Equipment Terms and Conditions

These Equipment Terms and Conditions (these “Equipment Terms”) shall apply to the Customer’s purchase of third-party equipment supplied by The Argen Corporation (“Equipment”). Acceptance of the Customer’s purchase order for Equipment (the “Order”) is expressly made conditional upon assent to the terms and conditions set forth herein, which, together with the ARGEN GENERAL TERMS AND CONDITIONS, ARGEN’S RETURN AND REFUND POLICY and the applicable “Order” (collectively, the “Agreement”), comprise all of the terms and conditions of the agreement between The Argen Corporation (“Argen”) and the customer named on the Order (“Customer”) for the supply of Equipment. No modifications or additional terms or conditions shall apply unless they are in writing and signed by both parties. Should any conflict arise between these Equipment Terms and Argen’s General Terms and Conditions, ARGEN’S GENERAL TERMS AND CONDITIONS SHALL PREVAIL.

1. WARRANTIES. Argen will pass through to Customer, at the time of Equipment sale, any transferable product warranties, indemnities and remedies provided to Argen by the applicable Equipment manufacturer (“Manufacturer”). TO THE EXTENT PERMITTED BY LAW, ARGEN PROVIDES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR ANY SOFTWARE THEREIN OR REQUIRED TO BE USED THEREWITH, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND THE CUSTOMER SHALL LOOK TO THE MANUFACTURER FOR ANY WARRANTY THEREON.
2. SERVICES. Argen does not provide any maintenance, support or other service (collectively, “Services”) with respect to Equipment or any Equipment accessories. Services, if any, will be provided and governed by the Manufacturer. In the case of 3Shape Scanners and Roland Mills, Argen will act as liaison to the Manufacturer, organizing the documentation and managing logistics of the problem/repair/replacement matter with Manufacturers. If Customer has a repair approved by 3Shape, Argen (or applicable Manufacturer), may provide a temporary replacement scanner (“Loaner”) at no additional charge to Customer for use by Customer while the original scanner is being repaired. Loaner is subject to Argen’s approval, 3Shape Manufacturer repair/replacement approval, availability, and will require a new Loaner equipment agreement with Customer.
3. RETURNS. Please refer to Argen’s RETURN AND REFUND POLICY for information regarding Argen’s return and refund policies for Equipment and Equipment accessories.
4. LIMITATION OF LIABILITY. Customer agrees to look solely to the applicable Manufacturer for any claim arising due to loss, injury, damage or death related to the use or sale of Equipment. Customer acknowledges that Argen has no control over, and is not responsible for, the manufacture of the Equipment nor the manner in which the Equipment will be used or otherwise dealt with by the Customer. Customer therefore agrees to assume all responsibility for any and all sums which Argen and/or the Customer becomes obligated to pay because of bodily injury or property damage caused by, or resulting directly or indirectly from, the installation, maintenance, use or operation of Equipment, or the failure of Equipment to comply with any safety laws or regulations. Customer shall indemnify and hold Argen harmless from and against any and all actions, claims or demands arising out of, or in any way connected with, the installation, maintenance, use or operation of Equipment or the design, construction or composition of any item or items made or handled by Equipment supplied hereunder, including any such actions, claims and demands based, in whole or in part, on the default or negligence of Argen. Customer hereby acknowledges and agrees that Argen has set its prices and entered into this Agreement in reliance upon the exclusions and limitations of liability and other remedies set forth in these Equipment Terms, and that the same form an essential basis of the bargain between the parties. The parties agree that the exclusions and limitations of liability specified above will survive and apply even if any exclusion or limitation of remedies set forth herein is found to have failed of its essential purpose. ARGEN SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, ARISING FROM OR RELATING TO THESE EQUIPMENT TERMS, OR THE SUPPLY, USE OR FAILURES OF EQUIPMENT AND/OR SOFTWARE HEREUNDER, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
5. SECURITY INTEREST. Argen shall have a lien on and security interest in the Equipment, notwithstanding delivery or possession, until Customer pays the entire price in full to Argen. Customer agrees to do all acts necessary to perfect and maintain such lien and security interest in favor of Argen. Customer must maintain, at its own expense, insurance in the amount equal to the Equipment invoice price against loss or damage of any kind to Equipment and agrees to furnish Argen with satisfactory proof of this coverage.
6. UCC FILING; SECURITY. To the extent permitted by applicable law, Customer authorizes Argen to execute and file in the name of the Customer a UCC-1 financing statement, continuation statements and amendments thereto and any other document deemed necessary to protect Argen's security interest in Equipment, with or without Customer’s signature thereon. If Customer is in default of any agreements with Argen, Argen may (a) exercise all rights of a secured party under the Uniform Commercial Code (“UCC”) including, without limitation, the right, under UCC 9-609(b)(2), to take back Equipment. Any obstruction of these rights by Customer shall be deemed a further breach of its obligations under these Equipment Terms. Customer shall be permitted to pay a deposit of up to twenty percent (20%) of Equipment price on a credit card.
7. LICENSE. Any third-party software listed on the Order to which these Equipment Terms are attached (“Software”), including, without limitation, all title and intellectual property rights in and to such Software, is and shall at all times remain the property of the applicable Manufacturer supplying such Software. Argen hereby grants to the Customer a personal, terminable, non-exclusive license to install and use the Software, solely by the number of end users specified in the Order and, if applicable, solely on such number of machines as equal to the number of Seat Licenses set forth on the Order. Interfaces to third-party CAD and CAM software, scanners and manufacturing equipment may be required and any license fees charged separately for such interfaces shall be the sole responsibility of Customer. There may be conditions to such interfaces that can limit or prevent their use during or after a specified period. It is the obligation of Customer to secure an agreement with such conditions. Neither Customer nor any end user may (a) assign, sell, sublicense, rent, lease, lend or otherwise transfer all or any part of the seat license(s) to the Software, or (b) reverse engineer, decompile, or disassemble the Software.
8. THIRD-PARTY RIGHTS. Argen cannot and does not grant to Customer, or any end user, any license to patents held by third parties.
9. NON-SOLICITATION. During the term, and for a period of one (1) year following the termination or expiration of these Equipment Terms, Customer will not, to the extent prohibited by applicable law, directly or indirectly, solicit, recruit, or encourage any of Argen's employees to terminate their employment with Argen; provided, however, that this section will not prevent Customer from (a) causing to be placed any general advertisements in newspapers and/or other media of general circulation (including, without limitation, advertisements posted on the internet) that is not targeted specifically at any Argen employees, or (b) engaging any recruiting firm or similar organization to identify and solicit persons for employment on behalf of Customer, so long as such recruiting firm or organization is not instructed to target any such employees of Argen.
10. FORCE MAJEURE. Argen shall be under no liability to Customer or any end user in respect of anything which may constitute a breach of these Equipment Terms arising by reason of force majeure, namely, circumstances beyond the control of Argen, which shall include, but shall not be limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, pandemic, riot, civil commotion, including acts of local government and federal authority and labor disputes of whatever nature and for whatever cause arising.
11. APPLICABLE LAW; VENUE; ARBITRATION. For purposes of venue and jurisdiction, this Agreement shall be deemed made and to be performed in San Diego, California and shall be governed by the laws of the State of California. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in the City of San Diego, County of San Diego, State of California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitrator shall award reasonable attorneys’ fees to the most prevailing Party in the arbitration. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12. ASSIGNMENT. This Agreement may not be assigned by Customer, whether pursuant to a change of control, asset sale, by operation of law or otherwise, without the prior written consent of Argen, and any such attempted assignment shall be deemed null and void. Customer agrees to notify Argen immediately upon a change of control (through stock transfer or otherwise) or sale of all or substantially all of the assets of its business to which this Agreement relates. Customer acknowledges that notwithstanding any change of control or sale of Customer’s assets, Customer shall remain jointly and severally liable for any liabilities of Customer and/or its successor-in-interest. Argen may assign this Agreement and/or delegate its rights and obligations hereunder in whole or in part to one or more divisions, affiliates and/or third parties without notice to Customer. In such case, such divisions, affiliates and/or third parties shall have the right to enforce the provisions hereof as if they were a part of this Agreement. The Argen Corporation conducts its business, without limitation, under its corporate name, its wholly-owned subsidiary Argen Canada, LLC, and under the following DBAs: Jelenko, Leach & Dillon Dental Alloys, Aurium Research USA, Dent Gold, Wilkinson Dental Alloys, World Alloys, Gateway Alloys, and Dental Alloy Products.
13. NO THIRD-PARTY BENEFICIARIES. No provision of this Agreement is intended to or shall be construed to confer upon or give to any person other than Argen, its successor or assigns (if applicable), and Customer any rights, remedies or other benefits under or by reason thereof.
14. NO WAIVER. No waiver of any provisions of these Equipment Terms shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by Argen. Failure or neglect by Argen to enforce any provision of these Equipment Terms at any time shall not be construed nor shall be deemed to be a waiver of Argen’s rights hereunder nor in any way affect the validity of the whole or any part of these Equipment Terms nor prejudice Argen’s rights to take subsequent action.
15. HEADINGS. The headings of these Equipment Terms herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of these Equipment Terms.
16. SEVERABILITY. If any provision of these Equipment Terms is to be held invalid or unenforceable, in whole or in part, by any court of final jurisdiction, it is the intent of the Parties that all other provisions of these Equipment Terms shall be construed to remain fully valid, enforceable and binding on the Parties in all respects as if such invalid or unenforceable provision were omitted. Any court of final jurisdiction will have the authority to modify or replace the invalid or unenforceable term or provision with a valid and enforceable term or provision that most accurately represents the intention of the Parties.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to such terms as are included herein and the parties acknowledge that they have not executed this instrument in reliance on any promise or representation or warranty not contained herein. This Agreement supersedes and replaces all prior settlement negotiations and/or proposed settlements. This Agreement may not be contradicted by evidence of any prior or contemporaneous oral or written agreement. The Argen Equipment Terms and Conditions and Argen General Terms and Conditions are available at www.argen.com, and it is the responsibility of the Customer to review for any changes or updates.
18. AUTHORIZATION. Any party signing this Agreement on behalf of an entity or other than themselves, hereby represents and warrants that such party has authority to sign on behalf of the indicated entity. The parties hereto, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof and that they sign the same freely and voluntarily.