Markforged University and Professional Services Terms and Conditions
Last Revised: May 26, 2022
HOW THESE TERMS APPLY
These Markforged University and Professional Services Terms and Conditions (the “Terms”) apply to your use of and access to Markforged University, any other Markforged training services provided to you in-person or electronically, or any other professional services that Markforged performs on your behalf (together, the “Services”). These Terms apply to any order for Services placed via a Website, an order form, or any similar transactional document that links to them, whether the Services are purchased from an authorized Markforged reseller or directly from Markforged.
Please read these Terms carefully before purchasing or using the Services. By making such a purchase or by using the Services, you agree to be bound by these Terms. If you do not agree to all the terms and conditions of these Terms, then you may not purchase or use the Services. These Terms over-ride any order form, transactional document, purchase order, or purchasing terms and conditions presented by you to us or to a reseller, these Terms will take precedence. These Terms apply if you purchase Services directly from Markforged or if you purchase Services via an authorized Markforged reseller. Markforged cannot control, and therefore is not responsible for, the transactional activities of our resellers.
Any offer made on our Websites is void where prohibited by law. If these Terms are considered an offer, our acceptance is expressly limited to your agreement to these Terms in full. If you are purchasing or using the Services on behalf of an organization, you represent and warrant that you have the authority to bind the organization on whose behalf you are making the purchase and such entity will be subject to all terms and conditions of these Terms. You represent that you are at least the age of majority in your state or province of residence. Children under the age of 18 may not accept these Terms, use our Websites, or purchase our Services.
These Terms do not cover any software made available to you by Markforged, whether supplied as on-premises software, as software-as-a-service, as a cloud service, or otherwise, regardless of whether said software is supplied to you free-of-charge or for a fee. All of Markforged’s software offerings are subject to separate terms and conditions, and you must accept those conditions prior to access or use of that software. These Terms also do not apply to the purchase of Markforged devices, printing materials, or consumables, as these are covered by separate terms and conditions. You acknowledge and agree that Markforged printers can be used only in conjunction with our proprietary software and our printing materials.
DEFINITIONS
These Terms use certain words and phrases in a specific manner. These words or phrases have been capitalized, and each is bolded where the definition is first provided. Some definitions are provided in close proximity to the initial use of the word or phrase, and for convenience, some are defined in this section of the Terms.
“You” and “your” refer to the person or organization that is using or purchasing Services, whether such purchase is made directly from Markforged or via a reseller.
“Markforged'', “we”, “us” and “our” refers to Markforged, Inc.
The “Websites” include any website that is owned or controlled by Markforged and that links to these Terms, including but not limited to www.markforged.com and any online store hosted by Markforged.
TERMS
Services. In consideration of your payment as specified on your order, Markforged agrees to provide to you the Services listed on the order, in accordance with the following:
Markforged University; Training. The Services involving training will be provided to you either in-person on a date and at a location to be mutually agreed, or via an on-line platform designated by Markforged. If your purchase includes online training, Markforged grants you a non-exclusive, royalty-free, non-transferable limited license to access and use the on-line platform designated by Markforged for the period of time associated with your order. Notwithstanding the foregoing, you shall not, regardless of the manner in which any training sessions are delivered to you: (i) copy, reproduce, republish, resell, sublicense, broadcast, record via audio or video, or distribute any training sessions, lectures or webinars provided by Markforged; (ii) remove any copyright or other notice of Markforged; (iii) modify, adapt, merge, translate, dissemble, or reverse engineer any software or software platform associated with the Services; or (iv) engage in any behavior that could reasonably be expected to interfere with the performance of any software or software platform associated with the Services.
Training Materials. You acknowledge and agree that Markforged owns all right, title and interest in and to any training or course materials provided to you in connection with the Services. If your order includes training or course materials, Markforged grants you a non-exclusive, royalty-free, non-transferable limited license to use any training materials provided to you for your internal business purposes. You agree to take every reasonable precaution to protect such information from disclosure to third parties. You will not: (i) copy, reproduce, republish, resell, sublicense, broadcast, record via audio or video, or distribute any training or course materials that are provided to you; or (ii) remove any copyright or other notice of Markforged.
Services Generally. Services listed on an order form will be provided on a date and at a location to be mutually agreed; any such Services will be billed as indicated on your order form (such as flat fee, hourly, or milestone). In any case, all Services, regardless of billing arrangement, must be used within twelve months of the date on which the order is placed. At the end of the twelve-month period, any unused Services shall be deemed delivered.
Refunds and Cancellations. Orders for Services to be delivered electronically are non-cancellable and non-refundable. As specifically regards only Services for in-person training sessions, you will notify Markforged (orders@markforged.com) and you will be eligible for a refund in accordance with the following schedule:
Notice received by Markforged less than 14 days before the class date: 50% refund
Notice received by Markforged more than 14 days before the class date: 100% refund
Confidential Information. In the course of the Services, you may be provided with written, electronic or verbal information that is Confidential Information. For purposes of these Terms, “Confidential Information” includes your passwords and log-in information, information about Markforged’s current and future products, and any information that a reasonable person would recognize as confidential, given the nature of the information and the manner in which it was provided. You agree that Confidential Information is received in strictest confidence and may only be used for your internal business purposes related to your use of Markforged products and Services. You may not disclose Confidential Information to any third party, except to employees of your organization with a justified need to know and who have been advised of these confidentiality obligations.
Warranty; Disclaimer. You warrant that you are authorized to enter into these Terms and that you will comply with any applicable laws and regulations pertaining to these Terms. Markforged warrants that the Services will be performed in a timely, professional and workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. THE SERVICES ARE NOT EXPERT OR LEGAL ADVICE, NOR CAN THE SERVICES BE RELIED UPON AS ASSURANCE THAT ANY REGULATORY REQUIREMENTS WILL BE MET. YOU ARE SOLELY RESPONSIBLE FOR TESTING DESIGNS AND PRODUCTS TO ENSURE THAT THEY MEET YOUR DESIGN SPECIFICATIONS, LEGAL REQUIREMENTS AND/OR REGULATORY COMPLIANCE. AS REGARDS SERVICES PROVIDED TO YOU BY MARKFORGED, EITHER DIRECTLY OR BY A THIRD-PARTY ON MARKFORGED’S BEHALF, YOUR SOLE REMEDY IN THE EVENT YOU ARE DISSATISFIED WITH THE SERVICES IS TO NOTIFY MARKFORGED WITHIN THIRTY DAYS OF THE DATE ON WHICH SAID SERVICES WERE PROVIDED, AND MARKFORGED WILL RE-PERFORM THE SERVICES AT NO ADDITIONAL CHARGE TO YOU.
Intellectual Property. Notwithstanding any limited license expressly granted to you hereunder, all Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided by or used by Markforged in performing the Services shall be owned exclusively by Markforged and its licensors. All rights not expressly granted by Markforged herein are reserved. The Services do not include any “work for hire” or “deliverables”. “Intellectual Property” includes, without limitation, all inventions, technological innovations, software, firmware, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, lectures, illustrations, photographs, videos, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form.
Feedback. You may from time to time, make known to Markforged suggestions, enhancement requests, techniques, know-how, comments, feedback or other input with respect to our Cloud Service, Products or Materials (collectively, “Feedback”) and you hereby grant Markforged a royalty-free, worldwide, irrevocable, fully paid up, perpetual license to use, disclose, distribute, publicly display and perform, reproduce, license, sublicense, create and have made derivative works, and otherwise exploit any Feedback without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise. We may freely incorporate into our products, Services, software any service, product, technology, enhancement, documentation or other development incorporating or derived from any Feedback.
Photos or Video Footage. You agree to allow Markforged to use any photos or video likeness of you created during the Services as part of its marketing and related social media activities, and you release Markforged from all liability associated in connection with such activities.
Limitation of Liability. Markforged’s liability on any claim for loss or liability, including negligence, arising out of or in connection with the Services, shall in no case exceed the amounts paid by you for the Services.
MISCELLANEOUS TERMS
Entire Agreement. These Terms and the documents referenced herein constitute the entire agreement and understanding between you and us regarding your purchase(s) of Services. These Terms supersede any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms). We object to and reject any additional or different terms proposed by you, including those contained in your purchase order or other ordering documents, acceptance or website. Our failure to object elsewhere to any provisions of any subsequent document, communication, or act of you shall not be deemed a waiver of any of the terms hereof. Your decision to purchase Services is not contingent on the delivery of any future functionality or features of the Services or any Markforged product, nor dependent on any oral or written public comments made by us (including without limitation on our Websites) regarding future functionality or features of the Services or any Markforged product. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party. No employee or agent (including resellers) of Markforged has any authority to vary any of the terms and conditions set forth herein.
Notices. Markforged may send you information about the Services, any information we are required to provide you by law, and certain other additional information. Markforged may provide required information to you by email at the address you provided when you placed an order with us, or such other email address used by you in conjunction with a Markforged account. Notices emailed to you will be deemed given and received when the email is sent. You may provide legal notices to Markforged via email to legal@Markforged.com, with a duplicate copy sent via registered mail, return receipt requested, to: Markforged, Inc. Attn: Legal,60 Tower Road, Waltham, MA, 02451, USA. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
Headings and Language. The section headings used in these Terms are for convenience only and will not be given any substantive effect. The words “includes'' or “including” mean “including but not limited to” or “include but are not limited to.” The English language version of these Terms is legally binding in case of any inconsistencies between the English version and any translations. The parties confirm that it is their wish that these Terms, as well as other documents relating hereto, including notices, have been and will be written in the English language only.
Basis Of The Bargain. You agree that the releases, waivers, exclusive limited warranty and limitations of liability in these Terms are a fundamental basis of the bargain between you and Markforged, and are a material part of the consideration received by Markforged for entering into these Terms with you and providing you with the Services, and that Markforged would not have entered into these Terms or provided you with the Services in the absence of such releases, waivers, exclusive limited warranty and limitations of liability. You and Markforged agree that the disclaimers and limitations of liability set forth herein are reasonable in light of the fees paid for the Services.
Waiver. Our failure to exercise or enforce any right or provision of these Terms shall not constitute our waiver of such right or provision.
Force Majeure. Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, strikes, pandemic, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorism or terrorist acts, war, failure or interruption of the Internet or third party Internet connection(s) or infrastructure, power failures, acts of civil or military authorities, and severe weather. The affected party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
Relationship of the Parties. We and you agree that no joint venture, partnership, employment, or agency relationship exists between us as a result of these Terms and that we are acting as an independent contractor in performing any services for you. Neither party will have the authority to obligate or bind the other in any manner, and no provision of these Terms gives rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
Severability. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision so that the terms shall remain in full force and effect, and the remainder of these Terms shall continue in full force and effect.
Assignment. You will not assign or transfer your rights and obligations under these Terms, including any assignment or transfer by operation of law or otherwise, without our express prior written consent. We may freely assign these Terms, including without limitation to our successor in a merger, acquisition or other change of control, including without limitation the sale of all or substantially all of its assets, stock or business to which these Terms relate.
No Third Party Beneficiaries. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties.
Governing Law. These Terms shall be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to or govern these Terms.
If you have any questions about these Terms, please write to us at legal@markforged.com.