Terms and Conditions Of Sale
Last updated: April, 2024
Additive Monitoring Inc. dba Phase3D with a principal place of 2415 W 19th St., STE 2B-1 Chicago IL 60608 is referred to herein as “Phase3D.” The person or entity buying Hardware designed by Phase3D, licensing Software from Phase3D, including but not limited to any Software that is preloaded on or to be used with the Hardware, or buying Services from Phase3D is referred to herein as the “Customer.”
Each order form is subject to these Terms and Conditions of Sale (these “Terms and Conditions”). These Terms and Conditions, when taken together with any order form, price list, quotation, acknowledgment, scope of work or Statement of Work, in each case accepted in writing by Phase3D, and any invoice from Phase3D relating to the sale of Hardware, licensing of Software, or provision of Services, and all documents incorporated by specific reference herein or therein (upon acceptance by Phase3D, an “Order”), constitute the complete and exclusive statement of the terms of the agreement governing the sale of Hardware, license of Software and/or the provision of Services by Phase3D to Customer (collectively, the “Agreement”).
Phase3D’s acceptance of Customer’s Order is expressly conditioned on Customer’s assent to these Terms and Conditions. Customer's acceptance of Hardware and/or Software will manifest Customer's assent to these Terms and Conditions.
1. DEFINITIONS.
1.1 “Application Software” means Phase3D’s proprietary software in executable object form to be used with the Hardware identified in the applicable Order, but excluding any software preloaded on or embedded in the Hardware.
1.2 “Documentation” means Phase3D-provided user documentation, in all forms, relating to the Software (e.g., user manuals, on-line help files, etc.).
1.3 “Embedded Software” means Phase3D’s proprietary software in executable object form preloaded on or embedded in the Hardware that allows execution of the software functions.
1.4 “Hardware” means Phase3D’s proprietary Fringe system, which may include a research projector, research camera, cables and circuits, a spatial calibration object and computer, and other hardware or equipment designed by Phase3D, including those that embed, include, use, or operate the Software.
1.5 “Intellectual Property” means all of the following, and in each case all related intellectual property rights: (i) trademarks and goodwill associated therewith; (ii) know-how, methodologies, interfaces, templates, techniques, utilities, tools, designs, concepts, patents, patentable inventions, computer programs, source code and object code, configurations, calibrations, settings and modes, hardware and software, results and outcomes of uses of hardware and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names and other media identification associated with the party.
1.6 “Phase3D Solution” means, collectively, Hardware, Software and Services.
1.7 "Representatives” means Customer’s employees and agents that are permitted by Customer to use the Software, Hardware, or Services for Customer’s internal business purposes.
1.8 “Services” means services provided by Phase3D pursuant to a Statement of Work related to the Hardware or Software.
1.9 “Software” means Embedded Software and Application Software.
1.10 “Statement of Work” or “SOW” means a statement of work in the form as provided by Phase3D.
2. ORDERS, PRICES AND PAYMENT TERMS.
2.1 Hardware Supplied. Phase3D agrees to sell to Customer Hardware requested by Customer in an Order that has been accepted and approved by Phase3D, in accordance with these Terms and Conditions.
2.2 Customer Obligations. Customer must comply with any Customer requirements of Phase3D, including without limitation any documentation required by Phase3D from time to time to be an approved Customer, such as meeting certain minimum purchase requirements, geographic and other restrictions relating to the sale of Hardware.
Failure to comply with such Customer requirements may, without limitation, result in Phase3D’s refusal to sell the Hardware to Customer. Where any Services are to be carried out at Customer’s premises, Customer shall provide adequate office accommodation and facilities for Phase3D’s personnel.
Customer shall also provide Phase3D with all
necessary cooperation, personnel, resources, information, equipment, data and support that may be reasonably required by Phase3D in the performance of the Services.
2.3 Orders. Orders may not be varied, delayed, rescinded or canceled without Phase3D’s prior written consent, and will not be binding on Phase3D unless and until Phase3D begins materially performing such Order or otherwise notifies Customer, in any form and through any media, of its acceptance.
Phase3D reserves the right in its sole discretion to refuse Orders. Any terms of an Order that conflict with, or in any way purport to amend, any of these Terms and Conditions are hereby specifically objected to and will be of no effect.
2.4 Prices. Prices for Hardware are set out in the Order. Prices shown are in US dollars unless otherwise expressly indicated. All prices are subject to change without notice prior to Customer’s acceptance of an Order.
In the event of a price change and, unless otherwise agreed to in writing, prices for Orders scheduled for immediate release shall be those in effect at time of Order entry. Prices for Orders placed for future shipment without an agreed price and ship date will be billed at the pricing in effect as of the shipment date. All clerical errors are subject to correction.
2.5 Terms of Payment. Customer will pay all amounts due hereunder within fifteen (15) days of the date of the applicable invoice date. Acceptance of all Orders is subject to Customer meeting Phase3D’s credit standards.
Customer agrees to submit such financial information as Phase3D may reasonably require for determination of meeting Phase3D’s credit standards. Payment terms are subject to change for failure to meet such standards.
Phase3D’s credit standards may require payment in cash, bank wire transfer/EFT or by official bank check. Phase3D reserves the right at any time to demand full or partial payment, or to insist on C.O.D. payment, a letter of credit or other security for payment, before proceeding with a sale of Hardware or license of Software, in its sole judgment.
Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Phase3D to collect any amount that is not paid when due. Amounts due from Customer may not be withheld or offset by Customer against amounts due to Customer for any reason.
Unless otherwise agreed in writing by Phase3D, all amounts payable to Phase3D are denominated in United States dollars, and Customer will pay all such amounts in United States dollars. Until the purchase price and any other charges payable to Phase3D for the Hardware or Software products are received in full, Phase3D retains and Customer grants to Phase3D a security interest in any such products delivered to Customer and any proceeds therefrom.
Customer shall promptly execute any documents requested by Phase3D to perfect or record such security interest.
2.6 Taxes. Prices do not include any taxes, customs duties or tariffs (collectively, “Taxes”). Customer is responsible for paying all applicable Taxes. When Phase3D has the legal obligation to pay or collect any such Taxes, Customer shall pay the appropriate amount. If Customer believes that it is exempt from any such Taxes, Customer must provide Phase3D with a valid exemption.
2.7 Payment Default; Insolvency. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid.
If the Customer defaults when any payment is due, then the whole Order price shall become due and payable upon demand, or Phase3D at its option, without prejudice to other lawful remedies, may defer delivery or cancel the Order.
If Customer becomes insolvent, or bankrupt or in the event any proceeding is brought against the Customer, voluntarily or involuntarily under the bankruptcy or any insolvency law, Phase3D may cancel any Order outstanding at any time and recover its applicable
cancellation charges from the Customer or Customer’s estate.
2.8 Termination. Either party will have the right to terminate any Order at any time if the other party commits a material breach of the Order or these Terms and Conditions, and does not cure such breach within thirty (30) days.
In the event of a breach by Customer (or its Representatives) of any of the terms of Sections 7 (Intellectual Property Rights) or 9 (Confidentiality), the applicable Order shall automatically terminate and all use by Customer (and your Representatives) of the Software, Hardware, or Services shall immediately cease.
Upon the termination of an applicable Order, (a) all rights granted to Customer (or its Representatives) under such Order (including these Terms and Conditions) will also terminate, (b) Phase3D shall have no further obligation to perform any Services, and (c) Customer (and its Representatives) must cease all use of the Software and Hardware and return all such Software and Hardware to Phase3D.
The introductory paragraphs and Sections 1, 2.8, 2.9, 4.1, 4.2, 4.7, 4.8, 4.9, and 5-10 of these Terms and Conditions shall survive any termination or expiration.
2.9 Prohibited Sales. Customer will not, without prior written consent from Phase3D, directly or indirectly, export Hardware outside of the United States, or post Hardware for sale on any website.
Unless otherwise agreed to by Phase3D pursuant to a separate written agreement, Customer is expressly prohibited from reselling Hardware purchased hereunder to a retailer or other dealer in like merchandise, or to any other third party.
Without limiting any rights or remedies of Phase3D for a violation of this Section, Phase3D shall be entitled to payment of $45,000 per unit sold in violation of this Section. Customer shall pay any costs incurred by Phase3D in collecting the foregoing payment, including, but not limited to, legal fees and court costs.
3. DELIVERY AND SHIPMENT; EXCUSED PERFORMANCE.
3.1 Delivery and Shipping Fees. Delivery shall be as mutually agreed upon between the parties and indicated on each Order. Any specified shipment or delivery dates are estimates only. Phase3D shall charge Customer, in addition to any other payable amounts incurred hereunder, a reasonable shipping fee for each shipment of Hardware under an Order, except where the parties have otherwise agreed in writing
3.2 Title, Risk of Loss. Unless otherwise stated in an Order, Hardware will be delivered “Ex Works” (EXW) at Phase3D’s designated facility (Incoterms 2020). Title to and risk of loss of all Hardware passes from Phase3D to Customer upon Phase3D’s delivery of Hardware to the carrier at Phase3D’s designated facility.
Except for obligations stated under “Warranty” herein, Phase3D’s responsibility for Hardware ceases upon delivery to the carrier.
3.3 Installment Shipments. Phase3D reserves the right to make shipments in installments, unless otherwise expressly stipulated in a specific Order; and all such installments when separately invoiced shall be paid for when due per invoice without regard to subsequent shipments. Delay in shipment of any installment shall not relieve Customer of its obligation to accept remaining shipments.
3.4 Excused Performance. Phase3D’s failure to perform, or delay in performing, its responsibilities under any Statement of Work, including any requirements or timetable for any Services, shall be excused if and to the extent that Phase3D’s non-performance, or delay in performance, is caused by or results from;
(a) the failure of (i)
Customer to perform its obligations under the Agreement, or (ii) any third party contractor to perform the obligations under the applicable third party contract between such third party contractor and Customer;
(b) any act performed or omitted by Phase3D at the specific request of Customer; or
(c) any act performed by Customer or its third party contractors to the extent that such act was not otherwise agreed to by the parties.
4. WARRANTIES; RETURNS.
4.1 Customer Representation and Warranty. As a condition to using any Hardware or Software or receiving any Services, Customer represents and warrants that: (a) it has read and understood the Agreement, (b) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (c) it and its Representatives are not listed on any U.S. Government list of prohibited or restricted parties.
4.2 Pre-Production Hardware and Software. Any Hardware or Software identified and sold as pre-production Hardware or Software may not be returned and shall not be subject to the warranties provided in Section 4.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHASE3D DISCLAIMS AND MAKES NO WARRANTIES WITH RESPECT TO PRE-PRODUCTION HARDWARE OR SOFTWARE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. SUCH PRE-PRODUCTION HARDWARE OR SOFTWARE ARE NOT QUALIFIED OR CERTIFIED.
4.3 Standard Hardware Warranty. With respect to Hardware not manufactured by Phase3D, the warranty obligations of Phase3D shall in all respects be limited to any warranty actually extended to Phase3D by its supplier.
To the extent no such warranty is provided by the applicable supplier, and except as provided in Section 4.2, Phase3D warrants that the Hardware will be substantially free from defects in materials and workmanship for three (3) months from date of invoice by Phase3D or its authorized sales channel.
If within such period any such equipment shall be proved to Phase3D’s satisfaction to be non-conforming, such equipment shall be repaired or replaced at Phase3D’s option, as Customer’s sole and exclusive remedy for such failure. The foregoing warranty shall not apply to devices in Hardware where the device is exposed and not enclosed in the Phase3D designated housing, shroud, case or other encapsulating device.
4.4 Limitations. The applicable warranty extended to Customer under Sections 4.3 shall not apply to:
(a) alterations or modifications to any Hardware or Software other than by Phase3D or its authorized contractors;
(b) Customer’s or any third-party’s equipment; (c) improper or non-standard installation or operation (of the Hardware, Software or a system); (d) ordinary wear and tear;
(e) damage caused by accident, abuse, misuse, fire, liquid contact other than due to design flaw, or a force majeure event, including, without limitation, lightning, overvoltage, severe weather, fire, earthquakes and floods, or the influence of foreign objects;
(f) operation in an unsuitable environment;
(g) non-compliance with applicable laws and regulations, including those related to safety; (h) any consumable parts that are designed to diminish over time;
(i) cosmetic damage, including but not limited to scratches, dents and broken plastic or other similar materials unless failure has occurred due to a defect in materials or workmanship;
(j) defects that result from Customer’s design, specifications or instructions; or (k) repair or maintenance to any Hardware or Software other than by Phase3D or its authorized contractors or as indicated in the published guidelines.
4.5 Returns. Prior to returning any Hardware or Software product, Customer must complete a Return Authorization (“RA”) form and obtain an RA number for such product(s) from Phase3D. Unless otherwise specified, an issued RA number shall expire and is no longer valid after thirty (30) days from the date of issuance.
Any Hardware returned to Phase3D under an inapplicable, invalid or expired RA number may, at Phase3D’s sole discretion, be rejected and re-shipped back to Customer at Customer’s expense. Customer may only return Hardware to Phase3D with shipping charges prepaid.
For the avoidance of doubt, Phase3D will reimburse the return shipping cost only if the Hardware or Software product is defective and returned in accordance with this Section 4.5 and Phase3D’s Return Guidelines.
4.6 Return of Hardware. NO HARDWARE MAY BE RETURNED WITHOUT FIRST OBTAINING PHASE3D’S WRITTEN PERMISSION AND A RETURNED MATERIAL IDENTIFICATION TAG.
Returned equipment must be of current manufacture, in the original packaging, unused, undamaged and in saleable condition. Returned equipment must be securely packed, reach Phase3D without damage and labeled with the return authorization number.
Returns must originate from the original Customer account number. Returns will be credited at the original price paid as indicated on the invoice or purchase order associated to the Hardware being returned as provided by the Customer.
If no invoice number or purchase order number is provided, then credit will be issued based on Phase3D’s suggested retail price in effect twelve (12) months prior to date of return authorization and will also have an additional 25% processing fee applied.
Phase3D shall bear the cost of returns resulting from Phase3D error, and method and route of return will be at the discretion of Phase3D. Costs incurred by failure to follow Phase3D direction will be borne by the Customer.
4.7 Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PHASE3D SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PHASE3D HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
PHASE3D DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE PHASE3D SOLUTION, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE PHASE3D SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS OR SYSTEMS, THAT THE OPERATION OF THE PHASE3D SOLUTION, INCLUDING ANY DATA COLLECTED OR GENERATED IN CONNECTION WITH ITS USE, WILL BE UNINTERRUPTED OR ERROR-FREE (INCLUDING FOR ANY FALSE POSITIVES IN THE DETECTION OF DEFECTS), OR THAT DEFECTS IN THE PHASE3D SOLUTION WILL BE CORRECTED.
NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY IN SUCH JURISDICTIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PHASE3D SOLUTION IS ONLY A TOOL TO AID IN CUSTOMER’S DECISIONS AND SHOULD NOT AND CANNOT BE RELIED ON SOLELY AS A COMPREHENSIVE OR ACCURATE ASSESSMENT.
THE PHASE3D SOLUTION, AND ANY DATA COLLECTED OR GENERATED IN CONNECTION WITH ITS USE, IS NOT A SUBSTITUTE FOR SERVICES, ASSESSMENTS OR DECISIONS OF TRAINED PROFESSIONALS IN THE APPLICABLE FIELD. PHASE3D SHALL HAVE NO LIABILITY FOR ANY DECISIONS MADE BY CUSTOMER OR ANY PERSON IN CONNECTION WITH OR IN RELIANCE ON ANY USE OF THE PHASE3D SOLUTION OR ANY DATA COLLECTED OR GENERATED IN CONNECTION WITH SUCH USE.
4.8 Statements and Advice. If statements or advice, technical or otherwise, are offered or given to Customer, such statements or advice will be deemed to be given as an accommodation to Customer. Phase3D hereby disclaims and shall have no responsibility or liability for the content or use of such statements or advice.
Phase3D technical support is provided by telephone and, therefore, extremely limited in scope which prevents Phase3D from the direct participation in the design of any customer products. Phase3D does not conduct product suitability studies or engineering reviews of products that we sell, nor for the final product that a Customer produces.
4.9 Safety-Critical, Medical, and Military Applications. Customer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products, and any use of the Hardware or Software, notwithstanding any information or support that may be provided by Phase3D.
Customer represents and agrees that it has all the necessary expertise to create and implement safeguards which anticipate dangerous consequences of failures, monitor failures and their consequences, lessen the likelihood of failures that might cause harm and take appropriate remedial actions. Customer agrees that all purchases or licensing of the Hardware or Software are for commercial or other applications that do not require Qualified Product Listing (QPL) components.
The Hardware and Software products made available by Phase3D are not designed, intended or authorized for use in life support, life sustaining, human implantable, nuclear facilities, flight control systems, or other applications in which the failure of such products could result in personal injury, loss of life or catastrophic property damage.
Customer will fully indemnify Phase3D Indemnitees against any damages arising out of the use of any Hardware or Software in safety-critical applications. Only those Hardware or Software products which Phase3D has specifically designated as military grade are designed and intended for use in military/aerospace applications or environments.
Customer acknowledges and agrees that any military or aerospace use of the Hardware or Software products which have not been so designated is solely at the Customer’s risk, and that Customer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
5. INDEMNIFICATION. Customer shall defend any suit or proceeding brought by a third party against Phase3D, its affiliates, and its and their directors, officers, employees, agents, successors and assigns
(“Phase3D Indemnitees”) and indemnify and hold such Phase 3D Indemnitees harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent based on any actual or alleged:
(a) unauthorized or illegal use or other use of the Phase3D Solution by Customer or any of its Representatives in a matter other than as permitted in the Agreement;
(b) any Customer Data; (c) violation of applicable laws or regulations;
(d) breach of its representations and warranties; (e) breach of any of its obligations under the Agreement, including its obligations under Sections 7 (Intellectual Property Rights) or 9 (Confidentiality);
(f) any equipment furnished by Customer; or (g) any equipment furnished to Customer by Phase3D, and manufactured in accordance with designs or specifications proposed by Customer.
6. LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL PHASE3D OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE, OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE PHASE3D SOLUTION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF PHASE3D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL PHASE3D’S OR ITS AFFILIATES’ OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ OR SERVICE PROVIDERS’ TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY PHASE3D) EXCEED THE GREATER OF (I) THE TOTAL AMOUNT THAT CUSTOMER PAID FOR THE PHASE3D SOLUTION IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $1,000.00.
THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER IN SUCH JURISDICTIONS.
FOR ANY HARDWARE OR SOFTWARE IDENTIFIED AND SOLD AS PRE-PRODUCTION HARDWARE OR SOFTWARE, IN NO EVENT SHALL PHASE3D’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES EXCEED $50.00.
6.1 Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES.
THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PHASE3D TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT.
6.2 Other Limitations. Except as may be expressly provided in an authorized writing by Phase3D, Phase3D shall not be subject to any other obligations or liabilities whatsoever, other than as stated above with respect to Hardware or Software provided by Phase3D.
The remedies of the Customer set forth herein are exclusive. No action may be brought by Customer hereunder or under any Order at any time more than twelve (12) months after the facts occurred giving rise to the cause of action.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Use of Application Software and Related Documentation.
(a) Where the applicable Order is for a “Term License” to Application Software, the following license grant shall apply: Subject to the terms of these Terms and Conditions, during the term of the Application Software license set forth in the applicable Order, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to install and use the Application Software solely in connection with Customer’s use of the Hardware for its internal business purposes.
(b) Where the applicable Order is for a “Perpetual License” to Application Software, the following license grant shall apply: Subject to the terms of these Terms and Conditions, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable perpetual license to install and use the Application Software solely in connection with Customer’s use of the Hardware for its internal business purposes.
(c) Subject to the terms of these Terms and Conditions, during the term of the Application Software license set forth in the applicable Order, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to use any Documentation related to the Application Software as made available by Phase3D.
7.2 Use of Embedded Software and Related Documentation.
(a) Where the applicable Order is for a “Term License” to Embedded Software, the following license grant shall apply: Subject to the terms of these Terms and Conditions, during the term of the Embedded Software license set forth in the applicable Order, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to use the Embedded Software solely as installed in the Hardware for its internal business purposes.
(b) Where the applicable Order is for a “Perpetual License” to Embedded Software, the following license grant shall apply: Subject to the terms of these Terms and Conditions, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable perpetual license within the United States to use the Embedded Software solely as installed in the Hardware for its internal business purposes.
(c) Subject to the terms of these Terms and Conditions, during the term of the Embedded Software license set forth in the applicable Order, Phase3D grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable license within the United States to use any Documentation related to the Embedded Software as made available by Phase3D.
7.3 Representatives. Customer may permit Representatives to exercise its rights under the applicable license(s) granted in Sections 7.1 and 7.2. Representatives will be required to abide by the terms of these Terms and Conditions. Customer shall be liable for all acts and omissions of its Representatives, and any breach by a Representative shall be deemed a breach by Customer.
7.4 Retention of Rights. The Software and Documentation are licensed, not sold, to Customer, and nothing in these Terms and Conditions or any Order will be interpreted or construed as a sale or purchase of the Software or Documentation. Customer will not have any rights to the Software or Documentation except as expressly granted herein.
Neither party grants a right or license to the other party by implication, estoppel, or otherwise, to the Intellectual Property of the other party. As between the parties, Phase3D retains all ownership rights, title, and interest in and to its own products and services (including the Software, Services and Hardware, applicable Documentation and all technology used to provide the Phase3D Solution) and all rights to its Intellectual Property and in each case, all modifications, improvements, enhancements and derivative works of the same.
7.5 Restrictions. Except as otherwise explicitly provided in these Terms and Conditions or as may be expressly permitted by applicable law, Customer will not, will ensure its Representatives do not, and will not permit, encourage or authorize third parties to:
(a) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer, or share or otherwise make available the Phase3D Solution, or any features or functionality thereof, or code comprising the same, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time, or any Phase3D trademark, logo or likeness;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, on the Phase3D Solution;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or interior components of the Phase3D Solution or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Software);
(d) use the Phase3D Solution in any manner to provide service bureau, time-sharing or other computer services to third parties;
(e) use the Phase3D Solution, or allow the transfer, transmission, export, or re-export of the Phase3D Solution or portion thereof in violation of any export control laws or regulations administered by any government agency;
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Phase3D Solution;
(g) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software or Hardware, including any copy thereof; or
(h) make, keep or disseminate any oral or written information regarding the Software, Hardware, Services or Intellectual Property beyond the Representatives.
Customer may not use the Phase3D Solution for any use other than its intended use.
7.6 Residuals. Nothing in the Agreement shall restrict Phase3D from using for any purpose, the general knowledge, skills, techniques, ideas, concepts or know-how arising from the provision of Phase3D Solution that are retained in the unaided memory of Phase3D’s personnel after performing the obligations of Phase3D under the Agreement.
8. DATA.
8.1 Customer Data. The Phase3D Solution may allow Customer to collect certain data in connection with its usage of the Phase3D Solution, including information collected from the sensor used by the Hardware and Software (“Customer Data”). Customer Data is owned by Customer.
Customer covenant, represents and warrants that it will comply with (a) its applicable privacy policy(ies) and (b) all applicable federal, state, local and international privacy, data protection, and security laws, rules and regulations, including without limitation, laws relating to the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data.
Customer covenants, represents and warrants that it has all rights and has obtained all necessary consents, permissions and authorization with respect to Customer Data, including without limitation the provision of Customer Data to Phase3D and the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of personal or regulated data of the Customer Data in connection with Phase3D’s provision of the Phase3D Solution.
8.2 License to Phase3D. Customer grants to Phase3D a non-exclusive, perpetual, irrevocable, transferable, fully sublicensable, royalty free and fully paid up worldwide right and license to use, reproduce, modify, make derivative works from, display, perform, distribute and transmit Customer Data to:
(a) provide the Phase3D Solution to Customer (including monitoring and improving the same),
(b) train the Phase3D Solution, including without limitation Phase3D’s algorithms and machine-learning models,
(c) develop new features, functionality, products or services, including to develop, create, extract, compile, synthesize and/or otherwise generate additional data or databases; and
(d) use for any other lawful purpose. Customer shall also provide Phase3D with all necessary access, cooperation, personnel, and support that may be reasonably required by Phase3D in accessing or retrieving a copy of the Customer Data.
8.3 Usage Data. Phase3D may collect usage data, meta data, performance data and other data related to how Customer uses and interacts with the Phase3D Solution, including information verifying whether Customer Data was successfully transmitted via the Phase3D Solution (“Usage Data”). To the extent Phase3D collects or generates Usage Data, it will be owned by Phase3D, and Phase3D may use it for any lawful purpose.
8.4 Feedback. The parties agree that any feedback or suggestions regarding the Phase3D Solution or Phase3D’s other products or services is voluntary. Phase3D is entitled to perpetually and irrevocably use, reproduce, license or otherwise distribute and commercialize any such feedback without any obligations or restrictions of any kind, including any rights in Intellectual Property therein.
9. CONFIDENTIALITY. Customer acknowledges that the Phase3D Solution, the terms of the Agreement, and Phase3D’s other products and services (including any new features or functionality), any information provided by Phase3D concerning the business, technology and information of Phase3D and any third party with which Phase3D deals, and any other proprietary or confidential information provided to Customer by Phase3D (“Phase3D Confidential Information”) constitute valuable proprietary information and trade secrets of Phase3D.
Customer understands and acknowledges that the Phase3D Confidential Information has been developed or obtained by Phase3D by the investment of significant time, effort and expense, and that the Phase3D Confidential Information is a valuable, special and unique asset of Phase3D which provides Phase3D with a significant competitive advantage, and needs to be protected from improper disclosure. Customer agrees it will hold the Phase3D Confidential Information in confidence and will not to use or disclose the Phase3D Confidential Information for any purpose not expressly authorized by the Agreement.
Customer will not copy or modify any Phase3D Confidential Information without the prior written consent of Phase3D. Customer shall not disclose any Confidential Information to any of its employees or contractors, except for Representatives who need to know such Phase3D Confidential Information. Customer shall make sure that such Representatives are subject to duties of confidentiality by internal policies or an individual non-disclosure agreement substantially the same as in these Terms and Conditions.
Phase3D may obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this Section. Customer agrees to promptly report any breaches or potential breaches of this Section to Phase3D. Upon termination of an applicable Order or the written request of Phase3D, Customer shall return to Phase3D all written materials containing the Phase3D Confidential Information or destroy all such copies and certify in writing to Phase3D that such Phase3D Confidential Information has been destroyed.
Customer shall also deliver to Phase3D written statements signed by Customer certifying that all materials have been returned within five (5) days of receipt of the request.
10. GENERAL.
10.1 Arbitration. Any dispute, controversy or claim arising out of the Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect.
Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) the arbitration will be conducted by a single arbitrator, (b) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (c) the proceedings shall be in the English language and shall take place in Chicago, Illinois or another location reasonably convenient to both parties.
If, within thirty (30) days after one party makes a demand upon the other to proceed to arbitration, the disputing parties remain unable to agree upon selection of an arbitrator to resolve their dispute, then either party may request the American Arbitration Association to appoint an arbitrator to hear their dispute and the selection of an arbitrator by the American Arbitration Association shall be conclusive and binding upon the parties.
The arbitrator shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction.
Each party may seek injunctive relief in any court of competent jurisdiction. Customer and Phase3D agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis.
The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
10.2 Governing Law. The Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois, USA, without regard to any principles of conflict of laws.
10.3 Assignment. Phase3D may freely transfer or assign the Agreement and any of its rights or obligations hereunder. Customer shall not assign the Agreement, or any part thereof, directly or indirectly, without the prior written consent of Phase3D. Any such attempted assignment shall be void.
10.4 Product Notices. Customer shall promptly supply its Representatives with all Phase3D-supplied product notices, warnings, instructions, recommendations and similar materials.
10.5 OSHA Compliance. Compliance with OSHA or similar federal, state or local laws during the operation or use of the product(s) is the sole responsibility of the Customer.
10.6 Notices. Any notice required or permitted to be given in accordance with these Terms and Conditions will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the preamble of these Terms and Conditions or in the applicable Order and with the appropriate postage affixed.
Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 10.6. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to an overnight courier.
10.7 Compliance with Laws. Customer will use the Hardware, Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Phase3D or its products.
10.8 Export Restrictions. Subject to Section 2.9, Customer will not directly or indirectly import, export, or re-export the Software or Hardware outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders.
10.9 Modifications. Phase3D may modify these Terms and Conditions from time to time. Any modification shall be effective when posted. Customer can review the most current version of the Terms and Conditions at any time at or such successor website provided by Phase3D. Customer signifies its acceptance of these Terms and Conditions, as revised, through its continued use of the Phase3D Solution after such date.
10.10 Force Majeure. Phase3D will not be liable for, or be considered to be in breach of or default on account of, any delay or failure to perform as a result of any cause or condition beyond Phase3D’s or its supplier’s reasonable control, including, without limitation: an act of God; act of Customer or Phase3D’s supplier; embargo or other governmental act; regulation or request; fire; accident; strike; slowdown; flood; fuel or energy shortage; sabotage; war; riot; delay in transportation and inability to obtain necessary labor, materials or manufacturing facilities from usual sources, in each case, so long as Phase3D uses commercially reasonable efforts to avoid or remove such causes of non-performance.
In the event of any such delay, the date of delivery shall be extended for a period of time reasonably necessary to overcome the effect of such delay.
10.11 Subcontractors. Phase3D may utilize subcontractors or other third parties to exercise its rights or perform its duties hereunder.
10.12 No Third-Party Beneficiaries. Nothing in the Agreement, express or implied, is intended to confer, nor will anything contained in the Agreement confer on, any person or entity other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.
10.13 Waiver. The waiver by either party of any breach of any provision of the Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
10.14 Severability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
10.15 Non-Disparagement. Customer agrees that it shall not make disparaging statements oral or written regarding Phase3D or Phase3D’s employees, contractors, technology, products, services or business.
For purposes of this Section, a disparaging statement is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, or good character of the person or entity to whom the communication relates.
10.16 Miscellaneous. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. The Agreement constitutes the complete agreement between the parties and supersede all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter hereof.
No employee, agent, or other representative of Phase3D has any authority to bind Phase3D with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Terms and Conditions. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement.
Except as provided in Section 10.9, these Terms and Conditions may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
Phase3D will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to these Terms and Conditions (whether or not it would materially alter these Terms and Conditions) that is proffered by Customer in any receipt, order, acceptance, confirmation, correspondence, or otherwise, unless Phase3D specifically agrees to such provision in writing and signed by an authorized agent of Phase3D.