Evaluation Terms and Conditions
These Evaluation Terms and Conditions are made between the recipient identified below ("Recipient") and MKS Instruments, Inc. ("MKS") and sets forth the terms under which MKS shall loan and Recipient shall use certain products and their related documentation ("Products") as are specifically listed on the face of the mutually agreed to order document ("Order") at the site which is specified in said Order ("Evaluation Site") for internal testing and evaluation purposes only (the "Purpose"). None of the printed terms and conditions on any Recipient purchase order shall apply to the Order. Unless otherwise expressly agreed in writing by the parties, all quotations and loans are made in accordance with, and subject to the following terms and conditions:
1.0 DELIVERY AND USE
1.1 Upon MKS' shipment of the Products to the Evaluation Site, Recipient shall bear all risk of loss for Product(s) until returned to MKS' control. MKS may, at its sole discretion, help Recipient with installation. MKS shall provide Recipient with necessary documentation to enable Recipient to evaluate the Product(s). The Recipient shall provide a set of testing parameters prior to the evaluation of the Product and agrees to share the results of the evaluation with MKS. Recipient agrees to work with MKS, if appropriate and suitable to both parties, to adjust the Product in order to meet the technical requirements and expected performances. All test or benchmark results shall be provided to MKS and shall not be disclosed by Recipient to any third party. MKS may use such results to further develop or test the Product.
1.2 Title to, ownership of and intellectual property rights including, without limitation, patents, copyrights and trade secrets in the Products and MKS Confidential Information remain in MKS at all times. Recipient shall keep all Products free from all liens, attachments, encumbrances or judicial processes and shall immediately notify MKS of any claim that may be adverse to MKS' interest therein. The parties acknowledge and agree that any rights granted hereunder shall not be considered a sale or an offer to sell under 35 U.S.C. � 102(b). Neither Recipient nor its agents or personnel shall modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer (except as otherwise specifically permitted for by law and solely for interoperability purposes), de-compile, disassemble, decrypt or otherwise reduce the Software or any Products.
1.3 The Products shall (i) be used only by Recipient and Recipient's employees, or third parties under Recipient's direction and control for the Purpose; and (ii) not be removed from the Evaluation Site without the prior written consent of MKS. No modifications or additions shall be made to the Products without MKS' prior written approval.
1.4 Recipient shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. Recipient shall be responsible for all taxes or assessments now or hereinafter imposed on the Product by reason of its possession or use by Recipient.
2.1 For any Product, or portion thereof, which is identified as "Software" MKS grants Recipient a non-exclusive, non-transferable license to internally use such software, only during the Product Loan Term (as defined in Section 4.0 herein) and only on or in connection with the MKS equipment identified on the Order, and solely for the Purpose. Such Software is understood to be the Confidential Information of MKS and is subject to the provisions of Section 3.0 of these Terms and Conditions. Recipient shall reproduce and include copyright and other proprietary notices on and in any copies of the Software.
3.0. CONFIDENTIAL INFORMATION
3.1 Recipient may learn or receive from MKS information that is marked as "confidential" or the like, or which a reasonable business person would understand to not be generally available ("MKS Confidential Information"). Recipient shall not permit any person to reproduce or copy any portion of the MKS Confidential Information or to use same for any other purpose, except in connection with the Purpose.
3.2 Recipient shall not disclose, or permit access to, the Confidential Information to any person except if such person is (i) an employee or contractor of Recipient and has a need to know such in connection with the Purpose, and (ii) legally bound by a written agreement with Recipient containing confidentiality provisions at least as protective as those herein. Recipient shall return the Product and all MKS Confidential Information on request upon the expiration of the Product Loan Term.
3.3 In the event, MKS or its affiliates have entered into a non-disclosure agreement with Recipient ("NDA"); such NDA shall be incorporated herein by reference. To the extent the NDA sets forth more stringent terms, such terms shall take precedence.
4.0 TERM AND TERMINATION
4.1 These Terms and Conditions start on date the Product is shipped to Recipient and remains in effect until the earlier of (i) MKS demands the return of the Product, (ii) for period of time set forth in the Order or (iii) until the evaluation is completed ("Loan Term").
5.0 SECURITY DEPOSIT
5.1 There may be a security deposit required for the loan of the Product. Such security deposit, if any, shall be (i) stated in the Order, (ii) paid prior to the delivery of the Product to Recipient, and (iii) returned to Recipient provided that MKS receives the Product in as good of condition as when it was shipped to Recipient. The security deposit may be applied to the purchase price of the Product if such purchase is made within one month of the end of the Loan Term.
6.1 MKS PROVIDES ALL PRODUCT(S) HEREUNDER ON AN "AS-IS," "WHERE IS" BASIS, AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
6.2 Recipient shall be responsible for the full cost of any loss or damage to the Products. Recipient warrants and represents that it has insurance to cover such loss and damage.
6.3 Recipient shall indemnify and hold MKS harmless from and against any loss, cost, damage, or expense of whatsoever kind or nature arising out of or incidental to Recipient's possession, use or operation of the Product, except for harm caused by MKS' gross negligence.
7.0 INTELLECTUAL PROPERTY RIGHTS
7.1 MKS shall have no liability to Recipient for any action brought by or against Recipient alleging that Recipient's use or other disposition of any Product(s) infringes any patent, copyright, trade secret or other intellectual property right. In event of such an action, MKS retains the right to take possession of the Product(s), which shall not be deemed to be a violation of these Terms and Conditions.
7.2 THIS SECTION 7.0 STATES MKS'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCT(S).
8.0 LIMITATION OF LIABILITY
8.1 TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR A VIOLATION OF SECTIONS 1.2, 2.0, 3.0, 9.0 OR PURSUANT TO SECTION 6.3, IN NO EVENT SHALL EITHER PARTY (i) BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (ii) BRING ANY CLAIM ARISING OUT OF THESE TERMS AND CONDITIONS MORE THAN TWENTY-FOUR (24) MONTHS AFTER SUCH CLAIM HAS ACCRUED. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MKS' AGGREGATE LIABILITY EXCEED THE FEES PAID BY RECIPIENT, IF ANY, FOR THE PRODUCT AND RELATED SUPPORT SERVICES.
9.0 COMPLIANCE WITH LAWS
Recipient shall comply with all applicable laws, rules, and regulations, of all government authorities, including without limitation, any applicable import and export laws and regulations, and shall obtain all permits and licenses required in connection with the evaluation, import, export, installation, shipment, or use of any of the Products.
MKS' products and related technical data are subject to export controls administered by the United States (including, but not limited to, the Department of Commerce Export Administration Regulations ("EAR"), Treasury Department's Foreign Assets Control Regulations ("FACR"), etc.) and other countries including controls for re-export and the import regulations of other countries. Diversion contrary to U.S. or other applicable law of any MKS product or service is prohibited without the prior authorization of the appropriate US federal or other government agency(ies). These restrictions are applicable to US goods and technology located anywhere in the world. MKS products, technical data and services are prohibited from being sold, transferred, exported or re-exported to any person or entity named on the U.S. Department of Commerce Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. MKS products and services may not be sold, transferred, exported or re-exported to countries that are subject to U.S. embargoes and economic sanctions. Further, our products are prohibited from being used in application relating to chemical or biological weapons, sensitive nuclear end-uses, or missile technology end-uses.
Except for the quantity, price and other business details on a mutually agreed to Order and these Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications and agreements, either oral, written or otherwise recorded. These Terms and Conditions and the obligations hereunder, shall not be assigned by Recipient. In the event Recipient assigns these Terms and Conditions, the Loan Term shall automatically expire. If any court or competent authority finds that any provision in these Terms and Conditions that is prohibited (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 thereof shall not be affected. In the event of any breach or threatened breach of these Terms and Conditions, MKS will be entitled to seek injunctive and/or other preliminary or equitable relief, in addition to any other remedies available at law. These Terms and Conditions shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules. The parties are independent contractors for all purposes hereunder.