Terms and Conditions

1.1 These Terms apply to every quote, order, product and service provided by Upsurge Additive Manufacturing Ltd. (“Upsurge”) to any business or individual customer (“Customer”). In these Terms, “consumer” means an individual who buys for personal, family or household purposes, and “business Customer” means any other Customer. Section 13 also applies to anyone who uses Upsurge’s online tools, whether or not they place an order.

1.2 Quotes are valid for 15 days from issue. Customer may accept a quote by approving it through Upsurge’s online ordering portal, issuing a purchase order, confirming in writing, or making payment. A binding contract is formed only when Upsurge issues an order confirmation. If Upsurge does not confirm an order, any payment received for it will be refunded in full.

1.3 Any terms in Customer’s purchase order or other documents that add to or differ from these Terms are rejected and have no effect, even if Upsurge acknowledges the purchase order, begins work, or ships products.

1.4 If Customer is a consumer, nothing in these Terms limits any right that cannot be waived under the British ColumbiaBusiness Practices and Consumer Protection Act, the Sale of Goods Act or any other applicable consumer protection law.

1.5 If a separate written agreement signed by both parties conflicts with these Terms, the signed agreement prevails. Otherwise, these Terms prevail over any quote, except for the price, quantity, specifications and lead time stated in the quote.

2.1 Scope. Design services include only the deliverables, file formats and number of revision rounds expressly listed in the quote. Anything not listed is outside the scope.

2.2 Revisions. The number of revision rounds included is stated in the quote. A revision round is one consolidated set of changes requested by Customer in writing. Any additional revision rounds, new features, or changes to the original brief are additional work at an additional cost, and will start only after Customer approves that cost in writing (email is sufficient).

2.3 Acceptance. Customer must review each deliverable within five (5) business days of delivery. A deliverable is deemed accepted unless, within that period, Customer sends a written objection identifying a specific way in which the deliverable does not conform to the quote. An objection about anything not included in the quote is not a valid objection; Upsurge will treat it as a request for additional work under Section 2.2, and the deliverable remains accepted. Upsurge’s only obligation for a valid objection is to correct the deliverable so that it conforms to the quote. A deliverable is also deemed accepted if Customer uses it, including by manufacturing it, sharing it with third parties, or including it in any patent or other intellectual property filing. Deemed acceptance does not transfer ownership, which is governed by Section 6.4.

2.4 Payment. Design services are payable only by bank transfer, as stated in the quote. Credit cards are not accepted for design services. A request for out-of-scope work does not suspend or delay Customer’s obligation to pay for work already delivered.

2.5 Validation. Upsurge designs to the brief provided by Customer. Unless engineering validation is expressly included in the quote, Customer is responsible for testing and confirming that the design is suitable for its intended use, including safety, loads, regulatory and performance requirements.

2.6 Ownership. Ownership of design deliverables transfers to Customer only upon payment in full, as set out in Section 6.4.

2.7 Suspension. If any payment is overdue, Upsurge may suspend work and withhold delivery of any deliverable until payment is received in full.

2.8 Customer Delays. Timelines depend on Customer providing timely information, feedback and approvals. Any delay caused by Customer extends the timeline accordingly, and Upsurge will not be in breach as a result.

2.9 Insurance and Product Liability. Customer is solely responsible for testing, certification and product liability insurance for any product that incorporates the design.

3.1 Standard Tolerances. Parts are manufactured to Upsurge’s published standard tolerances for the selected process and material. Upsurge is bound by tighter or specific tolerances only if they are stated in the quote and supported by a technical drawing provided by Customer.

3.2 Process Characteristics. Additive manufacturing has inherent characteristics that are not defects, including surface texture, visible layer lines, minor colour variation, minor warping, and dimensional variation within standard tolerances.

3.3 Customer Designs. Where Customer provides the design, Customer is solely responsible for its function, strength, fit and suitability for any purpose. Customer confirms it is not relying on Upsurge’s skill or judgment for the design or its suitability. Any design-for-manufacturing feedback from Upsurge is provided only to help produce the part with Upsurge’s process, and is not a review, approval or validation of the design.

3.4 Limited Warranty. Upsurge warrants that parts will be free from manufacturing defects, meaning defects caused by Upsurge’s process that fall outside standard tolerances or do not conform to the quote.

3.5 Claims. Customer must inspect parts on delivery and submit any warranty claim in writing, with photos, within ten (10) business days of delivery. Upsurge may require the parts to be returned for inspection before accepting a claim. Parts not claimed within that period are deemed accepted.

3.6 Remedy. For a valid claim, Upsurge will, at its option, reprint the defective parts or refund the amount paid for them. This is Customer’s only remedy.

3.7 Exclusions. This warranty does not cover defects caused by Customer’s design or material selection, misuse, modification, post-processing by others, or use outside the material’s specifications.

3.8 Disclaimer. Except as stated in this Section and subject to Section 3.9, Upsurge makes no other warranty or condition, express or implied, including merchantability or fitness for a particular purpose.

3.9 Consumers. If Customer is a consumer, Sections 3.5, 3.6 and 3.8 do not exclude or limit the conditions and warranties implied by the British Columbia Sale of Goods Act, which continue to apply.

4.1 Lead Times. Any lead time or dispatch date represents Upsurge’s estimated delivery time based on capacity at the time of order; actual delivery times may vary. Lead times begin only after Upsurge has issued the order confirmation and received any required payment and final approved files. For consumers, the order confirmation states a supply date.

4.2 Partial Shipments. Upsurge may deliver orders in partial shipments.

4.3 Delivery and Risk. Unless the quote states otherwise, all parts are delivered FCA (Incoterms 2020) at Upsurge’s facility in North Vancouver, British Columbia. Risk of loss or damage passes to Customer when the parts are handed to the carrier or collected by Customer.

4.4 Shipping Costs and Claims. Shipping, insurance, duties and taxes are additional unless included in the quote. If Upsurge arranges shipping, it does so on Customer’s behalf, and shipping insurance is purchased only if Customer requests and pays for it. Claims for loss or damage in transit must be made against the carrier; Upsurge will provide reasonable assistance.

4.5 Collection and Storage. Parts not collected within thirty (30) days after Upsurge notifies Customer that they are ready may be subject to reasonable storage fees. Parts not collected within ninety (90) days may be disposed of after a further written notice to Customer, and the order remains payable in full.

5.1 Payment Terms. Payment is due as stated in the quote or invoice. Unless otherwise agreed in writing, orders for parts are payable in full before production begins. Design services are payable as set out in Section 2.4.

5.2 Currency and Taxes. All prices are in Canadian dollars. Applicable taxes are calculated and shown at checkout or on the invoice.

5.3 Collection Costs. Customer will pay all reasonable costs incurred by Upsurge in collecting overdue amounts, including collection fees, filing fees and legal fees.

5.4 Payment Disputes. Business Customers agree, before initiating any chargeback or payment dispute, to notify Upsurge in writing and allow ten (10) business days to resolve the issue, and any amount reversed through a chargeback for products or services that were delivered remains owed to Upsurge. This Section does not limit any consumer’s statutory rights.

5.5 Security Interest. Where Upsurge extends credit to a business Customer, the business Customer grants Upsurge a security interest in all parts supplied under the order and their proceeds until Upsurge is paid in full, as set out in a security agreement signed by the business Customer, which Upsurge may register under the British Columbia Personal Property Security Act.

6.1 Customer Materials. Customer retains ownership of all files, drawings, specifications and other materials it provides to Upsurge. Customer grants Upsurge a non-exclusive, royalty-free licence to use, copy and store those materials only to quote, manufacture, deliver and support Customer’s orders, and to keep business records.

6.2 Customer Warranty. Customer represents that it owns or has the right to use all materials it provides, and that manufacturing them will not infringe any third party’s intellectual property rights. Upsurge may refuse or cancel any order that it reasonably believes is infringing or unlawful.

6.3 Upsurge IP. Upsurge retains all rights in its processes, know-how, methods, build parameters, software, templates and other pre-existing materials, including any improvements developed while providing products or services.

6.4 Design Deliverables. Upon payment in full of all amounts owed for design services, Upsurge will assign to Customer ownership of the final design deliverables listed in the quote, by a written assignment signed by Upsurge, and will cause the individual authors to waive their moral rights in those deliverables in favour of Customer. Until payment in full, all rights in the design deliverables remain with Upsurge, and Customer may not use, manufacture, share, or file any patent or other intellectual property application based on them.

6.5 Unselected Concepts. Concepts, sketches and proposals that are not part of the final design deliverables, including proposals not accepted by Customer, remain the property of Upsurge.

6.6 Pre-existing Elements. If the final design deliverables include any of Upsurge’s pre-existing elements, Customer receives a non-exclusive, perpetual licence to use those elements only as part of that design.

6.7 Publicity. Upsurge will not publicly display Customer’s parts or designs without Customer’s written consent.

7.1 Customer Information. Upsurge will keep confidential all files, drawings, specifications and other non-public information that Customer provides (“Confidential Information”), and will use it only to perform Customer’s orders. Upsurge will protect it with at least the same care it uses for its own confidential information, and no less than reasonable care.

7.2 Upsurge Information. Business Customers will keep Upsurge’s quotes, pricing and technical recommendations confidential and will not share them with third parties, except their own advisors. Nothing in these Terms restricts any Customer from posting or sharing a review.

7.3 Exceptions. These obligations do not apply to information that is or becomes public through no fault of the receiving party, was already known to it, is independently developed, or must be disclosed by law or court order.

7.4 Subcontractors and Service Providers. Upsurge may share Customer’s Confidential Information with subcontractors, and with service providers that host or process it on Upsurge’s behalf (including Upsurge’s online quoting and ordering platform, which may store data outside Canada), only as needed to quote, complete and support an order, and only if they are bound by confidentiality or security obligations at least as protective as this Section.

7.5 Return or Destruction. Upon Customer’s written request, Upsurge will delete Customer’s Confidential Information, except copies kept in archived backups or business records, which remain subject to this Section.

7.6 Separate Agreement. If Customer and Upsurge have signed a separate confidentiality or non-disclosure agreement, that agreement prevails.

8.1 Excluded Damages. To the maximum extent permitted by law, Upsurge will not be liable for any indirect, incidental, special, consequential or punitive damages, including lost profits, lost revenue, downtime, product recall costs, or the cost of other materials, assembly or labour, whether in contract, tort (including negligence) or otherwise, even if Upsurge was advised of the possibility of such damages.

8.2 Liability Cap. Upsurge’s total liability arising out of or relating to any order will not exceed the amount paid by Customer to Upsurge for that order.

8.3 Allocation of Risk. Customer acknowledges that Upsurge’s prices reflect this limitation of liability and allocation of risk.

8.4 Exceptions. This Section does not limit liability for death or personal injury caused by Upsurge’s negligence, fraud or wilful misconduct, or any liability that cannot be limited under applicable law, including as described in Section 1.4.

9.1 Customer Indemnity. Customer will defend, indemnify and hold harmless Upsurge and its directors, employees and agents from all claims, losses, damages, fines and costs (including reasonable legal fees) arising from:

1. Customer's design, files, specifications or material selection;
2. any claim that parts made from Customer's materials infringe a third party's intellectual property rights;
3. for business Customers, the business Customer's use, sale or distribution of the parts, or any product that incorporates them; or
4. for business Customers, the business Customer's breach of these Terms.

9.2 Exception. Section 9.1 does not apply to the extent a claim is caused by a manufacturing defect covered by Section 3.4, or by Upsurge’s fraud or wilful misconduct.

9.3 Notice. Upsurge will notify Customer promptly of any claim covered by this Section and provide reasonable cooperation, at Customer’s expense.

10.1 Changes. Customer may request changes to files, quantities, materials, finishes or specifications only before production begins. Any change requires an updated quote, and may change the price and lead time. Once production has begun, changes are not accepted; any modified part requires a new order.

10.2 Cancellation of Parts Orders. Customer may cancel an order for parts by written notice before production begins, and Upsurge will refund the amount paid less any costs already incurred, including file preparation and materials purchased for the order. Once production has begun, the order cannot be cancelled and is payable in full.

10.3 Cancellation of Design Services. Customer may cancel design services by written notice at any time. Customer will pay for all work completed up to the date Upsurge receives the notice, and any amounts already paid for completed work are non-refundable. Section 6.4 continues to apply to any deliverables not paid in full.

10.4 Cancellation by Upsurge. Upsurge may cancel any order before production begins, including if the part cannot be reliably manufactured or the order may be infringing or unlawful. In that case, Upsurge will refund the amount paid for the cancelled portion and will have no further liability for the cancellation.

10.5 Consumers. If Customer is a consumer, Customer also has the cancellation and refund rights set out in the British Columbia Business Practices and Consumer Protection Act, and Sections 10.1 to 10.3 do not limit those rights.

11.1 Controlled Goods and Data. Customer must identify in writing, before requesting a quote, any files, technical data or parts that are subject to Canada’s Controlled Goods Program, the Export and Import Permits Act, the U.S. International Traffic in Arms Regulations (ITAR), or any other export control law. Customer must not send any such data to Upsurge unless Upsurge has first confirmed in writing that it is authorized to receive it.

11.2 Customer Responsibility. Customer is solely responsible for the export classification of its parts and data, and for obtaining any permits required to export, transfer or use them. Upsurge may refuse, suspend or cancel any order it reasonably believes may violate export control laws.

11.3 Prohibited Uses. Customer warrants that no order is for, and no part will be used as:

1. a firearm, firearm part, ammunition, prohibited device or other weapon, or any part or component of them;
2. an implant or any device intended to remain in the human body;
3. a toy or other product intended for use by children under 14 years of age, unless Upsurge has agreed in writing before production; or
4. any purpose that is unlawful.

Upsurge may refuse or cancel any order that it reasonably believes falls within this Section.

11.4 Children's Products. If Upsurge agrees to manufacture a product under Section 11.3(c), Customer is solely responsible for its design, testing and compliance with the Canada Consumer Product Safety Act, the Toys Regulations and any other applicable requirements.

12.1 Upsurge will not be liable for any delay or failure to perform caused by events beyond its reasonable control, including fire, flood, earthquake, pandemic, power or internet outages, labour disputes, carrier delays, shortages of materials or supplies, equipment breakdown not caused by Upsurge’s negligence, or government action.

12.2 If a force majeure event delays an order by more than sixty (60) days, either party may cancel the unperformed portion of the order by written notice, and Upsurge will refund any amount paid for that portion.

12.3 Force majeure does not excuse Customer’s obligation to pay for products or services already delivered.

13.1 Upsurge provides calculators, material selectors, design guides and other online tools and technical information (“Tools”) for general guidance only. Results are estimates based on typical values from material manufacturers and Upsurge’s own testing, and may not reflect the actual performance of a specific part, design, geometry, build orientation or application.

13.2 Tools are not engineering advice and do not replace testing or validation by a qualified person. The user is solely responsible for verifying any result before relying on it, including by prototyping and testing in the intended application.

13.3 Tools and technical information are provided “as is”, for information purposes only, and are subject to change without notice. Nothing in the Tools creates any warranty. Upsurge does not warrant that they are accurate, complete or current, and is not liable for technical or editorial errors or omissions.

13.4 To the maximum extent permitted by law, Upsurge is not liable for any loss arising from the use of, or reliance on, the Tools.

13.5 This Section applies to any use of the Tools, whether or not an order is placed.

14.1 Governing Law. These Terms are governed by the laws of British Columbia and the federal laws of Canada applicable there. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

14.2 Jurisdiction. The courts of British Columbia have exclusive jurisdiction over any dispute arising out of or relating to these Terms, except that a consumer may bring a claim in any court or tribunal available to the consumer by law, including the British Columbia Civil Resolution Tribunal.

14.3 Entire Agreement. These Terms, together with the quote and order confirmation, are the entire agreement between the parties for each order, and replace all prior discussions and representations.

14.4 Changes to these Terms. Upsurge may update these Terms from time to time. The version in effect at the time of the order confirmation applies to that order, and an update does not change any order already confirmed.

14.5 Severability. If any provision is found invalid or unenforceable, it will be limited to the minimum extent necessary, and the rest of these Terms will remain in effect.

14.6 No Waiver. A failure or delay by Upsurge in enforcing any right is not a waiver of that right.

14.7 Assignment. Customer may not assign any order without Upsurge’s written consent.

14.8 Independent Parties. Nothing in these Terms creates a partnership, joint venture or agency relationship.

14.9 Notices. Notices under these Terms may be given by email to the addresses used for the order.

14.10 Survival. Sections 2.6, 3, 5, 6, 7, 8, 9, 11, 13 and 14 survive the completion or termination of any order.