MKS Instruments Inc.
14532 SW Millikan way
Portland, Oregon 97005, U.S.A.
Phone: 1.503.641.4141
The following terms and conditions govern all sales of parts and materials for ESI products (“Parts”) and any technical support services (“Services”) provided by Electro Scientific Industries, Inc. (“ESI”) to ESI customers (“Customer”). If Customer has entered into a contract directly with ESI for the supply of Parts or Services, the terms of that contract shall supersede any terms herein which are inconsistent with that contract.
A. Warranty Period. For all Parts, the warranty is for the earlier of 90 days from shipment date and the remainder of the original warranty period for the system into which it is installed. Some Parts may carry a longer warranty period as designated by ESI.
B. During the warranty period, ESI warrants that:
C. For any failure covered by warranty, ESI shall repair or replace, at ESI’s option, the defective Part at its own cost. In case of nonconforming Services, or in the event that ESI is not able to repair or replace a defective Part, ESI may instead refund the amounts paid by Customer for such defective part or nonconforming Service. Customer shall promptly notify ESI of any failure that occurs during the warranty period. Failure to provide such notice shall relieve ESI of its obligations under the warranty.
D. Repair, replacement or refund of amounts paid of or for a defective Part or nonconforming Service is the sole and only remedy under this warranty. The replacement part may be a new or a remanufactured part which is equivalent to new in performance. In case of replacing a defective part, ESI will warrant the newly replaced Part only for the balance of the warranty period or hours carried by the defective part. ESI provides no warranty on consumable items as identified by ESI.
E. Customer shall provide full and free access to ESI systems in its usual and normal working environment and conditions and a safe working environment for the ESI FSE for warranty services. Customer shall also allow ESI FSE to perform two preventive maintenance (PM) visits during the warranty or Service contract period of the system. Failure to provide such access shall relieve ESI of its warranty obligations.
F. Part Order Duration - Orders for parts will only be accepted for delivery within 365 days of the customer purchase order receipt date. Return or cancellation of orders subject to fee structure defined in Section 6.
G. Advanced Exchange Program Part Orders:
1) For Warranty and Service Contract transactions: replacement parts will be shipped on a no-charge basis by ESI, on condition that all required defective parts must be returned to the local ESI Service inventory within 15 calendar days upon physical receipt of replacement part into customer possession. Shipping charges to the customer will be at expense of ESI. Failure to return the defective parts promptly will result in an invoice for the full price of a new part.
a. The returned part must be repairable by ESI. The ESI RMA number and appropriate paperwork must be included and referenced on the outside of the packaging. Detailed failure data must be included.
2) For all billable transactions: all required defective parts must be returned within 15 calendar days upon physical receipt of replacement part into customer possession. Shipping charges to and from delivery location to be at the expense of the customer. Failure to return the defective parts promptly will result in an invoice for the full price of a new part.
a. In order to qualify for a core credit, the returned part must be repairable by ESI. The ESI RMA number and appropriate paperwork must be included and referenced on the outside of the packaging. Detailed failure data must be included. Any credits issued will be valid for six months from the date of issuance.
Billable transaction customers must ship returns to:
MKS Instruments, Inc, C/O Service RMA Receiving 14523 SW Millikan Way Beaverton, OR 97005 USA
By participating in the Advanced Exchange program, customer accepts that the core units are property of ESI, and must be returned in all instances under the conditions of the program as outlined.
H. ESI makes no warranties respecting any larger system of which the ESI Part is only a component and shall bear no liability for any Part which is modified or replaced by Customer unless such modification or replacement is with ESI’s prior written consent and in accordance with ESI’s instructions.
I. 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.
J. This limited warranty is void if failure has resulted 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; 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 FSE; 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.
K. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF INFRINGEMENT, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS REPAIR, REPLACEMENT OR REFUND, AT ESI’S OPTION. ANY LAWSUIT BY CUSTOMER AGAINST ESI, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, ARISING OUT OF OR RELATING TO WARRANTY CLAIMS REGARDING THE SUBJECT PRODUCT, SHALL BE FILED WITHIN ONE YEAR FROM SHIPMENT OF THE SUBJECT PART BY ESI.
Acceptance of Customer’s purchase order for Parts and Service is conditional upon Customer’s assent to the terms and conditions printed herein. Acceptance of any ESI Part or Service shall be conclusively deemed assent to the terms and conditions 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. If Customer has entered into a contract directly with ESI for the supply of Parts or Services, the terms of that contract supersede any terms herein which are inconsistent with that contract.
Unless otherwise provided, payment terms are 100%, net thirty (30) days upon shipment or date of invoice. ESI reserves the right to impose a late fee of 1.5% per month for all past due balances. ESI may 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. For orders less than 20,000 USD, Customer shall be responsible for a 300 USD processing fee if a letter of credit is used.
Pricing for Parts and Services is designated in ESI’s quotation. All Parts prices are Ex Works ESI’s place of business. Landed cost may be added. ESI will provide estimated shipment dates upon acknowledgement of Customer’s purchase order or a receipt of wire transfer. Unless provided otherwise, prices are exclusive of shipping costs, insurance, and any applicable Taxes (defined below). Prices are subject to change without notice. All quotations are valid for 30 days unless noted otherwise. Minimum order is 200 USD. 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 our Parts, Software and/or Services, Customer agrees to pay these surcharges upon notification.
All orders are subject to acceptance by ESI. Unless otherwise provided on the attached acknowledgement, all shipments are Ex Works ESI’s place of business. Title to Parts shall be deemed to pass to the Customer upon delivery 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. Temperature-controlled and air ride transportation is required for Parts where applicable. Shipment dates are approximate only.
Customer 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 secured by ESI on Customer’s behalf. Any freight or delivery charges paid by ESI on shipments to Customer will be passed on to Customer, and shall be in addition to the price of Parts. ESI has the right to cancel any order or to refuse or suspend shipment for Customer’s failure to meet payment terms on any outstanding invoice.
A. Any customer returned materials being sent back to ESI as a result of unwanted overstock or unused replacement parts are subject to ESI Approval prior to return. Approved returns for such items will incur a minimum 15% restocking fee; fee to be subtracted from owed credit.
Parts must be returned in original packaging and resalable condition. The ESI RMA number and appropriate paperwork must be included and referenced on the outside of the packaging.
For any replacement parts returned in a non-salable condition, the customer will be contacted and offered the option of the part being returned at their cost, or be issued to scrap at ESI without credit.
Restock fee will not be charged under the following conditions: (a) the Part was shipped incorrectly by ESI; or (b) the Part was ordered under incorrect ESI field service engineering or service instruction.
B. Part order cancellations for systems under Service Support Status of ‘conditional’ or ‘obsolete’ will incur a 50% cancellation fee that will be invoiced to the customer; fee to be subtracted from owed credit, if part is being return post-purchase. All other order cancellations incur the standard 15% cancellation fee that will be invoiced to the customer; fee to be subtracted from owed credit, if part is being return post-purchase.
C. For T&M customers ordering materials for troubleshooting purposes at recommendation of ESI representative; customer is responsible for all import and export Taxes, Duty and freight. If material is returned as unneeded, a flat handling charge of $1,500 USD will apply for materials valued at $5,000 USD or greater. For all other T&M return conditions, standard restock fee policy applies (see section 6A).
D. Any credits issued will be valid for six months from the date of issuance.
Customer shall examine each shipment of Parts immediately upon receipt and inform ESI of any shortage, visible defect or incorrect Parts shipments in writing within 7 Calendar Days of receipt. If no discrepancies reported by Customer in writing within 7 Calendar Days of receipt, ESI shall assume the shipment is delivered complete and defect free and Customer may not dispute such shipment.
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.
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.
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.
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 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.
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”). Customer shall be responsible for payment of all Taxes on the purchase of the Parts or Services.
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.
For Customers located in the U.S. and the Americas, the validity, interpretation and performance of these terms and conditions and any purchase made or Services provided hereunder shall be governed by the laws of the State of Oregon, USA, without regard to its 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 purchase and sale 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.
For Customers located in Europe, German law shall apply. If Customer is located in China, the laws of the People’s Republic of China law shall apply. If Customer is located in Taiwan, the laws of the Republic of China shall apply. For all other Customers in Asia, the laws of Singapore shall apply. The courts in the above countries shall have exclusive jurisdiction to hear all matters arising out of, or related to, these terms and conditions.
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.
For Customers located in Europe, German law shall apply. If Customer is located in China, the laws of the People’s Republic of China shall apply. If Customer is located in Korea, the laws of the Republic of Korea shall apply. If Customer is located in Taiwan, the laws of the Republic of China shall apply. For all other Customers in Asia, the laws of Singapore shall apply. The courts in the above countries shall have exclusive jurisdiction to hear all matters arising out of, or related to, these terms and conditions.
Rev. 2022-04-25
MKS Instruments Inc. 14532 SW Millikan way Portland, Oregon 97005, U.S.A. Phone: 1.503.641.4141
Ultra-High Velocity