STANDARD TERMS AND CONDITIONS
Effective August 23, 2016
These Standard Terms and Conditions apply to any proposal and agreement and/or purchase order relating to equipment (“Equipment”), materials (“Materials”) and/or services (“Services”) sold by Peak Performance Design, LLC D/B/A Create Prosthetics (“Create”) to a customer (“Customer”). These terms and conditions, together with the related proposal and agreement and/or purchase order shall constitute the entire agreement (“Agreement”) between the parties.
- GENERAL PROVISIONS – The Agreement governs the sale by Create of Equipment, Materials, Services and the license by Create of the associated proprietary computer programs and related information (collectively, Software) included with the Equipment at the time of sale and listed on the face of the Agreement to Customer. Customer has selected the Equipment, Materials and Software based only on their specifications. CUSTOMER ACKNOWLEDGES THAT THE EQUIPMENT MAY CONTAIN RECYCLED CONTENT INCLUDING COMPONENTS OR MATERIALS THAT ARE USED OR RECONDITIONED TO LIKE NEW PERFORMANCE AND FUNCTIONALITY. THE EXISTENCE OF RECYCLED CONTENT MAY BE DISCLOSED AS SUCH ON THE FACE HEREOF AS WELL AS ON AN EQUIPMENT-SPECIFIC LABEL. If either party believes that other matters beyond those covered in this document are part of the Agreement, the parties will (a) describe and acknowledge them on the front of the Agreement or (b) staple a copy or description of them to the Agreement and initial them before signing; otherwise, they are not included as part of the Agreement for the purchase of this Equipment and license of Software. After Customer signs the Agreement (or any Amendment to it), the Agreement will become a binding contract when and if it is executed by an officer or other authorized designee of Create.
- PACKAGE LIMITATIONS – Customer is limited to twenty (20) designs over the first three (3) months after purchase of Create’s initial printer package. Designs purchased after the twenty (20) designs included in the package shall be purchased at rates subject to new agreements.
- SOFTWARE LICENSE – Customer acknowledges and agrees that the Software shall be licensed to Customer pursuant to terms and conditions contained in a license appearing on a computer screen during installation of the Software (commonly referred to as a “clickthrough” license). Customer and Create agree that the terms and conditions of any click-through license contained in the Software are hereby incorporated by reference into the Agreement as if fully set forth herein. Customer agrees to be bound by the terms and conditions in any click-through license contained in the Software, regardless of whether the Software generating such click-through license is installed by Customer’s employee or by Create or an independent contractor installing the Software for Customer’s use. Create will provide a copy of such click through license to Customer upon request.
- MATERIALS USAGE – Customer acknowledges and agrees that Materials sold by Create shall not be (i) mixed, blended or repackaged by Customer with any other materials for use or resale by Customer, or (ii) used with any alterations by Customer. Customer further agrees that if they use the Materials to create parts, absent written consent from Create, Customer will not promote, advertise, or otherwise represent that such parts are made from any brand of materials other than the Materials sold by Create. Failure to comply with these provisions shall nullify the related warranties described below.
- WARRANTY – Create is committed to its limited warranties and assures you the best service possible in a quick and timely manner. Create warrants to the original purchaser that this product is free from defects in material and workmanship. Create or its Authorized Service Provider will for one year, promptly repair the Equipment, and if necessary, replace the Equipment to make it free of defects at the time of delivery and during the warranty period. At Create’s discretion, Customer may receive up to one refurbished printer as a replacement for non-functional Equipment during Customer’s first year of ownership. Hotend(s), heating rod(s), thermal sensors, heat bed, electrical boards are warranted for ninety (90) days. The Equipment is free from defects if it meets, upon the passing of risk, the specifications provided in the Agreement or in manuals, marketing or other informational materials of Create or on Create’s website at www.createoandp.com. Cosmetic defects that do not affect printing will NOT be covered. If your product is out of warranty, Create offers a Service Maintenance Contract that Customer may purchase at their discretion. Create reserves the right to determine the validity of all warranty claims. Warranty is void if the product serial number has been altered or removed. Warranty is void if the product has been misused or damaged or if evidence is present that the product was altered, modified, or serviced by unauthorized service people. Repairs required during the warranty period because of abnormal use or conditions (such as riots, floods, misuse, neglect or improper service by anyone except Create or its Authorized Service Provider) and repairs required during the warranty period because of the use of non-integrated, nonapproved or non-licensed Materials in the Equipment, are excluded from this warranty. Create, will not be liable for any other damages or loss, including incidental or consequential damages and loss of profits or revenues from whatever cause, including breach of warranty or negligence. This product has been thoroughly tested and inspected at the factory prior to shipment. Inspect your product completely for any damage or loss of parts that may have occurred during shipment. Notify the delivering carrier promptly if damage claims are to be filed. Create reserves the right to modify or update its product without obligation to replace any equipment delivered prior to any such change.
Warranty terms regarding the Software are contained in the click-through license contained in the Software. All Materials sold by Create are warranted to conform with such specifications as mutually agreed upon by the parties. In the event that, within thirty (30) days of Customer’s receipt of the Materials, Customer shall determine that any Materials are not in conformity with such specifications, Customer shall deliver a sample of such Materials to Create for evaluation. Create shall have fifteen (15) business days to complete evaluation of such Materials. If the Materials do not meet the agreed upon specifications, Create shall, at its sole option, either (i) replace such Materials with corresponding Materials that meet such specifications, or (ii) accept for return such Materials for credit or refund. THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSES, EACH OF WHICH IS HEREBY DISCLAIMED.
- LIMITATION OF LIABILITY – Create will not be responsible to Customer for consequential, exemplary or incidental damages (such as loss of profit or employee’s time) regardless of the reason. In no event shall the liability and/or obligations of Create under the Agreement or arising out of the purchase, lease, license and/or use of the Equipment by Customer or others exceed the purchase price of the Equipment. Limitations of liability regarding the Software are contained in the click-through license contained in the Software.
Create is not responsible for defects in or to the devices printed through its system. Customers must inspect each printed device to ensure it is free of defects before delivery to any third party. Create is not responsible for any misuse or and damages related to misuse of products printed or delivered through its system.
- INSTALLATION AND SERVICE – Customer will install the Equipment and provide any remedial and preventive maintenance which is required to keep the Equipment in good operating condition during the warranty period, unless otherwise stated in the Agreement. Create may provide basic Installation Site information. Customer may consult with Create on a time and materials basis on any additional questions or issues regarding installation site preparation. Create shall have no liability for such consultations. In addition to the installation charge(s), if any, as specified on the face of the Agreement, Customer will arrange and pay for any special handling charges (including without limitation all costs of preparing the installation site and all storage, drayage, cranes, building modifications or other similar charges). Installation and any remedial and preventive maintenance performed by Create or its authorized designee will occur during normal business hours. Create and Customer will cooperate to satisfy any Customer security requirements and still allow full and free access to the Equipment. Customer will provide computer time for any remedial and preventive maintenance or installation at no cost to Create. Create will accept responsibility in the event that damages are caused by the negligence of its employees or designees while they are on Customer’s premises in the course of performing installation or servicing purposes.
- TITLE, RISK OF LOSS AND DELIVERY – If conditions arise which prevent compliance with delivery schedules, Create will not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. However, Create will use all reasonable efforts to give notice of delays. Delays will not be grounds for cancellation. Delivery occurs when Equipment are accepted by Customer, and title and the risk of loss transfer to Customer upon delivery. Freight and insurance will be prepaid and invoiced unless otherwise specified on the face hereof.
- PAYMENT – Unless otherwise stated in the Agreement, payment terms shall be: one hundred percent (100%) NON-REFUNDABLE deposit with order. On overdue accounts, Customer shall pay interest at the rate of 1 1/2% per month (or the highest legal interest rate, if lower). The Customer shall provide Create with a copy of tax exemption certificate, direct pay certificate or resale certificate for the “Ship to” location if exemption from sales or use taxes is claimed.
- PATENTS – If anyone claims the Equipment or Software infringes their U.S., European Union or Japanese patent, copyright, trade secret or other proprietary right, Create will indemnify and hold Customer harmless from any damages, judgments or settlements (including costs and reasonable attorney’s fees) resulting from the claim if Customer promptly notifies Create in writing of the claim and permits Create to elect to take over the defense of the action. If Create takes over the defense, it may select the counsel and have the sole right to defend or settle the matter. Create may substitute comparable non-infringing Equipment or Software, or modify the Equipment or Software (which still must meet the specification) to make it non-infringing, or obtain a right for the Customer to continue using the Equipment or Software (all at Create’s expense), or, if the above are impractical and its continued use is enjoined, buy the Equipment or Software back from the Customer for the original purchase price less a reasonable rental value for its use at Create’s lowest standard lease or rental rate for the Equipment when originally delivered to Customer. This indemnification does not apply to claims resulting from non-Create’s modifications to the Equipment or Software or use with other devices added by the Customer.
- SECURITY INTEREST IN EQUIPMENT AND SOFTWARE – Customer grants Create a first priority security interest in all Equipment and Software delivered until payment in full for such Equipment and Software has been received by Create. Customer hereby grants Create the right to file such protective financing or similar statements to confirm and record Create’s security interest in all Equipment and Software.
- EXPORT COMPLIANCE – Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any Equipment or Software except in full compliance with all U.S. export control laws and regulations. These obligations shall survive the termination of the Agreement.
- FORCE MAJEURE – Neither party will be liable to the other for delays in performing any obligations under the Agreement due to circumstances beyond its reasonable control, including but not limited to revolts, insurrections, riots, wars, acts of enemies, national emergency, strikes, floods, earthquake, embargo, inability to secure materials or transportation, and acts of God, and other events beyond the reasonable control of the parties caused by nature or governmental authorities.
- SEVERABILITY – If any provision of the Agreement is found to be invalid, illegal or unenforceable, then, notwithstanding such invalidity, illegality or unenforceability, the Agreement and the remaining provisions shall continue in full force and effect. In this event the parties will agree upon a valid, binding and enforceable substitute provision which shall be as close as possible to the commercial interests of the invalid or unenforceable provision.
- DISPUTE RESOLUTION – Customer and Create shall endeavor to resolve any controversy, claim or dispute arising out of or relating to the Agreement, or the performance or breach thereof, by negotiation. Any claim that is not resolved by negotiation within thirty (30) days of notification shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The hearing locale will be held in the AAA office closest to the Create’s corporate headquarters.
- OTHER – A. The Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws provisions thereof. B. Both Create and Customer will comply with all laws applicable to the Agreement. C. All notices given under the Agreement will be effective when received in writing. Notices to the Customer and Create will be sent to the address provided in the Agreement. D. Changes to the Agreement must be in writing and must be signed by both parties.
- COMPLETE AGREEMENT – Customer acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms and conditions. Further, Customer represents and agrees that the Agreement and the click-through licenses contained in the Software set forth the complete and exclusive statement of the agreement including the governing terms and conditions between the parties, which shall prevail over and supersede all proposals, printed provisions on subordinate Customer documents including purchase orders, oral or written agreements, the Customer’s general terms and conditions and all other communications between the parties relating to the subject matter of the Agreement.
Download a PDF copy of these Terms and Conditions.