1. General
These terms and conditions of sale (these “Terms”) govern the (i) 3D image capture and / or scan (“Scan”), production, sale and delivery of Dopl 3D miniatures and other customized products (collectively, the “Physical Products”) and the (ii) Scan, digital production and delivery of digital products including but not limited to an electronic image or representation of a user (collectively, the “Digital Products” and together with the Digital Products, the “Products”), and all transactions incidental thereto (collectively, the “Transactions”), by or on behalf of Dopl LLC (“Dopl”) to Dopl’s customers (each, a or the “Customer” and together the “Customers”).
Dopl may provide, at its sole discretion, Products free of charge (“FoC Products”) to the Customer, and notwithstanding anything to the contrary herein, nothing in these Terms or actions of Dopl shall grant any right to the Customer to receive any FoC Products and the Customer hereby acknowledges that any offer of Dopl to provide FoC Products may be revoked by Dopl at any time without any liability to the Customer.
If Customer finds any provision of these Terms not acceptable, the Customer must so notify Dopl immediately and must not proceed with the Scan or place an Order. Deviations from these Terms require the written approval of Dopl.
1. Offers, Orders and Confirmation
Upon Customer’s acceptance of these Terms, Dopl may take one of more Scans of the Customer in a variety of poses, produce a Product and either (i) sell such Product to the Customer based on a Confirmed Order (as defined below), whether at the time of the Scan or in the future, or (ii) provide such Product as a FoC Product to the Customer regardless of whether the Customer places an Order (as defined below.
The process for placement of an Order (as defined below) for Products (other than Free Products) shall be as follows:
Customer may place an order for a Product (an “Order”) based on the Scan Data (as defined below) at any of Dopl’s physical stores, kiosks, or offices; scanning sites or online (collectively, the “Dopl Sites”). All offers made by Dopl are revocable and subject to change without notice to the Customer. Dopl shall be entitled to refuse an Order for any or no reason. No Order is binding upon Dopl until a duly authorized representative of Dopl acknowledges and accepts the Order in Dopl’s ordering system or by using such other method as Dopl may determine from time to time, in the respective Dopl Site where Customer placed the Order or online (a “Confirmed Order”). Dopl shall sell and deliver to the Customers, and each Customer shall purchase and accept from Dopl, the Products described in a Confirmed Order. Except where otherwise provided for herein, Confirmed Orders cannot be canceled by the Customer as they represent a custom-made offering with a production process initiating immediately upon Confirmed Order.
Notwithstanding any prior confirmation of an Order by Dopl, Dopl shall have no obligation to perform any Transaction or any of its obligations under this Agreement if Customer is in breach of any of its obligations under this Agreement or provided misrepresentations to Dopl.
Each Confirmed Order shall be considered a separate agreement between the parties to purchase and sell the Products, and any failure to deliver the Products under any Confirmed Order shall have no consequences for other deliveries. These Terms and the terms and conditions of a Confirmed Order (together, this “Agreement”) taken together shall constitute the entire agreement between Dopl and the Customer regarding the sale and delivery of the Products pursuant to such Confirmed Order.
3. Prices
The price of the Products shall be as posted at Dopl Sites, on the forms used by Dopl to place Orders, or at such other locations as may be determined by Dopl from time to time. All published prices are subject to change without prior notice. Dopl’s prices are ex works (Brooklyn, NY). Such prices include standard packaging. Shipping costs as well as taxes, duties or charges in any jurisdiction levied in relation to the Products shall be for Customer’s account and will be added to each invoice as separate line items.
4. Payment Terms
The purchase price for the Products to be delivered under this Agreement and all other amounts due in connection therewith shall be due and payable in full upon the placement of an Order. Each Customer shall make the payment in US dollars in cash or by debit or credit card without any discount, deduction or offset whatsoever. In no event shall any loss, damage, injury, destruction or Force Majeure Event (as defined below) release Customer from its obligation to make the payments required herein.
5. Delivery and Acceptance
All deliveries of the Physical Products shall be made ex works Brooklyn, NY (Incoterms 2020) to the address on the Order Confirmation and title to and risk of loss for the Physical Products shall pass to the Customer upon delivery thereof to any common carrier at Dopl’s production facility in Brooklyn, NY. Dopl or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Physical Products.
Any times or dates for delivery of the Products by Dopl are estimates and shall not be binding on Dopl. Delivery of the Physical Products is estimated within ten (10) to fifteen (15) business days from the date of scan. Such estimate may be longer for other Physical Products. Dopl will make commercially reasonable efforts to notify the Customer if significant delays are expected. Dopl is entitled to deliver the Products under this Agreement in part and to invoice a Customer separately for such partial deliveries. In no event shall Dopl be liable for any delay in delivery. Delay in delivery of any Product shall not relieve any Customer of its obligation to accept delivery thereof.
Dopl shall deliver the Digital Products to the e-mail address provided by the Customer to Dopl or by using such other method as may be determined unilaterally by Dopl from time to time.
A Customer’s failure to accept delivery of any Product pursuant to a Confirmed Order shall not release or excuse such Customer from its obligation to timely pay all amounts due in connection with such Confirmed Order. If a Customer rejects or revokes acceptance of the Products or fails to pay any amounts when due, or repudiates with respect to all or part of a Confirmed Order, Dopl, in its sole and absolute discretion, may extend the period of delivery by such period as Dopl may deem reasonable, or withhold or cancel delivery of any Product, or cancel any or all Confirmed Orders without any further obligations to the Customer whatsoever. In such event the Customer shall be responsible for any and all costs and expenses incurred or damages or losses suffered by Dopl in connection with any such delay notwithstanding any action or inaction by Dopl with regard to such delay.
6. Examination and Conformity to Order
Promptly upon receipt of any Product, each Customer shall conduct a full and complete inspection of such Products and satisfy itself that the Products delivered conform with Dopl’s warranties and meet all requirements set forth in the Confirmed Order. Each Customer shall notify Dopl in writing of any apparent defects or other non-compliance with such Confirmed Order that Customer could reasonably have discovered during such inspection within seven (7) days from the date of receipt of such Products, and Customer shall notify Dopl in writing within seven (7) days of the date on which Customer shall first have become aware of any hidden defect or non-compliance which could not reasonably have been discovered during Customer’s initial inspection of the Products. Notwithstanding anything to the contrary contained herein, any and all claims for defective or non-compliant Products must be received by Dopl within thirty (30) days of the earlier to occur of (a) the delivery of the Products pursuant to this Agreement or (b) Dopl’s notification of the Customer that the Products are ready for delivery.
If a Customer fails to timely notify Dopl of any defects or non-compliance of any Product delivered or Customer uses, destroys or modifies any Product that Customer knows or should have known to be defective or non-compliant without Dopl’s prior written consent, such Customer shall be deemed to have unconditionally accepted such Products and waived all of its claims for breach of the Limited Warranty (as defined below) or otherwise in respect of such Products.
Physical Products that Dopl consents or directs a Customer in writing to be returned shall be returned to Dopl at the Customer’s risk to the destination directed by Dopl.
7. Description of Physical Products; Disclosures; Warnings
The Physical Products are manufactured by a 3D printing process and are composed of a core resin polymer powder mixture, binding, and infiltration material. Additional product lines may also utilize a photopolymer resin and enamel paint. The finalized material is fragile and should be treated with care to prevent it from breaking. The Physical Products are not toys and should be kept away from children. If parts are ingested, seek medical assistance immediately.
Slight differences may appear between the Customer and the Physical Products due to the nature of the 3D processes. Certain details may be difficult to decipher due to the minute stature of the Physical Products, and structures may be omitted due to their fragility in 3D productions.
Colors and detailing on the Physical Products may fade over time. Direct sunlight will lead to bleaching effects. The Physical Products should be kept away from moisture or chemicals.
Based on positioning and balance at the time of scan, not all Physical Products stand without support. In such cases, permanent stands are available for purchase and can be added after the miniature is produced. For additional product lines, permanent stands may, at Dopl’s sole discretion, come standard with offering.
8. Customer’s Representations
Customer represents and warrants that he or she has the right to agree to the reproduction of their likeness and all accompanying accessories, attire, and all other likenesses, associated with the Products (or portions thereof) on a Confirmed Order. Customer represents and warrants further that he/she is of legal age and able to enter into a contract, and is, as applicable, the legal guardian or custodian of the minor(s) being scanned. Customer represents that he/she is authorized to enter into this Agreement on behalf of each individual being scanned together with the Customer, and each such individual shall be treated as a Customer for the purposes of this Agreement.
Dopl will not, without any liability to the Customer, scan or produce an image of anyone under the age of majority without a parent or legal guardian's prior written consent. Dopl further reserves the right to, without any liability to the Customer, alter or delete from any scan any trademarks or logos that may, in Dopl’s sole judgment, infringe the intellectual property rights of third parties, if applied to any Product.
9. Intellectual Property
A.
“Intellectual Property” shall mean all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs, software, data collections, databases, images, drawings, training or educational materials and other documentation, and any related media) (d) trade secrets, know-how, and other confidential information or proprietary information, and (e) all other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world including all improvements or modifications thereof.
B.
Background Technology. Dopl and/or its licensor, as may be applicable, shall own and retain all rights, title and interest to any utilities, technology, technical documentation, processes, inventions, devices, methodologies, specifications, systems, techniques, algorithms, software, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, or other backend and background elements, files and features, Intellectual Property rights therein, and any improvements thereto used (whether made in connection with the Transactions, or otherwise), or any other information or materials presented, provided and/or used by Dopl or any of its directors, officers, employees, advisors, or agents and the directors, officers, employees, advisors or agents of its affiliates in connection with the Transactions (the “Background Technology”). No other right, license or authorization with respect to the Background Technology is granted to the Customer except as expressly set forth in this Section 9.
C.
License to Background Technology. Dopl hereby grants to the Customer a non-exclusive, worldwide, personal, non-sublicensable, non-transferable (except in connection with an assignment permitted under Section 14) license to use the Background Technology solely to use the Digital Product, only as deemed necessary to use such Digital Product as intended by Dopl. No other rights or license shall be granted to the Customer hereunder with respect to the Background Technology.
D.
Scan Data, Likeness, Image Rights. The Customer acknowledges that Dopl or its licensor, as may be applicable, owns all rights, title and interest, including but not limited to Intellectual Property rights in and to the scan data, likeness and image rights in all formats and derivatives including 2D, 3D, digital, and physical (collectively, the “Scan Data”) created in any of Dopl Sites through scanning of the Customer and the individuals on whose behalf Customer provided the authorization for scanning to Dopl. Where, by operation of law, any of the rights described herein do not vest initially in Dopl for any reason, the Customer hereby irrevocably assigns to Dopl all right, title and interest in the Scan Data, including all Intellectual Property rights pertaining thereto. Should applicable law preclude Dopl’s ownership of the Scan Data, the Customer hereby grants to Dopl an unlimited, worldwide, exclusive, perpetual, fully paid-up, assignable, sublicensable and royalty free license to use, modify, maintain, reproduce in any media, share with third parties for any reason, and distribute the Scan Data.
E.
License to Scan Data. Dopl hereby grants the Customer a non-exclusive, perpetual, worldwide, personal, non-sublicensable, non-transferable (except in connection with an assignment permitted under Section 14) license to view the Scan Data using such method or platform as may be determined and communicated by Dopl to Customer from time to time. In no event is Dopl required to provide the Customer with the Scan Data for download or other uses.
F.
No Reverse Engineering. The Customer agrees not to (a) modify, translate, decompile, reverse engineer, copy or duplicate any of Dopl’s Intellectual Property, nor to remanufacture or have remanufactured any products which incorporate Dopl’s Intellectual Property, (b) to use any of Dopl’s trademarks, service marks or trade names in any manner without the prior written permission of Dopl, or (c) to infringe, or permit a third party to infringe, Dopl’s rights to Dopl Intellectual Property or to adapt the Products in any way or to create a derivative work of any of Dopl Intellectual Property, except as may be authorized in writing by Dopl. Any act or omission of the Customer contrary to the provisions of this Section 9 shall be a material breach of this Agreement.
10. Limited Warranty
A. Products for Sale: The following provisions under this Section 10A shall solely apply to the Products (other than the Free Products) sold by Dopl at a price. All references to “Products” under this Section 10A shall mean the Products sold by Dopl to a Customer pursuant to a Confirmed Order.
Dopl warrants that the Products are free from defects in material and workmanship for ninety (90) days from the date of delivery (the “Limited Warranty”) to the Customer.
This Limited Warranty does not apply to defects, damage, failure or loss resulting from:
In the event of an alleged breach of the Limited Warranty (a “Defect”), the Customer must contact Dopl at +1 (718) 283-4086 or via email at cs@dopl.com to obtain instructions and an authorization for the return. All Products that are eturned to Dopl under this Limited Warranty must be authorized by Dopl in advance. A CUSTOMER’S FAILURE TO COMPLY WITH DOPL’S INSTRUCTIONS IN MAKING A WARRANTY CLAIM MAY RESULT IN A DENIAL OF ALL OR PART OF THE CLAIM. If Dopl confirms the Defect, Dopl shall, at its sole option, repair or replace the defective Product for Sale. In the event Dopl is unable to repair or replace the defective Product for Sale within a reasonable time, Dopl may, at its sole discretion, issue a refund to the Customer in the amount Dopl deems adequate. In no event shall any warranty claims for a Defect be made after the expiration of the Limited Warranty period. Any Products replaced by Dopl under this Section 10 shall be the property of Dopl. The Limited Warranty period for the Products repaired or replaced under this Section 10 shall not start anew.
Dopl may change the terms or availability of this Limited Warranty at any time at Dopl’s sole discretion without prior notice, but such changes will not apply to any claims made prior to the effective date of such change.
THE REMEDIES UNDER THIS LIMITED WARRANTY ARE THE CUSTOMERS’ SOLE AND EXCLUSIVE REMEDIES AND DOPL’S ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. CUSTOMERS MAY HAVE OTHER RIGHTS APART FROM THE SPECIFIC LEGAL RIGHTS SET FORTH HEREIN, WHICH VARY FROM STATE TO STATE.
B. FoC Products: The following provisions under this Section 10B shall solely apply to Free Products:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOPL PROVIDES THE FREE PRODUCTS ON AN “AS IS,” AND “AS AVAILABLE” BASIS. SHOULD THE FREE PRODUCT PROVE TO BE DEFECTIVE, THE CUSTOMER AND NOT DOPL ASSUMES THE ENTIRE COST OF ALL NECESSARY REPAIR. IN NO EVENT SHALL DOPL BE LIABLE OR RESPONSIBLE FOR ANY REPAIR, REPLACEMENT OR REPRODUCTION OF SUCH FREE PRODUCTS. DOPL DOES NOT WARRANT THAT (a) THE FREE PRODUCTS PROVIDED BY DOPL TO THE CUSTOMERS WILL MEET THE CUSTOMER’S REQUIREMENTS OR (b) THAT THE USE OF THE FREE PRODUCT WILL BE ERROR-FREE, OR (c) THAT THE FREE PRODUCT WILL BE COMPATIBLE OR WORK WITH ANY INTEGRATIONS, SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF VIRUS OR HARMFUL CODE, OR (d) THAT ALL OR ANY ERRORS WILL BE CORRECTED. THE ENTIRE RISK TO THE QUALITY AND PERFORMANCE OF THE FREE PRODUCTS IS WITH THE CUSTOMER.
C. Disclaimer of Warranties: The following provisions under this Section 10B shall apply to all Products (including Free Products).
TO THE EXTENT NOT PROHIBITED BY FEDERAL OR STATE LAW, THE LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THE LIMITED WARRANTY AND TO THE EXTENT NOT PROHIBITED BY FEDERAL OR STATE LAW, DOPL DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WARRANTIES OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, EXCEPT FOR THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FOR WHICH DOPL LIMITS THE DURATION AND REMEDIES TO THE DURATION OF THE EXPRESS LIMITED WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE CUSTOMER.
11. Limitation of Liability
IN NO EVENT SHALL DOPL BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF ANY BREACH OF THIS LIMITED WARRANTY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DOPL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL DOPL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS LIMITED WARRANTY EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION OR EXCLUSION MAY NOT APPLY TO SOME CUSTOMERS.
12. Indemnification
The Customer shall defend, indemnify and hold harmless Dopl and Dopl's affiliates and its officers, directors, employees, agents, successors and permitted assigns from and against all damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or resulting from bodily injury, death of any person or damage to real or tangible, personal property, and infringement of third party rights, resulting from (i) the negligent or willful acts or omissions of Customer, (ii) Customer's breach of its obligations under this Agreement including but not limited to Section 9 and (iii) Customer’s misrepresentations of the circumstances set forth in Section 8 of this Agreement.
13. Data Privacy
The Customer hereby agrees that Dopl may use and/or disclose data collected from the Customer and minors on whose behalf Customer authorized the scanning and the placement of an Order, including his or her likeness pursuant to Dopl’s privacy policy accessible at https://www.dopl.com/privacy-policy, as such may be amended by Dopl from time to time in accordance with the terms thereof. Dopl’s privacy policy shall form an integral part of these Terms and is hereby incorporated herein by reference.
14. Miscellaneous
The terms of this Agreement supersede any and all prior oral quotations, communications, agreements or understandings of the parties in respect of the Transactions and shall supersede any and all other terms and conditions contained in any order placed by a Customer otherwise communicated by a Customer.
No other terms or conditions shall be of any effect unless otherwise specifically agreed upon by Dopl in a writing duly executed by Dopl. Any additional or different terms or conditions contained in the Customer's order shall be deemed objected to by Dopl and shall not be binding on Dopl.
Failure of Dopl to object to terms and conditions communicated by a Customer shall in no event be construed as an acceptance of any other terms and conditions. Any communication or conduct of a Customer which confirms an agreement for any of the Transactions, as well as the consent of the Customer for his/her own behalf and on behalf of the other individuals (including minors) being scanned shall constitute an unqualified acceptance by the Customer and such other individuals (including minors) of these Terms.
If any provision contained in this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render such provision valid, legal and enforceable.
In the event of a violation or threatened violation of Dopl’s proprietary rights, Dopl shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Dopl would suffer irreparable harm.
No Customer may assign its rights or delegate any of its obligation under this Agreement arising hereunder without the prior written consent of Dopl. Any attempted assignment shall be null and void.
No waiver by Dopl of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Dopl to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, partnership, employment, franchise or agency relationship between the parties.
Dopl shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Dopl including, without limitation, acts of God, epidemic, pandemic (including but not limited to Covid-19), flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, local or national emergency measures, revolution, insurrection, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or telecommunication breakdown or power outage (each, a “Force Majeure Event”).
If Dopl has a website or application, the terms of use for such website or application shall apply in addition to these Terms. Such terms shall form an integral part of these Terms and are incorporated herein by reference.
15. Applicable Law and Jurisdiction
All matters relating to this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of New York, in each case located in the City of New York, New York County, although Dopl retains the right to bring any suit, action, or proceeding against a Customer for breach of this Agreement in such Customer’s country of residence. Each Customer waives any and all objections to the exercise of jurisdiction over such Customer by such courts and to venue in such courts. EACH CUSTOMER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THESE TERMS.
Last Modified: March 31, 2022
14. Miscellaneous
