1. GENERAL PROVISIONS – The SALES AGREEMENT (Agreement) sets forth the terms by which CAD BLU, Inc. will transfer to Customer the Equipment, Approved Material and will license to Customer any associated Software (collectively and individually, Products) listed in the DESCRIPTION section of this Agreement. The Equipment is designed for use with Approved Material. Approved Material is jetting material designed and sold by or for CAD BLU for use in the Equipment.
ALL TRANSFERS (WHETHER BY SALE, LEASE, OR OTHERWISE) ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON CUSTOMER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON CAD BLU, Inc. UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OF CAD BLU, Inc. This Agreement, and not any purchase order or other document of Customer, shall be deemed an offer or counter-offer and is a rejection of any inconsistent prior terms and conditions. Customer, by accepting the Products, shall be deemed to have assented to the terms and conditions set forth on this or any other document hereafter sent by CAD BLU, Inc. notwithstanding any terms contained in any prior or later communication from Customer and whether or not CAD BLU, Inc. shall specifically or expressly object to any such terms. CAD BLU, Inc. failure to object to any provisions of any subsequent document, communication, or act of Customer shall not be deemed a waiver of any of the terms hereof.
If part of this Agreement is held by a court to be invalid, the remainder of the Agreement will still be valid.
CUSTOMER ACKNOWLEDGES THAT THE EQUIPMENT AND ANY ASSOCIATED SOFTWARE MAY INCLUDE COMPONENTS OR MATERIALS THAT ARE NEW OR RECONDITIONED TO LIKE-NEW PERFORMANCE AND FUNCTIONALITY.
2. LICENSES – Customer agrees that the Products comprise a single system, and the Equipment may not be used with non-approved material. Customer agrees that no rights or licenses under CAD BLU patents shall be implied from the transfer of the Equipment or associated Software to Customer, and Customer does not receive any rights under CAD BLU patents. Rather CAD BLU grants Customer the right under CAD BLU patents to use the Equipment and associated Software in conjunction with Approved Material purchased by Customer from CAD BLU. Customer acknowledges and agrees that, in order to obtain the right under CAD BLU patents to use the Equipment with the Approved Material, Customer must purchase the Approved Material from CAD BLU.
3. WARRANTY – CAD BLU will promptly repair or replace the Equipment, if required, to make the Equipment free of defects during the warranty period if the Equipment is used under the rights and licenses granted pursuant to Section 2 of this Agreement. Normal consumable or expendable parts, (such as fuses or lamps), and repairs required because of improper use (e.g. use of non-approved material) or abnormal conditions (e.g., misuse, neglect or any condition arising from events of force majeure or service by anyone other than CAD BLU), are excluded from this warranty. IT SHALL BE THE RESPONSIBILITY OF CUSTOMER TO SHOW THAT THE DAMAGE NECESSITATING SUCH REPAIRS IS NOT CAUSED BY CUSTOMER’S USE OF NON-APPROVED MATERIAL The warranty and service obligations are only valid in the United States and Canada. The warranty period is ninety (90) days, unless otherwise stated in the Agreement, and shall start thirty (30) days after delivery to the carrier (F.O.B. 3D’s Plant) or upon installation, whichever is sooner. THIS WARRANTY IS EXCLUSIVE, AND CAD BLU MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LIMITATION OF WARRANTY SET FORTH HEREIN SHALL SURVIVE THE CANCELLATION, COMPLETION, OR OTHER TERMINATION OF THIS CONTRACT FOR ANY REASON.
4. LIMITATION OF LIABILITY
Unless otherwise specifically provided in this Agreement, the liability and/or obligations of CAD BLU under this Agreement or arising out of the transfer and/or use of the Products by Customer or others shall not exceed the purchase price of the Products. CAD BLU SHALL NOT IN ANY EVENT BE LIABLE TO CUSTOMER FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF CAD BLU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF CUSTOMER OR OTHER USE OR ANY LIABILITY OF CUSTOMER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY CAD BLU? GROSS NEGLIGENCE. THE LIMITATION OF LIABILITY SET FORTH HEREIN SHALL SURVIVE THE CANCELLATION, COMPLETION, OR OTHER TERMINATION OF THIS CONTRACT FOR ANY REASON.
5. INSTALLATION AND SERVICE
CAD BLU will install the Equipment and any associated Software and will provide any remedial and preventive maintenance which is required to keep the Equipment and any associated Software in good operating condition during the warranty period, unless otherwise stated on page one.
Customer will be responsible for having the installation site properly prepared before the Equipment and any associated Software is installed. CAD BLU, Inc. will help Customer specify the requirements for preparing the Installation Site. In addition to the installation charge(s), if any, as specified on page one of this Agreement, Customer will arrange and pay for any special handling charges (such as storage, drayage, cranes, building modifications or other similar charges).
Installation and/or any remedial and preventive maintenance will be performed by CAD BLU, Inc between 8:00 a.m. and 5:00 p.m., local time, Monday through Friday, excluding local holidays. CAD BLU, Inc and Customer will cooperate to satisfy any Customer security requirements and still allow full and free access to the Equipment. Customer will provide computer time for any remedial and preventive maintenance or installation at no cost to CAD BLU, Inc.
6. DELIVERY – If conditions arise which prevent compliance with delivery schedules CAD BLU, Inc will not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. However, CAD BLU, Inc will use reasonable efforts to give notice of delays. Delays will not be grounds for cancellation. Delivery occurs Ex Works on the actual shipping date. Customer has the risk of loss upon delivery. Freight and insurance will be prepaid and invoiced unless otherwise specified at time of order.
7. PAYMENT AND COLLECTION –
(a) Unless otherwise stated on page one, payment terms shall be: Ten percent (10%) NON-REFUNDABLE deposit with order, ninety percent (90%) after notification that Equipment is ready to ship. Notification shall be provided by email. Restrictive endorsements or other statements on checks accepted by CAD BLU, Inc. will not apply.
(b) Customer shall reimburse CAD BLU, Inc. for all expenses and costs (including reasonable attorneys’ fees) associated with attempts to collect delinquent or dishonored payments, whether such expenses and costs were incurred by CAD BLU, Inc. in connection with a lawsuit or otherwise.
(c) Interest amounts may be added to any past due amounts at the lower of 1.5% per month or the maximum rate allowed by law.
(d) If Customer claims exemption(s) for sales or use tax(es), then Customer shall provide CAD BLU, Inc. with a copy of Customer’s tax exemption certificate, direct pay certificate or resale certificate for the ship to location.
(e) Although CAD BLU, Inc. will not accept returns in most cases, where returns are authorized Customer will pay a fifteen percent (15%) restocking fee on the gross value of all returns.
(f) Maximum credit card purchase is $5,000 total.
8. PATENTS – If anyone claims the Equipment and any associated Software infringes their U.S. Patent, copyright, trade secret or other proprietary right, CAD BLU will indemnify and hold Customer harmless from any damages, judgments or settlements resulting from the claim. This section is only effective if Customer promptly notifies CAD BLU in writing of the claim and permits CAD BLU to elect to take over the defense of the action. If CAD BLU takes over the defense, CAD BLU may select the counsel and have the sole right to defend or settle the matter. CAD BLU may substitute comparable non-infringing equipment or software, or modify the Equipment or Software to make the Equipment or Software non-infringing. Alternatively, CAD BLU may obtain a right for the Customer to continue using the Equipment and any associated Software. This indemnification does not apply to claims resulting from non-CAD BLU modifications to the Equipment or Software, use with other devices added by the Customer or use of non-approved material by the Customer.
9. TITLE – Title remains in CAD BLU, Inc until delivery occurs as described in section 6 above. Customer grants CAD BLU, Inc a first priority security interest in all Equipment delivered until CAD BLU, Inc receives payment in full for the Equipment and any associated Software and will cooperate with CAD BLU, Inc in executing and filing of UCC financing statements or any other relevant documents.
10. EXPORT COMPLIANCE
A. EMBARGOED COUNTRIES. CAD BLU products (system, material, spare parts, software and technology) are subject to and governed by U.S. export control laws. U.S. law does not allow re-export of CAD BLU products to the embargoed countries of Cuba, Iran, Iraq, Libya, The Sudan, Syria, North Korea and the Taliban controlled areas of Afghanistan.
B. DENIAL LISTS. When purchasing CAD BLU products, you shall not transfer, export or re-export, directly or indirectly, any CAD BLU products and/or technology or software to countries and/or entities on the embargoed lists of the following U.S. government agencies:
Denied Persons List (http://www.bxa.doc.gov/DPL/2_denial.htm
Entity List (http://www.bxa.doc.gov/Entities/)
Specially Designated Nationals (http://www.treas.gov/ofac/)
Debarred Parties (http://www.pmdtc.org/debar059.htm)
C. END-USE. The nature of CAD BLU products lends itself as a “dual-use” product that could be used for proliferation of nuclear, missile technology and chemical/biological weapons activities. The possession of any knowledge that CAD BLU products will be used in the design, development, production or use of any nuclear explosive devices, missiles, chemical or biological weapons renders the sale and transfer of our products, technology and software prohibited under U.S. law.
D. REMOTE APPLICATION. You may not sell, lease, lend or make available the use of CAD BLU machines by remote use of our software to any embargoed countries, denied entities on U.S. government agencies lists and for any suspected dual use.
These obligations shall survive the termination of this agreement and by signing this agreement, you have agreed to the terms outlined above.