Last updated: October 7, 2021
These Customer Terms and Conditions (these “Terms and Conditions”) govern (i) all parts and other tangible products (the “Products”) and services (the “Services”) that may be offered by Endeavor 3D, LLC (“Endeavor 3D”) from time to time; (ii) the manufacturing and delivery by Endeavor 3D of Products and Services to Customer and Customer’s purchase and use thereof; and (iii) all intellectual property and other rights in and to all Products and Services. By requesting that Endeavor 3D create any Customer Account (as defined below), requesting a quotation for, purchasing or otherwise contracting for, accepting delivery of and/or using any Products or Services, or by requesting any information from Endeavor 3D or requesting that Endeavor 3D contact you, you are agreeing to be bound by these Terms and Conditions as Customer, and you further agree that all references to “Customer” in these Terms and Conditions apply to both you and any entity you represent in connection with any transactions or other interactions with Endeavor 3D.
These Terms and Conditions are not intended to apply, and shall not be deemed to apply, to Customer’s use of Endeavor 3D’s website (the “Website”), the URL for which is https://www.endeavor3d.com/. All matters relating to Customer’s use of the Website and Endeavor 3D’s rights and remedies with respect to the Website and the contents thereof are governed by the Endeavor 3D, LLC Website Terms and Conditions, the URL for which is https://www.endeavor3d.com/company/website-terms-conditions.
THESE TERMS AND CONDITIONS INCLUDE IMPORTANT LEGAL PROVISIONS THAT DEFINE CUSTOMER’S RIGHTS AND OBLIGATIONS REGARDING THE PRODUCTS AND THE SERVICES AND ALL TRANSACTIONS AND OTHER INTERACTIONS BETWEEN CUSTOMER AND ENDEAVOR 3D. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN, PRIOR TO REQUESTING THAT ENDEAVOR 3D CREATE ANY CUSTOMER ACCOUNT, REQUESTING ANY INFORMATION FROM ENDEAVOR 3D OR THAT ENDEAVOR 3D CONTACT YOU, REQUESTING ANY QUOTATION FOR, PURCHASING OR OTHERWISE CONTRACTING FOR, ACCEPTING OR USING ANY PRODUCTS OR SERVICES OR ENTERING INTO ANY TRANSACTION WITH ENDEAVOR 3D. ANY SUCH ACTION BY CUSTOMER CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Certain Definitions. In addition to the capitalized terms defined elsewhere in these Terms and Conditions, the following words and phrases shall have the following meanings:
“As-Printed Design Data” means the Customer Design Data, as it may be modified by Endeavor 3D for printability and/or processing purposes or as otherwise requested by Customer and, following all such modifications, as approved by Customer as constituting the final design for any Product.
“Customer” mean, collectively, you and any entity on whose behalf you are acting when you enter into a purchase or other transaction with Endeavor 3D or otherwise interact with Endeavor 3D, including, without limitation, by submitting a request for information, a request to be contacted by Endeavor 3D or a request for a Quotation or by requesting that Endeavor 3D create any Customer Account. To the extent you or any such entity performs any such action on behalf of one or more of such entity’s affiliates and/or acts through one or more Representatives, all references in these Terms and Conditions or any Customer Agreement to “Customer” shall be deemed to include such affiliate(s) and/or Representative(s).
“Customer Account” means an account with Endeavor 3D that is created by Endeavor 3D for Customer to enable Customer to purchase Products and/or Services.
“Customer Agreement” means a contract between Endeavor 3D and Customer for the sale and purchase of Products and/or Services, consisting of (i) the pricing and other business terms relating to the Products and the Services being purchased by Customer, as set forth in a Quotation, and (ii) these Terms and Conditions, which are incorporated into such contract by reference.
“Customer Confidential Information” means, collectively, all Customer Design Data and any other information submitted by or on behalf of Customer (including by any Representative) to Endeavor 3D with respect to any Products and/or Services that is of a nature that a reasonable person would consider such information to be confidential and/or proprietary, which shall not include Customer Feedback (as defined below).
“Customer Design Data” means the design information contained in the Customer Design Files submitted by Customer to Endeavor 3D for the manufacturing of any Product.
“Customer Design Files” means design data for any Product submitted by Customer to Endeavor 3D in an STL file or other acceptable file format.
“Delivery Date” for any specific Product(s) manufactured by Endeavor 3D for Customer means the date on which such Product(s) are delivered to Customer’s designated delivery location, as documented by the shipping company.
“Developmental Prototype” means a sample or model manufactured by Endeavor 3D for Customer that is not intended to be used as a basis for the manufacture of any Products by Endeavor 3D in one or more production runs.
“Endeavor 3D Confidential Information” means, collectively, all information, whether tangible or intangible, disclosed by or on behalf of Endeavor 3D to Customer or any Representative thereof that constitutes or otherwise relates to Endeavor 3D’s or its customers’ (other than Customer) or suppliers’ technology, designs, processes and procedures, know how, trade secrets, research and development, software, business plans, strategies, equipment, manufacturing, post processing, automation, layouts, environmental controls and matters, safety records, training and evaluation, manuals, quality control procedures and results, composition of matter, raw materials, plans, compilations, formulas, prototypes, methods, capacities, claims and disputes, legal and regulatory matters, reports, proposals, negotiations, data and databases, marketing materials and programs, specifications, current and prospective customers, suppliers, contracts, pricing, costs, employee and consulting relationship information, current and prospective investors, accounting and financial information, profit margins, marketing and sales data and all other confidential and/or proprietary information relating to Endeavor 3D or its business or to the business of any of its customers (other than Customer) or suppliers, including all originals, copies, digests and summaries in any form, as well as feedback, suggestions, improvements or inventions, ideas or works of authorship derived from any of the foregoing.
“Endeavor 3D Group” means, collectively, Endeavor 3D, its affiliates and their respective equity holders or owners, members, managers, directors, officers, employees, agents and other Representatives.
“Endeavor 3D Intellectual Property” means, collectively, those methods, processes, manufacturing techniques, tooling, formulas, designs, specifications and other know-how used by Endeavor 3D (including any affiliate or Representative thereof) in the provision of any Products and/or Services to Customer or any other customer of Endeavor 3D, including any of the foregoing that are in existence prior to the provision of any Products and/or Services to Customer and those that are conceived or developed by Endeavor 3D in the course of manufacturing Products for and/or providing Services to Customer.
“Equipment” means, collectively, all design, printing and post-processing equipment used by Endeavor 3D to design, manufacture and/or deliver any Products and/or Services to customers of Endeavor 3D.
“Pre-Production Prototype” means a sample or model of any Product manufactured by Endeavor 3D for Customer that is intended to be used as a basis for the manufacture of such Product by Endeavor 3D in one or more production runs.
“Prototype” means a sample or model manufactured by Endeavor 3D for Customer based on the As-Printed Design Data and any Product information therefor submitted by Customer to Endeavor 3D, consisting of either a Developmental Prototype or a Pre-Production Prototype.
“Quotation” means a quotation or other similar document issued by Endeavor 3D to Customer for any Products and/or Services, with (i) pricing for Products being based on the As-Printed Design Data for such Products, the materials to be used for such Products, the volume of such Products to be produced, the desired Delivery Date and any other Product information submitted by Customer to Endeavor 3D; and (ii) pricing for Services being based on the nature of the Services.
“Representatives” means, collectively, with respect to any entity, all members, managers, directors, officers, employees, agents and advisors (including attorneys, accountants, consultants, brokers and financial advisors).
“Software” mean, collectively, all software used by Endeavor 3D to design, manufacture and/or deliver any Products and/or Services to customers of Endeavor 3D.
2. Right to Amend Terms and Conditions. Customer acknowledges and agrees that Endeavor 3D may amend these Terms and Conditions, including any policy incorporated herein, at any time and from time to time, without notice to Customer. Following any such amendment, these Terms and Conditions, as so amended, shall govern all Products and Services manufactured or purchased on or after the date of such amendment and all transactions and interactions between Customer and Endeavor 3D occurring on or after such date.
3. Privacy Policy; Information Collection.
(a) The collection by Endeavor 3D of information about Customer is subject to the terms of Endeavor 3D’s privacy policy (the “Privacy Policy”), which is hereby incorporated into and made a part of these Terms and Conditions. In the event of a conflict between any provision of these Terms and Conditions and the Privacy Policy, the provisions of the Privacy Policy shall control.
(b) In order for any Customer Account to be created and/or for Customer to enter into any transaction with Endeavor 3D, Customer may be required to submit sensitive information about Customer and/or Customer’s business, including personally identifiable information. All such information collected by Endeavor 3D will be governed by the Privacy Policy.
4. Responsibility for Customer Accounts; Account Suspension or Termination.
(a) Customer is responsible for the accuracy and completeness of all information provided with respect to each Customer Account and for the security of each Customer Account. Customer acknowledges and agrees that Customer must update such information as required from time to time to maintain the accuracy of all information in each Customer Account. Customer agrees not to share any Customer Account with any other individual or entity and to keep each Customer Account secure from unauthorized access. Customer is responsible for the confidentiality of each Customer Account, including Customer’s login and password therefor, and may not share any login or password with any individual or entity. Customer must immediately notify Endeavor 3D of any unauthorized use of or suspicious activity with respect to any Customer Account. Endeavor 3D will not be liable for any loss or other damages that may result from Customer’s failure to protect the login or password for any Customer Account or any other failure to protect the confidentiality thereof, including, without limitation, any unauthorized transaction made using any Customer Account, unless such unauthorized transaction results from gross negligence or willful misconduct on the part of Endeavor 3D. Subject to the foregoing exception, Customer agrees to accept full responsibility for use of all Customer Account(s), whether authorized or unauthorized.
(b) In the event of any failure to comply with any provision of these Terms and Conditions on the part of Customer or any Representative thereof, Endeavor 3D may at any time, without prior notice to Customer, suspend or terminate any or all of the Customer Accounts. Any such suspension or termination shall not affect Customer’s legal obligations under these Terms and Conditions or any Customer Agreement or any right of Endeavor 3D to exercise any other legal remedy against Customer and its Representatives.
5. Termination Rights.
(a) Notwithstanding the dispute provisions of Section 27, Endeavor 3D shall have the right to terminate any Customer Agreement for cause at any time immediately upon notice to Customer in the event of any actual or threatened breach by Customer or any Representative thereof of Section 14 (General Intellectual Property Rights and Restrictions) or Section 17 (Confidentiality). In the event of such termination, in addition to any other remedies that may be available to Endeavor 3D, Endeavor 3D shall have the right to retain any amounts paid by Customer for any Products and/or Services, regardless of whether such Products have been delivered to Customer and/or such Services have been fully performed.
(b) Either party shall have the right to terminate any Customer Agreement under the following circumstances: (i) immediately upon written notice to the other party upon the insolvency or bankruptcy of the other party (including, without limitation, filing of a voluntary bankruptcy petition, institution of an involuntary bankruptcy proceeding that is not dismissed within 60 days after filing, an assignment for the benefit of the other party’s creditors, the appointment of a receiver for the other party or any material portion of its assets or any other similar event or circumstances); or (ii) subject to the dispute provisions of Section 27, in the event of a material breach of any Customer Agreement by the other party that is not described in Section 5(a), where the other party fails to cure such breach within 30 days after being notified in writing of such breach; provided, however, that the cure period will be extended for an additional 60 days in the event the breaching party has commenced a cure of the material breach during the initial 30-day period and thereafter diligently prosecutes such cure.
6. Prohibited Items; Right to Cancel Quotation or Order.
(a) Customer acknowledges that Endeavor 3D is contractually prohibited from manufacturing weapons, including firearms, explosives, biological or chemical weapons, or ammunition of any kind, or accessories or parts for any of the foregoing (collectively, “Prohibited Items”). Customer represents and warrants to Endeavor 3D that no order submitted by Customer to Endeavor 3D will be for Prohibited Items. Customer hereby agrees to indemnify, defend and hold Endeavor 3D and the other members of the Endeavor 3D Group (collectively, the “Endeavor 3D Indemnified Parties”) harmless from and against, and promptly reimburse the Endeavor 3D Indemnified Parties for, any and all claims, liabilities, actions, demands, losses, damages, penalties, fines and other costs and expenses (including, without limitation, reasonable attorneys’ fees, experts’ fees, investigation costs, remediation costs and settlement costs) incurred by any of them to the extent arising out of or relating to (i) any breach by Customer of the foregoing representation and warranty and/or (ii) any direct or indirect request or other attempt by Customer or any Representative of Customer to have Endeavor 3D manufacture any Prohibited Items. Customer hereby acknowledges and agrees that the costs and expenses required to be reimbursed by Customer under this Section 6(a) shall include, without limitation, all labor costs and all costs of raw materials used or ordered by Endeavor 3D to manufacture Products ordered by Customer that are later determined to constitute Prohibited Items.
(b) Notwithstanding anything to the contrary contained in any Customer Agreement, these Terms and Conditions or any Quotation, Endeavor 3D may, at any time during the quotation, ordering and manufacturing process, revoke or cancel any Quotation or cancel any order made pursuant to any Customer Agreement, including these Terms and Conditions, for technical or legal reasons (including, without limitation, questions about intellectual property ownership of the design of any Product or about the legality of any Product). In the event of any such revocation or cancelation, except as provided in Section 6(a), Endeavor 3D will refund to Customer any amounts paid in advance for any Products that were to be provided, other than those amounts allocable to design services and to manufacturing the Pre-Production Prototype for such Products, as set forth in the applicable Quotation, all of which amounts Customer shall remain obligated to pay to Endeavor 3D.
7. Customer Representations and Warranties. By asking Endeavor 3D to create a Customer Account, requesting that Endeavor 3D contact Customer, requesting a Quotation from Endeavor 3D or purchasing or contracting for any Products or Services, Customer hereby represents and warrants to Endeavor 3D, on a continuing basis, that: (a) Customer is at least 18 years old; (b) Customer has the legal capacity and authority to enter into and comply with each Customer Agreement and these Terms and Conditions; and (c) all information that Customer provides to Endeavor 3D, including in connection with the creation of any Customer Account and the submission of any Customer Feedback (as defined below), is and shall remain accurate in all respects.
8. Pricing; Payment Terms. Endeavor 3D shall include in any Quotation it issues to Customer the applicable pricing for all Products and Services covered thereby. Unless otherwise provided in any Quotation, any quoted pricing shall be valid for 30 days. Except as otherwise provided in any Customer Agreement, all invoices shall be payable in full in U.S. Dollars within 30 days after the invoice date.
9. Responsibility for Taxes. Customer is responsible for all taxes and duties associated with Customer’s purchase of any Products and/or Services. If Endeavor 3D is obligated to collect or pay any taxes on any Products and/or Services purchased by Customer, Endeavor 3D will charge such taxes to Customer unless Customer timely delivers to Endeavor 3D a valid tax exemption certificate from the appropriate taxing authority. In the event any such tax exemption certificate is determined to be invalid or if the sale of such Products and/or Services otherwise is determined to be taxable, Customer shall be required to promptly pay all applicable taxes, together with any interest and penalties payable thereon. Customer shall, and hereby does, defend, indemnify and hold Endeavor 3D harmless from and against the imposition and payment of all such taxes, interest and penalties.
10. Late Fees; Collection Costs. Customer shall be required to pay a late fee on any payment not received by the due date thereof or received by such date but subsequently dishonored or disallowed. Such late fee shall be calculated at the rate of 1% per month (Annual Percentage Rate of 12%) or, if such rate exceeds the maximum legal rate, the maximum rate permitted by applicable law. Customer shall be liable for all reasonable attorneys’ fees and other costs incurred by or on behalf of Endeavor 3D to collect any amount owed by Customer to Endeavor 3D.
11. Acceptance Procedures for Pre-Production Prototypes.
(a) For each Product to be manufactured by Endeavor 3D for Customer in one or more production runs, Endeavor 3D will manufacture a Pre-Production Prototype based on the As-Printed Design Data for such Product and deliver such Pre-Production Prototype to Customer for evaluation and acceptance. Customer acknowledges that Endeavor 3D will not schedule or begin any production run for any Product unless and until the Pre-Production Prototype for such Product has been evaluated and accepted by Customer as described in Section 11(b). Customer will have the option to designate any Developmental Prototype manufactured for Customer as a Pre-Production Prototype for a Product, in which event the parties shall comply with the acceptance procedures described in Section 11(b).
(b) In connection with each delivery to Customer of a Pre-Production Prototype for any Product as described in Section 11(a), Endeavor 3D will send to Customer an acceptance/non-acceptance acknowledgment document that is required to be completed by Customer by providing its electronic signature and returned to Endeavor 3D. In the event Customer determines from its evaluation that such Pre-Production Prototype does not meet Customer’s requirements, Customer shall document its non-acceptance by completing and returning to Endeavor 3D the non-acceptance portion of such acknowledgment, specifying in reasonable detail the reasons for such non-acceptance, using the check boxes and corresponding expansion fields and including any relevant attachments. The parties shall work together in good faith to make modifications to the As-Printed Design Data for such Product and/or changes in the manufacturing processes or techniques employed by Endeavor 3D in manufacturing the Pre-Production Prototype for such Product, with the goal of designing and manufacturing a new Pre-Production Prototype that will meet Customer’s requirements; provided, however, that if, after discussions with Customer, Endeavor 3D concludes that it is unable or unlikely to manufacture a Pre-Production Prototype that will meet Customer’s requirements at the pricing quoted by Endeavor 3D to Customer, Endeavor 3D will have the option to cancel the Customer Agreement for such Product, in which event Customer will be obligated to pay to Endeavor 3D only those amounts allocable to design services and to manufacturing the Pre-Production Prototype, as set forth in the applicable Quotation.
(c) Customer acknowledges and agrees that Endeavor 3D will designate any order for any Pre-Production Prototype and/or any Products based thereon inactive 30 days after Endeavor 3D receives the last communication from Customer relating to such Pre-Production Prototype.
12. Express Limited Warranties for Products Other than Prototypes.
(a) Endeavor 3D warrants to Customer that each Product (other than Prototypes, which are delivered “as is”) manufactured by Endeavor 3D for Customer (i) shall substantially conform to the As-Printed Design Data for such Product, as reflected in the accepted Pre-Production Prototype for such Product; and (ii) shall be manufactured using the resin or powdered metal used in manufacturing the accepted Pre-Production Prototype for such Product (collectively, the “Limited Product Warranties”).
(b) Customer shall inspect and test each shipment of Products other than Prototypes for compliance with the Limited Product Warranties within 15 days after delivery of such shipment to Customer. In the event (i) Customer determines that the Product(s) in such shipment fail to comply with one or more of the Limited Product Warranties; (ii) Customer duly submits a warranty claim to Endeavor 3D, including all relevant information supporting such warranty claim, using one of the designated delivery methods set forth in Section 32 (Notices), and such warranty claim and supporting information are received by Endeavor 3D no later than 20 days after the Delivery Date of such shipment; and (iii) Endeavor 3D determines that such warranty claim is valid, Endeavor 3D, at its sole option, will either repair the non-conforming Product(s) so that such Product(s) comply with the Limited Product Warranties or replace the non-conforming Product(s) with ones that comply with the Limited Product Warranties, at no additional cost to Customer. Notwithstanding anything in any Customer Agreement or these Terms and Conditions to the contrary, such repair or replacement shall be Endeavor 3D’s only obligation, and Customer’s sole and exclusive remedy, with respect to any breach of the Limited Product Warranties or any other failure by any Product(s) to comply with any provisions of any Customer Agreement, including these Terms and Conditions.
(c) Notwithstanding the foregoing provisions of this Section 12, Endeavor 3D shall have no obligation with respect to any Limited Product Warranty breach to the extent resulting from (i) any negligence or willful misconduct, damage, accident or improper use, handling or maintenance, in each case, on the part of, or otherwise caused by, Customer or any Representative thereof; (ii) failure by Customer to properly store any Product other than a Prototype; (iii) any Force Majeure Event (as defined below); or (iv) modification or alteration of any Product other than a Prototype following delivery to Customer.
13. Title and Risk of Loss. Title to and risk of loss of all Products shall pass to Customer upon departure from Endeavor 3D’s facility.
14. General Intellectual Property Rights and Restrictions. Notwithstanding the transfer of title to Customer of the Products manufactured by Endeavor 3D for Customer, Endeavor 3D or its licensors, as applicable, retain the exclusive right, title and interest in and to all Endeavor 3D Intellectual Property, including, without limitation, all patents, inventions, copyrights, trademarks, trade names, service marks, trade dress, domain names, trade secrets and know-how in or relating thereto, and all intellectual property rights with respect to all Software and Equipment. All such intellectual property and intellectual property rights are protected by applicable law, including, without limitation, applicable copyright laws and treaties throughout the world. Customer is not permitted to reproduce in any manner, reverse-engineer or prepare derivative works from any Products or Services (or the results thereof) or use any Products or Services (or the results thereof) for any purpose other than as expressly permitted by these Terms and Conditions or contemplated by any Customer Agreement.
15. Customer Design Data; Approval of Modifications; Rights in Design Data; Indemnification for Infringement Claims.
(a) Customer is responsible in all respects for all Customer Design Data it submits to Endeavor 3D, including the accuracy and legality of all Customer Design Data. Without limiting the generality of the foregoing, Customer shall not submit to Endeavor 3D any Customer Design Data that (i) violates, misappropriates or infringes on any intellectual property or other rights of any third party; or (ii) violates any applicable law or regulation. By submitting any Customer Design Data to Endeavor 3D, Customer is deemed to represent and warrant to Endeavor 3D that such Customer Design Data does not violate, misappropriate or infringe on any intellectual property or other rights of any third party.
(b) In the event either Endeavor 3D determines that modifications to any Customer Design Data are required for printability and/or processability purposes or Customer contracts with Endeavor 3D to provide design services to make modifications to any Customer Design Data, Endeavor 3D will make all such modifications and submit the modified Customer Design Data (as so modified, the “Modified Design Data”) to Customer for its approval; provided, however, that Customer approval shall not be required for any minor modification made for printability purposes that does not materially change the Customer Design Data, such as the addition of support structures, that is made prior to the delivery of any Pre-Production Prototype as described in Section 11(a). In connection with each delivery to Customer of Modified Design Data, Endeavor 3D will send to Customer an approval/non-approval acknowledgment document that is required to be completed by Customer and returned to Endeavor 3D. To document Customer’s approval of such Modified Design Data, Customer will be required to provide its electronic signature on the approval portion of such acknowledgment and return the signed acknowledgment to Endeavor 3D. Customer acknowledges and agrees that Customer shall be solely responsible for ensuring that the Modified Design Data does not violate, misappropriate or infringe on any intellectual property or other rights of any third party and does not violate any applicable law or regulation. After approval by Customer as contemplated by this Section 15(b), the Modified Design Data for any Product shall constitute the As-Printed Design Data for such Product for all purposes of these Terms and Conditions and will be used by Endeavor 3D to manufacture either the Pre-Production Prototype for such Product or the Developmental Prototype, as applicable.
(c) Customer hereby grants to Endeavor 3D and its affiliates an irrevocable, perpetual, worldwide, royalty-free, transferable and sub-licensable license to use, reproduce, modify and adapt the Customer Design Data, the Modified Design Data and the As-Printed Design Data and to create derivative works therefrom, to the extent required to provide any Products and/or Services to Customer or for the purpose of quality control and processing activities performed by Endeavor 3D generally in connection with its business.
(d) Customer retains ownership of all Customer Design Data, Modified Design Data and As-Printed Design Data and all intellectual property rights in and to the same, except for (i) the license granted pursuant to Section 15(c) and (ii) any Endeavor 3D Intellectual Property incorporated or reflected in any Customer Design Data, Modified Design Data and As-Printed Design Data, all rights to which are expressly reserved to Endeavor 3D under Section 14.
(e) Customer shall, and hereby does, indemnify, defend and hold harmless the Endeavor 3D Indemnified Parties from and against any third-party claim, action or proceeding brought or asserted against one or more of the Endeavor 3D Indemnified Parties alleging that any Customer Design Data, Modified Design Data, As-Printed Design Data and/or any Product manufactured by Endeavor 3D for Customer based on any Customer Design Data, Modified Design Data or As-Printed Design Data infringes any copyright, patent or trademark, misappropriates a trade secret recognized as such under applicable law or otherwise violates, infringes on or misappropriates any intellectual property or proprietary rights of any third party (each, a “Claim”). In the event of any Claim, Endeavor 3D (i) shall give Customer notice in writing of such Claim; (ii) shall allow Customer to investigate, defend or settle such Claim; and (iii) shall provide Customer with reasonable assistance as requested by Customer in connection with the investigation, preparation, defense and settlement of such Claim; provided, however, that Customer shall be required to promptly reimburse Endeavor 3D for its reasonable out-of-pocket expenses incurred in connection with providing such assistance. Customer shall not settle any Claim in a manner that subjects Endeavor 3D to any liability or expense or requires any admission on the part of Endeavor 3D without Endeavor 3D's prior written consent, which may be withheld by Endeavor 3D in its sole discretion.
16. Trademarks, Logos, etc. The Endeavor 3D trademarks, service marks, graphics, logos and slogans used in connection with the Products and the Services are trademarks of Endeavor 3D and may not be copied, imitated or used, in whole or in part, without the prior written permission of Endeavor 3D. Customer may not use any metatags or any other "hidden text" utilizing the name “Endeavor 3D" or any other name, trademark or product or service name of Endeavor 3D without the prior written permission of Endeavor 3D. Other trademarks, trade names, product and service names and company names and logos that may be used in connection with the Products and/or the Services are the property of their respective owners.
17. Confidentiality.
(a) If Endeavor 3D and Customer have executed a Mutual Non-Disclosure Agreement or other confidentiality agreement (the “NDA”), Endeavor 3D and Customer shall comply (and shall ensure that their respective affiliates and Representatives comply) with the provisions of the NDA with respect to all Confidential Information (as defined in the NDA) of the other party. Any breach by either party (including its affiliates and Representatives) of the NDA shall constitute a breach by such party of these Terms and Conditions and any Customer Agreement.
(b) In the event Endeavor 3D and Customer have not executed a Mutual Non-Disclosure Agreement or other confidentiality agreement, the following confidentiality provisions shall apply:
(i) Endeavor 3D shall hold all Customer Confidential Information in confidence and not disclose any Customer Confidential Information to unrelated third parties or, except as permitted by Section 15(c), use such information for any purpose, except as required for the performance of Endeavor 3D’s obligations or enforcement of Endeavor 3D’s rights under any Customer Agreement, including under these Terms and Conditions. The foregoing obligations shall not apply to any Customer Confidential Information (A) which is now or subsequently becomes public, other than as a result of Endeavor 3D’s breach of its confidentiality obligations to Customer hereunder; (B) which was already known by Endeavor 3D on a non-confidential basis prior to its disclosure by Customer or is independently developed by Endeavor 3D; (C) which is received by Endeavor 3D from a third party not subject to a duty of confidentiality to Customer; or (D) the disclosure of which is legally compelled.
(ii) Customer shall hold all Endeavor 3D Confidential Information in confidence and not disclose any Endeavor 3D Confidential Information to any third parties or use such information for any purpose, except as may be required for the proper and intended use by Customer of the Products and Services provided by Endeavor 3D to Customer. The foregoing obligations shall not apply to any Endeavor 3D Confidential Information (A) which is now or subsequently becomes public, other than as a result of Customer’s breach of its confidentiality obligations to Endeavor 3D hereunder; (B) which Customer demonstrates by contemporaneous written records was already known by Customer on a non-confidential basis prior to its disclosure by Endeavor 3D or was independently developed by Customer 3D; (C) which Customer demonstrates by contemporaneous written records was received by Customer from a third party not subject to a duty of confidentiality to Endeavor 3D; or (D) the disclosure of which is legally compelled.
(iii) Endeavor 3D’s and Customer’s obligations under this Section 17(b) shall automatically terminate, without the need for any action on the part of either party, on the date that is two years after the final exchange of Customer Confidential Information and/or Endeavor 3D Confidential Information between the parties.
18. Customer Feedback; Disclaimer Regarding Third Party Content and Links.
(a) Customer may be requested or permitted by Endeavor 3D to provide recommendations, reviews or other similar feedback on the Products and/or Services provided by Endeavor 3D to Customer or to provide information to enable Endeavor 3D to respond to Customer’s questions or to any request that Endeavor 3D contact Customer (collectively, “Customer Feedback”). Customer represents and warrants to Endeavor 3D that any Customer Feedback that Customer submits to Endeavor 3D will be accurate, will comply with all applicable laws and regulations and will not violate the intellectual property or other rights of any third parties. By providing any Customer Feedback to Endeavor 3D, Customer thereby grants to Endeavor 3D an irrevocable, perpetual, worldwide, royalty-free, transferable and sub-licensable license to incorporate such Customer Feedback into the Products and the Services and/or to reproduce, display, publicize and otherwise use such Customer Feedback for any purpose deemed reasonable by Endeavor 3D. In the event any Customer Feedback from Customer is in the form of a review or endorsement of Endeavor 3D and/or any Products or Services, such license shall include the right to publish such Customer Feedback on the Website and/or in any promotional materials of Endeavor 3D and to use Customer’s name in connection therewith. Customer hereby agrees that, by submitting any Customer Feedback, Customer irrevocably and fully waives any and all moral rights, privacy rights, rights of publicity and any other similar rights Customer may have in and to such Customer Feedback.
(b) ENDEAVOR 3D, ON BEHALF OF ITSELF AND THE OTHER MEMBERS OF THE ENDEAVOR 3D GROUP, HEREBY DISCLAIMS ALL RESPONSIBILITY FOR ALL CUSTOMER FEEDBACK THAT MAY BE INCLUDED ON THE WEBSITE OR IN ANY PROMOTIONAL MATERIALS AND ALL RESPONSIBILITY FOR ALL OTHER THIRD-PARTY CONTENT AND THIRD-PARTY LINKS THAT MAY BE INCLUDED ON THE WEBSITE OR IN ANY PROMOTIONAL MATERIALS.
19. DISCLAIMERS WITH RESPECT TO PROTOTYPES.
(A) ENDEAVOR 3D PROVIDES ALL PROTOTYPES ON AN “AS-IS” BASIS. ENDEAVOR 3D, ON BEHALF OF ITSELF AND THE OTHER MEMBERS OF THE ENDEAVOR 3D GROUP, HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ALL PROTOTYPES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENDEAVOR 3D DISCLAIMS ANY AND ALL WARRANTIES RELATING TO CUSTOMER’S SELECTION OF THE DESIGN OF AND MATERIALS USED TO MANUFACTURE ANY PROTOTYPE AND ANY RECOMMENDATIONS OR MODIFICATIONS MADE BY ENDEAVOR 3D WITH RESPECT TO SUCH DESIGN AND/OR MATERIALS.
(B) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NEITHER ENDEAVOR 3D NOR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP SHALL BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM ANY USE, MISUSE, RELIANCE ON OR INABILITY TO USE ANY PROTOTYPE.
20. DISCLAIMERS WITH RESPECT TO PRODUCTS OTHER THAN PROTOTYPES AND SERVICES.
(A) EXCEPT FOR THE EXPRESS LIMITED PRODUCT WARRANTIES SET FORTH IN SECTION 12, ENDEAVOR 3D, ON BEHALF OF ITSELF AND THE OTHER MEMBERS OF THE ENDEAVOR 3D GROUP, HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ALL PRODUCTS OTHER THAN PROTOTYPES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENDEAVOR 3D DISCLAIMS ANY AND ALL WARRANTIES RELATING TO CUSTOMER’S SELECTION OF THE DESIGN OF AND MATERIALS USED TO MANUFACTURE ANY SUCH PRODUCT AND ANY RECOMMENDATIONS OR MODIFICATIONS MADE BY ENDEAVOR 3D WITH RESPECT TO SUCH DESIGN AND/OR MATERIALS.
(B) ENDEAVOR 3D, ON BEHALF OF ITSELF AND THE OTHER MEMBERS OF THE ENDEAVOR 3D GROUP, HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ALL SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENDEAVOR 3D DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY RESULTS THEREOF WILL MEET THE REQUIREMENTS OF CUSTOMER OR ANY OTHER USER AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO ANY RECOMMENDATIONS MADE BY ENDEAVOR 3D WITH RESPECT TO THE DESIGN OF AND MATERIALS USED TO MANUFACTURE ANY PRODUCT.
(C) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NEITHER ENDEAVOR 3D NOR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP SHALL BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM ANY USE, MISUSE, RELIANCE ON OR INABILITY TO USE ANY PRODUCTS OR SERVICES (OR THE RESULTS OF SERVICES).
21. NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT, AND UNDER NO LEGAL THEORY (WHETHER CONTRACT, TORT OR OTHERWISE), SHALL ENDEAVOR 3D OR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUES, GOODWILL, REPUTATION, BUSINESS OR OPPORTUNITIES AND/OR DELAY DAMAGES, EVEN IF ENDEAVOR 3D OR ANY OTHER MEMBER OF THE ENDEAVOR 3D GROUP WAS ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
22. Cap on Damages. Notwithstanding anything to the contrary set forth in any Customer Agreement or these Terms and Conditions, except where prohibited by applicable law, the aggregate liability of the members of the Endeavor 3D Group to Customer with respect to all claims Customer may have at any time against Endeavor 3D and the other members of the Endeavor 3D Group shall not exceed an amount equal to the aggregate amounts paid by Customer to Endeavor 3D for Products and Services. The foregoing limitation of liability reflects an informed, voluntary allocation between Endeavor 3D and Customer of the risks (known and unknown) that may exist in connection with the Products and the Services and any Customer Agreement, including these Terms and Conditions.
23. General Indemnification by Customer. In addition to its other indemnification obligations under these Terms and Conditions, Customer hereby agrees to indemnify, defend and hold the Endeavor 3D Indemnified Parties harmless from and against, and promptly reimburse the Endeavor 3D Indemnified Parties for, any and all claims, liabilities, actions, demands, losses, damages, penalties, fines and other costs and expenses (including, without limitation, reasonable attorneys’ fees, experts’ fees, investigation costs, remediation costs and settlement costs) incurred by any of them arising out of or relating to (a) use of Customer Account(s), whether such use is authorized or unauthorized; (b) Customer’s or its end users’ negligent or other wrongful acts or omissions in connection with use of any Products or Services; (c) breach of any representation and warranty made by Customer to Endeavor 3D; (d) any violation of these Terms and Conditions or any Customer Agreement by Customer or any Representative thereof; (e) any personal injury, including death, or property damage directly or indirectly resulting from Customer’s acts or omissions or from use or misuse by any individual or entity of any Product manufactured by Endeavor 3D for Customer; (f) violation of any applicable law or regulation by Customer or any Representative thereof; (g) violation of any intellectual property or other rights of any third party by Customer or any Representative thereof; (h) the inaccuracy or incompleteness of any information provided by or on behalf of Customer to Endeavor 3D; and/or (i) any Customer Feedback, Customer Design Data or other information that Customer or any Representative thereof submits to Endeavor 3D.
24. No Waiver. No delay or failure on the part of Endeavor 3D in exercising any legal right or remedy it may have against Customer shall be deemed to constitute a waiver of such right or remedy. In addition, no partial exercise by Endeavor 3D of any legal right or remedy it may have against Customer shall preclude the further exercise by Endeavor 3D of such right or remedy or its exercise of any other right or remedy it may have against Customer.
25. Force Majeure. Customer expressly acknowledges and agrees that Endeavor 3D will not be liable to Customer under any legal theory for any failure to perform or delay in performing any obligation to Customer, whether under these Terms and Conditions, any Customer Agreement or otherwise, which failure is caused directly or indirectly by a force majeure event, including, without limitation, any act of God, accident, fire, strike or other labor dispute, riot, insurrection, war, epidemic or pandemic, governmental action or refusal to act, telecommunications or power failure, shortages or delays in delivery of raw materials and/or parts, delays in outbound shipments, failure of any Software or Equipment, any exchange or market ruling or any other cause beyond the reasonable control of Endeavor 3D (each, a “Force Majeure Event”).
26. Governing Law. Any controversy or claim arising out of or relating in any way to (a) any Customer Agreement, including these Terms and Conditions, including the interpretation or enforcement thereof; (b) any alleged breach, default or misrepresentation of or relating to any provision of any Customer Agreement, including these Terms and Conditions; (c) any Products and/or Services provided by Endeavor 3D to Customer; and/or (d) any transaction, communication or other interaction between Endeavor 3D or any other member of the Endeavor 3D Group and Customer shall be governed by Georgia law, without regard to its conflicts of law provisions. Notwithstanding the foregoing, those provisions of Section 27 relating to arbitration of Disputes (as defined below) shall be governed by and interpreted in accordance with the Federal Arbitration Act.
27. Resolution of Disputes; Agreement to Arbitrate; Class Action Waiver; Waiver of Right to Jury Trial. These Terms and Conditions contain a binding, individual arbitration agreement and class action waiver. This means that any claim must be arbitrated on an individual basis pursuant to the terms set forth below, that claims of different persons cannot be combined or aggregated, and that Customer is waiving Customer’s right to file a lawsuit in court and to have a jury decide any Dispute. Please read all the provision of this Section 27 carefully and consult a legal advisor if you have any questions.
(a) Except as described in Section 5(a), any controversy or claim arising out of or relating to the Products and the Services, any Customer Agreement and/or these Terms and Conditions, including their enforcement or interpretation, or because of an alleged breach, default or misrepresentation of or relating to any of the foregoing, or arising out of or relating in any way to any transaction, communication or other interaction between Customer and Endeavor 3D or any other member of the Endeavor 3D Group (each, a “Dispute”), shall be submitted to final and binding individual arbitration in accordance with the following provisions in order to establish and gain the benefits of a speedy, impartial and cost-effective dispute resolution procedure.
(b) Except as otherwise prohibited by applicable law, as provided in Section 5(a) and as provided in Section 27(i), any Dispute shall be settled by arbitration administered by JAMS pursuant to its applicable rules (the “JAMS Rules”) before a single neutral arbitrator (the “Arbitrator”) in Douglas County, Georgia. Notwithstanding the foregoing, if required by the JAMS Rules, or if the Arbitrator concludes that it would be a financial or other hardship for Customer to participate in an arbitration in Douglas County, Georgia, the Arbitrator shall have the authority to permit Customer to attend via telephone, videoconference, Skype, Zoom, Facetime or similar virtual participation.
(c) To the fullest extent permitted by applicable law, and notwithstanding anything else in these Terms and Conditions, Customer agrees that any Dispute shall be decided by the Arbitrator on an individual basis and not on a class, collective or representative basis. Customer further acknowledges and agrees that the Arbitrator shall not have the authority or jurisdiction to hear the arbitration as a class, collective or representative action or to join or consolidate causes of action of different parties into one proceeding.
(d) The Arbitrator may award any form of remedy or relief (including injunctive relief and specific performance) that otherwise would be available in court. Any award pursuant to the arbitration shall be accompanied by a written opinion of the Arbitrator setting forth the reason(s) for the award. The award rendered by the Arbitrator shall be conclusive and binding upon Customer and Endeavor 3D (and/or the other member(s) of the Endeavor 3D Group), and judgment upon the award may be entered, and enforcement may be sought in, any court of competent jurisdiction.
(e) Subject to the JAMS Rules and the provisions of Section 28 (Prevailing Party), the arbitration fees, together with other expenses of the arbitration incurred or approved by the Arbitrator, shall be divided equally between Customer and Endeavor 3D.
(f) CUSTOMER UNDERSTANDS THAT, ABSENT THESE TERMS AND CONDITIONS, EACH OF CUSTOMER AND THE MEMBERS OF THE ENDEAVOR 3D GROUP WOULD HAVE THE RIGHT TO SUE THE OTHER IN COURT AND TO HAVE ANY DISPUTE DECIDED PURSUANT TO A JURY TRIAL, BUT, BY THESE TERMS AND CONDITIONS, CUSTOMER IS GIVING UP THAT RIGHT AND AGREEING TO RESOLVE BY ARBITRATION ANY AND ALL DISPUTES.
(g) Customer and Endeavor 3D agree to treat as strictly confidential all information concerning any arbitration proceeding, including the pleadings, the hearing and any arbitration award, except as (i) may be necessary to prepare for or conduct the arbitration hearing on the merits; (ii) may be necessary in connection with a court application for a preliminary remedy, confirmation and enforcement proceedings or a judicial challenge to an award or its enforcement; or (iii) otherwise required by applicable law or judicial decision. Customer and Endeavor 3D agree that breach of this confidentiality provision would irreparably harm the non-breaching party, and further agree that any such breach shall entitle the non-breaching party to seek injunctive relief and/or compensatory damages for the breach (without the necessity of posting a bond or other security).
(h) Customer may elect to opt out and exclude Customer from the final, binding arbitration procedure and class action waiver specified in this Section 27 by sending to Endeavor 3D, LLC, Attn: Arbitration Opt-Out Notices, One Endeavor Way, Douglasville, GA 30134, for postmarking within 15 days after the earlier of the creation of the first Customer Account or Customer’s entry into its first Customer Agreement or other transaction with Endeavor 3D, a letter stating (i) Customer’s name; (ii) Customer’s mailing address; and (iii) Customer’s request to be excluded from the final, binding arbitration procedure and class action waiver. Customer is not required to send the letter by registered or certified mail, return receipt requested, but it is recommended that Customer do so. Customer’s request to be excluded will only be effective and enforceable if Customer can prove that the request was postmarked within the 15-day deadline. In the event of an effective exclusion request by Customer, Endeavor 3D reserves the right, exercisable in its sole and absolute discretion, to terminate any Customer Agreement, rescind any Quotation or any transaction with Customer and/or terminate or suspend any Customer Account(s). In the event of an effective exclusion request by Customer, all other provisions of these Terms and Conditions shall continue to apply.
(i) Notwithstanding the other provisions of this Section 27, Customer agrees that Endeavor 3D and the other members of the Endeavor 3D Group shall have the right to seek injunctive or other equitable relief in the Georgia state courts sitting in Douglas County, Georgia, or the U.S. District Court for the Northern District of Georgia, to enforce any Customer Agreement and/or these Terms and Conditions or prevent unauthorized disclosure of any Endeavor 3D Confidential Information and/or infringement of any intellectual property rights, without being required to post a bond or other security or prove actual damages. In the event Endeavor 3D or any other member of the Endeavor 3D Group seeks such equitable relief in any such court, Customer hereby irrevocably submits to the personal jurisdiction of such court and waives all objections to such jurisdiction.
28. Prevailing Party. In the event of any Dispute, and whether such Dispute is resolved via arbitration, litigation or otherwise, the prevailing party (as that term is commonly defined by the prevailing common and/or statutory law in the applicable jurisdiction) shall be entitled to recover its costs of suit, which costs shall include, without limitation, all reasonable attorneys’ fees and expenses incurred by the prevailing party in connection with such Dispute. In the event a party to any Dispute fails to proceed with arbitration, unsuccessfully challenges the Arbitrator’s award or fails to comply with an arbitration award, the other party shall be entitled to recover its costs of enforcement, including, without limitation, reasonable attorneys’ fees and expenses incurred in having to compel arbitration or to defend or enforce the arbitration award.
29. Time Limit to File Claims. Customer expressly agrees that, except where applicable law prescribes a shorter applicable statute of limitation or prohibits shortening the otherwise-applicable longer statute of limitations, Customer must file any claim or legal action of any kind arising in connection with or relating in any way to (a) any Products or Services and/or any transaction or other interaction with Endeavor 3D or any other member of the Endeavor 3D Group; (b) any act (or failure to act) on the part of any member of the Endeavor 3D Group or Customer; and/or (c) any Customer Agreement and/or these Terms and Conditions, within one year after the transaction or other event, circumstances or other facts giving rise to such claim or legal action. Notwithstanding the foregoing, if the law in the applicable jurisdiction has a “discovery rule,” whereby accrual of a claim is deferred, which is applicable to one or more claims, then the one-year (or shorter, if applicable) limitation period specified in this Section 29 shall begin running from the date of accrual of such claim or claims as determined by the law of the applicable jurisdiction. If this Section 29 is determined to be unenforceable as to any particular claim or claims under the law of the applicable jurisdiction, it nevertheless shall remain fully enforceable as to all other claims.
30. Severability.
(a) With the exception of the class action waiver in Section 27(c), which is essential to the agreement to arbitrate, if any provision of these Terms and Conditions is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality or unenforceability, or, if that is not possible, such provision shall, to the extent of such invalidity, illegality or unenforceability, be severed from these Terms and Conditions, and the remaining provisions of these Terms and Conditions shall remain in effect.
(b) If the class action waiver in Section 27(c) is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable, and such court or arbitrator determines that a valid class exists, then the entirety of the dispute resolution procedures specified in Section 27 shall be void and of no force and effect.
31. Survival. All provisions of these Terms and Conditions shall survive the expiration or other termination of any Customer Agreement, including these Terms and Conditions, the termination of any transaction between Customer and Endeavor 3D, and any termination of any Customer Account, regardless of the reason for any such termination, until the expiration of the last-applicable statute of limitations.
32. Notices. Except (a) as otherwise provided in these Terms and Conditions; (b) for general notices from Endeavor 3D regarding any Products or Services, which may be posted on the Website; and (c) for notices to Customer regarding Customer Account(s) and notices to either party regarding any day-to-day operational or other non-legal issues, which may be delivered to either party via electronic mail or discussed via telephone, (i) all notices required or permitted under or in connection with these Terms and Conditions and/or any Customer Agreement must be in writing; (ii) Customer shall send all notices to Endeavor 3D by U.S. certified or registered mail, return receipt requested, postage prepaid, or by reputable courier, in each case, addressed to Endeavor 3D, LLC, Attn: Customer Notices, One Endeavor Way, Douglasville, GA 30134; and (iii) Endeavor 3D shall send all notices to Customer by U.S. certified or registered mail, return receipt requested, postage prepaid, addressed to Customer at the then-current mailing address in the applicable Customer Account or otherwise on file with Endeavor 3D. All such notices shall be effective upon receipt.
33. Assignment. Without Endeavor 3D’s prior written consent, Customer is not permitted to assign these Terms and Conditions or any Customer Agreement or assign any of Customer’s rights or delegate any of Customer’s obligations hereunder and thereunder, and any such assignment or delegation shall be void and of no force or effect. Endeavor 3D has the unlimited right to assign these Terms and Conditions, any Customer Agreement and/or any or all of its rights and obligations hereunder and thereunder. These Terms and Conditions and each Customer Agreement shall be binding upon and inure to the benefit of Customer and its successors and permitted assigns and shall be binding upon and inure to the benefit of Endeavor 3D and its successors and assigns.
34. Conflicts. Notwithstanding anything to the contrary contained in any Customer Agreement or in these Terms and Conditions, in the event of a conflict between any provision of these Terms and Conditions and any other provision of any Customer Agreement, the provisions of these Terms and Conditions shall control.
35. Nature of Relationship; Right to Identify Customer as Customer.
(a) The relationship between Endeavor 3D and Customer is solely that of seller and purchaser. No other relationship, including, without limitation, that of agent and principal, employer and employee, franchisor and franchisee, joint venturers or partners, exists between Endeavor 3D and Customer.
(b) By agreeing to purchase any Products and/or Services from Endeavor 3D, Customer thereby grants Endeavor 3D the right to identify Customer as a customer of Endeavor 3D on the Website and in Endeavor 3D’s promotional materials.
36. Further Assurances. Customer agrees to execute and deliver such other documents and take such other actions as Endeavor 3D may reasonably request in connection with any transaction between Endeavor 3D and Customer or as may be required for Customer to fully perform Customer’s obligations under any Customer Agreement, including these Terms and Conditions, and/or to enable Endeavor 3D to fully exercise its rights thereunder.
37. Third-Party Beneficiaries. The members of the Endeavor 3D Group are intended third-party beneficiaries of the disclaimer, indemnification, limitation of liability, dispute resolution and claim time limit provisions of these Terms and Conditions.
38. Construction. The rule of construction that ambiguities in a contract are to be construed against the drafter shall not be invoked or applied in any dispute regarding the meaning or interpretation of any provision of any Customer Agreement or these Terms and Conditions.
39. Headings. The headings of the sections of these Terms and Conditions are inserted solely for convenience of reference. They are not intended to and shall not define, limit, extend or aid in the construction of the scope, extent or intent of these Terms and Conditions in any way.
40. Reservation of Rights. Any rights not expressly granted by the foregoing provisions of these Terms and Conditions are reserved to Endeavor 3D.
41. Entire Agreement. Each Customer Agreement, including these Terms and Conditions as incorporated therein (or in the absence of any Customer Agreement, these Terms and Conditions alone), constitutes the entire agreement between Endeavor 3D and Customer with respect to the subject matter thereof and supersedes any and all prior or contemporaneous agreements and understandings, whether written or oral, between Endeavor 3D and Customer with respect to such subject matter. Any other term or condition stated in a Customer’s purchase order or other Customer documentation shall be void and shall not be binding on Endeavor 3D, regardless of any failure on the part of Endeavor 3D to object to such term or condition.
