Sales Terms and Conditions

The quantity, price and other details on the face of the mutually agreed-to order document (the "Order") (and no additional terms and conditions on the Order) and these Sales Terms and Conditions shall constitute the contract ("Contract") between purchaser and MKS Instruments, Inc. or its subsidiary ("MKS") for the products set forth in the Order (the "Products") and/or any services set forth in the Order (the "Services") and shall constitute the entire agreement between the purchaser and MKS in relation to the Order. Unless otherwise expressly provided with respect to a particular sale, all quotations and sales are made in accordance with, and subject to the following terms and conditions:

1. Prices. All prices published by MKS or quoted by an MKS representative may be changed at any time without notice. Unless otherwise stated, written quotations expire automatically thirty (30) days from the date issued. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation. Prices are exclusive of all excise, sales, use, and other taxes (including without limitation custom and duty fees, if applicable) imposed by any federal, state, municipal, or other governmental authority (including governments of countries other than the USA), all of which shall be paid by the purchaser. The purchaser is responsible for obtaining and providing to MKS any certificate of exemption or similar document required to exempt any sale from sales, use, or similar tax liability. All prices shall be as specified by MKS, or, if no price has been specified, shall be MKS' standard list price in effect at the time of delivery.

2. Terms of Payment. Unless otherwise expressly stated in writing, payment terms are net cash thirty (30) days from the date of invoice. MKS reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in MKS' judgment, the purchaser's financial condition or payment history does not warrant proceeding on the terms specified. All amounts are stated in, and payment shall be made in, U.S. dollars unless otherwise agreed to in writing. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Purchaser shall indemnify MKS against all expenses and legal costs incurred by MKS in recovering overdue amounts and/or incurred as a result of cancellation or suspension of deliveries or performance. Amounts owed by the purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which the purchaser may claim are owed by MKS and regardless of any other controversies which may exist.

3. Delivery. Unless otherwise specified, all sales are FCA MKS shipping point, at the place of manufacture, or warehouse location, exclusive of insurance cost. Without in any way limiting the generality of paragraph 11, MKS shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause outside of MKS' control. The purchaser shall be liable for all costs and expenses incurred by MKS in holding or storing products for the purchaser if delivery is delayed by purchaser or at the purchaser's request. Shipping dates are approximate and are based upon prompt receipt of all necessary information.

4. Shipment. Unless otherwise specified in MKS' pricing policies and published price schedules in effect at time of shipment, transportation expenses shall be paid by the purchaser. Further, unless specific instructions to the contrary are supplied by the purchaser, methods and routes of shipment will be selected by MKS but MKS shall not assume any liability in connection with shipment, nor constitute any carrier as MKS' agent. All shipments will be insured at the purchaser's expense and made at the purchaser's risk, and the purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, non-delivery, loss, damage, or delay.

5. Title and Risk of Loss. Subject to paragraph 6 and to MKS' right to stop delivery of products in transit, title to and risk of loss for products shall pass to the purchaser upon the earlier of delivery to the purchaser or to a carrier for shipment to the purchaser.

6. Security Interest. MKS reserves, and the purchaser grants to MKS, a security interest in all Products sold and all proceeds to secure the full payment and performance by the purchaser of its liabilities and obligations to MKS hereunder. The purchaser acknowledges that this document or copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as MKS may require in order to perfect its' security interest.

7. Cancellation Charges and Returned Goods Policy. Unless otherwise agreed in writing, should purchaser cancel any Contract or any Order thereunder, purchaser shall be liable for the costs of all work done and materials purchased or provided up to the time of cancellation plus a charge for overhead and loss of profit. The purchaser may not return any customized Product. Pre-approval is required for all other returns, and any such return is subject to inspection after receipt by MKS.

8. Software License Terms. If software or software components are supplied under the Order ("Software"), unless the parties enter into a separate written license agreement, the following license terms shall apply: purchaser shall be entitled to use the Software and any accompanying documentation (the "Documentation") only for its own internal use, and may not sell or transfer copies of the Software or Documentation or make it available to other parties in any way; purchaser may use the Software only in object code form, only per the Documentation, and only with the Products for which it is designed (if any); purchaser may not copy the Software or Documentation, except to make a reasonable number of backup copies of the Software. For purposes of the Contract, Software and Documentation shall be deemed to be "Products." Any Software and Documentation provided to the US Government is only provided as "commercial computer software" and "commercial computer software documentation", respectively, under these Terms and Conditions (per 48 CFR 12.212, 48 CFR 227.7202-1, or other applicable regulations).

9. Intellectual Property. Purchaser may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, de-compile, disassemble, decrypt or otherwise reduce the Software or any Products. The purchaser shall not acquire any right, title or interest in or to the Software or any other intellectual property of MKS either supplied to purchaser hereunder or resulting from this Contract, unless expressly agreed to the contrary and except as provided in Section 8. If the purchaser shall in any way acquire any such rights, then the purchaser shall immediately inform MKS and shall forthwith take such steps as may be required to assign such rights to MKS or to vest such rights in MKS.

10. Specifications. Unless otherwise expressly agreed-to in writing by the parties, MKS reserves the right to make substitutions and modifications in the specifications of any Products provided that such substitutions or modifications do not materially affect the performance of the Products. At MKS' discretion, reconditioned components can be used in the manufacture of Products, provided that any such reconditioned components used shall in all respects be functionally equivalent to new components.

11. Limited Warranties and Remedies.
(A) MKS warrants, to the original purchaser of the Products (excluding consumables), that for the applicable warranty period for each such Product set forth in www.mksinst.com/warranties or otherwise provided by MKS in writing (the "Warranty Period"), the Products shall be free from defects in materials and workmanship when installed, serviced and operated with the specifications for which they were designed. During the Warranty Period, MKS will, at its option and in its sole discretion, either (i) repair or replace any Product which does not comply with the above warranty without charge to the purchaser or (ii) require the return of the Product giving rise to the claim and, upon receipt, refund the pro-rated portion of the fees paid for said Product. All freight charges are to be borne by purchaser. Any replacement Products shall be warranted for the remainder of the original warranty or for three (3) months, whichever is longer. All Products should be inspected for obvious damage upon arrival. If Product(s) have been damaged in transit, the MKS Service Department must be notified within 72 hours. This warranty does not apply to any Product which (a) has not been installed and used in accordance with the specifications recommended by MKS for the proper and normal use of the equipment or (b) has been contaminated with corrosive, reactive, harmful chemicals, gases or any radioactive materials. If a seal is used on the Product, any removal or breaking of the seal shall void the warranty. Calibrations performed in accordance with the application user manual shall not void the warranty if performed properly. THE FOREGOING SHALL CONSTITUTE THE EXCLUSIVE AND SOLE REMEDY OF THE PURCHASER FOR ANY BREACH BY MKS OF EXPRESS OR IMPLIED WARRANTIES FOR THE PRODUCTS.
(B) MKS warrants that any Services will be of a professional quality conforming to generally accepted industry standards and practices, provided that the purchaser notifies MKS of any non-conforming Service within thirty (30) days from completion of that Service. MKS' RE-PERFORMANCE OF SERVICES SHALL BE PURCHASER'S SOLE REMEDY AT LAW OR IN EQUITY IN THE EVENT ANY SERVICE FAILS TO CONFORM TO THIS WARRANTY.
(C) THESE WARRANTIES ARE IN LIEU OF ALL OTHER RELEVANT WARRANTIES, REPRESENTATIONS, PROMISES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT AND SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. ALL CONSUMABLE AND EXPENDABLE COMPONENTS ARE PROVIDED "AS IS".

12. Liability. IN NO EVENT SHALL MKS' (OR ITS LICENSORS' OR SUPPLIERS') MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS CONTRACT EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER FOR THE SPECIFIC PRODUCT OR SERVICE WHICH CAUSED THE DAMAGE. IN NO EVENT SHALL MKS (OR ANY OF ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, COVER OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF MKS HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. No suit or action shall be brought against MKS more than one year after the cause of action has accrued.

13. Infringement. In the event a Product is adjudicated to infringe the intellectual property right of a third party, MKS shall, at its expense and option either (I) procure for the purchaser the right to use the Product in question, or (II) modify the Product, or replace with an alternative product, in each case to avoid infringement without material impairment of its functionality. If neither of the foregoing remedies can be obtained upon commercially reasonable terms, MKS may allow the purchaser to return to MKS the Products and MKS shall refund to purchaser the fees paid by purchaser to MKS (if any) for the applicable Product. The foregoing shall not apply if the alleged infringement is attributable to the combination of the Product with products not provided by MKS, or if the Product is modified or altered by any person or entity other than MKS, or if the Product is used outside the scope of the specification or the Contract or if the Product is based on purchaser's or its customer's designs or specifications. THIS SECTION STATES MKS' SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.

14. Assignment. The purchaser shall not delegate any duties nor assign any rights or claims under the Contract without MKS' prior written consent, and any such attempted delegation or assignment shall be void.

15. Compliance with Laws. The purchaser shall comply with all applicable laws, rules, and regulations, of all government authorities, including without limitation, any applicable export laws and regulations, and shall obtain all permits and licenses required in connection with the purchase, installation, sale, shipment, or use of any of the Products.

16. Governing Law. This Contract and matters connected with the performance thereof or otherwise arising out of this Contract shall be construed, interpreted, applied, governed and enforced in all respects by the laws of the Commonwealth of Massachusetts. The purchaser consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts.

17. Additional or Inconsistent Terms. Any Purchase Order terms which differ from, conflict with or are not included in the Terms and Conditions set forth in this document shall not become a part of any agreement between MKS and the purchaser unless such terms and conditions are expressly accepted by both parties in writing. No modification to these Terms and Conditions shall be valid unless mutually agreed to in a separate, signed written agreement.

Rev. 10/26/09.

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