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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. MKS rejects any conflicting conditions of the purchaser or any conditions of the purchaser deviating from the following terms and conditions, unless MKS expressly agrees to their application in writing. 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, MKS in its reasonable judgment, believes there is a risk that the purchaser will fail to make full payment when due based on the purchaser's financial condition or payment history. All amounts are stated in, and payment shall be made in, U.S. dollars unless otherwise agreed to in writing or expressly stated in the Order. To the extent permitted by law, overdue payments shall be subject to finance charges computed at a periodic rate 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 EXW (Incoterms 2010) MKS shipping point, at the place of manufacture, or warehouse location, exclusive of insurance cost, freight and packaging costs. 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 MKS' prompt receipt of all necessary Order and shipping 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 (except to the extent liability is caused by MKS' gross negligence or willful misconduct), 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 due to any reason other than to the extent of a material breach of contract by MKS, 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, including a shrinkwrap and/or clickwrap agreement (in which case, the terms of that separate agreement will prevail), 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; and and purchaser agrees to any shrinkwrap and/or clickwrap related to third party software which his provided to purchaser. 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 and Confidential Information.
(A) 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 foregoing restriction on reverse engineering shall not apply only to the extent reverse engineering is explicitly permitted by mandatory interoperability provisions of applicable law. 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.
(B) Purchaser shall treat all technical and commercial information, including without limitation, technical data, documents and pricing, confidential. All such information shall remain the property of MKS. Purchaser shall only use such information for the sole purpose of using the Product and/or Services in accordance with this Agreement. Purchaser shall take all reasonable precautions to prevent any such information from being divulged to any third persons.

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 or (c) is based on designs or specifications provided to MKS. 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 TO THE FULLEST EXTENT PERMITTED BY LAW, 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. This Section 12 shall apply to the fullest extent permitted by law.

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, all applicable import and export laws and regulations. MKS shall be responsible to obtain all required permits and licenses to support the export or sale of any of the Products, unless otherwise specified by MKS. MKS' products, technical data, software and services are subject to export and re-export controls administered by the United States (including, but not limited to, the Commerce Department's Export Administration Regulations ("EAR"), and the Treasury Department's Foreign Assets Control Regulations ("FACR")) and other countries, as well as import-related laws and regulations. Diversion, re-export or trans-shipment of any MKS' Product contrary to U.S. law or the law of other applicable jurisdictions is prohibited without the prior authorization of the appropriate U.S. or other government agency(ies). Without limiting the generality of this Section 15, MKS' Products are prohibited, unless specific authorization is granted by the U.S. government, from being sold, transferred, exported, re-exported, or otherwise diverted to (i) any person or entity named on the various restricted party lists published by the U.S. government and other jurisdictions and (ii) any country that is subject to U.S. embargoes and economic sanctions. Additionally, MKS' Products are prohibited from being used in activities that support, directly or indirectly, the development, production, or sale of chemical, biological, or nuclear weapons; missile delivery systems or any other illicit end-use.

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.

18. Severance.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

19. Specific Exceptions.
Appendix A sets forth specific exceptions to the above terms and conditions. To the extent that any provision in Appendix A is in conflict with any other term and condition in this Contract, Appendix A will supersede such other term or condition.

Appendix A: Specific Exceptions

People's Republic of China:
If purchaser is in the People's Republic of China and obtained the Product(s) or Software directly from MKS' subsidiary in the People's Republic of China then the following applies:

  1. The disclaimers in Sections 11(A), 11(B) and 13 shall only apply to the extent permitted by applicable law.
  2. Section 12 shall be deleted and replaced with the following:
    "12. Liability.
    TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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, UNLESS IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MKS. 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."
  3. Section 16 shall be deleted and replaced with the following:
    "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 People's Republic of China. Except for a violation of MKS' intellectual property rights, any dispute, arising from or in connection with this Contract shall be submitted to the China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission's arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. Each party shall incur their own expenses, including without limitation attorneys' fees relating to such arbitration."

Korea:
If purchaser is in Korea and obtained the Product(s) or Software directly from MKS' subsidiary in Korea then the following applies:

  1. Add the following language to the end of Section 1:
    ", provided, however, MKS shall provide a notice of price change five (5) days prior to the effective date of the proposed price change with respect to a purchaser who has a continuous contractual relationship with MKS"
  2. Add the following sentences to the end of Section 7:
    "In deciding whether to grant its pre-approval, MKS will reasonably consider all factors involved in the purchase."
  3. Delete the following language in Section 11:
    "All freight charges are to be borne by purchaser."

UK:
If purchaser is in UK and obtained the Product(s) or Software directly from MKS' subsidiary in UK then the following applies:

  1. Delete Section 5 and 6 and replace with the following:
    "5. Risk of damage to or loss of the Products shall pass to the purchaser upon delivery.
    6 (a) Title to the Products (both legal and equitable) shall remain with MKS until full payment with cleared funds of all monies due from the purchaser to MKS under all contracts between MKS and the purchaser has been made, or title is properly vested in some other person by the operation of any statute.
    (b) Until title to the Products passes, the purchaser shall hold them on a fiduciary basis as MKS's bailee and must store them (at no cost to MKS) such that they are easily identifiable as the property of MKS and must not destroy or deface any identifying marks on them or their packaging; and must keep them insured on MKS's behalf for their full price against "all risks" to the reasonable satisfaction of MKS and produce the policy of insurance to MKS upon request and must hold all proceeds of such insurance on trust for MKS and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
    (c) Until title to the Products passes, the purchaser shall be entitled to use or otherwise dispose of them in the ordinary course of its business provided that the purchaser shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for MKS and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to MKS.
    (d) Once payment becomes due, MKS may, as the owner of the Products (without prejudice to its other rights), demand their immediate return at any time and the purchaser must comply with (and bear the cost of) such demand immediately. If the purchaser fails to return them, MKS or its successors in title, and their respective employees and agents, may enter the purchaser's premises (with or without vehicles) during normal business hours to remove them (the cost of which shall be borne by the purchaser) and/or may sell or otherwise deal with them."
  2. Add two new paragraphs to the end of Section 12:
    "Nothing in this Contract shall exclude or limit the liability of MKS for death or personal injury caused by MKS' negligence, fraud or fraudulent misrepresentation.
    Purchaser acknowledges that the allocation of risk in this Contract reflects the price paid for the Product and that it is not within MKS's control how or for what purposes the Product is used. Purchaser is responsible for selecting the Products in accordance with the knowledge of its requirements and for the use and results obtained from the Products."

Germany:
If purchaser is in Germany and obtained the Product(s) or Software directly from MKS' subsidiary in Germany then the following applies:

  1. Add the following language to the last sentence of Section 2: ", unless the amounts which the purchaser may claim are uncontested or have been awarded by a final court decision."
  2. Section 6 is deleted and replaced with the following:
    "Retention of Title.
    All Products shall remain MKS' property until each and every claim MKS has against the purchaser has been fulfilled ("Products delivered subject to retention title"). If the combined value of the Products delivered are subject to retention of title exceeds the value of all secured claims by more than 10%, MKS shall release a corresponding part of Products delivered subject to retention of title if so requested by the purchaser; MKS shall be entitled to choose which Products delivered subject to retention of title it wishes to release. In the case of processing, combining or mixing of Products delivered subject to retention of title with any goods of the purchaser, MKS shall be the co-owner of such goods to the extent that the value of the Products delivered subject to retention of title relates to the value of the other goods involved. Where MKS' co-ownership rights become null and void due to processing, combining or mixing with any other goods, the purchaser shall immediately assign to MKS its ownership rights which correspond to the value of the Products delivered subject to retention of title. The purchaser shall also be responsible for holding such rights in safe custody on behalf of MKS at its own expense."
  3. Sections 11 (A) and (B) is deleted and replaced with the following:
    "(A) MKS warrants, to the original purchaser of the Products, that, unless agreed otherwise, for (1) one year starting from delivery, or for the applicable warranty period for each such Product set forth in www.mksinst.com/warranties, whichever is longer, (the "Warranty Period"), the Products shall be free from defects in materials and workmanship and free from legal defects 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, repair or replace any Product which does not comply with the above warranty without charge to the purchaser. Purchaser shall not be entitled to rescind the contract, to reduce the contract price, to claim for damages or to perform any other remedy, unless purchaser has set a reasonable deadline to MKS twice to remedy the defects at issue and setting of such a deadline is not dispensable. Any replacement Products shall be warranted for the remainder of the original Warranty Period not taking the time of the negotiations on replacement and the time in which the Products are defective into account, 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.
    (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. All claims shall be time-barred one (1) year after rendering of the 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.
  4. Section 12 is deleted and replaced with the following:
    "Limited Liability.
    MKS shall be liable for loss or damage caused by it or its respective vicarious agents or subcontractors without limitation (i) if obligations were violated intentionally or with gross negligence, (ii) in case of existence of compulsory legal liability, particularly under the product liability act, (iii) if obligations were assumed in an express warranty (iv) if MKS fraudulently concealed a defect and (v) if physical injury was caused to a person by culpable action or omission and such person has died and/or his/her health has suffered. If such an obligation that is of the essence of the contract was breached by culpable action or omission so that there is a risk of impossibility of achieving the purpose of the contract (cardinal obligation), MKS shall be liable for the loss or damage caused in the amount typical and foreseeable at the time of conclusion of Contract unless liability is unlimited for some reason according sentence 1. Otherwise, liability on the part of MKS shall be excluded, regardless of the legal basis. In so far as MKS' liability is excluded by the above clauses, this shall also apply to MKS' employees and executives.
  5. Delete Section 16 and replace with the following:
    "This Contract and matters connected with the performance thereof otherwise arising out of this Contract shall be construed, interpreted, applied, governed and enforced in all respects by the laws of the Federal Republic of Germany, the UN-Convention on the International Sale of Goods (CISG) shall not apply. The purchaser consents to the exclusive jurisdiction of the courts in Munich, Germany.

Italy:
If purchaser is in Italy or obtained the Product(s) or Software directly from MKS' subsidiary in Italy, then the following applies:

  1. Delete Section 6 and replace with the following:
    "Retention of Title.
    (A) Title to the Products shall remain with MKS until full payment with cleared funds of all monies due by the purchaser to MKS under the relevant Contract has been made. MKS shall be entitled to take all steps and actions that, under the provisions of applicable law, may be necessary in order to make such retention of title fully valid and enforceable vis-à-vis the purchaser and/or any third party and the purchaser, if so requested, shall provide MKS with any reasonable cooperation for the purposes hereof.
    (B) Until title to the Products passes to the purchaser, the same purchaser shall (i) hold the Products on a fiduciary basis as MKS' bailee, (ii) store the Products (at no costs for MKS) so that they are easily identifiable as MKS' property, (iii) not destroy or deface any identifying marks on the Products or their packaging, (iv) if so required by MKS, execute and deliver an "all risks" insurance policy covering loss and/or damages to the Products for an amount not lower than their price, naming MKS as beneficiary of the relevant proceeds (the purchaser shall be obliged to provide copy of such insurance policy to MKS upon simple request of MKS).
    (C) Until title to the Products passes to the purchaser, the same purchaser shall not use or otherwise dispose of the Products in the ordinary course of its business, unless expressly authorized by MKS in writing and subject to the terms and conditions set forth by the latter.
    (D) In case of failure by the purchaser to pay any amount due to MKS under the relevant Contract, MKS will be entitled, as the owner of the Products (without prejudice to any other rights and remedies being available to MKS under applicable law), to require the purchaser to promptly return the Products to MKS at costs and expenses of the purchaser. Failing the purchaser to return the Products to MKS, MKS or its successors or assignees, and their respective employees and/or agents, will be authorized to enter the purchaser's premises (with or without vehicles) during normal business hours to remove the Products and/or sell or otherwise dispose of the Products. It is agreed and understood that any costs and expenses of the activities hereunder shall be borne by the purchaser."
  2. Delete Sections 11 (A) and (B) and replace with the following:
    "Limited Warranties and Remedies.
    (A) MKS warrants, to the original purchaser of the Products (excluding consumables), that, unless agreed otherwise, for (1) one year starting from delivery, or for the applicable warranty period for each such Product set forth in www.mksinst.com/warranties, whichever is longer, (the "Warranty Period"), the Products shall be free from defects in materials and workmanship and free from legal defects 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 amounts 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 Period, 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 or (c) is based on designs or specifications provided to MKS. 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. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, 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 the discovery by the purchaser of the relevant non-conformity. All claims shall be time-barred two (2) years following the provision of the Services by MKS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, MKS' RE-PERFORMANCE OF SERVICES SHALL BE PURCHASER'S SOLE REMEDY IN THE EVENT ANY SERVICE FAILS TO CONFORM TO THIS WARRANTY."
  3. Delete Section 12 and replace with the following:
    "Liability.
    MKS' (OR ITS LICENSORS' OR SUPPLIERS') MAXIMUM LIABILITY WILL BE LIMITED TO GROSS NEGLIGENCE OR WILLFUL INTENT WHETHER UNDER CONTRACT OR TORT LAW OR OTHERWISE. IN NO EVENT SHALL MKS (OR ANY OF ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, 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. This Section 12 shall apply to the fullest extent permitted by applicable law."
  4. Add the following paragraph to Section 15:
    "The parties acknowledge and undertake that pursuant to Section 26, Paragraph 3-bis, of Legislative Decree no. 81/2008 (i) it will not be necessary to prepare a 'risk assessment document' ("D.U.V.R.I.") indicating the measures adopted to eliminate possible working interferences and (ii) the costs relating to workplace safety with specific reference to any working interference, pursuant to Article 26, Paragraph 5, of Legislative Decree no. 81/2008, are equal to Euro 0 (zero). At any time during the performance of the relevant Contract, the purchaser shall promptly notify MKS of any prospective working interference between MKS and the purchaser, for the purchaser to (i) prepare a D.U.V.R.I. (ii) define the costs relating to workplace safety."
  5. Delete Section 16 and replace with the following:
    "Governing Law.
    This Contract and matters connected with the performance thereof otherwise arising out of this Contract shall be construed, interpreted, applied, governed and enforced in all respects by the laws of the Italian Republic, the UN-Convention on the International Sale of Goods (CISG) shall not apply. The purchaser consents to the exclusive jurisdiction of the courts in Milan, Italy."

Rev. 01.02.14