractual partners of XOMETRY become both consumers in the sense of § 13 BGB (German Civil Code) and corporations in the entrepreneurial sense of § 14 of BGB.

1.3 Within the context of these GTCs, supplementary and/or different arrangements are occasionally made in the case of sales to corporations, which apply exclusively to the aforementioned corporations.

1.4 The present GTCs shall apply to all (future) deliveries and services provided by XOMETRY to its contractual partners, exclusively under the version valid at the time of the conclusion of the contract.

1.5 In the case of corporations, the following shall also apply:

1.5.1 The terms and conditions of purchase and business of contractual partners shall not apply, even if XOMETRY does not dispute their validity in any instance.

1.5.2 In accordance with Section I. 5.1, the exclusion also applies if XOMETRY refers to a letter which contains or refers to terms and conditions of the company or a third party.

1.6 Contractual partners can contact XOMETRY customer service for questions, claims and complaints by e-mail at help@xometry.de. XOMETRY will answer any such questions, claims and complaints from its contractual partners within 3 (three) working days.

2. Quote and Conclusion of Contract

2.1 The contractual partner may request a quote from XOMETRY. To request a quote you can either use the online form xometry.de/en/offers or send an e-mail to enquiry@xometry.de or use the web-based quoting tool on our site www.xometry.de. The request should be accompanied by drawings or 3D model files of the product to be manufactured in any common file format.  The file size must not exceed 25 MB.

2.2 Based on the request, XOMETRY will provide a quote to the contractual partner. XOMETRY shall be bound by this quote for seven (7) calendar days. The contractual partner shall be entitled to accept the quote within this period. The date and time at which XOMETRY is notified that the contractual party accepts the quote shall determine whether this time period has been adhered to. The manufacturing agreement shall take effect when the contractual partner accepts the quote and when XOMETRY confirms this acceptance with a corresponding order confirmation. Only quotes with no requested amendments from contractual partners shall be deemed as acceptance. Following receipt of quote acceptance, XOMETRY may send a written order confirmation to the contractual partner within 3 working days which thereby concludes the contract. Notwithstanding § 150 Para. 2 BGB, any other form of acceptance shall be deemed to be a new request in the sense of Section I. 1. XOMETRY will respond to this new request, create a new quote and send it to the contractual partner.

2.3 The contractual partner can state their acceptance of the quote in any form, but always in writing as a minimum. The unlimited contractual capacity is confirmed upon acceptance.

2.4 A contract will not be concluded if the request of the contracting partner relates to the production of weapons, parts of weapons or other forbidden products/materials and the contracting partner has not separately contacted XOMETRY regarding this. If XOMETRY only becomes aware of this during the production process, production will be stopped immediately. In such cases the contractual partner shall not be entitled to delivery of the product and XOMETRY shall seek to recover all costs incurred.

2.5 In addition or in deviation to this, the following shall apply to corporations:

XOMETRY shall be bound by the quote for seven (7) days.

2.6 Following a technical examination within 3 working days of receiving acceptance of the offer, XOMETRY may determine that there are no suitable technical means available to manufacture the product within their network of manufacturers (hereinafter referred to as “Partners“) and may withdraw from the contract without any reimbursement of costs owed to the contractual partner.

2.7 If a need for clarification following a technical examination arises within 3 working days after receiving acceptance of the offer from the contractual partner, XOMETRY reserves the right to extend the delivery time of the product by the time taken required to clarify this. The contractual partner is required to assist in any such clarifications.

3. Contract Manufacturing

3.1 The contractual partner is aware that XOMETRY does not carry out the contracted manufacturing itself, but rather entrusts other seemingly suitable manufacturers (hereinafter referred to as “Partner(s)“) with the production.

3.2 XOMETRY is entitled to commission various (different) partners to manufacture the products required to fulfil an order.

3.3 XOMETRY is not required to notify the contractual partner in this respect. The contracting partner expressly agrees that production is carried out by the appointed partner(s). The drawings and plans provided by the contractual partner upon making requests may be shared with partner(s).

3.4 XOMETRY and/or the partner(s) are entitled to change technical details of the drawings and 3D files provided by the contractual partner, insofar as necessary for the production of the commissioned product. This especially relates to the amendment of various work steps in the process.

3.5 The property and/or copy rights of the contractual partner apply to orders, contracts as well as information, designs, images, calculations, descriptions and other documents made available to XOMETRY. XOMETRY shall not make them accessible to third parties, disclose them, use them internally or via third parties or reproduce them without obtaining express consent. This does not include providing access to experts for the purpose of preparing a quote as defined in Section I2 as well as to partners and any reproduction in this context.

3.6 Without the conclusion of a separate agreement, XOMETRY will not share details such as company names, addresses, country, etc. to individual partners or various partners who are commissioned with the production of the products.

4. Prices and Shipping Costs

4.1 The prices on quotes include applicable statutory VAT.

4.2 Place of performance is in principal the XOMETRY warehouse in Ada-Lovelace-Str. 9, DE 85521 Ottobrunn (hereinafter referred to as “Factory“).

4.3 Unless otherwise confirmed in the order confirmation, additional shipping costs will be charged for packaging and shipping to another address.

4.4 In addition or in deviation to this, the following shall apply to corporations:

4.4.1 In the case of contractors, the prices are ex works plus freight, taxes, customs, insurance premiums and other external costs, unless otherwise confirmed in the order confirmation.

4.4.2 If costs increase for taxes, customs, freight, insurance premiums or other external costs four (4) weeks after the conclusion of the contract and these costs are included in the agreed upon price for corporations or should new charges emerge, XOMETRY is entitled to a price change equal to the corresponding amount.

4.4.3 Furthermore, XOMETRY reserves the right to increase the agreed price for order quantities still pending delivery as a result of changes in the raw material and/or economic situation or circumstances occur where the production and/or purchase of the product in question is considerably more expensive than at the time of agreements made regarding price. In such cases, the corporation may cancel any orders affected by the price increase within four (4) weeks of being notified.

4.4.4 Furthermore, XOMETRY shall be entitled to increase the previously agreed price if the delivery time is subsequently delayed for any of the reasons mentioned in Section I.4.4.3, if the material or the production method is changed because the documentation and/or instructions given to XOMETRY by the corporation did not align with the actual circumstances or were incomplete or if XOMETRY does not receive the information required for the fulfilling the order in time or if the corporation subsequently changes them by mutual agreement with XOMETRY and thereby causes a delay in delivery.

5. Delivery / Shipment / Transfer of Risk

5.1 Delivery shall be made within Germany from the factory. If contractual partners request that deliveries are made to an address of their choice by means of a shipping route and/or shipping agent/carrier to be independently appointed by XOMETRY, the risk is transferred to the contractual partner upon handover of the products to the shipping agent or carrier.

If the contractual partner does not notify XOMETRY of its intent to collect products itself from the factory prior to delivery, XOMETRY shall assume that this clause is accepted by the contractual partner.  XOMETRY assumes no further liability.

5.2 In the case of corporations and in terms of the delivery location, the following clauses apply to Section I. 45.1 and/or in deviation from Section I. 5.2.1 and I. 5.2.2:

5.2.1 If deliveries are carried out from the Federal Republic of Germany to other EU member states, the contractual partner must, prior to delivery, inform XOMETRY of its VAT identification number that is used for the taxation of purchases it makes within the EU. Failure to do so shall mean that the contractual partner is liable for any statutory VAT charges incurred by XOMETRY for deliveries in addition to the agreed purchase price. 

5.2.2 When invoicing deliveries from the Federal Republic of Germany to other EU member states, the VAT regulations of the respective recipient member state shall be complied with, provided either the contractual partner is registered for payment of VAT in another EU member state or if XOMETRY are registered in the recipient member state for payment of VAT.

5.2.3 When shipping deliveries from the Federal Republic of Germany to other non-EU member states, the contractual partner shall inform XOMETRY of the tariff number and the intended usage of the product within 2 days after accepting the quote by email at service@xometry.de.

5.2.4 When invoicing deliveries from the Federal Republic of Germany to other EU member states, the contractual partner is obliged to send the signed proof of delivery documents to XOMETRY (e.g. proof of receipt, delivery certificates, etc.) within 3 working days after receipt of goods to XOMETRY by email at service@xometry.de.

5.3 Excluding cases where a fixed period or date has been agreed in writing, deliveries will be carried out or dispatched as soon as possible, but within one (1) to three (3) weeks at the latest after receipt of payment for items available at short notice.

5.4 In the case of corporations, the following applies in deviation from Section I. 5.3:

5.4.1 Delivery dates which have not been expressly agreed are exclusively non-binding agreements. In terms of binding agreements for delivery times, these shall commence on the order confirmation date.

5.4.2 These delivery periods shall only apply in line with timely clarification of all details of the order and timely fulfilment of all obligations of the corporation, such as provision of all official certifications, proof of credit and guarantees or payment of instalments.

5.4.3 Adherence to delivery dates and times is subject to ex works or ex stock. If the goods cannot be dispatched and XOMETRY cannot be held responsible for this, delivery time frames shall be considered as fulfilled when a notification that the goods are ready for dispatch has been sent.

5.4.4 Regardless of possible delivery time frames, XOMETRY’s delivery obligation is subject to correct and timely delivery from our own suppliers, unless the incorrect or delayed provision of supplies is caused by XOMETRY.

5.5 If transport on the intended route or to the intended place at the intended time becomes impossible or significantly more difficult through no fault of XOMETRY’S, XOMETRY shall be entitled to choose an alternative delivery route.

5.6 In the case of the corporation and in addition to Section I.5.5, XOMETRY is also entitled to deliver to another location; the corporation shall be liable for additional costs incurred. The corporation will be given the opportunity to raise any objections before XOMETRY proceeds in this way.

5.7 If XOMETRY can be held responsible for delivery delays or a delivery becomes impossible and this does not arise due to the intent or gross negligence of XOMETRY, the liability for damages is excluded except for damages resulting from loss of life, body injuries or damage to health.

5.8 If delivery delays are caused by force majeure for which XOMETRY cannot be held responsible, the delivery time shall be extended accordingly. This also applies for the occurrence of force majeure events during a pre-existing delay. Force majeure is deemed to cover currency, trade policy and other sovereign measures, strikes, lockouts not caused by XOMETRY (e.g. fire, damage to machinery or rollers, lack of raw materials or energy supply), obstruction of traffic routes, delay in import/customs clearance and any other circumstances not caused by XOMETRY which make the delivery considerably more difficult or impossible. It is immaterial whether such circumstances arise at XOMETRY or at any partners or a supplier. The contractual partner will be informed of this without undue delay. If the cause for the duration of the delay lasts longer than four (4) weeks or, in the case of corporations, longer than four (4) months after conclusion of the contract, each party may withdraw from the contract.

5.9 Upon transfer of product to a shipping agent or carrier, but at the latest when products leave the factory, the risk, including the risk of seizure, and even where prepaid carriage and free house delivery applies, is transferred to the contracting partner. By separate agreement only, XOMETRY will insure shipments at the request and the expense of the contractual partner. The obligation and costs of unloading deliveries by a shipping agent or carrier shall be borne by the contractual partner.

5.10 Exclusively limited to corporations, the following applies conclusively under this section:

5.10.1 If customary, the product(s) shall be delivered in packaging. XOMETRY will provide packaging and take the necessary steps to protect and/or secure shipments at the expense of the corporation. Packaging will be taken back to XOMETRY’s warehouse. XOMETRY are not liable for costs for the return transport or for disposal of packaging by the corporation.

5.10.2 XOMETRY is entitled to make partial deliveries to a reasonable extent. Increased or reduced delivery quantities of the contracted amount shall be permissible in keeping with standard industry practice.

5.10.3 If no separate delivery address is specified by the contracting partner prior to delivery as set out in Section 5.1, the registered location of the contracting partner shall be taken as the delivery address.

6. Acceptance

6.1 If an acceptance inspection has been agreed upon, it may only take place in the factory immediately after notification of acceptance readiness. The contractual partner shall bear the personnel acceptance costs as well as the material acceptance costs on the basis of the XOMETRY price list or the price list of the supplying factory.

6.2 If through no fault of XOMETRY, an agreed upon inspection is delayed or incomplete, XOMETRY is entitled to ship the goods without prior inspection or, at the expense and risk of the contractual partner, to store them and invoice the goods.

7. Payment

7.1 Payment shall be made by bank transfer or by any other means. The contractual partner shall bear the costs of payment transfers. Unless otherwise agreed upon, payment terms are ten (10) days from delivery to the contractual partner. The contractual partner shall be considered in default after 10 days after the due date and receipt of the invoice/payment schedule.

7.2 In the case of corporations, the following shall apply in deviation from Section I. 1 or in addition to:

7.2.1 In the case of any agreed cash discount, this only relates to the invoice value excluding shipping and will only be granted if and insofar as the corporation has completely paid all amounts due at the time of the discount.

7.2.2 If XOMETRY is made aware of any circumstances which in their view are liable to affect the credit standing of the corporation, XOMETRY is entitled to refuse outstanding deliveries or only carry them out with advance payment or provision of other collateral. In such instances, XOMETRY is also be entitled to deem all claims due and payable from the current business relationship with the corporation, which are not subject to the statute of limitations.

7.2.3 If the payment period is exceeded or in the event of default, XOMETRY will charge interest at the rate of nine (9) percent above the base interest rate of the ECB, unless alternative interest rates have been agreed between XOMETRY and the corporation. We reserve the right to claim further damages caused by payment default. XOMETRY’s claim to commercial maturity interest as set out in § 353 HGB (German Commercial Code) towards merchants remains unaffected.

7.3 The contractual partners shall only be entitled to assert a further right of retention and offset amounts to the extent which their counterclaims have been legally proven by a court of law or are uncontested or have been acknowledged in writing by XOMETRY.

7.4 Exclusively in the case of corporations, XOMETRY shall be entitled to offset any and all receivables which the corporation, irrespective of the legal basis, is entitled to from XOMETRY. This shall also apply to receivables which one party has agreed to settle in cash and the other party has agreed to settle by bill of exchange or any other means of payment. Where applicable, these receivables only refer to the balance. If the receivables are due on different dates, XOMETRY’s receivables shall be due no later than the maturing of XOMETRY’s liability and shall be settled on the value date.

7.5 XOMETRY may use debt collection agencies, lawyers or other third parties to secure the payment of its receivables. The receivables from deliveries to contractual partners may be assigned by XOMETRY to third parties.

8. Retention of Title

8.1 All delivered products remain the property of XOMETRY (“Retained Products“) until payment has been made in full.

8.2 In the case of corporations, the following applies in addition to Section I.1:

  • The delivered products remain the property of XOMETRY until payment is made in full, particularly with regard to outstanding balances to which XOMETRY is entitled to within the scope of the business relationship (“Retained Balance“) and any claims made by the insolvency administrator have been met in full. This also applies to future and conditional claims, e.g. from bills of acceptance, and also if payments are made on specially designated claims. This retained balance shall expire with the settlement of all claims still open at the time of payment that resulted from this retention of title.

8.3 Prior to the transfer of ownership, resale, renting, pledging, assignment as collateral, processing or transformation is not permitted without the explicit consent of XOMETRY.

8.4 In the case of corporations, the following applies in deviation from Section I.3:

8.4.1 Manufacturing and processing of the retained product is carried out by XOMETRY as the manufacturer in the sense of § 950 BGB and is unbinding. The manufactured and processed product shall be deemed to be a retained product within the meaning of Section I. 1 where appropriate. If the corporation processes, mixes or combines the retained product with other products, XOMETRY shall be entitled to co-ownership of the new product proportionate to the invoice value of the retained product and the other goods used. If XOMETRY’s ownership expires due to the mixing or combination of products, the corporation shall immediately transfer ownership rights to XOMETRY along with the new stock or item to which they are entitled to in line with the invoice value of the retained product and shall hold the item for XOMETRY free of charge. The co-ownership rights of XOMETRY are deemed to be a retained product in the sense of Section I.8.1.

8.4.2 The corporation may only sell the retained product in the course of ordinary business activities under standard GTCs and as long as the corporation is not in default and that the receivables from the resale are transferred to XOMETRY in accordance with Section I. 3 to 8.4.5. The corporation is not entitled to any other dispositions of the retention of title product.

8.4.3 The receivables from the resale of the retained product, together with all collateral which the corporation off set against the claims, are thereby assigned to XOMETRY. They serve as collateral security to the same extent as the retained product. If the retained product is sold by the corporation together with other products not sold by XOMETRY, XOMETRY is entitled to claim sums in proportion with the invoice value of the retained product and the invoice value of the other products sold. In accordance with Section I. 4.1, if products which XOMETRY has co-ownership title of are sold, a share of receivables shall be assigned to XOMETRY which corresponds to the co-ownership share. If the retained product is used by the corporation to fulfil a service contract, the receivables from the service contract are assigned to XOMETRY in advance to the same extent. XOMETRY hereby accepts the transfer of these rights.

8.4.4 The corporation is entitled to collect receivables from the resale. This right to collect expires in case of revocation by XOMETRY, but at the latest in case of default of payment, non-payment of a bill of exchange or request for the opening of insolvency proceedings. XOMETRY will only make use of the right of revocation if it becomes apparent after conclusion of the contract that XOMETRY’s claim for payment from this or other contracts with the corporation is at risk due to the corporation’s lack of solvency. Upon XOMETRY’s request, the corporation is obliged to immediately inform their customers of this assignment to XOMETRY and to provide XOMETRY with the documents necessary to carry out collection.

8.4.5 An assignment of claims from the resale is not permitted, unless it is an assignment by way of genuine factoring, which is notified to XOMETRY and where the factoring proceeds exceed the value of the receivables secured by XOMETRY. Upon credit of the factoring proceeds, XOMETRY’s claim is payable immediately.

8.4.6 The corporation must immediately inform XOMETRY of a seizure or adverse events related to third parties. The corporation shall bear all costs incurred for the cancellation of access or for the return transport of the retained products, unless they are covered by third parties.

8.4.7 If the corporation is in default of payment or does not honour a bill of exchange when due, XOMETRY is entitled to take back the retained title product and if necessary, to enter the corporation’s premises to this effect during regular business hours. The same applies if it becomes apparent after conclusion of the contract that XOMETRY’s claim for payment from this or other contracts with the corporation is at risk due to the corporation’s lack of solvency. Provisions of the Insolvency Statute remain unaffected.

8.4.8 If the invoice value of the existing collateral security exceeds the secured claims, including ancillary claims (interest, aforementioned costs), by more than 50 per cent overall, XOMETRY shall be obligated to release collateral of XOMETRY’s choosing upon the corporation’s request.

9. Quality Assurance, Certifications

9.1 A quality assurance check is carried out by XOMETRY. This is performed in line with the “state of the art at” the time the contract is concluded.

9.2 Certificates for manufactured products will only be issued and supplied by separate agreement.

10. Warranty

10.1 The contractual partner’s claims against XOMETRY in case of defects are in principal based on the legal provisions within the legal warranty periods, insofar as there are no deviations to the following regulations.

10.2 Damages caused by improper handling or contract-breaching measures of the contractual partner during installation, connection, operation or storage do not constitute grounds for making a claim against XOMETRY.

10.3 If the warranty claims are justified and made within the given time frames, XOMETRY may choose to resolve the defect or to deliver a defect-free item (subsequent performance). XOMETRY shall be entitled to three (3) subsequent performance attempts in this context. Subsequent performance shall be deemed as failure after these attempts. If the subsequent performances are unsuccessful, XOMETRY may withdraw from the contract. The contractual partner is not entitled to resolve the defect without XOMETRY’s express consent and agreement, including consent and agreement on costs associated with fixing the defect.

10.4 If the contractual partner is a corporation in their capacity as an end customer or corporation and the order is placed for their business, the following shall apply in deviation from Section I 1:

10.4.1 Material defects of the product must be reported in writing immediately, no later than seven (7) days after delivery, by means of a technical report supporting this claim. Material defects which remain undiscovered within this period with even the most careful examinations must be reported in writing immediately after discovery and requires immediate cessation of any manufacturing or processing. This written report must be received no later than the expiry of the agreed period or statute of limitations.

10.4.2 Following the arranged acceptance inspection of the product by the contractual partner, the notification of any material defects, which were detectable during the type of agreed upon acceptance inspection, is excluded.

10.4.3 Claims for defects shall expire one year after the receipt of goods.

10.5 Unless otherwise agreed, XOMETRY will not approve quality standards regarding the fit, applicability or usability of the manufactured product or products when used with other items or in other items (e.g. construction or assembly groups). Any quality standards are always assessed on a product by product basis.

10.6 If defects are identified by the contracting partner, they are obliged to work cooperatively with XOMETRY to resolve any such defects (e.g. to provide technical information promptly, to prepare defective products for collection, etc.)

10.7 Unless otherwise agreed, all defect parts shall be prepared for XOMETRY to collect within 10 calendar days after the notification of defect(s) by the contractual partner. This also requires notifying XOMETRY when the product is ready for uplift, including information about the specifications of the product for collection.

11. Liability

11.1 XOMETRY shall only be held liable for breach of contractual and non-contractual obligations due to impossibility, delay, culpa in contrahendo and tortious acts – actions of XOMETRY’s executives and other vicarious agents included – in cases of mens rea and gross negligence. To the extent that attributable negligence of duty is based on minor negligence and any essential contractual obligations have been culpably breached, XOMETRY’s liability for damages shall be limited to the foreseeable damage which typically occurs in comparable cases. Essential contractual obligations are those which grant the contractual partners the rights which the contract must grant according to its content and purpose, particularly obligations whose fulfilment are essential for due implementation of the contract and on which the contractual partner can reasonably expect to be able to rely.

11.2 These restrictions shall not apply to mandatory liability, in particular, in accordance with the German Product Liability Act, in the event of loss of life, bodily injury or damage to health.

11.3 With the exception of Section I. 1 and 11.2, XOMETRY’s liability is otherwise excluded.

11.4 The above exclusions and limitations of liability shall also apply to the liability of XOMETRY’s employees, workers, officials, representatives and vicarious agents.

11.5 For end customers who are corporations, statute of limitations applies. For end customers who are corporations, notwithstanding § 634a Para. 1 No. 3 BGB, the general statute of limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the statute of limitations shall commence upon acceptance.

11.6 XOMETRY shall not be held liable for any damages caused by a delivery delay of the product, including the additional costs incurred by the contractual partner for making alternative arrangements for the production of the same product.

12. Final Provisions

12.1 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.

12.2 Contractual Language
All contract-related communication shall take place in German.

12.3 Publication policy
XOMETRY shall retain the rights to publish images of the produced product ordered by contractual partner on XOMETRY’s websites and social accounts without prior request of the contractual partner 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 shall request the permission of contractual partner before any publications.

12.4 Ancillary Agreements / Written Form
Verbal ancillary agreements do not apply. Amendments to these GTCs must be made in writing. This also applies to waiving the requirement for making amendments in writing.

12.5 Invalidity of Individual Clauses
Should individual provisions of these GTCs be deemed invalid, this shall not affect the validity of the remaining provisions. In the case of an invalid provision, XOMETRY and the respective contractual partner shall agree on a new provision which is as economically close as possible to the unenforceable provision.  The same applies to any contractual omissions.