SERVICE TERMS & CONDITIONS
This agreement is effective as of the date entered into by the parties as stated herein and all rights and obligations hereunder, except those which by their language, context or nature are intended to survive shall terminate upon the happening of any of the following: (A) latest contract end date as shown in line items unless mutually extended in writing by the parties; (B) mutual written agreement of the parties to terminate this agreement; (C) a material breach by either party of any of the provisions contained herein, if after thirty (30) days' written notice of such breach, the breaching party fails to cure said breach. This document supersedes all offers for service on these systems prior to this date.
Unless otherwise stated all pricing quoted and invoiced does not include federal, state, local, or foreign taxes, withholding 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.
Systems not previously covered under contract or warranty within 30 days of contract start date will require a pre-contract audit. This audit is at customer's expense and will be quoted separately. Any repairs identified as a result of the audit shall be completed at customer's expense prior to the commencement of the contract.
Annual Service and Support Plan provides the following:
- Contract Coverage Hours, Monday through Friday
- Americas - 8:00 a.m. to 5:00 p.m. local time
- Taiwan - 9:00 a.m. to 6:00 p.m. local time
- China - 8:30 a.m. to 5:30 p.m. local time
- Japan - 9:00 a.m. to 5:30 p.m. local time
- Korea - 8:30 a.m. to 6:00 p.m. local time
- Southeast Asia - 8:30 a.m. to 5:30 p.m. local time
- Europe / Middle East / Africa - 8:30 a.m. to 5:00 p.m. local time
- For service beyond the normal business hours, overtime rates apply. Please contact your local ESI Support Center for details.
- On-Site Field Service Engineer
- Upon request, a service engineer will be dispatched to your site.
- ESI will make every effort to have an engineer onsite within one business day.
- Telephone and Email support
- Contract customers will be provided unlimited telephone support.
- Local Customer Support is available by calling a Regional Support Center.
- You can reach your Regional Support Center through the number provided at http://esi.com/support-services/support-terms-conditions/.
- Email addresses
- Corporate Customer Support Center hours
- Monday - Friday from 8:00am to 5:00pm Pacific Time
- Phone: 800-331-4708 or +1 503-641-4141
- Spare Parts
- Parts are included at no charge with the following exceptions:
- Consumables unless replaced as part of a PM
- Lasers, Laser Rails or Assemblies, and Diodes when no laser support is purchased
- Non-ESI equipment including, but not limited to, autoloaders and debris removal systems.
- ESI maintains regional inventory of Field Replaceable Units (FRU).
- ESI will make every effort to ship required parts within one business day of request for down systems.
- Site Tool Kits
- Availability of Site Tool Kits is the responsibility of the Customer and is not covered by this contract. Lack of required Site Tool Kits could result in delays in completing service to Customer's equipment.
- Equipment failures resulting from misuse, mishandling, accident or neglect, noncompliance with ESI specified system operating environment or operation specifications, abuse or misapplication;
- Improper packing or handling of the system during relocation by Customer (Please note this agreement is for Customer's current site only and is not transferable to other sites. Relocation service is not included.);
- Unauthorized modification to the system or part, attempts to install or de-install or perform unauthorized maintenance or repair by any person who is not an ESI Engineer; or
- An act or event beyond ESI's reasonable control and without ESI's negligence, including but not limited to fires, explosions, floods, earthquakes, power outage or inappropriate transportation, acts of God, war or terrorism.
Any payment not made in accordance with terms stated in this contract will result in suspension of services until all outstanding contract payments are received by ESI.
When systems must be operated with laser interlocks defeated, access to the system must be restricted and all personnel in the area will be required to wear laser safety glasses. Inspection for compliance with safety regulations of the Center for Devices and Radiological Health or with any other government or industrial standards are not included as a part of this agreement and will not be made.
LIMITATION OF LIABILITY
IN NO EVENT SHALL ESI BE LIABLE FOR LOSS OF DATA, SUBSTITUTE GOODS, LOSS OF PROFIT, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER LEGAL THEORY. IN NO EVENT SHALL ESI'S LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PART GIVING RISE TO SUCH A CLAIM OR THE FEES PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO SUCH A CLAIM.
ESI makes no warranties on any equipment or portion thereof which is based on Customer's product design or regarding any larger system of which the ESI equipment is a component. ESI does not guarantee, or specify any performance level for RFI shielding. All warranty implied or otherwise ceases when this agreement is terminated.
Acceptance of Customer's purchase order for Service is conditional upon Customer's assent to the terms and conditions printed herein. These terms and conditions supersede and replace any terms and conditions that appear on or accompany Customer's purchase orders, forms or other communications. Any offer or acceptance by ESI is specifically limited to these terms and conditions.
Any software or firmware (collectively "Software") delivered by ESI to Customer hereunder is licensed, not sold. ESI grants to Customer a non-exclusive, non-transferable license to use the Software, in object code only, only with the Part purchased by Customer (the "Hardware") and only for the purpose of operating the Hardware. Customer may not modify, adapt, translate, reverse engineer, decompile, disassemble or create a derivative work based upon the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Customer 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.
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 or confidential information.
Customer shall at all times comply with the United States laws and regulations governing export control. Customer shall not use, lease, or sell any Part purchased from ESI in any country, or to any purchaser or lessee in any country, other than the country of destination specified in Customer's order, except in a manner expressly permitted by such laws and regulations
ESI's performance of any obligation hereunder shall be excused by any event beyond its reasonable control, including without limitation inclement weather, strikes, governmental laws, regulations or interruptions thereof, war, acts of terrorism, 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.
Customer shall indemnify and hold ESI harmless, including costs and attorney's fees, from any liabilities and claims by Customer's employees, distributors, or customers arising from the sale or use of Part or with regard to the Service provided by ESI, unless the claim arises from the sole negligence of ESI.
Customer understands and agrees that ESI products and Service embody, utilize or otherwise contain ESI confidential and proprietary information and trade secrets ("Confidential Information"). Customer 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. Customer 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. "Confidential Information" does not include any information concerning ESI that Customer 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 Customer with ESI's prior written consent to unrestricted disclosure; (c) was known to and reduced to writing by Customer without use of any Confidential Information prior to the date of this Agreement; (d) is independently developed by Customer without use of any Confidential Information; or (e) is lawfully obtained by Customer from a third party.
The validity, interpretation and performance of this agreement and any purchase made or Services provided hereunder shall be governed by the laws of the State of Oregon, USA, without regard to Oregon conflict of law principles. 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 agreement shall be prosecuted 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.
These courts shall have exclusive jurisdiction to hear all matters arising out of, or related to, this agreement without regard to conflict of law principles.
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 warranties 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. The waiver of any breach or default hereunder shall not constitute the waiver of any subsequent breach or default. Customer shall not assign the performance obligations or any rights hereunder without the prior written consent of ESI. If any term or condition hereof shall to any extent be invalid or unenforceable, the remainder of these terms and conditions shall not be affected thereby and each term and condition shall be valid and enforced to the fullest extent permitted by law. The prevailing party in any legal action brought under this agreement shall be entitled in addition to any other remedies it may have, to reimbursement for its expenses incurred thereby, including court and arbitration costs and reasonable attorneys' fees at arbitration, trial and on appeal.