PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS, SOFTWARE, OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE ("TERMS") OF ARISE INFOSOFT AND/OR ITS AFFILIATES (COLLECTIVELY, “Arise”), WHICH APPLY TO ANY SALE OF Arise PRODUCTS, LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS”, SOFTWARE” AND “SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (YOU AND SUCH ENTITIES, COLLECTIVELY, "CUSTOMER"), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY ARISE PRODUCTS, SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS, DELETE OR RETURN LICENSED SOFTWARE AND NOT USE ANY RELATED SERVICES.
1. SALE AND PURCHASE; LICENSE.1.1. Products. Arise 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 Arise-approved written purchase agreement tendered to Arise (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 Arise. 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 Arise-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 Arise from time to time (collectively "Software"), Arise 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 Arise in writing.
1.3. Services. From time to time, Arise 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: (i) 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; (ii) reverse engineer the Products, any part thereof, or any composition made using the Products; (iii) 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; (iv) 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 Arise in writing; (v) 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); (vi) make or permit use of any trademark, trade name, service mark or other commercial symbol of Arise without its prior written consent; (vii) operate or make use of the Products in any way violative of applicable laws and regulations; and/or (viii) take or permit any other action which could impair Arise' rights, or damage the image or reputation of quality inherent in the Products, Arise' 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 Arise within three (3) business days after submission of the Purchase Order to Arise. Thereafter, Customer may not cancel or change any Purchase Order without Arise' 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 Arise. 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 Arise 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 Arise, then, without prejudice to Arise' other rights and remedies: (a) all outstanding sums shall immediately become due and payable to Arise, notwithstanding any credit terms previously granted by Arise to the Customer; (b) Arise 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; (c) Arise may retain any amount already paid to it by Customer; and (d) Arise 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 Arise' net income. 3. TITLE, DELIVERY AND RISK OF LOSS. - See more at:
3. Transfer TermsTransfer Terms. Delivery is made available Ex Works (Incoterms 2010) at Arise' designated facility, unless agreed otherwise by the parties in the respective order, with respect to shipping costs, risk of loss and title transfer, except that regardless of the delivery method title transfer shall ever occur for any licensed Software associated with any Product sale. Notwithstanding delivery and the passage of risk and whether or not credit is extended for any Product purchase, the following shall apply:
3.1 If the applicable law (as determined according to Section 16 (Jurisdiction) below) so permits, property in and title to Products shall remain with Arise, and shall not pass to Customer, until Arise has received payment of the full price and license fees (if applicable) for (a) all Products, Software and/or Services that are the subject of these Terms, and (b) all other goods and/or services supplied by Arise to Customer under any contract whatsoever. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Arise and Customer. Moreover, Customer shall keep the Products identified as retained until such retention lapses.
3.2 If the applicable law does not permit the arrangement described in Section 3.1.1 above, Arise hereby reserves in the Products (as well as all proceeds resulting from any sale thereof), and Customer grants and agrees that the Products shall remain fully subject to, a first priority purchase money security interest, until Arise has received payment of the full price and license fees (if applicable) for all the items listed in paragraphs (a) and (b) of Section 3.1.1. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Arise and Customer. Moreover, Customer hereby covenants that (i) no hindrance to its granting of the above security interest exists in any of its third party contracts; or (ii) in the event such a hindrance does exist, Customer shall assist Arise in exercising, and shall take all actions necessary to protect and maintain such security interest.
3.3Delivery. Arise will attempt to cooperate with Customer's requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefor shall be Customer's sole obligation and expense; and that in no event shall Arise be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. Customer will notify Arise in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products and licensed Software shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Arise, if no such notice is received.
4. INSTALLATION.Products that do not require installation by Arise may be installed by Customer and used at any time following delivery. Arise (or its authorized technical representative) will install those Products (including Software) or Parts designated as requiring installation by Arise or its authorized technical representative (such Products or Parts, "Arise Installed Products/Parts"), at Customer's designated facility following receipt of all applicable payments related thereto. Prior to such installation, Customer, at its expense, shall complete all applicable Product site preparations for installation, as specified by applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall thereafter provide such other assistance, services and facilities as may be requested by Arise (or its authorized technical representative) to complete such installation. Arise Installed Products/Parts shall not be handled, operated, opened, dismantled or used at any time prior to completion of required installation thereof, and then, initially in the presence and under the supervision of authorized Arise technical personnel. Where applicable and required by Arise, Arise (or its authorized technical representative) will perform a standard test of the Products and present a certificate of installation ("COI") upon completion of the required installation.
5. TRAININGDuring any Product installation required to be performed by Arise (or its authorized technical representative), and in consideration for Customer's payment of charges due (unless otherwise specified in the Purchase Order acceptance), Arise shall make available to qualified personnel of Customer basic training in the use and operation of the Products according to the applicable Product documentation. Subsequent to any such required Product installation, Arise may offer and provide such training services from time to time, in its sole discretion.