Purchase Order Terms and Conditions
The following Purchase Order Terms and Conditions (“Terms”) apply to purchasing transactions between the organization named on a Purchase Order that links to these Terms (“Seller”) and Markforged, Inc. (“Markforged”) only where: (i) there is no written agreement that has been duly executed between the parties and (ii) the relevant Purchase Order (“P.O.”) was originally issued on or after April 18, 2022. For clarity, where there is a written signed agreement, that agreement shall govern the transaction described on the P.O., and these Terms shall not apply. Further, these Terms do not apply to any P.O. that is issued as an amendment to a P.O. that was originally released prior to April 18, 2022.
For purposes of these Terms, “Goods” means any goods (including any part or parts thereof) specified in this P.O. to be purchased by Markforged from Seller; “Software” means any computer program or software-as-service that is specified in this P.O. for purchase by or license to Markforged; and “Professional Services” means the services specified in the P.O. to be purchased by Markforged from Seller.
1. Applicability. These Terms govern the P.O. to which they are attached. These Terms constitute the sole and entire agreement of the parties with respect to the order described herein and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral, with respect to the subject matter of this P.O. The P.O. expressly limits Markforged’s acceptance to the Terms. This P.O. is not binding on Markforged until Seller accepts the Terms in writing or starts to perform as noted in the P.O. Markforged may withdraw the order in the P.O. at any time before it is accepted by Seller. These Terms apply to any new, corrected, repaired or replacement Goods, Software, or Professional Services specified in the P.O. and provided by Seller to Markforged.
2. Delivery Date. Timely delivery is of the essence. Seller shall deliver any Goods or Software or perform Professional Services in the quantities and on the date(s) specified in this P.O. or as otherwise agreed in writing by the parties (in either case, the “Delivery Date”). If Seller fails to deliver in full on or prior to the Delivery Date, Markforged may terminate the order immediately by providing written notice to Seller and Seller shall indemnify Markforged against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver in a timely manner.
3. Software and Professional Services. Any Software and Professional Services that have been ordered shall be delivered to Markforged as specified in the P.O. or as described in an applicable statement of work that has been mutually agreed between the parties.
4. Goods. Orders for Goods shall conform with the following:
4.1 Shipping and Delivery. All Goods shall be delivered to the address specified in this P.O. (the “Delivery Location”) during Markforged’s normal business hours or as otherwise reasonably instructed by Markforged. Seller shall notify Markforged when the Goods are delivered to a carrier for transportation, or when Seller begins transport. Seller shall provide Markforged with all shipping documents, including, as applicable, the commercial invoice, packing list, air waybill, bill of lading, and any other documents necessary to release the Goods to Markforged. The P.O. number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the P.O. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
4.2 Packaging. All Goods shall be packed for shipment according to Markforged’s reasonable instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Markforged prior written notice if it requires Markforged to return any packaging material. Any return of such packaging material shall be at Seller’s expense.
4.3 Inspection and Rejection of Nonconforming Goods. Markforged has the right to inspect the Goods on or after the Delivery Date and may at Markforged’s sole discretion, reject all or any portion of the Goods if it determines the Goods are nonconforming or defective in a reasonably timely manner. If Markforged does so reject any portion of the Goods, Markforged has the right, effective upon written notice to Seller, to: (a) rescind the P.O. in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Markforged requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Markforged may replace them with substantially similar Goods from a third party and charge Seller the cost thereof and terminate this P.O. for cause. Any inspection or other action by Markforged under this Section shall not reduce or otherwise affect Seller’s obligations under the P.O., and Markforged shall have the right to conduct further inspections after Seller has carried out its remedial actions.
5. Price. The price of the Goods, Software, or Professional Services is the price stated in the P.O. (the “Price”). If no price is included in the P.O., the Price shall be the price set out in Seller’s published price list in force as of the date of the P.O. Unless otherwise specified in the P.O., the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, fees and applicable taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without Markforged’s prior written consent. The Price must be shown in United States Dollars and payments will be made in United States Dollars.
6. Payment Terms. Seller shall, as applicable, issue an invoice to Markforged on or any time after the date on which the Goods have reached the Delivery Location, when the Software has been installed or accepted or when the Professional Services have been completed (unless otherwise specified in a statement of work), and only in accordance with these Terms. Unless stated otherwise on the front of the applicable P.O., Markforged shall pay all properly invoiced amounts due to Seller within sixty days of Markforged’s receipt of such invoice, except for any amounts disputed by Markforged in good faith. The parties shall seek to resolve any such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the P.O. notwithstanding any such dispute. Without prejudice to any other right or remedy it may have, Markforged reserves the right to set off at any time any amount owed to it by Seller against any amount payable by Markforged to Seller.
7. Warranty. Any applicable statute of limitations runs from the date of Markforged’s discovery of the noncompliance with the below warranties. These warranties are cumulative and in addition to any other warranty or remedy available to Markforged at law or equity.
7.1 Goods. Seller warrants that for a period of twelve months from the Delivery Date, all Goods delivered under this P.O. will: (i) be free from any defects in workmanship, material and design; (ii) conform to the applicable specifications and to any other requirements specified by Markforged in advance; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe on or misappropriate any third party’s intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Markforged. If Markforged gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to Markforged.
7.2 Software. Seller warrants that the Software will: (i) operate in conformity with Seller’s then-current standard documentation (except for minor defects not material to the core functionality of the Software under normal use and circumstances) for ninety days from the date on which the Software is installed; and (ii) not infringe on or misappropriate any third party’s intellectual property rights. If the Software does not perform in accordance with the foregoing warranty during the ninety-day warranty period, Markforged will so inform Seller, and Seller will use reasonable efforts to correct any deficiencies in the Software so that it will perform in accordance with such warranty. Seller’s obligation in the event of nonconformity of the Software with the foregoing warranty will be the correction of the condition making it nonconforming, or if Seller is unable to correct the breach of warranty, Seller will promptly refund all fees paid for a perpetual license and/or will refund fees paid for the remainder of the Term for subscription licenses. The above warranty excludes non-conformance to the extent resulting from unauthorized repair or modification or use of the Software that is materially inconsistent with the Documentation.
7.3 Professional Services. Seller warrants that the Professional Services will: (i) substantially conform to the specifications in this P.O. or any applicable statement of work; (ii) will be performed by competent personnel in a workmanlike manner consistent with industry standards for similar work; and (iii) not infringe on or misappropriate any third party’s intellectual property rights. Seller’s obligation in the event of nonconformity of the Software with the foregoing warranty will be the re-performance of the Professional Services until they are conforming, or if Seller is unable to correct the breach of warranty, Seller will promptly refund all fees paid for the Professional Services.
7.4 General. Seller warrants that it will: (i) comply with all Markforged rules, regulations and policies, including security procedures concerning systems and data and remote access thereto, building security and safety procedures and protocols, and Markforged’s vendor code of conduct (any of which shall be made available to Seller upon request); (ii) maintain complete and accurate records relating to the transaction(s) described herein; (iii) during the Term and for two years thereafter, upon Markforged’s written request, allow Markforged to review books and records reasonably necessary to verify Seller’s compliance with the Terms; (iv) obtain Markforged’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any subcontractor to provide any services to Markforged (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Markforged’s approval shall not relieve Seller of its obligations and Seller shall: (i) remain fully responsible for the performance of each such Permitted Subcontractor and its employees; (ii) require each Permitted Subcontractor to be bound in writing by terms substantially similar to these Terms, and, upon Markforged’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Markforged.
8. General Indemnification. Seller shall defend, indemnify and hold harmless Markforged, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Markforged’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with Seller’s negligence, willful misconduct or breach of the Terms, and for any Loss resulting in death or personal injury. Seller shall not enter into any settlement without Markforged’s or Indemnitee’s prior written consent.
9. Intellectual Property and Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Markforged and any Indemnitee against any and all Losses arising out of or in connection with any claim that Markforged’s or Indemnitee’s use or possession of the Goods, Software, or Professional Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Markforged’s or Indemnitee’s prior written consent. In no event shall any interest, title or right to Markforged’s intellectual property pass to Seller.
10. Insurance. Seller shall maintain insurance by insurers of recognized financial responsibility in such amounts as are prudent and customary in the businesses in the Seller is engaged. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Markforged’s insurers and Markforged or the Indemnitees.
11. Amendment. No change to this P.O. is binding upon Markforged unless it is in writing, specifically states that it amends this P.O. and is signed by an authorized representative of Markforged.
12. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances, including, but not limited to: (i) import and export laws; (ii) the U.S. Foreign Corrupt Practices Act and any other applicable anti-bribery or anti-corruption laws; (iii) state and federal equal opportunity laws and regulations; and (iv) all labor laws. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the P.O.
13. Termination. In addition to any remedies that may be provided under these Terms, Markforged may terminate this P.O. with immediate effect upon written notice to the Seller, if Seller has not performed or complied with any of these Terms in whole or in part, or if Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Markforged terminates the P.O. for any reason, Seller’s sole and exclusive remedy is payment for the Goods, Software or Professional Services received and accepted by Markforged prior to the termination.
14. Waiver. No waiver by either party of any of the provisions of this P.O. shall be effective unless set forth in writing and signed by the party so waiving. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the P.O. shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Confidential Information. All non-public, confidential or proprietary information of Markforged, including, but not limited to, technology, specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Markforged to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is Confidential Information. Seller will make use of any Confidential Information solely for the use of performing as required by this P.O. and may not be disclosed or copied unless authorized by Markforged in writing or required by law. Upon Markforged’s request, Seller shall promptly return all Confidential Information, documents and other materials received from Markforged. Markforged shall be entitled to injunctive relief for any violation of this Section, in addition to any other remedies that may be available to it. This Section shall not apply to information that is: (i) in the public domain; (ii) known to the Seller at the time of disclosure; or (iii) rightfully obtained by the Seller on a non-confidential basis from a third party.
16. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any part of these Terms, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events, when those events are outside the Impacted Party’s reasonable control (”Force Majeure Event(s)”): (i) acts of God; (ii) disasters or catastrophic events such as epidemic, flood, fire, earthquake; (iii) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or action; (v) embargoes or blockades in effect on or after the date of this P.O.; (vi) strikes, labor stoppages or slowdowns or other industrial disturbances; and (vi) similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within two days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ten consecutive days following written notice given by it under this Section, the other party may terminate this P.O. upon five days written notice.
17. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the P.O. without the prior written consent of Markforged. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the P.O. shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this P.O.
19. No Third-Party Beneficiaries. This P.O. is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
20. Governing Law. All matters arising out of or relating to this P.O. shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to this P.O. shall be instituted in the federal courts of the United States of America or the courts of the State of the Commonwealth of Massachusetts in each case located in Boston, Massachusetts and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
21. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
22. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this P.O. or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice is effective only: (i) upon receipt of the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
23. Severability. If any term or provision of this P.O. is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this P.O. or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Survival. Provisions of this P.O. which by their nature should apply beyond their terms will remain in force after any termination or expiration of this P.O. including, but not limited to, the following provisions: 7, 8, 9, 15, 20, 24.