Sales Terms & Conditions
MKS Instruments, Inc
14523 SW Millikan Way
Beaverton, OR 97005 USA
SALES TERMS & CONDITIONS
Standard Terms and Conditions of Sale and Limited Warranty
The following terms and conditions of sale and limited warranty govern all purchases of systems, upgrades, and non-system items (“Products”) from Electro Scientific Industries, Inc. (“ESI”) and companies affiliated with ESI by Buyer (“Buyer” or “You”). If Buyer has entered into a contract directly with ESI for the supply of ESI Products, the terms of that contract shall supersede any terms herein which are inconsistent with that contract. For ordering parts and services, please refer to ESI Parts and Services Terms and Conditions.
The ESI quote, sales order acknowledgement or signed agreement that includes or references these terms and conditions (the “Contract”) constitutes the entire agreement between the Buyer and ESI for the ESI Products and supersedes all prior or concurrent oral or written negotiations, agreements, understanding or representations. Acceptance of Buyer’s purchase order is conditional upon Buyer’s agreement to the Contract. Buyer’s acceptance of any ESI system or other Product shall be conclusively deemed agreement to the Contract. ESI rejects any or additional or conflicting conditions of Buyer deviating from this Contract, and this Contract will prevail over any provision contained in any of Buyer's general terms and conditions, or any purchaser order, acceptance, confirmation or acknowledgement, regardless of whether or when Buyer submitted its purchase order or terms and conditions, unless otherwise specifically agreed to in writing by ESI.
2. PAYMENT TERMS
Unless otherwise agreed by ESI, payment terms are:
For U.S. domestic sales, at ESI’s option, either:
100%, net 30 days from shipment;
or 90%, net 30 days from shipment; 10% upon acceptance or net 90 days from shipment, whichever comes first.
For international sales, at ESI’s option, either:
100% wire transfer prior to shipment; or 90% letter of credit due at sight; 10% letter of credit due upon acceptance or 90 days from shipment, whichever comes first.
ESI reserves the right to impose a late penalty fee of 1.5% per month and suspend warranty service for the duration of all past due balances. ESI also reserves the right to require C.O.D. payment, a letter of credit, or other security for payment if ESI determines that such terms are required to assure payment to ESI.
Unless otherwise provided, all prices are Ex Works ESI’s place of business, INCOTERMS 2020, and prices are exclusive of shipping costs, insurance, and any applicable Taxes (defined below). All quotations are valid for 30 days unless noted otherwise. Prices are subject to change without notice. ESI may impose additional surcharges to offset significant and unpredictable increases in the cost of manufacturing, shipping and servicing our Products. By issuing an order for Products, Software or Services, Buyer agrees to pay these surcharges upon notification.
4. SHIPMENTS AND TITLE TRANSFER
All purchase orders are subject to acceptance by ESI. Unless otherwise provided on the attached acknowledgement, all shipments are Ex Works ESI’s place of business, INCOTERMS 2020. Title to all Products shall pass to the Buyer upon the availability of the Products to the carrier at point of shipment. ESI reserves the right to select the method and routing of transportation and the right to make delivery in installments unless otherwise specified at the time of order. ESI will provide estimated shipment dates upon acknowledgement of Buyer’s purchase order. Shipment dates on ESI quotations are approximate and may not be relied upon.
Buyer shall arrange air ride and temperature-controlled transportation where applicable. Buyer shall assume all risks of loss and responsibility for the cost of shipping and insurance, regardless of the fact that shipping or insurance may have been arranged by ESI on Buyer’s behalf. Any freight or delivery charges paid by ESI on shipments to Buyer will be passed on to Buyer, and shall be in addition to the price of goods. Unless otherwise agreed in writing by ESI, Buyer is liable for all costs and expenses incurred by ESI, including holding or storing products for Buyer, if delivery is delayed because of Buyer's inability to receive Products. ESI has the right to cancel any order or to refuse or suspend shipment for Buyer’s failure to meet payment terms on any outstanding invoice.
5. SHIPMENT HOLDS, ORDER CANCELLATIONS
A. Shipment Holds
Buyer may request one shipment hold by contacting ESI at least 30 days before the estimated shipment date stated in ESI’s original order confirmation or the most recent shipment date as communicated in writing by ESI (Estimated Shipment Date). ESI may accept or reject any hold request at its sole discretion. For accepted hold requests, Buyer agrees to pay ESI 0.1% of the purchase price per day from the Estimated Shipment Date, up to a total of 5%, as hold fee and reimburse ESI all costs incurred in connection with rescheduling shipment. If a hold lasts longer than 120 days or if Buyer requests a second hold, ESI shall deem the held Products canceled and the below Cancelations provision shall apply.
Buyer agrees to obtain ESI’s written consent prior to cancelling any Product deliveries, and shall pay the following portion of the purchase price as cancelation charge:
- 50% if canceled more than 60 days prior to Estimated Shipment Date;
- 75% if canceled 30 to 60 days prior to Estimated Shipment Date;
- 100% if canceled less than 30 days prior to or after Estimated Shipment Date.
Buyer’s liability for cancelation shall not exceed purchase price.
6. GOVERNMENT CONTRACTS
If any order by Buyer indicates that the purchase is being made for use under a U.S. government contract, those and only those terms and conditions that federal statute, regulation, or rule required in fixed price supply subcontracts covering standard commercial proprietary items and sold to the public shall be deemed incorporated herein by reference. Terms and conditions of the prime government contract that are not so required are not incorporated herein and shall be binding on ESI only if set forth in a separate written document signed by a duly authorized representative of ESI.
Buyer shall examine each shipment of ESI Product immediately upon receipt and inform ESI of any shortage, visible defect or incorrect product shipments in writing within 7 days of receipt. If no discrepancies are reported by Buyer in writing within 7 days of receipt, the shipment shall be deemed delivered complete and defect free and Buyer may not dispute such shipment.
If ESI installs, the Buyer is responsible for providing facilities and utilities per the ESI site requirement guide prior to the arrival of the ESI installation team. In addition, the Buyer is responsible for moving the ESI system components to the installation site and providing the necessary facilities equipment to position it for assembly. All monitoring and controls of utilities are the responsibility of the Buyer. If installation is not performed within 30 days of delivery due to reasons within Buyer’s responsibility or control, the system will be deemed accepted.
The acceptance of systems which do not include custom solutions (applications, engineering, etc.) will be based upon a demonstration of successful running of system using its specific ESI System Acceptance Test (“SAT”). ESI Field Service Engineers (“ESI FSE”) will demonstrate the SAT, and Buyer shall cooperate with ESI FSE to facilitate the performance of the SAT. The system will be deemed accepted upon ESI’s successful demonstration of SAT. In case of an applicable custom acceptance requirement agreed by ESI (as noted in the final ESI quotation), in addition to SAT, Buyer shall perform the custom acceptance requirement without delay.
After successful demonstration of SAT and (if applicable) custom acceptance requirement, Buyer’s representative shall sign ESI’s Final Acceptance Record (“FAR”), indicating the start of the warranty period. Failure to sign the FAR shall not delay the commencement of the warranty period.
Notwithstanding the foregoing, unless Buyer has notified ESI of its rejection in writing within 60 days after shipment, Buyer will be deemed to have accepted the Product at the end of such 60-day period.
10. LIMITED WARRANTY
a. Warranty Period. For a new or remanufactured system to be installed by ESI FSE, the warranty period shall be one year from acceptance but in no event shall it exceed fourteen months from shipment. For upgrades, the warranty period is 90 days from acceptance.
b. During the Warranty Period, ESI warrants that:
1. all Products meet specifications published by ESI applicable to the model and options purchased as of the shipping date or agreed in writing between Buyer and ESI; and
2. all Products will be free from defects in materials and workmanship.
c. For any failure covered by this limited warranty, ESI shall repair or replace, at ESI’s option, the defective system or component. ESI will provide services during normal business hours (Monday through Friday, 8AM – 5PM local time). Additional charges apply for services scheduled during times other than normal business hours. Buyer shall promptly notify ESI of any failure that occurs during the Warranty Period and allow ESI FSE access to the ESI system in its usual working condition and environment for warranty repair or replacements. Failure to provide such notice or access shall relieve ESI of its warranty obligations. When applicable, Buyer shall also allow ESI FSE to perform two preventive maintenance (PM) visits during the Warranty Period.
d. Repair or replacement of a defective system or its component is the sole and only remedy under this warranty. The replacement part may be a new or remanufactured part which is equivalent to new in performance. In case of replacing a defective component, ESI will warrant the replacement part for the remaining Warranty Period or hours carried by the original system.
e. During the Warranty Period, replacement parts will be shipped on a no-charge basis on condition that all defectives parts must be returned immediately upon receipt of replacement parts. Failure to return the defective parts promptly will result in an invoice for the full price of the replacement part.
f. Notwithstanding the above, ESI provides no warranties on: (a) consumable items as identified by ESI; (b) any system or portion thereof which is based on the Buyer’s design; (c) any larger system of which the ESI Product is only a component; and (d) non-ESI supplied replacement parts or other customer-furnished material.
g. This limited warranty is void if the nonconformance, defect or failure has resulted from:
1. Misuse, mishandling, accident or neglect, noncompliance with ESI specified system operating environment or operation instructions or specifications, contamination, abuse and misapplication, or improper installation by non-ESI personnel;
2. Improper packing or handling of the system during relocation by Buyer;
3. Unauthorized modification to the system or part, attempts to install or de-install or perform unauthorized maintenance or repair by any person that is not ESI FSE; or
4. Force Majeure Events (as defined below).
h. Temperature-controlled and air ride transportation is required for all ESI Products where applicable. Buyer is responsible for any damages caused by inappropriate transportation.
i. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE DISCLAIMED . BUYER’S EXCLUSIVE REMEDY AND ESI’S SOLE LIABILITY FOR BREACH OR WARRANTY IS REPAIR OR REPLACEMENT, AT ESI’S OPTION.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL ESI BE LIABLE FOR LOSS OF REVENUE, PROFIT, LOSS OF DATA OR GOODWILL, SUBSTITUTE GOODS, COSTS OF REMOVAL OR REINSTALLATION, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE PRODUCTS OR OTHERWISE AND EVEN IF ESI OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ESI’S OR ITS SUPPLIERS’ OR LICENSORS’ LIABILITY TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. NO SUIT OR ACTION UNDER THE CONTRACT SHALL BE BROUGHT AGAINST ESI OR ITS PERSONNEL OR AFFILIATES MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. THIS SECTION 11 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
12. PATENT INFRINGEMENT
ESI shall defend any lawsuit brought against Buyer to the extent such lawsuit is based on a claim that any Product furnished by ESI to Buyer infringes any patent of the United States, provided that ESI is notified promptly in writing and given full and complete authority, information, and assistance for the defense of the lawsuit. ESI shall not be responsible for any settlement made without its consent or for damages arising out of any suit which Buyer has not given ESI timely opportunity to defend. If an infringement claim is made or if ESI believes a claim is likely to be made, ESI may at its option: (a) obtain for Buyer the right to continue the Product, (b) modify the Product so that it becomes non-infringing, or (c) remove the Product and refund to Buyer the purchase price less a reasonable allowance for use. ESI shall not have any obligation or liability to Buyer under any provision of this clause if: (a) the claim is based upon the interconnection or use of the Product in combination with Product or other devices not made by ESI; (b) the claim was based upon use of the Product in any manner for which it was not designed or recommended by ESI; or (c) the infringement arises from a design or specifications provided to ESI by Buyer.
THIS SECTION 12 SETS FORTH ESI’S ENTIRE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS RELATING TO ESI PRODUCT OR COMPONENTS, AND IS IN LIEU OF AND REPLACES ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT.
13. SOFTWARE LICENSE
Any ESI and third party software or firmware and accompanying documentation (collectively “Software”) delivered by ESI to Buyer hereunder is licensed, not sold. ESI grants to Buyer a non-exclusive, nontransferable, non-sublicensable license to use the Software only in executable object code and only for the purpose of operating the Product. Buyer may not modify, adapt, translate, reverse engineer, decompile, decrypt, reproduce, disassemble or create a derivative work based upon the Software or allow other to do so except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Buyer shall not make or distribute unauthorized copies of the Software, and shall acquire no rights of ownership in the Software. Title to and ownership of the Software and all extensions, enhancements and modifications thereof shall remain at all times with ESI and/or its licensors.
14. INTELLECTUAL PROPERTY OWNERSHIP
Subject to any license rights expressly granted herein, ESI retains all right, title and interest in all of its patents, trade secrets, trademarks, copyrights, software, inventions, technology, ideas, concepts, know-how, tooling, techniques and other proprietary materials, intellectual property and confidential information.
Buyer understands and agrees that ESI Products and ESI business and technical information provided in connection with the purchase and sale of ESI Products embody, utilize or otherwise contain ESI confidential and proprietary information and trade secrets (“Confidential Information”). Certain of the Product-related Confidential Information is apparent upon visual inspection of the Products. Other Confidential Information can only be discerned upon observation of the operation or the disassembly of the Products, or by reverse engineering. Except to the extent and in the circumstances expressly provided by law, Buyer agrees, represents and warrants that it shall not (or permit others to) reverse engineer, manufacture, decompile, or create derivative works of, any Products without ESI’s prior express written consent.
Buyer shall not allow any third party to take possession of or to inspect, observe any operation of, or disassemble any Product or any portion of thereof, or take any photograph or recording of the Product or the operation thereof. Buyer shall use reasonable care, and not less than the same care it exercises with respect to its own confidential and proprietary information, to protect the Confidential Information against unauthorized use, loss, theft or disclosure. Buyer will provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the sole purpose of using the Products in compliance with the Contract. Buyer shall not disclose or describe to any third party, directly or indirectly, under any circumstances or by any means, any Confidential Information without ESI’s prior written consent. Buyer will not be in breach of this section if disclosure of Confidential Information is made pursuant to subpoena or other compulsory judicial or administrative process, provided that Buyer promptly notifies ESI of such subpoena or other compulsory process, and provides reasonable assistance, so that ESI may seek a protective order or take such other action it deems necessary to protect its interest.
“Confidential Information” does not include any information concerning ESI that Buyer can demonstrate by written evidence (a) is now or becomes generally known to the public by lawful means and without breach of any confidentiality obligation; (b) is disclosed by Buyer with ESI’s prior written consent to unrestricted disclosure; (c) was known to and reduced to writing by Buyer without use of any Confidential Information prior to the date of this Agreement; (d) is independently developed by Buyer without use of any Confidential Information; or (e) is lawfully obtained by Buyer from a third party on a nonconfidential basis.
16. FORCE MAJEURE
ESI’s performance of any obligation hereunder shall be suspended or excused by any event beyond its reasonable control (a “Force Majeure Event”), including without limitation inclement weather, strikes, governmental laws, regulations, orders or interruptions, war, riots, fires, floods, earthquakes, epidemics equipment breakdown, interruption of transportation, and delayed deliveries to ESI from ESI’s suppliers which delays or prevents ESI’s performance or makes performance commercially impractical due to unreasonable difficulty, expense, or risk of injury or loss.
17. COMPLIANCE WITH LAWS; EXPORT CONTROL; PRODUCT SAFETY
Buyer shall at all times comply with all applicable laws, rules, and regulations of all government authorities, including, without limitation, all applicable import and export laws and regulations of the United States, Singapore and other countries. Buyer shall not use, lease, export, re-export or sell any ESI Product in any country, or to any purchaser or lessee in any country, other than the country of destination specified in Buyer’s order, except in a manner expressly permitted by such laws and regulations.
Buyer is solely responsible for the safety of its personnel and property in connection with the use of Products, and shall identify and comply, and cause its personnel to comply, with all applicable use and safety laws, rules, regulations, industry standards and practices, and other requirements, including requirements and instructions provided to purchaser by ESI. For Products containing Category 4 lasers: Buyer will restrict access to the Product to necessary personnel only that have been properly trained in the safe operation of the Products and provide and require all such personnel to wear appropriate laser safety glasses and utilize any other appropriate safety equipment and precautions. Inspection for compliance with applicable government safety regulations or industrial standards is not included as a part of this Contract and will not be made.
18. TAXES AND DUTIES
Unless provided otherwise, prices do not include federal, state, local, or foreign taxes, charges, fees, imposts, levies, duties, or other assessments of any kind or nature imposed by any government (“Taxes”). Buyer shall be responsible for payment of all Taxes on the sale of the Products.
Buyer shall indemnify and hold ESI harmless, including costs and attorney’s fees, from any claims by employees, distributors, or customers of Buyer arising from the sale, lease or use of the Product sold by ESI or of other systems of Buyer which incorporates this Product, unless the claim arises from the sole negligence of ESI.
20. GOVERNING LAW
If both the Buyer and the System(s) are located in the Peoples Republic of China: The validity, interpretation and performance of the Contract shall be governed by the laws of the Peoples Republic of China. All disputes in connection with this Contract or the execution of this Contract shall be settled through negotiations. In case no settlement can be reached through negotiations, the dispute will be submitted for arbitration to Shanghai International Arbitration Center (SIAC). for arbitration, which shall be conducted in accordance with the SIAC arbitration rules in effect at the time of the submission. The arbitration shall take place in Shanghai and the decision of the arbitrator shall be final and binding upon both parties.
For all other sales: The validity, interpretation and performance of this Contract shall be governed by the laws of the State of Oregon, USA, without regard to Oregon conflict of law principles and without reference to the provisions of any convention that applies to international sale of goods (including without limitation the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods. Except to the extent that invoking the jurisdiction of another court is necessary to enforce (a) any security interest in Products or (b) any judgment or order entered in Oregon, any legal action arising out of this Contract shall be heard exclusively in Portland, Oregon, USA. Both parties hereby submit to the jurisdiction of the courts located in Portland, Oregon over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum
The Contract constitutes the entire agreement between ESI and Buyer. No modifications, changes, additions or amendment to the terms and conditions or promises, representation, or warranties that differ in any way from these terms and conditions herein shall be binding on ESI unless such modifications, changes, waivers, additions or amendments are in writing and signed by a duly authorized representative of ESI.
No waiver of any provision hereunder shall be valid or binding unless agreed to in writing by the waiving party. The waiver of any breach or default hereunder shall not constitute the waiver of any subsequent breach or default. In the event of any breach or default by Buyer or Buyer’s bankruptcy or insolvency, ESI may decline to make further shipments without liability for nonperformance. If ESI elects to continue to make shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect ESI’s legal remedies for such default.
If any term or condition of the Contract shall to any extent be invalid or unenforceable, the remainder of the Contract terms and conditions shall not be affected thereby, each term and condition shall be valid and enforced to the fullest extent permitted by law, and the parties will, to the extent possible, negotiate in good faith to substitute a new provision that most nearly effects the parties' original intent.
Buyer shall not assign the performance obligations or any rights hereunder without the prior written consent of ESI. Subject to the foregoing, the Contract shall bind and inure to the benefit of the respective parties hereto and their successors and permitted assigns.
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