Terms of Purchase
Last Revised: November 8, 2021
HOW THESE TERMS APPLY
These Product Terms and Conditions (the “Terms”) apply to the purchase and use of Markforged Products and Materials where that purchase occurs by you via any Website. These Terms also apply to any order placed via an order form or similar transactional document that links to them, and to any new Product purchased from an authorized Markforged reseller. To the extent that these Terms conflict with 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.
Please read these Terms carefully before purchasing or using Markforged Products or Materials. By making such a purchase, 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 our Products or Materials. These Terms apply if you purchase Products or Materials directly from Markforged or if you purchase new Products or Materials from 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 our Products 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. Further, 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 Products or Materials.
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. You acknowledge and agree that our Products can be used only in conjunction with our proprietary software and our Materials. These Terms also do not apply to subscriptions for Markforged University, or on-site training, each of which are covered by separate terms and conditions.
If you have any questions about these Terms, please write to us at firstname.lastname@example.org.
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.
For purposes of these Terms, “you” and “your” refer to the person or organization that is purchasing or using one or more Products from Markforged or purchasing or using one or more new Products from an authorized Markforged 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.
“Products” means Markforged 3D printers, including the firmware (as updated from time-to-time) installed on the 3D printers, and the documentation associated with them.
“Materials” means filament materials that are used to print parts with the Products as well as other consumables that are provided by Markforged for use with the Products.
These Terms may only be modified by the written agreement of both parties. However, Markforged reserves the right to modify or supplement these Terms at any time such that the then-current Terms apply to any purchase.
The following sections apply only if you purchase Products or Materials directly from Markforged. Our authorized resellers set their own prices at will, and we are not responsible for their pricing or invoicing practices.
Prices. The prices listed on our Websites are subject to change at any time with or without notice at our sole discretion and we reserve the right to correct any pricing errors. Prices posted to our Websites do not include shipping, tax, duties or tariffs, unless a Website specifically states otherwise. You will be charged separately for such amounts and will be responsible for paying such amounts. All amounts are payable in U.S. Dollars and are nonrefundable, except as specifically provided in these Terms.
Payment. Terms of payment are within our sole discretion and, unless otherwise agreed to by us, payment details must be received prior to our acceptance of an order. We may allow you to make purchases using credit or debit cards. When you provide your card information, we will obtain a preapproval from the card company for the amount of your order, which may result in a corresponding block on your available credit while pre-approval remains in place. We will bill your card when your order is processed.
The following sections apply to all purchases, both directly from Markforged and from an authorized reseller:
Orders. Once we receive your order, we will provide you or your reseller with an email order confirmation. An order confirmation, however, does not signify our acceptance of an order nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receiving your order to accept, decline or cancel your order for any reason. We may, in our sole discretion, limit or cancel quantities purchased per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we modify or cancel an order, we will attempt to notify you by contacting you via the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. If we cancel an order for which we have already received your payment, we will refund you the amount paid.
Shipping and Delivery. We will ship your order upon availability. We do not guarantee that we will have the quantity of the Products or Materials that you order immediately available and availability may be delayed. We reserve the right to change quantities available for purchase at any time, even after you place and we accept an order. If we learn that we cannot fulfill an order, we will cancel your order and refund the price you paid in full. Unless you make other arrangements with us, we use common carriers for shipping. We have no control over these common carriers, and are not liable for the acts of omission of these common carriers, including but not limited to late deliveries.
Descriptions, Availability. All descriptions of our Products and Materials are subject to change at any time, with or without notice, at our sole discretion. We reserve the right to modify or discontinue any of our Products or Materials at any time, with or without notice in our sole discretion. The information provided on our Websites with respect to Products or Materials may be out of date, and we make no commitment to update this information.
Restrictions on Use. You agree that you will not use the Products or Materials in a manner that violates any applicable law or regulation. For clarity and not in limitation, you further agree that you will not (directly or indirectly) use or encourage, assist, permit or direct any third party to use the Products or Materials for the development, production, sale, or distribution of unmanned aircraft, medical devices, weaponry, or munitions, or any component thereof, except where you have obtained all required licenses and permissions, and where you are in full compliance with all applicable laws. You agree that you will not (directly or indirectly) or encourage, assist, permit or direct any third party to: (i) modify, tamper with, repair, translate, adapt, arrange, or create derivative works based on the Products or Materials or any component thereof; (ii) decompile, disassemble or otherwise reverse engineer the Products or Materials or any component thereof, or determine or attempt to modify, translate, determine, discover, or recreate any designs, source code, algorithms, methods, structure, interfaces, protocols, messaging or techniques used or embodied in the Products or Materials or any component thereof; (iii) remove, alter, or obscure any copyright, trademark, patent, confidentiality or other proprietary notices, labels, or marks from, on or pertaining to the Products; (iv) use the Products or Materials in a manner that is in violation of any obligation or restriction imposed by any third party; (v) make or permit use of any trademark, trade name, service mark or other commercial symbol of Markforged without our prior written consent; (vi) use the Products or Materials for benchmarking or competitive analysis; and/or (vii) take or permit any other action which could reasonably be expected to impair Markforged’s rights, or damage the image or reputation of quality inherent in the Products, the Materials, Markforged’s business, reputation, Intellectual Property or other valuable assets or rights.
Export. You acknowledge and agree that your use of the Products and Materials may be subject to United States and other applicable country export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the United States Department of Commerce and the United States Department of the Treasury (the “Export Control Laws”). You shall be solely responsible for complying with the Export Control Laws as regards your purchase and use of the Products and Materials, and you are responsible for monitoring and complying with modifications to them. You represent and warrant that: (i) you are not a citizen of, or located within, a nation or region that is subject to United States trade sanctions or restrictions (currently including Crimea, Cuba, Iran, South Korea, and Syria); (ii) you are not identified on any United States government restricted party lists (including, without limitation, the United States Treasury Department's List of Specially Designated Nationals and Other Blocked Persons, the United States Department of Commerce’s Denied Party List, Entity List and Unverified List and the United States Department of State’s proliferation-related lists), or owned or controlled by any such person; (c) you will not, unless otherwise authorized under the Export Control Laws, use the Products or Materials for any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications; and (d) that no part of the content you create with or use in connection with the Products is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that you will not use the Product(s) to disclose, transfer, download, export or re-export, directly or indirectly, the content you use or create in connection with the Products, third party materials or any other content or material to any country, entity or other party that is ineligible to receive such items under the Export Control Laws or under other applicable laws or regulations.
EXCLUSIVE LIMITED WARRANTY
No Markforged reseller, distributor, agent, or employee is authorized to make any modification, extension, or addition to the Exclusive Limited Warranty set forth below.
Applicability. Please review the online help resources cited in the Product documentation before requesting warranty service. If the Product is still not functioning properly after making use of these resources, you may contact us at email@example.com. You must assist us in diagnosing issues with your Product and follow our warranty processes and procedures. We may restrict service to the fifty states of the United States of America and the District of Columbia.
Exclusive Limited Warranty. Consistent with the applicable Product documentation, we warrant Markforged branded Products against workmanship defects for the time periods set forth below provided that the Product was subject only to normal use (each, a “Warranty Period”). If a valid claim is received within the Warranty Period, at our sole option and to the extent permitted by law we may provide any of the following:
90 Day Warranty. For a period of ninety days from the date of shipment to the original purchaser (whether that is you or a reseller), we may, at our option: (i) repair a hardware defect at no charge, using new or refurbished replacement components; or (ii) provide you with new or refurbished user-installable replacement components to enable you to repair the Product; or (iii) exchange the Product with a Product that is new or reconditioned or that has been manufactured from new or serviceable used components and is at least functionally equivalent to the original Product; or (iv) refund the purchase price of the Product. If we elect to repair a Product after this Warranty Period has expired but while the components warranty below is still in effect, we will do so for the applicable labor charge.
12 Month Warranty. For a period of twelve months from the date of shipment to the original purchaser (whether that is you or a reseller), we will supply you with new or refurbished replacement Product components in exchange for components determined to be defective. A replacement component, including a user-installable component that has been installed in accordance with instructions provided by us, assumes the remaining warranty of the original Product or ninety days from the date of replacement or repair (or the date on which we shipped user-installable replacement components to you), whichever provides longer coverage for you. Components provided by us in fulfillment of our warranty obligation must be used only in the Product for which you have claimed warranty service.
Exchanges. When a Product or Product component is exchanged, we may require a credit card authorization as security for the retail price of the replacement Product or Product component and applicable shipping costs. If you follow instructions, we will cancel the credit card authorization, so you will not be charged. If you fail to return the replaced Product or Product component as instructed, we will charge the credit card for the authorized amount. Any replacement item becomes your property, and the replaced item becomes our property, and you agree to follow our instructions, including, if required, arranging the return of the original item to us in a timely manner. When a refund is given, the item for which the refund is provided must first be returned to us before we will issue the refund and the item becomes our property.
Shipping. You are responsible for all shipping costs associated with returning a defective Product or component to us. If we determine that a Product or component is eligible for warranty coverage, we will ship the item back to you at our expense. If we determine that the item is not eligible for the warranty, we will return it to you at your sole cost and expense and may require you to pay such costs prior to shipping.
Effect on Stored Information. You acknowledge and agree that any information stored on a Product that is repaired or replaced will be deleted, and the storage media will be reformatted in the course of warranty service. Your Product will be returned to you configured as originally purchased, subject to applicable updates.
Warranty Limitations. Components availability and response times may vary. Service options are subject to change at any time. In accordance with applicable law, we may require that you furnish proof of purchase details and/or comply with registration requirements before receiving warranty service.
DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS, OBLIGATIONS, AND REPRESENTATIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED AND MARKFORGED EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL STATUTORY AND IMPLIED WARRANTIES, CONDITIONS OF ANY KIND, TERMS, UNDERTAKINGS, OBLIGATIONS, AND REPRESENTATIONS RELATED TO OR ARISING IN ANY WAY OUT OF THESE TERMS AND YOUR PURCHASE OR USE OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR TITLE, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MARKFORGED DOES NOT WARRANT THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER THE EXPIRATION OF THE LIMITED WARRANTY PERIOD. EXCEPT FOR THE EXPRESS REMEDIES SET FORTH IN THIS SECTION, NEITHER MARKFORGED NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY) IN CONNECTION WITH THESE TERMS.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF MARKFORGED AND/OR ITS SUPPLIERS HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE, OF THE POSSIBILITY OF DAMAGES IN EXCESS OF SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON LIABILITY, SO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION MAY NOT APPLY. IN SUCH STATES, THE LIABILITY OF MARKFORGED AND ITS SUPPLIERS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE EXPRESS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, PROVINCE OR JURISDICTION. SPECIFICALLY, IF YOU ARE FROM NEW JERSEY, THE SECTIONS TITLED “DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Exclusions. The foregoing exclusive limited warranty applies only to hardware Products that are: (i) manufactured by or for Markforged that bear a “Markforged” trademark, trade name, or logo; and (ii) used only with Markforged proprietary software and Materials. Further, the foregoing limited warranty does not apply to: (i) damage caused by use with materials, products or software not developed by Markforged; (ii) damage caused by your negligence or abuse, a catastrophe, a power failure, unusual stress, or by your failure to follow our instructions relating to the Product’s use; (iii) damage caused by operating the Product outside the permitted or intended uses described in the Product’s documentation; (iv) damage caused by service (including upgrades and expansions) performed by anyone who is not an authorized representative of Markforged; (v) a Product or Product component that has been modified to alter functionality or capability without our prior written permission; (vi) consumable parts, unless damage has occurred due to a defect in Materials or workmanship; (vii) cosmetic damage, including but not limited to scratches, dents; or (viii) if a Markforged serial number has been removed or altered. This warranty does not apply to any hosted or on-premises software made available to you by Markforged, regardless of whether that software is provided free-of-charge or for a fee, even if the software is packaged or sold together with a Product. All such software is subject to separate terms and conditions. This warranty also does not apply to firmware installed on a Product by Markforged or a third-party acting on Markforged’s behalf, third-party hardware, or to any third-party software.
YOUR ACCOUNT INFORMATION
Your Account Information. When placing an order, you agree to provide current, complete and accurate purchase and account information. You agree to promptly update your account and other information, including your mailing address, phone number, email address, and credit card numbers and expiration dates, so that we can complete your transaction(s) and contact you as needed.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MARKFORGED IS NOT RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION OR ANY OTHER REASON, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; REPLACEMENT OF EQUIPMENT OR PROPERTY; COSTS TO PROCURE SUBSTITUTE GOODS; COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED OR USED WITH MARKFORGED PRODUCTS; OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON THE PRODUCT. IN THE CASE OF ANY PROFESSIONAL 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 PROFESSIONAL SERVICES IS TO NOTIFY MARKFORGED WITHIN THIRTY DAYS OF THE DATE ON WHICH SAID SERVICES WERE PROVIDED, AND MARKFORGED WILL RE-PERFORM THE PROFESSIONAL SERVICES AT NO ADDITIONAL CHARGE TO YOU.
You agree to indemnify, defend and hold harmless Markforged and its affiliates and their respective officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, and employees, from and against any suits, claims, investigations, demands, allegations, actions, losses, damages, expenses, costs, settlement amounts, and any and all other liabilities, including without limitation reasonable attorney fees and costs, arising out of or related to your breach of these Terms, your violation of any laws, rules, regulations or guidelines (including without limitation export control laws) or your violation, misappropriation or infringement of the rights of a third-party.
We may provide you with access to third-party tools which we neither monitor nor have any control over. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of third-party tools. Any use by you of optional tools offered through a Website is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Third-party links on our Websites may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy of third-party websites, and we do not warrant and will not have any liability or responsibility for any third-party content or websites, or for any other content, products, or services of third-parties.
We are not liable for any harm or damages related to the transaction for purchase of our Products or Materials, or any other transactions made via any third-party websites, including the protection or processing of any personal or sensitive data that you may provide to third-parties. We assume no liability for the acts or omissions of any third-party common carriers engaged for shipping, whether engaged by us or by you. Complaints, claims, concerns, or questions regarding third-party products and/or third-party transactions should be directed to the third-party.
Our Products and Materials are protected by United States and international intellectual property rights protections, including without limitation trade secret, patent and copyright laws. All rights not expressly granted herein are reserved; you gain no interest in or right to any Markforged intellectual property via these Terms or via your use or purchase of Products or Materials. You acknowledge and agree that Markforged and its licensors own all right, title, and interest in and to all intellectual property that relates to the Products and Materials and their use.
You may from time to time, make known to us suggestions, enhancement requests, techniques, know-how, comments, feedback or other input with respect to our Products or Materials (collectively, “Feedback”) and you hereby grant to us a royalty-free, worldwide, irrevocable, fully paid up, perpetual license to use, disclose, distribute, publicly display and perform, reproduce, license and sublicense, create derivative works, make and have made, and otherwise exploit any Feedback without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise. We may incorporate into our Products or Materials any service, product, technology, enhancement, documentation or other development incorporating or derived from any Feedback.
You hereby grant to Markforged and to authorized users of Markforged Products a fully paid-up, royalty-free, worldwide, non-exclusive, irrevocable, transferable right and license in, under, and to any patents and copyrights enforceable in any country, issued to, obtained by, developed by or acquired by you that incorporate, are derived from and/or improve upon the intellectual property of Markforged; are developed using Markforged’s software, Products or Materials; and are applicable to Markforged Products, Materials, or software or use.
You agree that Markforged may make nominative use of mark(s) and/or logos owned by you on Markforged.com and/or successor websites and/or printed embodiments of the same identifying you as a customer, and that the fact of your purchase of a Markforged Product is not confidential. Markforged will disclaim any endorsement or sponsorship by such nominative use of your mark(s) and/or logo(s), and to not use such mark(s) and/or logos in any way which is prejudicial to your reputation or interests or to the status or protection of your mark(s) or logos. Markforged acknowledges that your mark(s), logos and all goodwill associated with them are your exclusive property, and undertakes to cease to use them upon your request or upon termination of these Terms.
ERRORS, INACCURACIES, AND OMISSIONS
Occasionally there may be information on our Websites or in our Product documentation that contains typographical errors, inaccuracies or omissions that may relate to Product descriptions, pricing, promotions, offers, shipping charges, transit times or availability. We reserve the right, at any time and with or without prior notice (including after you have submitted your order), to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders. Notwithstanding the foregoing, we undertake no obligation to update, amend or clarify information on our Websites or in our Product documentation, including without limitation, pricing information, except as required by law.
We are not responsible if information made available on our Websites is not accurate, complete or current. The material on our Websites is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the content on our Websites is at your own risk.
Entire Agreement. These Terms and the documents referenced herein constitute the entire agreement and understanding between you and us regarding your purchase(s) of Products. 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 Product(s) is not contingent on the delivery of any future functionality or features of the Product(s) nor dependent on any oral or written public comments made by us (including without limitation on our Websites) regarding future functionality or features of any 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 Products, 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 the following address: Markforged, Inc. Attn: Legal, 480 Pleasant Street, Watertown, MA, USA 02472. 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 Products, and that Markforged would not have entered into these Terms or provided you with the Products 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 Products.
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.