1. SALE AND PURCHASE; LICENSE.
1.1. Products. CAD BLU agrees to sell to Customer, and Customer agrees to purchase, the system(s) (“System”), System parts (“Parts”), proprietary resins and thermoplastics and/or other consumables (collectively, “Consumables”), and/or other ancillary products (collectively, the “Products”) and/or Services (as defined in Section 1.3 (Services) below) that are set forth in any purchase order or any other CAD BLU-approved written purchase agreement tendered to CAD BLU (each a “Purchase Order”), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer communication. No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of CAD BLU. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects.
1.2. Software and Documentation. If a Product includes the licensure of any CAD BLU-provided software, which term shall include program code together with applicable technical documentation, containing specifications, instructions, and/or other information accompanying such software or made available by CAD BLU from time to time (collectively “Software”), CAD BLU hereby grants to the Customer a non-exclusive, nontransferable, revocable, and limited license to use the Software for its internal purposes and solely in conjunction with the use of Product to which it relates. Customer acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed Software use to the extent necessary to resolve any conflict with these Terms. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject to these Terms as well as the payment of any applicable Software license fees, including fees for specific Software functionalities, as identified by CAD BLU in writing.
1.3. Services. CAD BLU agrees to offer and provide services related to the Products (“Services”) that are identified in a Purchase Order, and Customer agrees that such services are offered and provided at all times subject to, and in accordance with, these Terms. Notwithstanding the foregoing, certain Services, including support and maintenance services, may be offered under, and made subject to, additional terms or conditions in a separate agreement (the “Services Agreement”), which, on full execution, shall control and govern to the extent necessary to resolve any conflict with these Terms.
1.4. Restrictions on Use. Customer agrees that it shall not directly or indirectly:
modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof;
reverse engineer the Products, any part thereof, or any composition made using the Products;
rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire System;
copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by CAD BLU in writing;
change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software);
make or permit use of any trademark, trade name, service mark or other commercial symbol of CAD BLU without its prior written consent;
operate or make use of the Products in any way violative of applicable laws and regulations; and/or
take or permit any other action which could impair CAD BLU’s rights, or damage the image or reputation of quality inherent in the Products, CAD BLU’s business, reputation, Intellectual Property (defined below) or other valuable assets or rights. In the event Customer rents, leases, sells or otherwise transfers the Products to a third party, Customer agrees that it will require such third party to be bound by Sections 1.2 (Software and Documentation), 1.4 (Restrictions on Use), and 8 (Proprietary Rights) hereof as a condition of such rental, lease, sale or other transfer.
2. PAYMENT AND TAXES.
2.1. Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to CAD BLU within three (3) business days after submission of the Purchase Order to CAD BLU. Thereafter, Customer may not cancel or change any Purchase Order without CAD BLU’s prior written consent.
2.2. Payments and Credit. Customer shall pay for the Products, Software and/or Services as and within the time frames or on or before the date(s) specified in the Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by CAD BLU. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to CAD BLU in its discretion. Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars.
2.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by CAD BLU, then, without prejudice to CAD BLU’s other rights and remedies:
all outstanding sums shall immediately become due and payable to CAD BLU, notwithstanding any credit terms previously granted by CAD BLU to the Customer;
CAD BLU may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer;
CAD BLU may retain any amount already paid to it by Customer; and
CAD BLU may recover its reasonable attorney’s fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
2.4. Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the Products, Software and/or Services, except for those taxes imposed upon CAD BLU’s net income
Seller agrees to indemnify, hold harmless, and at CAD BLU’s request, defend CAD BLU and any of CAD BLU’s subsidiaries and affiliates and their respective officers, directors, customers, agents and employees (each, an Indemnified Party) against all claims, liabilities (including, without limitation, for personal injury, death or property damage), damages, losses and expenses, including attorneys’ fees and expenses, incurred by an Indemnified Party on account of the acts or omissions of Seller or its employees, agents or subcontractors in any way connected with the Goods or Services provided under this Order, including, without limitation,
any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment;
any claim based on the negligence, omissions or willful misconduct of Seller or Seller’s employees, agents or subcontractors; and
any claim by a third party against any Indemnified Party alleging that the Goods or Services, the results of such Services or any other processes provided under this Order, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other Goods or Services
any breach by Supplier of these Terms. Seller shall not settle any such claim without CAD BLU?s prior approval. Seller agrees to pay or reimburse all costs that may be incurred by an Indemnified Party in enforcing this indemnity, including attorneys’ fees and expenses.
If CAD BLU’s or CAD BLU’s distributors? or customers? use of Goods and/or Services covered by this Order shall be enjoined or otherwise prevented by legal action, Seller shall, at its sole expense,
substitute fully equivalent non-infringing Goods and Services;
modify the Goods and Services so that they no longer infringe but remain fully equivalent in functionality;
obtain for CAD BLU and its affiliates, distributors and customers the right to continue using the Goods and Services; or
refund all amounts paid for the infringing Goods and Services.