Modix General Terms and Conditions of Online Sale

Modix General Terms and Conditions of Online Sale

 1.Definitions

For purposes of the Agreement each of the terms listed below shall be deemed to have the meaning attributed to it:

 1.1.Agreement – the agreement of Sale.

 1.2.Assembly – Assembly of Systems.

 1.3.Buyer – the party to whom the Item is sold, as said party identifies itself in the PO.

 1.4.Consumable – each material which is consumed in the Operation of a System.

 1.5.Degradable – each Part which wears out in its intended use in the Operation.

 1.6.Delivery – as provided in GTC ‎ 6.

 1.7.GTC / GTCs – each / some / all of the provisions in this document, as the case may be, as may be updated by Modix from time to time.

 1.8.Import – the import of the Item into Buyer’s territory/ies.

 1.9.Indication – brand, name, logo and/or trademark of Modix, or System, as the case may be.

 1.10.Instruction of Operation – instructions, including, without limitation, the Manual.

 1.11.Item – System or Part.

 1.12.Kit – a set of Parts which can be Assembled to an Operational System. A Kit shall not include Consumables.

 1.13.License – the terms of the Agreement which relate to Buyer’s rights in the Item.

 1.14.Manual – Modix’s manual for the Operation, Regular Maintenance and Periodic Maintenance of the relevant System.

 1.15.Modix – Modix Modular Technologies Ltd..

 1.16.Office Hours – 09:00 to 18:00 GMT+3 in Business Days. Sunday-Thursday.

 1.17.Operation – the intended use of a System and its Regular Maintenance.

 1.18.Operation Site – the site which the Buyer designates as the site for the Operation of the System.

 1.19.Part – each part of a System.

 1.20.Parties – Modix and Buyer together.

 1.21.Party – each of Modix and Buyer.

 1.22.Periodic Maintenance – periodic maintenance of a System, as instructed by Modix.

 1.23.PO – the purchase order submitted by Buyer to Modix through the designated form in the Website.

 1.24.PO Confirmation – the confirmation of the PO, sent by Modix to Buyer.

 1.25.Price – the price attributed to the Item in the Website at the time of conclusion of the PO.

 1.26.Regular Maintenance – routine maintenance of Systems by the Buyer, as instructed by Modix.

 1.27.Regulation – any regulation applicable to the Agreement including without limitation, Sale, Import and Operation.

 1.28.Sale – the Sale of an Item or a Part by Modix to Buyer initiated by Buyer by means of the designated form in the Website.

 1.29.Section – a section of the Agreement.

 1.30.Support – support of Buyer in the use, Operation or Regular Maintenance of Systems.

 1.31.Support Request – Buyer’s request for support from Modix.

 1.32.System – the system sold to the Buyer, Assembled or as a Kit, including each of its Parts.

 1.33.Third-Party Part – each Part subject of a Sale but not manufactured by Modix.

 1.34.Website – Modix’s website: www.modix3d.com

 1.35.Business Day – a day considered a day of work in the territory in which Modix, or anyone on its behalf, performs the relevant action.

 2.Interpretation

 2.1.Terms not defined in the Agreement shall have the meanings given the terms by common usage in the industry.

 2.2.The title or heading of the various Sections or GTCs are intended solely for convenience of reference and are not intended and shall not be deemed for any purpose whatsoever to modify or explain or place any construction upon any of the provisions of the Agreement.

 2.3.References to any agreement, enactment, ordinance or regulation, includes any amendment thereof or any replacement in whole or in part.

 2.4.In case of any inconsistencies or discrepancies among the documents which constitute the Agreement, the following order of precedence shall apply:

 a.The PO Confirmation;

 b.These GTCs;

 c.The PO;

 3.The Sale Agreement

 3.1.A Sale shall be initiated by the Buyer by submission of a PO to Modix by means of the designated form in the Website.

 3.2.When Modix sends the Buyer the respective PO Confirmation, the Agreement comes into effect.

 3.3.Buyer acknowledges that the PO Confirmation may differ from the PO in the following:

 a.Time of Delivery, in particular with regard to Items which are, or include, one or more Third-Party Parts.

 b.The third party which manufactures one or more Third-Party Parts.

 c.Origin of each Item.

 d.Mode of transportation.

 e. 

 3.4.The Agreement for the Sale shall consist of the following documents in the following order of precedence:

 a.The PO Confirmation.

 b.These GTCs.

 c.Instruction documents and other documents mentioned in the Agreement and the Website in relation to the respective Item.

 d.The PO.

 3.5.Buyer acknowledges that Modix does not guarantee that the Items or Parts, shall be of the most advanced or latest model.

 4.Regulation

 4.1.Buyer shall obtain and hold throughout the Operation all permits relevant for its performance hereunder and shall comply with all applicable relevant regulation.

 4.2.All registration, legalization and translation costs will be at Buyer’s expense.

 4.3.Modix does not guarantee that the Parts, System, their Import or Operation shall comply with the applicable regulation, and Buyer hereby irrevocably waives any claim against Modix, which stems from regulatory issues.

 5.Additional Representations and Obligations of Buyer

 5.1.Buyer had ample opportunity to thoroughly examine each Item, has done so and found such suitable for its needs.

 5.2.Buyer has all the resources required for the Import, Assembly, to the extent applicable, and Operation of the Item or Part, including without limitation, human resources, technical capabilities, know-how and experience, utilities and tools.

 5.3.Buyer shall follow all Instructions including the following:

 a.Modifications to the Operation Site required to be performed prior to any Operation.

 b.Procedures and conditions for the Operation.

 5.4.Any and all Instruction, oral or written, shall be given in English.

 5.5.Buyer acknowledges that Modix shall not supply software with the Item.

 5.6.Buyer shall notify Modix, without delay, of any infringement of Modix’s intellectual property rights that become known to Buyer, concerning the Systems. Buyer shall, at Modix request and cost, assist Modix in any action that Modix deems necessary in order to stop the infringement of its patents and trademarks.

 6.Delivery

 6.1.Unless otherwise agreed by the Parties –

 a.Item and/or Parts shall be Delivered to Buyer at the Operation Site DDU (Incoterms 2000).

 b.Item and/or Parts shall be shipped after receipt by Modix of the respective Price in full.

 6.2.Modix shall not be liable for any delay in Delivery which results from delay in supply to Modix of Third-Party Parts.

 6.3.Modix shall not be liable for any delay in Delivery which results from delay in third party logistics services.

 6.4.Any delay in Delivery which results from delay in performance by Buyer, shall be at Buyer’s risk, responsibility and expense.

 6.5.Modix shall not be under any obligation to continue to Deliver and sell any System which is no longer manufactured by it.

 7.Assembly

 7.1.To the extent a System is supplied in a Kit, Buyer shall Assemble the System in accordance with the respective assembly manual furnished by Modix.

 7.2.The Assembly shall be performed in the Operation Site.

 8.License

 8.1.Buyer shall have the non-exclusive, non-assignable, royalty free, perpetual, limited right to Operate the System for its intended use, and the Parts as part of the System solely for Buyer’s business operations and subject to the terms of the Agreement.

 8.2.You may not make the System or Parts available in any manner to any third party for use in the third party’s business operations; 

 8.3.No license or conveyance of any rights by Modix under any discoveries, inventions, patents, trade secrets, copyrights, or other form of intellectual property is granted or implied hereby. 

 9.Support

 9.1.Each Support Request shall include clear and accurate description of the Buyer’s problems.

 9.2.Each Support Request shall be sent to Modix by email, or through the relevant form in the Website, if available.

 9.3.Modix will support the Buyer by email during Office Hours. The Support shall be given within 5 (five) Business Days after actual receipt of the respective Support Request.

 9.4.Modix will not provide any support for System customization.

 10.Prices and Terms of Payment

 10.1.The Price shall be net and exclusive of any tax or charge.

 10.2.To the extent the Sale is subject to payment of additional tax by Modix (including without limitation, VAT and purchase tax) the Price shall be increased by the sum of additional tax.

 10.3.All payments shall be made by either: wire transfer to Modix’s account specified in the PO Confirmation in the currency denominated on the Website, freely transferable, or online credit card payment in Modix’s website

 10.4.Notwithstanding the passage of title, Modix shall retain a security interest in all Modix Items delivered to Buyer until all amounts due from Buyer have been received in full by Modix. Modix shall have all rights of a secured party, all comparable rights under any applicable law to protect Modix’s security interest.

 10.5.Should the cost of Item production or Delivery increase between the PO Confirmation and the Delivery, Modix shall be entitled, after a prior written notice to Buyer, to adjust the Prices. Said notice shall specify the nature of the increase.

 11.Warranty

 11.1.Modix guarantees that at the time of Delivery and for 12 (twelve) months thereafter, the Parts shall be of the kind and quality described.

 11.2.If any failure in workmanship or material appears in Parts, Buyer shall notify Modix of the failure and send the failed Parts to Modix at Buyer’s expense and risk. Modix will, within 30 (thirty) business days after receipt of said notification and the failed Parts, repair or replace the failed Part and send it to Buyer.

 11.3.The warranty is contingent upon the proper transportation, storage and operation of the Parts, and does not cover:

 a.Damages resulting from Parts being handled by a non- qualified and/or unauthorized person.

 b.Parts that have been modified without Modix’s prior written approval, or that have been subject to physical stress, misuse, unauthorized use, negligence or accident, or that have been improperly stored;

 c.Defects in the Parts caused after the Delivery by Modix; or

 d.Defects caused by Buyer or others, or otherwise arising out of or attributed, directly or indirectly to the conduct, operations or performance of Buyer.

 e.improper use and/or not following the Instruction of Operation.

 f.customizations or improper use of Buyer

 11.4.Not withstanding anything to the contrary, this warranty shall not apply to Degradables and/or Third-Party Parts. Third-Party Parts which are not Degradables shall be subject to the warranty granted by the respective supplier with respect to the relevant Third-Party Part, if at all.

 11.5.TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR THE WARRANTY SET FORTH IN THIS GTC ‎ 11 EXPRESSLY, MODIX DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SYSTEMS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LAWS FROM TIME TO TIME IN FORCE IN CERTAIN JURISDICTIONS MAY IMPLY WARRANTIES THAT CANNOT BE EXCLUDED, OR CAN ONLY BE EXCLUDED TO A LIMITED EXTENT, AND THIS AGREEMENT SHALL BE READ AND CONSTRUED SUBJECT TO ANY SUCH STATUTORY PROVISIONS. BUYER SHALL BE RESPONSIBLE FOR ANY WARRANTY IT EXTENDS, EITHER DIRECTLY OR INDIRECTLY, EXPRESSLY OR BY OPERATION OF LAW, BEYOND THE WARRANTY EXPRESSLY GRANTED IN THIS GTC ‎ 11.

 12.Modix’s Intellectual Property

 12.1.Modix’s Indications and the System’s Indications are and shall, at all times, be the exclusive property of Modix.

 12.2.Buyer shall not make any use of Modix’s Indications except by the intended use.

 12.3.Buyer shall not remove and shall not allow to be removed any Modix’s Indication from an Item.

 12.4.Buyer shall not directly or indirectly copy, reverse engineer, disassemble, decipher, reproduce decompile, disassemble, alter, duplicate, create derivative works or otherwise maneuver or perform similar acts or permit anyone else perform such acts on any System or Part.

 13.Indemnification

 13.1.Buyer shall defend, indemnify and hold Modix harmless from and against any and all liability, damage, loss, costs and expenses (incidental and indirect damages excluded), including without limitation with respect to personal injury, which were caused due to any acts or omissions of the Buyer in connection with the Import, storage, Operation or any other disposition of any of the Items.

 13.2.In no event shall Modix be liable for, and Buyer shall hold it harmless and indemnify it from and against, any representation or warranty, express or implied, with respect to the System, which may have been made or given by the Buyer or by any employee or service provider thereof, and which was not specifically authorized by Modix in writing.

 14.Limitation of Liability

 14.1.Subject to the warranty provisions, Buyer hereby waives any existing and/or future claim regarding any Item.

 14.2.The total aggregate liability of Modix in respect of claims, whether in contract, tort (including sole or concurrent negligence) or at law arising out of the design, development, manufacture, sale, delivery, resale, repair, replacement, use or infringement of or by the Systems, shall not exceed 50% (fifty percent) of the Price allocable to the Item/s that give rise to the claim(s).

 14.3.In no event shall Modix be liable for any special or consequential damages, however caused, whether by Modix’s sole or concurrent negligence or otherwise, including, but not limited to costs and expenses incurred in connection with labor, overhead, transportation, installation, or removal of the Systems or substitute facilities or supply sources.

 15.Force Majeure

 15.1.As force majeure shall be considered: industrial disputes and any other circumstances beyond the control of Modix, such as military action, civil unrest, mobilization, riots, fire, explosion, flood, injunction, general shortage of material, fuel, power and transport, accidents and governmental actions, all to the extent that said circumstances prevent the fulfilment of obligations to be performed in accordance to the Agreement.

 15.2.If by reason of any force majeure circumstances the performance of the Agreement within an acceptable period becomes impossible, Modix shall have the right to terminate the Agreement by written notice with immediate effect.

 15.3.Payment obligations shall not be subject to Force Majeure.

 16.Termination

 16.1.The Agreement may be terminated forthwith by either Party if the other Party:

 a.Materially breaches the obligations or of the provisions of the Agreement, provided that if the breach is remediable, the Agreement shall not be terminated if the other Party has remedied the breach within 30 (thirty) days after receipt of written notice sent by the terminating Party.

 b.Commits fraud or any other unlawful act or omission in connection with or affecting the Agreement.

 c.Makes an assignment for the benefit of its creditors or suffers a receiver to be appointed or goes into liquidation.

 16.2.The termination of the Agreement for any reason shall not relieve the Parties of the fulfilment of their obligations that were pending at that time, neither will suppose the cancellation or termination of any liability previously acquired by them.

 

 17.Return

 17.1.Buyer may return unopened items in the original packaging within 14 days from the day of receiving the items. If 14 days or more have passed since the receiving, we cannot offer you a full refund.

 

 17.2.Buyer should contact Modix for a return request to confirm the return address. The request should include the reason for the request for return and photos of the items in original packaging. Buyer will bear the cost of returning shipment.
Items will be sent within 14 days from the refund confirmation notice provided by Modix.

 17.3.Once the items are opened and/or used, it is the Modix sole decision if to accept refund requests. Buyers should be fully cooperative with Modix support before submitting a refund request for open/used items.       

 17.4.Any return made by Buyer without a written return authorization from Modix will be considered an unauthorized return (“Unauthorized Return”). Unauthorized Returns will not be subject to a refund.

 17.5.Please note that all refunds DO NOT include shipping, and/or other fees such as courier transaction or customs fees, tariffs, taxes, and duties. Any warehouse restocking fees will be deducted from the refund total amount.

 17.6.You may not request for a refund if you fail to complete the customs clearance or fail to or refuse to collect your products resulting in products returned or destroyed by the customs office. Buyers will pay the fees involved in returning the items to the shipment origins and repay for the new shipping costs.

 17.7.Upon receipt of the returned item, we will fully examine it and notify you via email, within 10 to 15 business days, whether you are entitled to a return. If you are entitled to a return, we will refund according to your original method of payments.

 17.8.Refund credit processing time may vary based on the payment method. Refunds via credit cards may take 14-20 business days to reflect in your account whereas wired bank transfers may be faster.

 

 18.Assignment

 18.1.Neither the Agreement nor any right or interest in the Agreement may be assigned or otherwise transferred, in whole or in part, by Buyer without the prior written consent of Modix.

 18.2.Modix may assign the Agreement or any right or interest in the Agreement to any  related party.

 19.Notices

 19.1.All formal notices, requests, consents and other communications hereunder to either Party shall be deemed to be sufficient if contained in a written instrument delivered personally, sent by express courier (such as DHL or UPS), or registered mail, in any case addressed to such Party at the following address or such other address as may hereafter be designated in writing by such Party to other Party in accordance herewith.

 a.Modix address – Tuval 15, Ramat Gan, Israel

 b.Buyer’s address – as stipulated in the PO.

19.2.All such formal notices, requests, consents and other communications shall be deemed to have been delivered (i) in the case of personal delivery or, on the date of such delivery (unless such day is not a Business Day in the jurisdiction of receipt, in which case delivery is deemed to have occurred on the next such business day), and (ii) in the case of registered mail, on the tenth such business day after the posting thereof. 

 20.Waiver

 20.1.The fact that Modix may once or more fail to exercise any right or take any action to which it may be entitled shall not be construed as a waiver of its right to exercise such right or take such action at a later date.

 21.Severability

 21.1.If any of the Sections of the Agreement, or any parts thereof is declared fully or partly void or null because it contravenes legislation in force, that provision shall be deemed to be not included and the Agreement shall remain in effect as regards the rest of its terms, unless the validity of the Agreement is conditional on the provision in question or its omission implies material detriment to the balance of the mutual rights and obligations of the Parties.

 22.Independence of the Parties

 22.1.Nothing in the Agreement shall constitute or be construed to create a joint venture, pooling arrangement, partnership, or formal business organization of any kind. 

 22.2.The Parties shall remain independent contractors at all times and neither Party shall act as an agent of the other.

 22.3.Nothing in the Agreement shall be construed to provide for sharing of profits or losses arising out of the efforts of both Parties.

 23.Dispute Resolution

 23.1.The Agreement and all disputes, controversies or claims arising out of or in connection with the Agreement, including any questions regarding its existence, validity or termination, will be governed by and construed in accordance with the provisions of the Law of the State of Israel without regard to provisions of conflict of laws.

 23.2.All disputes on whatever legal grounds, arising in connection with the Agreement or the business relationship existing between the Parties, shall be subject to the exclusive jurisdiction of the competent Court in Tel Aviv, Israel, to which Buyer agrees, without regard to provisions of appropriate forum.

 23.3.The final verdict shall be enforceable in the country of domicile of the Party against which it is enforced, in any country where such Party conducts business and in any country where Systems sold hereunder are available to System users.

 23.4.Buyer acknowledges that damages alone may not be an adequate remedy and that Modix may obtain injunctive relief in the event of any breach of the terms hereof by Buyer in the relevant territory.

 24.Entire Agreement and Amendment

 24.1.The Agreement contains the entire understanding between the Parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous written or oral negotiations and agreements between them regarding the subject matter hereof.

 24.2.The Agreement may be amended only in writing, bearing the signature of both Parties.