These general conditions (the "Agreement") constitute an agreement between the customer (the "Customer") and 3DF NV, a company incorporated under the laws of Belgium, with registered office at Hessenplein 2, first floor, 2000 Antwerp and registered with the Crossroads Bank of Enterprises under company number BE 0686.923.217 (hereafter "3DF") and offering its products under the commercial name Fabit. The Agreement describes the terms and conditions under which the Customer can use the Service (as defined below).
Capitalised terms shall have the meaning set out in section 11 of this Agreement.
Except where otherwise expressly agreed to in writing by 3DF (i) the Customer's usage of the Service and (ii) any orders made by the Customer or (ii) deliveries, quotations, agreements and invoices established by 3DF for products relating to the Service shall be subject to its compliance with the terms and conditions set forth in this Agreement. The Customer has previously been informed of this Agreement and has accepted all provisions thereof. The general terms and conditions of the Customer are not applicable and are therefore expressly excluded.
3DF preserves the right to modify unilaterally and at any time the terms and conditions of this Agreement. Any such amendments or changes made will be effective immediately upon 3DF making such changes available on its Website or otherwise providing notice thereof to the Customer (the "Notification Date") for any orders submitted after the Notification Date.
It is acknowledged between the parties that under this Agreement 3DF does not provide any Services to Consumers. In the event the Customer would be a Consumer, the Customer shall notify 3DF thereof prior to placing an order.
2 USE OF THE SERVICE
2.1 Services. The Service allows the Customer to customize a 3D trophy by requesting 3DF to fully design and shape a customized 3D trophy in accordance with the Specifications.
2.2 Customer Content. The Customer grants 3DF a non-exclusive, assignable, worldwide, royalty-free and fully paid license to use, copy, store, transmit, display, modify, create or have created derivative works of any Customer Content (i) as necessary for purposes of providing the Services and to perform its obligations under this Agreement and (ii) for any marketing purposes. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and the necessary copyright permissions for all Customer Content. By submitting an order to 3DF through the Service, the Customer confirms that it is the legitimate owner of any rights pertaining to the Customer Content and/or has acquired the necessary rights from the owner for submitting such Customer Content to 3DF.
In the event any Customer Content would infringe the Intellectual Property Rights of a third party, 3DF reserves the right to either refuse to develop the Product or to develop the design without the part that may infringe or 3DF deems a risk of infringement of the Intellectual Property Rights of such third party.
2.3 Publicity. 3DF may refer to or identify the Customer in any advertising or publicity releases or promotional or marketing correspondence to third parties, without prior written consent of the Customer. For this specific purpose, the Customer grants 3DF a personal, limited, non-exclusive, non-transferable, non-assignable license to use the logo and/or trademark of the Customer.
3 ORDERING PROCESS
3.1 By notifying 3DF of the Customer's acceptance of the Quotation, the Customer submits an order to 3DF. Any order placed by the Customer shall not be binding upon 3DF until 3DF has provided the Customer with an Order Form (the "Confirmation"). Prior to the Customer's receipt of the Confirmation, 3DF is entitled to cancel the order and refund any and all Fees already received by 3DF.
Please note that the Product shall include the watermark of "3D Trophy Factory", unless otherwise stipulated in the Order Form.
3.2 The production of the Product starts immediately upon the receipt of Customer's order by 3DF, unless the order would exceed 5,000 EUR in which case 3DF shall invoice 1/3 of the Fees prior to the execution of the order (the "Advance"). Such Advance has to be paid in accordance with the payment terms set forth herein. If the Customer would need to make any modifications to its order after the Customer has received the Order Form, such modifications will only be allowed if agreed upon by 3DF in writing.
3.3 The Order Form means that a binding agreement exists between 3DF and the Customer, unless 3DF would not be able to process orders due to technical reasons, in which case the Customer shall be informed at last within three working days after submitting the Customer's order. 3DF may, at any time during the process, revoke and/or cancel any Quotation or order, if there are material technical reasons to do so. In such case, 3DF will reimburse the Customer all Fees paid.
4 PRICE – PAYMENT TERMS
4.1 The Fees calculated by 3DF consists of the costs relating to (i) the production and the transport of the Product, as well as (ii) any sales taxes (including but not limited to VAT) that may apply. Please note that export or import duties or other taxes may apply to the delivery of the Product, for which the Customer shall be solely responsible. The Fees are calculated in EURO. Unless otherwise agreed by 3DF, the Fees shall not include any insurance costs relating to the shipment of the Product.
4.2 3DF shall remain the sole owner of the Products until 3DF has received full payment of the Fees (including in the case the Fees are invoiced in instalments). Separate parts of an order can be invoiced separately upon request in writing by the Customer. 3DF shall be entitled to withhold performance and discontinue the Service and the delivery of any Product(s) until all amounts due are paid in full. All invoices for any charges under this Agreement are due and payable within 15 calendar days of the invoice date. Any amounts not paid when due shall bear interest at the rate of 1% per month started, or the maximum legal rate, if less.
4.3 An invoice made by 3DF shall be deemed to have been irrevocably accepted by the Customer if it is not contested by registered letter to 3DF within ten business days after the invoice date explaining (i) the nature of dispute, (ii) the basis for the dispute and the amount involved and (iii) any appropriate information supporting the Customer's position, failure of which shall result in the invoice being deemed accepted by the Customer. The undisputed portion of an invoice shall be paid as set forth herein.
5.1 The delivery time for the Product is based on (i) the working conditions known by 3DF at the time the Agreement is concluded and (ii) the punctual delivery of the materials ordered by 3DF for the execution of the order. All delivery times stated by 3DF, also in writing, are given without commitment and are purely indicative. They shall deem to begin once all execution details are known to 3DF. Customer agrees that the delivery time is not an essential element of the order and 3DF shall never be held liable for failing to meet the delivery time and any such failure shall not form a ground for the Customer to cancel the delivery of the Product or be entitled to any compensation.
5.2 Should a delay occur in the delivery time resulting from (i) a change in the aforementioned working conditions or (ii) the late delivery of any materials that were ordered timely by 3DF for the performance of the order, the delivery time shall be extended as required and 3DF cannot be held liable for such delay. Should the Customer's address details or the delivery address be incorrect, the delivery will be postponed until the correct information is received by 3DF. 3DF shall select a reputable carrier in its sole discretion and the appropriate means of delivery. The Customer shall bear all risks relating to the transport of the Product.
6.1 Upon delivery of the Product, the Customer is to immediately inspect the Product thoroughly. If this inspection would indicate that the Product is not in conformity with the Specifications, the Customer should immediately contact 3DF by e-mail (firstname.lastname@example.org) and at the latest within five working days after the receipt of the Product.
6.2 If the Customer fails to thoroughly inspect the Products upon their delivery, or fails to notify 3DF of any non-conformity and uses the Product, the Customer understands that 3DF cannot be held liable for the possible consequences of the usage of such Product.
6.3 In the event the Product would show any material defects, the Customer may be entitled to (i) a (partly) refund of any payments already received by 3DF or (ii) receive a discount on the Fees (collectively the "Compensation"). In any event, such Compensation shall be proportional to the severity of the defective condition of the Product. Please do not return any Product without having received an explicit request from 3DF to do so.
6.4 Please note that the Products are craft items that may contain natural inconsistencies or minor traces of handwork. These are natural occurrences that are inherent in 3D printing and are not considered defects.
7 LIMITATION OF LIABILITY
7.1 Indirect damages. To the extent legally permitted under applicable law, 3DF shall not be liable to the Customer or any third party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, data, revenue, goodwill, production of use, business interruption, procurement of substitute services, or personal or property damage arising out of or in connection with this Agreement, including but not limited to any miscalculations, or the use, misuse, or inability to use the Service, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if 3DF has been notified of the likelihood of such damages.
7.2 Liability for direct damages. To the extent permitted by applicable law, the maximum liability of 3DF arising out of or in any way connected to this Agreement, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, shall not exceed the Fees paid by the Customer to 3DF for the Product. Nothing in this Agreement shall limit or exclude 3DF's liability for any (i) wilful misconduct (opzet); (ii) fraud or (iii) gross negligence (grove nalatigheid of bewuste roekeloosheid) of 3DF or its employees or agents.
7.3 Disclaimer. 3DF makes no representations or warranties regarding the condition or functionality of the Service, its suitability for use, or that the Service will be uninterrupted or error-free. Without limiting the foregoing, the Service and any information or content relating thereto is provided "AS IS" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, or fitness for a particular purpose.
8 OWNERSHIP – INTELLECTUAL PROPERTY POLICY
8.1 Any and all Technology and all worldwide Intellectual Property Rights pertaining thereto are the exclusive property of 3DF and its suppliers. All rights in and to the Technology not expressly granted to the Customer in this Agreement are reserved by 3DF and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Customer regarding the Technology or any part thereof.
8.2 3DF expressly prohibits the Customer from using the Service to order any Products that may infringe any third party Intellectual Property Rights.
8.3 3DF encourages third party Intellectual Property Rights owners to contact 3DF if they believe that a Customer has infringed their rights. You can notify 3DF in writing that you believe that your Intellectual Property Rights are infringed by a Customer. 3DF will verify such claim and will (in its sole discretion) require that the infringing content is removed from the Product and if the Customer continues to infringe your Intellectual Property Rights (or infringes the rights of others) terminate the Customer's access to the Service.
10.1 Governing law and jurisdiction. The Agreement shall be exclusively governed by and construed under the laws of Belgium, without giving effect to any of its conflict of law principles or rules. All disputes will be submitted to the exclusive jurisdiction of the Courts of Antwerp, section Antwerp.
10.2 No waiver. No omission or delay on the part of any party to insist on strict performance of any terms, or in exercising any right, power or remedy under these terms, shall operate as a waiver thereof, nor shall any single or partial exercise by any party of any right, power or remedy preclude the further or other exercise thereof or the exercise of any other right, power or remedy. Without limitation, no waiver by any party of any breach of any provision of these terms shall be a waiver of any subsequent breach of that or any other term.
10.3 Force Majeure. 3DF will make every effort to perform its obligations under these terms. However, 3DF is not liable in case of force majeure. Force majeure implies any circumstance beyond the control of 3DF which permanently or temporarily prevents fulfilment of the Agreement, including in particular transport failure, strikes, terrorist acts, war, supplier/transport issues, governmental or regulatory action and natural disasters. In the event of a delay, 3DF will perform its obligations as soon as reasonably possible.
10.4 Sever ability. If all or any part of one or more of the provisions of this Agreement is or becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation or found to be illegal or unenforceable in whole or in part under any applicable law, or regulation of any jurisdiction or country, or with respect to a certain category of persons, such provision or part shall to that extent, be deemed not to form part of the contract. The legality, validity or enforceability of the remainder of these terms or the remaining parts of the relevant term shall not in any way be affected or impaired thereby (in relation to such jurisdiction or country, or category of persons). The legality, validity or enforceability of such provision under the applicable laws of any other jurisdiction or country or category of persons, shall not in any way be affected or impaired.
10.5 Assignment. The Customer may not assign or transfer this Agreement or any rights or obligations to any third party. 3DF shall be free to (i) transfer or assign (part of) its obligations or rights under the Agreement to one of its affiliates and (ii) to subcontract performance or the support of the performance of this Agreement to its affiliates, to individual contractors and to third party service providers without prior notification to the Customer.
"Consumer" shall mean a natural person who is acting for purposes which are outside his or her trade, business or profession;
"Customer Content" shall mean any content submitted to 3DF by the Customer relating to the Service including but not limited to the Specifications;
"Effective Date" shall mean the date on which the Customer accepts the Agreement;
"Fees" shall mean any and all amounts to be paid by the Customer in consideration for the Service and the Product including any delivery costs and any applicable taxes;
"Intellectual Property Rights" shall mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
"Order Form" shall mean the electronic document issued by 3DF confirming that 3DF has received the order made by the Customer for the Product;
"Personal Data" shall have the meaning as set forth in the General Data Protection Regulation of 27 April 2016 (2016/679, “GDPR”);
"Product" shall mean the high-end custom 3D printed products (or manufactured by other digital technologies), developed by 3DF through its Technology using the Customer Content.
"Quotation" shall mean the quotation issued by 3DF relating to the development of the Product for the Customer;
"Service" shall mean the (design) services provided by 3DF to the Customer under this Agreement using the Technology;
"Specifications" shall mean the design or other specifications applicable to the Product as indicated by the Customer and accepted by 3DF in writing;
"Technology" shall mean the 3D technology exclusively developed and owned by 3DF to develop the Product and any and all Intellectual Property Rights pertaining thereto and
"Website" shall mean the website of 3DF available on https://www.fabit3d.com .