Terms & Conditions of Sale
PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE (“TERMS”) OF PURPLE PORCUPINE (A RAPID PROTOTYPE PARTS PROVIDER) AND/OR ITS AFFILIATES (COLLECTIVELY, “PURPLE PORCUPINE”), WHICH APPLY TO ANY SALE OF PRODUCTS SOLD BY PURPLE PORCUPINE AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS” AND “SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, “CUSTOMER”), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY PRODUCTS SOLD BY PURPLE PORCUPINE AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS AND NOT USE ANY RELATED SERVICES.
Purple Porcupine is not a Machine or Material Manufacturer. Purple Porcupine performs the functions of a Rapid Prototype Parts Provider and Related Services.
1. Quotes & Performance of Work
All price quotes (“Quotes”) are in U.S. dollars, are net of any Taxes and Shipping Costs (as such terms are defined below), are valid for 30 days from the time the Quote is issued by Purple Porcupine (unless otherwise specified in writing) and are not severable – the terms of Quotes apply to the Quote in its entirety.
Quotes are subject to review upon receipt of finalized Tolerances (defined below) or otherwise in the event of changes to quantity or materials. Deliverables are established in the Scope of Work. Requests for additional work that is not within the scope of the initial proposal shall be quoted separately. In Purple Porcupine’s CAD Development Work, the 3D Project File remains the property of Purple Porcupine, unless otherwise established in the Quote and Scope of Work. The Product is the property of the Customer after Payment occurs. 3D Project Files may also be purchased at a later date through an agreed upon Quote.
In no event shall Purple Porcupine be liable for any costs or other damages, direct or indirect, resulting from project delays due to the acceptance or performance of any additional project work. Any additional projects are subject to these same Terms and Conditions.
Customer may accept a Quote via purchase order (“PO”). Each PO must contain the Quote number and shall be deemed to incorporate these Terms. No PO shall add to, or be inconsistent with, these Terms, and such additions and inconsistencies shall not apply (unless specifically accepted by Purple Porcupine in writing). All POs are subject to acceptance by Purple Porcupine (in its sole discretion) and shall not bind Purple Porcupine until it delivers its confirmation thereof to Customer (“Acceptance”).
Quoted lead-times are not final until Acceptance, coupled with a written, confirmation such as a “Delivery Status/Update Notification”. Quotes are not final until Acceptance. POs submitted by Customer are irrevocable.
Purple Porcupine shall comply with Technology, Machine, and Material Manufacturer’s standards and specifications. No guarantees shall be made outside of published Manufacturer’s specifications. Geometry and part size impact the ability of the process to meet part requirements and must be determined on a case-by-case basis.
3. U.S. Government Contracts
If the goods and services to be furnished under any sales contract between Buyer and the Seller are to be used in the performance of a U.S. Government contract or subcontract, any U.S. Government procurement regulations shall not be incorporated herein by reference (except as may be specified in a separate document signed by an officer of Purple Porcupine). Unless otherwise specifically agreed upon in writing, certified cost or pricing data will not be provided and CAS, Defective Pricing, and Audit requirements will not apply for goods and services purchased hereunder.
4. Intellectual Property
Parties shall retain their respective Intellectual Property, as specified in a signed Non-Disclosure Agreement. If an NDA is not executed, Purple Porcupine shall own all Intellectual Property Rights in and to the techniques, know-how, and methodologies used in manufacturing the Product and providing services. “Intellectual Property Rights” means all right, title and interest in and to trade secrets, patents, copyrights, designs, know-how, utility models, databases, mask works, software, and other intellectual property, worldwide, and whether or not registered.
5. Payment & Taxes
5.1. Cancellation Rights and Procedures. Customer may not cancel or change any Purchase Order without Purple Porcupine’s prior written consent.
5.2. Payments and Credit. Customer shall pay for the Products and/or Services as and within the time frames or on or before the date(s) specified in the Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by Purple Porcupine. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to Purple Porcupine in its discretion. Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars.
5.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by Purple Porcupine, then, without prejudice to Purple Porcupine’s other rights and remedies:
- All outstanding sums shall immediately become due and payable to Purple Porcupine, notwithstanding any credit terms previously granted by Purple Porcupine to the Customer;
- Purple Porcupine may delay or suspend delivery of Products and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer;
- Purple Porcupine may retain up to 5% of total Purchase Order from any amount already paid to it by Customer; and
- Purple Porcupine may recover its reasonable attorney’s fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
5.4. Taxes. All prices exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale or purchase of the Products and/or Services, except those taxes imposed upon Purple Porcupine’s net income. To waive the collection of state sales and other such Taxes, Customer must provide all completed forms and/or certificates that Purple Porcupine deems necessary.
5.5. Shipping Costs. The Shipping Costs set form shall be estimates only, and Customer agrees to be solely responsible for paying all Shipping Costs that become due.
6. Transfer of Risk and Title
Shipments by Purple Porcupine are made as FOB Origin and title, ownership and risk of loss passes to you upon time Product is shipped.
Purple Porcupine will attempt to cooperate with Customer’s requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefore shall be Customer’s sole obligation and expense; and that in no event shall Purple Porcupine be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. Customer will notify Purple Porcupine in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Purple Porcupine, if no such notice is received. If rush fees have been agreed to by both parties, then the customer’s job will be moved up to the nearest possible start date. Rush fees do not guarantee a specific delivery date.
8. Force Majeure
If Purple Porcupine accepts your offer to purchase a Product, Purple Porcupine will not be liable to you for any delay, including any delay due to an event beyond Purple Porcupine’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of Purple Porcupine’s control.
9. Export Control
You acknowledge that the Product(s) may be subject to export control laws and other laws and regulations of the United States and other countries, and that if Purple Porcupine ships a Product to you outside the United States of America, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for ensuring compliance with all applicable export control laws and regulations. You represent that you will not import, export, re-export, or transfer indirectly or directly any Product without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not import, export, re-export, or transfer directly or indirectly any Product to any destination for an end use that is prohibited by applicable law.
You may not use or otherwise export or re-export the Product, except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
Purple Porcupine is not liable to you in any way whatsoever for (i) the actions of any governmental authorities, including customs authorities; or (ii) your duty to confirm and comply with any export rules and regulations. You will defend and hold Purple Porcupine harmless against all claims, damages, or liability resulting from any breach of the foregoing.
Parts manufactured by Purple Porcupine are warranted for a period of thirty (30) days after delivery to materially conform to the machine and material Manufacturer’s published and applicable Specs only. Customer is fully responsible and holds all liability for customer’s design and design intent.
Any mechanical alteration of the goods, without prior knowledge and consent from Purple Porcupine, including any repair or attempted repair, additional testing or screening, shall void any warranty obligation, implied or statutory. Purple Porcupine’s warranties as herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Purple Porcupine’s rendering of technical advice or service in connection with Customer’s order of the goods furnished hereunder.
In the event designs created by Purple Porcupine under a Scope of Work are used or placed into manufacturing or commercial sales, Customer expressly disclaims all warranties, express, implied, or statutory, including but not limited to any implied warranty of merchantability or fitness for a particular purpose, or non-infringement of any other warranty obligations. Customer agrees to indemnify and hold Purple Porcupine, and its subsidiaries, affiliates, employees, sales representatives, and distributors harmless against all claims, costs, damages and expenses, and attorneys’ fees and costs arising from, directly and indirectly, out of any claim of personal injury, death, breach of warranty, or otherwise associated with the Scope of Work or Purchase Order.
11. Use of the Product; Purple Porcupine Services
You represent that the Product is for your own use and not purchased for resale. Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction, including air quality laws, noise control laws, criminal laws, health and safety laws, and any other applicable municipal, local, provincial, state, federal and international laws, rules and regulations. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with any national, state, provincial, and/or local laws, regulations, and ordinances and Purple Porcupine does not endorse the Product for any particular use whatsoever. You may request information about the Product from Purple Porcupine to assist you in making your determination, but Purple Porcupine will not be liable for errors in that information, for your reliance on any information provided by Purple Porcupine or for any decision you make in respect of the Product and/or use of the Product. You hereby represent and warrant to Purple Porcupine that you will only use the Product in accordance with any and all applicable laws, rules and regulations in your applicable jurisdiction.
Nothing in these terms or any information that Purple Porcupine provides to you is intended to be or constitutes legal advice, and we strongly encourage you to consult a legal professional to determine whether your intended use of the Product complies with the laws and regulations applicable in the jurisdiction in which you intend to use the Product. If you do not have sufficient information to determine whether your use of the Product will comply with all applicable laws, regulations, and ordinances, then you should not offer to purchase the Product. If you rescind your offer prior to our acceptance of it, then in this case, we will refund to you the full amount you paid in connection with your offer. You must also use the Product in strict accordance with the user documentation provided together with the Product.
12. Governing Law
- This Agreement shall be subject to, construed by and enforced in accordance with the state laws of California state without regard for its conflicts of laws principles and, if applicable, the law of United States of America.
- If legal action is commenced by either party, the validity, construction, and performance of this Agreement, and the legal relations between the parties shall be governed by the State of California, and the venue for such legal action shall be Orange County, California.
- Excluding provisions in Section 5.3, for any legal action, both parties will be responsible for their own respective attorneys’ fees.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and, if the foregoing modification is not possible, it shall be severed from this Agreement, and the remaining portions of this Agreement will remain in full force and effect.
14. Relation of Parties
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.