Terms & Conditions

Products furnished (“Products”) by Integrated Surface Technologies, Inc. (“SELLER”) are provided to the purchasing entity (“BUYER”) on the terms and conditions stated herein, unless modification of this Agreement is negotiated by both parties, made in writing and signed by both BUYER and SELLER. No waiver of any default by the BUYER will be made by the SELLER.

QUOTATIONS - Unless otherwise stated in writing by SELLER, quotations are subject to the following terms:

1. SELLER’s quotation shall be valid for thirty (30) days from the date of issuance;
2. Prices quoted for Products may include fees for licenses to certain technical data, process qualification tests or other proprietary rights expressly set forth and agreed to in writing by the parties;
3. Prices do not include environmental testing or any specialty testing other than SELLER’s Standard tests;
4. SELLER’s prices are exclusive of all federal, state and local taxes, duties, shipping, and insurance;
5. BUYER assumes responsibility for all shipping charges;
6. Published prices are subject to change without notice.

 

PAYMENT TERMS - The terms of the sale are: ninety percent (90%) Net 30 days from the date of the invoice and ten percent (10%) Net 30 days from “Product” sign-off (NTE 60 days from shipment). Interest will be charged on any overdue invoice at a rate of one and one-half percent (1.5%) per month, but not more than interest rates allowed by law on the unpaid balance from the original due date of the invoice. Payment may not be withheld if the BUYER has received the product and delays the installation. Partial shipments agreed to by the BUYER in writing shall be treated as a separate order in response to this Agreement, and shall be deemed as acceptance of these terms and conditions.

Any and all state and local sales, use, excise, privilege and similar taxes imposed on the SELLER or which the SELLER has a duty to collect in connection with the sale, delivery, or use of any product will appear as a separate item on the invoice and will be paid by the BUYER. If sales to BUYER are exempt from such taxes, BUYER shall furnish to SELLER a certificate of exemption from the applicable taxing authority.

TERMINATION OF ORDERS - All terminations must be made by the BUYER in writing and accepted by the SELLER. Any order for a Product or a Service accepted by SELLER and terminated by BUYER more than thirty (30) days prior to shipment shall be subject to fifteen percent (15%) cancellation charge of the order value. Any order terminated by BUYER at or less than thirty (30) days prior to shipment is subject to a cancellation charge of forty percent (40%) of the order value. No order can be terminated after Product shipment.

SHIPMENT AND DELIVERY - Seller will schedule shipment based on BUYER’s request and SELLER’s shipping capability at the time BUYER’s order is accepted. Upon such acceptance, SELLER will issue an acknowledgement which will indicate the shipping date. BUYER may not delay shipment of the Products by more than thirty (30) days after the accepted shipping date unless agreed to in writing by the SELLER. Seller shall not be liable for any delay or failure to deliver by the requested delivery date. Delivery will be made F.O.B. SELLER’s place of Product manufacturing in Menlo Park, California. The time of delivery is the time the goods to be delivered are picked up by the carrier.

Title to the goods will pass to BUYER upon delivery of the goods by SELLER to carrier (F.O.B. Menlo Park, California) and upon that delivery BUYER will be responsible for and bear the entire risk of loss or damage to the goods. Confiscation, destruction of, or damage to Products shall not release, reduce or in any way affect the liability of BUYER after Delivery. When there is evidence of shipping damage, either concealed or external, claims should be filed within 24 hours directly with the transportation company.

PRODUCT ACCEPTANCE AND INSTALLATION - All shipped Products must be inspected upon receipt at BUYER’s location. The furnishing by SELLER of a Product to the BUYER shall constitute acceptance of that Product by BUYER, unless notice of defect or nonconformity is received by SELLER within fourteen (14) days of delivery thereof. SELLER may repair or, at its option, replace defective or nonconforming parts after receipt of notice of defect or nonconformance. BUYER is responsible for Product facilities installation per SELLER’s specifications as defined in the SELLER’s Installation Procedures. SELLER recommends that the handling of the Product at the customer facility is performed by bonded qualified equipment riggers and that the facilities installation is performed by certified installers.
The start-up by SELLER of a Product and demonstration of technical performance to specifications agreed to in the purchase order will be confirmed by the BUYER by writing in the sign-off document provided by SELLER. Notwithstanding the foregoing, any use of a Product by a BUYER, its agents, employees, contractor or license, for any purposes, after delivery thereof and prior to start-up by SELLER shall constitute sign-off and acceptance of that Product by BUYER.

PROPRIETARY RIGHTS - Seller retains for itself all proprietary rights in and to all designs, engineering details and other data and materials pertaining to Products supplied by SELLER and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by SELLER in connection with the Products or with any and all of the Products developed by SELLER as a result thereof, including the sole right to manufacture any and all such products. As part of the sale of the Products, Integrated Surface Technologies, Inc. may provide process recipe and operating conditions information, technical data, software, and instructions, which relate to the use of the Product, all of which are not generally known in the industry. Integrated Surface Technologies, Inc. has applied for patents with respect to its Products, and in some instances with respect to processes used in connection with such products. Any information provided to BUYER at the time of sale of the Products shall be considered “SELLER’s Confidential Information,” and may be labeled as “Integrated Surface Technologies CONFIDENTIAL.” BUYER warrants that it will not divulge, disclose, or in any way distribute or make use of such Confidential Information for any purpose other than to exercise its rights under these terms and conditions of sale. BUYER may not disclose SELLER’s Confidential Information to any person other than its employees with a need to know such information. BUYER shall immediately notify SELLER in the event it becomes aware of any unauthorized or suspected unauthorized use or disclosure of SELLER’s Confidential Information.

LIMITATION OF LIABILITY - SELLER will not be liable for any loss, damages or penalty resulting from delays in delivery or start-up of the Products when such delay is due to causes beyond the control of SELLER including but not limited to, BUYER’s facilities delay, supplier delay, labor unrest, war, fire, accident, earthquake, act of God, and compliance with any law, regulation or order, whether valid or invalid, of any cognizant governmental body. In any such event, the delivery date shall be extended for a period equal to the delay.

Seller’s liability under, for breach of, or arising out of this Agreement and/or sale will be limited to repair or replacement of any defective products or a refund of the purchase price of the Products. In no event will SELLER be liable for any special, consequential, incidental or other damages (including possibility of such loss including without limitation loss of profit ), whether or not SELLER has been advised of the possibility of such loss, however caused, whether for breach or repudiation of contract, breach of warranty, negligence or otherwise. This exclusion includes any liability that may arise out of third party claims against BUYER. The essential purpose of this provision is to limit the potential liability of SELLER arising out of this Agreement and/or sale.

The SELLER disclaims any responsibility for loss or damage caused by use of its Products. Liability to third parties for bodily injury including death relating to SELLER’s performance of Products delivered hereunder shall be determined in accordance with applicable laws and shall not be affected by the foregoing. No action regardless of form arising out of or in any way connected with the Products or services furnished by SELLER may be brought by BUYER more than one (1) year after the cause of action as accrued.

LICENSE RIGHTS - With respect to each given Product sold to BUYER pursuant to these terms and conditions of sale, SELLER hereby grants BUYER a worldwide, non-transferable, royalty-free license, without the right to sublicense, to use the Licensed Product Information for such Product to make, use, and sell goods using such Product. For purpose of these terms and conditions of sale, the term “Licensed Product Information” shall mean the SELLER Confidential Information that relates to a Product and is identified as being licensed to Buyer in the sign-off document agreed to in writing by both parties. The foregoing license is limited to those rights which SELLER currently owns or subsequently obtains with respect to the Licensed Product Information.
If BUYER desires to use the Licensed Product Information with any product other than the Product for which such Licensed Product Information has been provided by SELLER, BUYER must obtain an additional license from SELLER. BUYER is hereby granted a limited, nonexclusive personal license to use the RPX-550 operating software subject to the following terms and conditions. SELLER shall retain sole and exclusive ownership of all right, title and interest in and to the licensed software, subject only to BUYER’s expressly granted rights herein, and no transfer of title, other ownership interest, right to sublicense or any other rights whatsoever are granted or implied. This license is strictly limited to use of the licensed software exclusively by BUYER on a single system in which it is originally installed. BUYER agrees not to, and not to permit others to, copy, modify, export, duplicate, decompile, disassemble, translate or reverse-engineer the licensed software (and accompanying manuals) in any manner or form. BUYER agrees not to sell, assign, distribute or otherwise transfer any licensed software. BUYER may make one copy of the licensed software in object code or other machine-readable form for non-production backup or archival purposes only. This license may be revoked by SELLER for BUYER’s breach of any term of this contract that is not cured on ten days notice, or for non-payment of the appropriate license fee, when due.

WARRANTY - SELLER warrants each Product manufactured and sold to be free of defects in materials and workmanship for the period of twelve (12) months for labor and non-consumable parts, and three (3) months for consumable parts. Consumable parts are all parts exposed to process chemicals. The warranty period shall begin upon system sign-off or sixty (60) days from shipment, whichever occurs first. All warranty replacement or repair of parts shall be limited to Product malfunctions which in the sole opinion of SELLER are due and are traceable to defects in original materials or workmanship. All obligations of SELLER under this warranty shall cease in the event of modification other than by the SELLER, abuse, accident, alteration, misuse or neglect of the Product. The parts repaired or replaced under warranty will be warranted for the remaining unused portion of the original applicable warranty period. EXCEPT AS SET FORTH ABOVE, ALL PRODUCTS PURCHASED HEREIN ARE “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE, OR OTHERWISE AND SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NONINFRINGEMENT. SELLER DOES NOT WARRANT THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.

INFRINGEMENT - The parties agree to cooperate with respect to any third party claim of intellectual property infringement against BUYER with respect to any Product of SELLER, or with respect to any Licensed Product Information. SELLER will inform BUYER at the time of sale if SELLER has knowledge of any intellectual property infringement actions against SELLER with respect to Licensed Product Information. BUYER and SELLER agree that in the event of any action or claim that the design or manufacture of any Product or Licensed Product Information infringes the intellectual property rights of a third party, BUYER shall inform SELLER within 30 days that such a claim or action has been brought. SELLER shall then have the right, at its own discretion, to elect to assume the defense of any such claim or action within 90 days after such notification by BUYER. However, SELLER DISCLAIMS ANY WARRANTY OF NONINFRINGEMENT, and the parties agree that SELLER shall have no liability and no obligation of defense or indemnity of BUYER or its customers with respect to any actual or alleged intellectual property pertaining to any Product or Licensed Product Information provided by SELLER. THE FOREGOING, WHICH RESPECTIVELY STATE THE ENTIRE OBLIGATIONS AND LIABILITIES OF THE BUYER TO THE SELLER AND OF THE SELLER TO THE BUYER FOR INFRINGEMENT OF ANY AND ALL PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, ARE STATED IN LIEU OF ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT, COPYRIGHT, TRADE SECRET AND OTHER INTELLECTUAL PROPERTY INFRINGEMENT OF ANY KIND THROUGHOUT THE WORLD.

ENTIRE AGREEMENT - The terms and conditions set forth herein constitute the entire Agreement between SELLER and BUYER.

APPLICABLE LAW - This contract will be governed by the laws of the State of California.

JURISDICTION AND VENUES - The California state courts of Santa Clara County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California) will have exclusive jurisdiction and venue over any dispute arising out of this Agreement and sale, and BUYER hereby consents to the jurisdiction of such courts.

ATTORNEY’S FEES - Reasonable attorney’s fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.

ERRORS - Stenographical, typographical, and/or clerical errors made in the contract documents are subject to correction.