Sales and Service Terms and Conditions

The accompanying MKS quote or sales order acknowledgement (the "Order") and these Sales Terms and Conditions (this "Contract") shall constitute the entire agreement between the purchaser, owner or its agent ("purchaser") and MKS Instruments, Inc. or its direct or indirect subsidiary (individually and collectively referred to as "MKS") for the products, parts, components, and software set forth in the Order (the "Products") and/or any services set forth in the Order (the "Services") and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. Unless otherwise expressly provided with respect to a particular sale, all quotations and sales are made in accordance with, and subject to, this Contract. By submitting a purchase order to MKS or by using any Products or having any Services performed, purchaser agrees to be subject to this Contract in its entirety. All purchase orders must be bona fide commitments showing mutually agreed prices, quantities and shipping terms. MKS rejects any conflicting conditions of purchaser or any conditions of purchaser deviating from this Contract, and this Contract shall prevail over any provision contained in any of purchaser's general terms and conditions, or any purchaser order, acceptance, confirmation or acknowledgement, regardless of whether or when purchaser submitted its order or such terms and conditions. Without limiting the foregoing, unless otherwise agreed in writing by MKS, nothing contained in any purchase order of purchaser shall in any way modify or add any provision to this Contract. In addition, fulfillment of purchaser's order does not constitute acceptance of any of purchaser's terms and conditions and does not serve to modify or amend this Contract. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products and Services covered hereby, the terms and conditions of that Contract shall prevail to the extent they are inconsistent with this Contract.

IN THE EVENT THAT ANY ACCOMPANYING MKS QUOTE IS DEEMED AN OFFER, SUCH OFFER IS EXPRESSLY CONDITIONED ON PURCHASER'S ASSENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS CONTRACT, AND ISSUANCE BY PURCHASER OF A PURCHASE ORDER IN RESPONSE SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND CONDITIONS. IN THE EVENT THAT ANY ACCOMPANYING MKS ORDER ACKNOWLEDGMENT IS DEEMED AN ACCEPTANCE OF PURCHASER'S PURCHASE ORDER OR OTHER OFFER OF PURCHASER, SUCH ACCEPTANCE BY MKS OF PURCHASER'S PURCHASE ORDER OR OTHER OFFER IS EXPRESSLY MADE CONDITIONAL ON PURCHASER'S ASSENT TO ANY ADDITIONAL AND DIFFERENT TERMS CONTAINED IN THIS CONTRACT, AND THE FAILURE BY PURCHASER TO SPECIFICALLY OBJECT TO THESE TERMS AND CONDITIONS IN WRITING WITHIN TEN (10) DAYS OF RECEIPT OF THESE TERMS SHALL CONSTITUTE AN ACCEPTANCE HEREOF.

1. Prices.
1.1 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, transfer and other taxes (including without limitation VAT and GST as well as import, export and customs fees and duties, if applicable) imposed by any federal, state, municipal, or other governmental authority (including governments of countries other than the USA), insurance costs and licensing fees, all of which shall be paid by purchaser. Unless otherwise expressly agreed in writing, such prices do not constitute payment for any rights to any technical data, proprietary rights, or patent rights relating to the Products, Software or Services. Purchaser shall reimburse MKS for all reasonable, actual out-of-pocket expenses incurred in connection with the Services including, but not limited to, travel and lodging expenses. 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. In the absence of proper evidence of exemptions, purchaser shall reimburse MKS for all taxes, excises, duties, imposts or other charges which MKS may be required to pay any government (national, state or local) upon, or measured by the production of any phase or part of the production, storage, sale, transportation, delivery and/or use of the Products. All prices shall be as specified by MKS, or as set forth in the accompanying MKS quote and/or order acknowledgment, or, if no price has been specified, shall be MKS' standard list price in effect at the time of delivery.
1.2 If volume discount pricing was provided for any Order in which Purchaser fails to purchase or take delivery of the committed or specified Product quantity (whether a result of permitted cancellation or otherwise), Purchaser shall pay MKS the difference between the list or non-discounted price and the discounted price for all delivered Products

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 to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance. For credit card orders, purchaser's account will be charged upon shipment of the Products. Purchaser agrees to furnish MKS with requested credit information. Confirmation of an Order and payment terms are subject to credit approval. MKS reserves the right, at its sole discretion and without prior notice, to at any time require full or partial payment in advance, or to limit, revoke or modify any credit terms previously extended as to time or amount, if, MKS in its reasonable judgment, believes there is a risk that purchaser will fail to make full payment when due based on purchaser's financial condition or payment history. If applicable, payments will be made in accordance with a specified payment schedule. Purchaser's failure to make payment when due will be a material breach of this Contract, and MKS, at its sole discretion and without incurring any liability, may withhold delivery of any Products or Services at any time in which purchaser's account is past due or exceeds its approved credit limit, until payment is received or until written approval by MKS of an alternative payment schedule has been issued. If MKS elects to continue to make shipments, MKS' action shall not constitute a waiver of any default by purchaser or in any way affect MKS' legal remedies for any default. In the event of such suspension of performance by MKS, there will be an equitable adjustment made to the delivery schedule and Order price reflecting the duration and cost resulting from such suspension. Purchaser may only suspend the Order upon MKS' written consent. 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 purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which 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 (Incoterms 2010) "MKS' designated facility", exclusive of insurance, freight and packaging costs. 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. Purchaser shall be liable for all costs and expenses incurred by MKS, including for holding or storing products for purchaser, if delivery is delayed with MKS' consent, by purchaser, or at purchaser's request, or as a result of purchaser's inability to receive Products. Shipping and milestone dates are approximate and are based upon MKS' prompt receipt of all necessary Order, shipping information, and service and development work-related requirements or specifications, if service or development work is applicable to the Order. MKS endeavors to use its reasonable efforts to produce and ship the quoted Product quantity.

4. Shipment.
Unless otherwise specified in MKS' pricing policies and published price schedules in effect at time of shipment, transportation and handling expenses shall be paid by purchaser. Further, unless specific instructions to the contrary are supplied by MKS, methods and routes of shipment will be selected by purchaser. MKS does not assume any liability in connection with shipment (except to the extent liability is caused by MKS' gross negligence or willful misconduct), nor shall any carrier be deemed to be an MKS' agent. Unless otherwise specified by MKS, all shipments will be insured at purchaser's expense and made at purchaser's risk, and purchaser shall be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, non-delivery, loss, damage, or delay. Purchaser shall inspect all Products promptly upon receipt, including without limitation inspection for obvious damage.

5. Title and Risk of Loss.
Subject to Section 6 and to MKS' right to stop delivery of Products in transit, delivery shall occur, title to Products (except for title to any Software which shall at all times remain with MKS) shall pass to purchaser and purchaser shall assume risk of loss or damage upon the earlier of delivery to purchaser or to a carrier for shipment to purchaser, unless otherwise agreed by both parties in writing.

6. Security Interest.
MKS reserves, and purchaser grants to MKS, a security interest in all Products sold and all proceeds to secure the full payment and performance by purchaser of its liabilities and obligations to MKS hereunder. 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. Changes, Cancellations, Returns Blanket Orders and Forecast.
7.1 MKS reserves the right to (a) make changes in Products or make substitutions and modifications in the specifications of the Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to purchaser and (b) ship to purchaser the most current Product regardless of catalog description, if applicable, provided that such substitutions or modifications do not materially affect the performance of the Products. Purchaser may request changes to the Product. Should MKS agree in writing to make such changes, MKS reserves the right to adjust the prices and delivery dates for the Products, and to invoice Purchaser for any unearned discounts based upon the actual quantities of Products delivered. In addition, Purchaser shall be responsible for all costs associated with such change including, but not limited to, the burdened costs of all raw materials, work in progress and finished goods inventory on-hand or ordered which are impacted by such change. In the event that changes to the specifications are required or are otherwise requested by purchaser, and MKS determines, in its sole discretion, that it is not capable of manufacturing the Products to meet such required or requested changes, MKS shall notify purchaser and, unless purchaser agrees that any requested change will not be implemented, MKS shall have the right, upon notice to purchaser, to terminate the order for the Product without any further liability to purchaser. In such event, purchaser shall reimburse MKS for MKS' actual cost of raw materials, labor, work in process and finished goods inventory on-hand or ordered prior to such termination. MKS reserves the right to offset any such costs against any amounts already paid by purchaser to MKS for the Products.
7.2 At MKS' discretion, reconditioned components can be used in the manufacture or Service of Products, provided that any such reconditioned components used shall in all respects be functionally equivalent to new components.
7.3 Orders may be cancelled only upon MKS' prior written approval, which approval may be granted or withheld in MKS' sole discretion. For any permitted Order cancellation, purchaser shall be liable for the fees and 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 and any other cancellation charges, including without limited to non-recurring engineering expenses, cancellation costs payable by MKS to its suppliers, and any other costs incurred by MKS relating to such cancellation, as well as the difference in the amount paid between any volume discount given and the current list or non-discounted price of the Product at the time of cancellation. In no event shall the purchaser be liable for more than the contract price of the cancelled Products.
7.4 Pre-approval is required for all other returns, and any such return is subject to inspection after receipt by MKS. Purchaser may not return any customized Product. Purchaser bears all risk of loss or damage to the returned Products until delivery at MKS' designated facility. Any return shipment received by MKS shall be in their original condition.
7.5 Blanket Purchase Orders; In the event that purchaser orders the Products through the issuance of one or a series of blanket purchase orders, such blanket purchase order shall be binding and non-cancelable. If no release schedule is provided in the blanket Purchase order, purchaser is required to issue releases covering the total quantity in the blanket purchase order prior to the expiration date of the blanket Purchase Order, or if no expiration date is included, no later than twelve (12) months from the issuance of the blanket Purchase Order, always taking into account MKS' standard lead times for the applicable Product.
7.6 Forecasts. In the event MKS is building to forecast in the absence of a blanket purchase order, purchaser shall provide to MKS a forecast of its requirements for Products, updated by purchaser at least monthly (the "Forecast"). Purchaser shall be liable for thirteen (13) weeks of Products immediately following the date of each Forecast (the "Committed Purchases"). Purchaser shall take delivery of the Committed Purchases in accordance with the agreed upon delivery dates and if no delivery dates have been agreed upon, within four (4) months from the applicable Forecast date.

8. Services.
This Section 8 shall apply in the event Services are purchased by Purchaser:
8.1 If MKS is providing on-site Services, such locations must be agreed in writing by MKS, or as otherwise specified in the MKS quote.
8.2 In connection with a repair, MKS may, in its sole reasonable discretion, determine that certain additional remedial repairs or replacement of consumable items are necessary to bring the Product in conformance with the Specifications, and such repairs and consumables shall be made at Purchaser's cost.
8.3 MKS shall have no obligation relating to the operation and/or functionality of any non-MKS product attached to or otherwise linked to the Product.
8.4 Purchaser shall provide reasonable access, a proper electrical and physical environment, if applicable, and all information reasonably requested by MKS.

9. Software License Terms.
Purchaser acknowledges that the software or firmware components and applications, if any, either available on a stand-alone basis or embedded or accompanying the Products sold hereunder (the "Software") and any accompanying documentation (the "Documentation") are licensed and not sold to purchaser. MKS shall at all times have and retain title and full ownership of the Software and the Documentation, and purchaser shall receive no rights to the Software or the Documentation except as expressly provided herein. 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: upon MKS' receipt of full payment for the Software, purchaser shall be entitled to use the Software and the Documentation only for its own internal use; 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 a reasonable number of copies of the Documentation to use the Software; and purchaser agrees to any shrinkwrap and/or clickwrap related to third party software which is provided to purchaser. For purposes of this Contract, Software and Documentation shall be deemed to be "Products." No license to use the source code of the Software is provided hereunder. Any Software and Documentation provided to the U.S. 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). Purchaser shall not use, distribute, license, sublicense, resell, copy, make available or otherwise transfer all or any part of the Software or the Documentation other than as expressly permitted hereunder without the prior written consent of MKS. Purchaser shall not, nor shall it permit any employee or agent of purchaser to, adapt, modify, copy, reproduce, reverse engineer, decompile, decrypt or disassemble the Software in any way without the prior written consent of MKS. Except as expressly set forth herein, MKS shall have no obligations to purchaser whatsoever with regard to the Software. Without limiting the generality of foregoing, MKS has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to purchaser.

10. Intellectual Property and Other Property Rights.
10.1 MKS Rights. Purchaser may not copy, modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, disassemble, or otherwise reduce 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. As between purchaser and MKS, MKS retains all right, title and interest in and to all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by MKS or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing Services hereunder (collectively, the "MKS Rights"). MKS Rights include, but not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Purchaser shall not acquire any MKS Rights or any other right, title or interest in or to any intellectual property of MKS either supplied to purchaser hereunder or resulting from this Contract, unless expressly agreed to the contrary and except the limited Software license (if applicable) provided in Section 9 and as provided in Section 10.2 below, and nothing contained herein shall give purchaser any right to utilize MKS Rights or any such intellectual property in any manner whatsoever except in connection with purchaser's use of the applicable Product in accordance with the Documentation for the same. If purchaser shall in any way acquire any such rights, then 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. MKS shall retain all right, title and interest in and to all materials, fixtures, tools and/or dies furnished, designed, developed or manufactured by MKS in connection with the manufacture of the Products Unless otherwise agreed in writing by MKS, any data provided under this Contract or related Order under a U.S. government contract shall be deemed Limited Rights Data in accordance with FAR 52.227-14 and is deemed "commercial item technical data" provided under DFAR 252.227-7015.
10.2 MKS' License to MKS IP. MKS hereby grants to purchaser a nonexclusive, nontransferable, worldwide, limited license to use the MKS Rights solely to the extent required for purchaser to use the Products sold or Software licensed hereunder.
10.3 Prohibition Against Use as Tools or Molds. Purchaser shall not use the Products as tools or molds, or to permit such actions by any third party. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS CONTRACT ON THE UNDERSTANDING THAT THE PRICE FOR THE PRODUCTS TO BE PROVIDED HAS BEEN SET TO REFLECT THE FACT THAT PURCHASER AGREES NOT TO COPY OR REPLICATE PRODUCTS, TO USE PRODUCTS AS TOOLS OR MOLDS, OR TO PERMIT SUCH ACTIONS BY ANY THIRD PARTY, AND IF NOT SO ACKNOWLEDGED AND AGREED, THE PRICES FOR THE PRODUCTS WOULD HAVE BEEN SUBSTANTIALLY HIGHER.
10.4 Customer-Furnished Material. In the event that purchaser, with MKS' prior approval, provides products, raw materials, fixtures or tools (collectively, the "Customer Furnished Material" or "CFM") to MKS for incorporation into, or use in the manufacture of, the Products, or in conjunction with the Services, purchaser shall retain title to, and shall continue to bear all risk of loss or damage to, such CFM. CFM IS PROVIDED BY PURCHASER AT PURCHASER'S RISK. IN NO EVENT SHALL MKS BE LIABLE FOR ANY LOSS OR DAMAGE TO SUCH CFM RESULTING FROM ANY CAUSE WHILE IN MKS' POSSESSION. PURCHASER SHALL BE SOLELY RESPONSIBLE FOR INSURING THE CFM AGAINST ANY SUCH LOSS OR DAMAGE. CFM certification and quality are the responsibility of purchaser. All CFM is subject to inspection by MKS upon receipt, and MKS reserves the right to refuse the CFM and/or requote the order based upon such inspection (such requote must be accepted by purchaser to be effective and, where it is not accepted, MKS reserves the right to then refuse the CFM). CFM is not guaranteed to yield purchaser's total order quantity. If material shortages occur due to yield, purchaser shall, at its option, either supply additional CFM to complete the order or close the order short. Any CFM not used by MKS will be returned to purchaser, at purchaser's risk and expense.

11. Confidentiality.
Purchaser acknowledges that in connection with the purchase and sale of Products or Services or the licensing of Software, MKS may make available certain business (including without limitation, pricing) and technical information and materials, including the Software and Documentation, and all marked information ("Confidential Information"). Any information or material which by its nature and under the circumstances surrounding its disclosure is generally considered proprietary and confidential shall also be deemed Confidential Information regardless of whether it is properly marked with legends or properly reduced to writing. Purchaser shall (a) hold the Confidential Information in strict confidence and use its reasonable efforts to prevent the unauthorized disclosure of the Confidential Information; (b) not disclose the Confidential Information in any manner whatsoever, except as permitted by subparagraph (d) below or as required by applicable law; (c) use the Confidential Information only for the purpose of performing its obligations hereunder or in conjunction with the operation of the Products or Software and for no other purpose; and (d) provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the sole purpose of using the Products or Services in compliance with this Contract. These obligations shall not apply to information that: (i) was independently developed by or for the receiving party without use of the disclosing party's Confidential Information, in whole or in part, as demonstrated by written evidence; (ii) is or becomes generally available to the public without breach of confidentiality obligations by the receiving party; (iii) was in the receiving party's possession or was known by the receiving party without restriction at the time of disclosure by disclosing party, as demonstrated by written evidence; or (iv) is lawfully received by the receiving party on a non-confidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party.

12. Limited Warranties and Remedies.
(A) Products.
MKS warrants, to the original purchaser of the Products (excluding Software, and parts, consumables and prototypes), 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 material defects in materials and workmanship and will conform in all material respects to the applicable MKS Product specifications, under normal use and service when correctly installed, maintained, serviced and operated within the MKS Product 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 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, provided, that, within the Warranty Period, purchaser notifies MKS in writing promptly after discovery of the noncompliance. Purchaser shall bear all freight charges. Products may only be returned by purchaser when accompanied by a return material authorization number ("RMA#") issued by MKS' Return Department, with freight prepaid by purchaser, which RMA# must be clearly marked on the outside of the shipping container. Purchaser bears all risk of loss or damage to the Products until delivery at MKS' designated facility. Any Spare Parts or replacement Products shall be warranted for the remainder of the original warranty or for three (3) months, whichever is longer. For parts or Products returned for repair that are not covered under warranty, MKS' standard repair charges shall be applicable in addition to all shipping expenses. Unless otherwise stated in MKS' repair quote, any such out-of-warranty repairs are warranted for ninety (90) days from date of shipment of the parts or repaired Product.
This warranty does not apply to any Product or parts which, as determined by MKS in its sole discretion, (a) has been installed, operated, maintained, serviced, modified, altered or used other than in accordance with MKS Product specifications recommended by MKS for the proper and normal use of the part or Product; (b) has been repaired, modified or altered by any party other than MKS or a third-party authorized in writing by MKS; (c) has been used in conjunction with parts or equipment not provided or authorized by MKS; (d) has been contaminated with corrosive, reactive, harmful chemicals, gases or any radioactive materials; (e) has been subjected to unusual physical, thermal, electrical or optical stress, misuse, abuse, tampering, accident, contamination, negligence or neglect in use, storage, transportation or handling (including any failure to maintain appropriate environmental conditions as specified by MKS for a particular Product); (f) is considered a consumable item or an item requiring repair or replacement due to normal wear and tear; (g) is based on designs or specifications provided to MKS; or (h) has been modified or altered such that MKS is unable to verify the alleged warranty nonconformance with its standard test equipment. 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 warranty does not apply to or cover (i) any Customer Furnished Material incorporated into the Products; (ii) damage to sensors; (iii) Products that are marketed and sold by MKS as a distributor for a third-party manufacturer and under such third-party manufacturer's name, except to the extent of any warranty that is expressly provided to MKS by such third-party manufacturer and is assignable by MKS to its customers; or (iv) on-site warranty repair unless otherwise stated in MKS' quotation. The foregoing warranty applies only so long as the Products remain in use in the country of purchase. To the extent the Products are removed from the country of purchase, the foregoing warranty may be voided at MKS' discretion.
(B) Software.
Unless otherwise provided in the Order, for Software, MKS warrants to the original licensee or purchaser of the Products that, for a period of twelve (12) months from the date of shipment, the Software shall be free from significant programming errors or defects when properly installed. For Software upgrades or reconfigurations performed in connection with Services, MKS warrants that, for the longer of: (a) a period of ninety (90) days following completion of the upgrade or reconfiguration, or (b) the remaining Software warranty period, if any, on the associated Product sold by MKS (if applicable) to purchaser, the Software shall be free from significant programming errors or defects when properly installed. During the applicable warranty period, if purchaser promptly notifies MKS in writing of possible errors or defects in the Software, identifying any such error or defect in reasonable detail sufficient to allow MKS to identify and replicate such error or defect, MKS shall, at no cost to purchaser, use commercially reasonable efforts to promptly repair and correct such errors or defects in the Software. The foregoing warranty is nontransferable unless approved by MKS in writing.
These warranties shall not apply to any errors or defects in the Software to the extent caused in whole or in part by (a) any combination of the Software with functionality, software, hardware or other products not supplied or approved by MKS; (b) any correction or modification of the Software not made by MKS or corrections or modifications made by MKS but to purchaser's written specifications; or (c) the failure of purchaser to use the most current release of the Software provided to purchaser or to follow the most current instructions as may be provided by MKS from time to time with respect to the proper use of the Software. Except for Software upgrades or reconfigurations provided in connection with Services pursuant to a MKS quote and/or order acknowledgment, these warranties do not apply to, and do not obligate MKS to develop or to provide, any future releases, updates, upgrades or modifications to the Software or develop or provide Software development tools to purchaser. On-site repair service is not covered under the foregoing warranty, unless otherwise stated in MKS' quotation or otherwise agreed upon by the parties in writing.
Notwithstanding the foregoing, if the Software is provided free of charge, the Software is provided "AS IS" and as such, MKS shall have no warranty obligations to purchaser.
(C) Services.
MKS warrants that any Services will be of a professional quality conforming to generally accepted industry standards and practices, provided that purchaser notifies MKS of any non-conforming Service within thirty (30) days from completion of that Service. This warranty and MKS' Service obligations shall not apply in the event purchaser fails to comply with Section 8.4 MKS' RE-PERFORMANCE OF SERVICES SHALL BE MKS' SOLE OBLIGATION, AND PURCHASER'S SOLE REMEDY AT LAW OR IN EQUITY IN THE EVENT ANY SERVICE FAILS TO CONFORM TO THE FOREGOING WARRANTY FOR SERVICES.
(D) Limitations.
THE FOREGOING WARRANTIES SHALL CONSTITUTE THE EXCLUSIVE AND SOLE WARRANTIES OF MKS FOR PRODUCTS, PARTS, SOFTWARE AND SERVICES, AND ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, PROMISES OR GUARANTEES, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MKS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, PARTS, SOFTWARE OR SERVICES. MKS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE PRODUCTS, PARTS, SOFTWARE OR SERVICES, ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES OF NONINFRINGEMENT OR TITLE. THE OBLIGATIONS OF MKS SET FORTH IN THIS WARRANTY SECTION SHALL BE MKS' SOLE LIABILITY, AND PURCHASER'S SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY. WITHOUT LIMITING THE FORGOING AND FOR THE AVOIDANCE OF DOUBT, ALL CONSUMABLE AND EXPENDABLE COMPONENTS ARE PROVIDED "AS IS".

13. 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, PART, SOFTWARE 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 THOSE RELATING TO COMMERCIAL LOSSES, LOST REVENUES OR PROFITS, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, INCONVENIENCE, DELAY OR FAILURE OF DELIVERY, LOST, DAMAGED OR DESTROYED DATA OR DOCUMENTATION, OR COST OF REMOVAL AND REINSTALLATION OF GOODS) OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER BASED IN LAW OR EQUITY, IN CONTRACT, TORT OR OTHERWISE, AND WHETHER FROM BREACH OF THIS CONTRACT, DEFECTIVE PRODUCTS, PARTS OR SOFTWARE OR OTHERWISE, EVEN IF MKS HAS BEEN ADVISED OR SHOULD BE AWARE 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 13 shall apply to the fullest extent permitted by law.

14. Infringement.
In the event a Product is adjudicated by a court of competent jurisdiction in a final, non-appealable order to infringe the intellectual property right of a third party, MKS shall, at its expense and option either (I) procure for 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. If neither of the foregoing remedies can be obtained upon commercially reasonable terms, MKS may allow 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 MKS Product specification or if the Product is based on purchaser's or its customer's designs or specifications.
THIS SECTION 14 STATES MKS' SOLE RESPONSIBILITY AND LIABILITY, AND THE PURCHASER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT, PARTS, SERVICES OR SOFTWARE DELIVERED OR PROVIDED HEREUNDER. THIS SECTION 14 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL MKS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT, EVEN IF MKS HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

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

16. Compliance with Laws.
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' sale and delivery of Products, Services and/or technical data are subject to export, re-export, and economic sanctions controls administered by the United States (including without limitation, the Commerce Department's Export Administration Regulations ("EAR"), the Treasury Department's Foreign Assets Control Regulations ("FACR") and the State Department's International Traffic in Arms Regulations ("ITAR")), the European Union and other jurisdictions (collectively, "Export Regulations"), including any requirement for MKS to apply for an export license, which may result in a delay in delivery and/or additional costs or, if denied by the applicable government authority, may prevent the sale and delivery of Products. The quoted lead time for delivery of the Products may be impacted by time required to obtain an export license, if applicable. MKS will not assume any liability to purchaser for any delivery failure or delay resulting from MKS' compliance with licensing or other requirements under the applicable Export Regulations. Purchaser acknowledges and agrees that if the Products and/or associated technical data delivered by MKS hereunder are to be exported, re-exported or transferred, purchaser shall comply with all applicable Export Regulations. Without limiting the foregoing, purchaser acknowledges and agrees that, unless there is prior written authorization from the applicable government agency, purchaser shall not: (1) use such Products for any of the end use activities restricted under Part 744 of the EAR or any equivalent end-use based restrictions (if such restrictions are applicable to the country of destination and/or end user); or (2) directly or indirectly sell, distribute, export, re-export, divert, trans-ship or transfer any Products to any person, entity and/or country, in each case without first obtaining written authorization from the applicable government agency, if required. In cases of a routed export transaction, purchaser, acting as the Foreign Principal Party in Interest ("FPPI"), shall assume all export responsibilities, including but not limited to determining license requirements, obtaining licenses, submitting export information to the applicable Governmental Agency (e.g., Automated Export System), and providing power of attorney to and overseeing any forwarder or agent acting on its behalf. Furthermore, if Purchaser deems necessary, the FPPI shall authorize MKS to act as an authorized agent for export control to submit export licenses and/or transmit export information as required under Export Regulations.
Purchaser shall ensure that its forwarder or agent complies with all applicable Export Regulations. Purchaser shall defend, indemnify, and hold harmless MKS from and against any claim, loss, liability, expense or damage (including liens or legal fees) incurred by MKS with respect to any export or re-export activities of purchaser and/or purchaser's forwarder or agent which are contrary to the provisions in this section. Without limiting the generality of this Section 16, unless specific authorization is granted by the U.S. government or other applicable jurisdiction, purchaser shall not (i) sell, transfer, export, re-export, or otherwise divert any Products to any county, company or individual to which the sale, transfer, export, re-export or diversion is prohibited under applicable U.S., European or other laws or regulations because of an embargo, economic sanction, restricted party, end-use or other restrictions; (ii) use the Products for any nuclear-related activities as described in § 744.2 of the EAR; or (iii) use the Products in activities that support, directly or indirectly, the development, production, stockpiling, use or sale of chemical, biological or nuclear weapons; rocket or missile systems; or any other illicit end-use (including without limitation unmanned air vehicles that are capable of a range of at least 300 kilometers or for which the range capability and/or use are not known or cannot be determined and/or disclosed).

17. 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, without regard to conflict of law provisions (whether of the Commonwealth of Massachusetts or any other jurisdiction) and without reference to the provisions of any convention that applies to international sale of goods (including without limitation the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods. Purchaser consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The parties agree that jurisdiction and venue for any actions relating to this Contract will be in the state or federal courts located in the Suffolk County, Commonwealth of Massachusetts. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Suffolk County, Commonwealth of Massachusetts, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper.

18. Force Majeure.
MKS' performance of its obligations will be excused or the timeframe for performance will be extended as is reasonably necessary under the circumstances, in the event that MKS is prevented from or restricted in performing its obligations in whole or in part by riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes, embargo, civil or military authority, act of God, changes in law, regulation or governmental policy, acts or omissions of vendors or suppliers, transportation difficulties or delays, or other causes beyond its reasonable control. In such event, such performance shall take place as soon thereafter as is reasonably practicable. Failure of the purchaser to provide timely response to requests from MKS may also result in delivery delays which shall be excused hereunder. If MKS' supply of Products is limited by any such cause, MKS shall have the right to allocate MKS' available supply over MKS' own requirements and MKS' commitments to its customers, in MKS' sole discretion.

19. General.
If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable in any respect, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the parties will negotiate in good faith to substitute for such provision, to the extent possible, a new provision that most nearly effects the parties' original intent in entering into this Contract or to provide an equitable adjustment in the event no such provision can be added. The other provisions of this Contract will remain in full force and effect. No waiver of any provision of this Contract shall be valid or binding on MKS unless agreed to in writing by MKS. The failure of MKS to enforce at any time any of the provisions of this Contract, or the failure of MKS to require at any time performance by purchaser of any of the provisions of this Contract, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of MKS to enforce each and every such provision thereafter. All of MKS' rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently. MKS shall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) purchaser's bankruptcy or insolvency, or the pendency of any proceedings against purchaser under any statute for the relief of debtors; (b) purchaser's breach of this Contract; (c) MKS' learning that the ultimate destination of the Products is other than that set forth in the MKS quote; or (d) failure of purchaser to meet any other reasonable requirements established by MKS or to provide timely responses to requests from MKS (including acts or omissions of purchaser which may delay production). The headings used throughout this Contract are for convenience of reference only and will be disregarded for the purpose of construing and enforcing this Contract. No modification to this Contract shall be valid unless agreed to in writing by MKS.

20. 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, such provision in Appendix A will supersede such other term or condition.

APPENDIX A:

France:
If Purchaser is in France and obtained the Product(s), Software or Services directly from MKS' subsidiary in France then the following applies:

1. Preamble is deleted and replaced with the following:
"The accompanying MKS quote or sales order acknowledgement (the "Order") and these Sales Terms and Conditions (this "Contract") shall constitute the entire agreement between the purchaser, owner or its agent ("purchaser") and MKS Instruments, Inc. or its direct or indirect subsidiary ("MKS") for the products, parts, components, and software set forth in the Order (the "Products") and/or any services set forth in the Order (the "Services") and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. Unless otherwise expressly provided with respect to a particular sale, all quotations and sales are made in accordance with, and subject to, this Contract. All purchase orders must be bona fide commitments showing mutually agreed prices, quantities and shipping terms. MKS rejects any conflicting conditions of purchaser or any conditions of purchaser deviating from this Contract, and this Contract shall prevail over any provision contained in any of purchaser's general terms and conditions, or any purchaser order, acceptance, confirmation or acknowledgement, regardless of whether or when purchaser submitted its order or such terms and conditions. Without limiting the foregoing, unless otherwise agreed in writing by MKS, nothing contained in any purchase order of purchaser shall in any way modify or add any provision to this Contract. In addition, fulfillment of purchaser's order does not constitute acceptance of any of purchaser's terms and conditions and does not serve to modify or amend this Contract. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products and Services covered hereby, the terms and conditions of that Contract shall prevail to the extent they are inconsistent with this Contract."

2. Section 1.1, first sentence is deleted and replaced with the following:
"All prices published by MKS may be changed at any time without notice. The prices quoted by an MKS representative may also change but the Purchaser will be notified of such a change".

3. Section 2, second sentence is deleted and replaced with the following:
"MKS may request alternative payment terms that will only be applicable with the consent of the Purchaser".

4. Section 3, last sentence is deleted and replaced with the following:
"The parties may decide to consider an Order complete once a substantial portion of the quantity ordered is shipped. Purchaser shall only be obligated to pay for the number of units actually shipped in such a case".

5. Section 7.1, first sentence is deleted and replaced with the following:
"MKS reserves the right to (a) make changes in Products or make substitutions and modifications in the specifications of the Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to purchaser, unless an Order has been agreed upon under this Contract, and (b) ship to purchaser the most current Product regardless of catalog description, if applicable, provided that such substitutions or modifications of such Products do not have a material adverse change of the specification of the Products."

6. Section 8.2 is deleted and replaced with the following:
"8.2 In connection with a repair, MKS with the consent of the Purchaser, may determine that certain additional remedial repairs or replacement of consumable items are necessary to bring the Product in conformance with the Specifications, and such repairs and consumables shall be made at Purchaser's cost".

7. Section 10.1, last sentence is deleted and replaced with the following:
"Unless otherwise agreed in writing by MKS, any data provided under this Contract or related Order under a French contract is submitted to the General Data Protection Regulation of 27 April 2016 (Regulation (EU) 2016/679)"

8. Section 12, (B), last sentence is deleted and replaced with the following:
"Notwithstanding the foregoing, if the Software is provided free of charge, the Software is provided "AS IS" and as such, MKS shall have no other warranty obligations to purchaser than those offered by law".

9. Section 12, (C) is deleted and replaced with the following:
"Services. MKS warrants that any Services will be of a professional quality conforming to generally accepted industry standards and practices, provided that purchaser notifies MKS of any non-conforming Service within thirty (30) days from completion of that Service. This warranty and MKS' Service obligations shall not apply in the event purchaser fails to comply with Section 8.4 ".

10. Section 12, (D) is deleted and replaced with the following:
"Limitations. THE FOREGOING WARRANTIES SHALL CONSTITUTE THE EXCLUSIVE AND SOLE WARRANTIES OF MKS FOR PRODUCTS, PARTS, SOFTWARE AND SERVICES, AND ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, PROMISES OR GUARANTEES, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MKS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, PARTS, SOFTWARE OR SERVICES. MKS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE PRODUCTS, PARTS, SOFTWARE OR SERVICES, ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES OF NONINFRINGEMENT OR TITLE. WITHOUT LIMITING THE FORGOING AND FOR THE AVOIDANCE OF DOUBT, ALL CONSUMABLE AND EXPENDABLE COMPONENTS ARE PROVIDED "AS IS"."

11. Section 13 is deleted and replaced with the following:
"Liability. IN NO EVENT SHALL MKS' MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS CONTRACT EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER FOR THE SPECIFIC PRODUCT, PART, SOFTWARE 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 THOSE RELATING TO COMMERCIAL LOSSES, LOST REVENUES OR PROFITS, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, INCONVENIENCE, DELAY OR FAILURE OF DELIVERY, LOST, DAMAGED OR DESTROYED DATA OR DOCUMENTATION, OR COST OF REMOVAL AND REINSTALLATION OF GOODS) OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER BASED IN LAW OR EQUITY, IN CONTRACT, TORT OR OTHERWISE, AND WHETHER FROM BREACH OF THIS AGREEMENT, DEFECTIVE PRODUCTS, PARTS OR SOFTWARE OR OTHERWISE, EVEN IF MKS HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF THE SAME. This Section 13 shall apply to the fullest extent permitted by law".

12. Section 17 is deleted and replaced with the following:
"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 French laws, without regard to conflict of law provisions and without reference to the provisions of any convention that applies to international sale of goods (including without limitation the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods). Purchaser consents to the exclusive jurisdiction of the Commercial Court of Paris".

13. Section 18 is deleted and replaced with the following:
"Force Majeure. MKS' performance of its obligations will be excused or the timeframe for performance will be extended as is reasonably necessary under the circumstances, in the event that MKS is prevented from or restricted in performing its obligations in whole or in part by a force majeure event as provided for in Article 1218 of French Civil code and related case law. In such event, such performance shall take place as soon thereafter as is reasonably practicable. Failure of the purchaser to provide timely response to requests from MKS may also result in delivery delays which shall be excused hereunder. If MKS' supply of Products is limited by any such cause, MKS shall have the right to allocate MKS' available supply over MKS' own requirements and MKS' commitments to its customers, in MKS' sole discretion".

14. Section 19 (a) is deleted.

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

1. Sentence 3 of the preamble is deleted.

2. Section 1.1, first sentence is deleted and replaced with the following:
"All prices published by MKS may be changed at any time without notice, save with respect to any binding Order already agreed under this Contract."

3. Section 2 is deleted and replaced with the following:
Terms of Payment. Unless otherwise expressly stated in writing, payment terms are net cash thirty (30) days from receipt of invoice. MKS reserves the right to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance. MKS may request alternative payment terms but these will only be applicable with the consent of the Purchaser. Purchaser agrees to furnish MKS with requested credit information. Confirmation of an Order and payment terms are subject to credit approval.. Unless the amounts which the Purchaser may claim are uncontested or have been awarded by a final court decision or if Purchaser is legitimately exercising defect-related rights, Purchaser's failure to make payment when due will be a material breach of this Contract, and MKS, at its sole discretion and without incurring any liability, may withhold delivery of any Products or Services at any time in which Purchaser's account is past due or exceeds its approved credit limit, until payment is received or until written approval by MKS of an alternative payment schedule has been issued. If applicable, payments will be made in accordance with a specified payment schedule. Purchaser's failure to make payment when due will be a material breach of this Contract, and MKS, at its sole discretion and without incurring any liability, may withhold delivery of any Products or Services at any time in which purchaser's account is past due or exceeds its approved credit limit, until payment is received or until written approval by MKS of an alternative payment schedule has been issued. If MKS elects to continue to make shipments, MKS' action shall not constitute a waiver of any default by purchaser or in any way affect MKS' legal remedies for any default. In the event of such suspension of performance by MKS, there will be an equitable adjustment made to the delivery schedule and Order price reflecting the duration and cost resulting from such suspension. Purchaser may only suspend the Order upon MKS' written consent. 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. Overdue payments shall be subject to interest of 9 percentage points above the then current base rate. 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, unless such cancellation or suspension is not based on Purchasers fault. 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 purchaser shall, to the extent not subject to a legitimate dispute, be paid without set-off, deduction or withholding for any amounts which purchaser may claim are owed by MKS.

4. Section 3, sentence 3 is deleted and replaced with the following:
"Purchaser shall be liable for all costs and expenses incurred by MKS, including for holding or storing products for purchaser, if delivery is delayed with MKS' consent, by purchaser, or at purchaser's request, or as a result of purchaser's inability to receive Products, unless such inability is not based on Purchaser's fault."

5. Section 3, last sentence is deleted and replaced with the following:
"The parties may decide to consider an Order complete once a substantial portion of the quantity ordered is shipped".

6. 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. 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."

7. Section 7.1, first sentence is deleted and replaced with the following:
"MKS reserves the right to (a) make changes in Products or make substitutions and modifications in the specifications of the Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to purchaser, unless an Order has been agreed upon under this Contract, and (b) ship to purchaser the most current Product regardless of catalog description, if applicable, provided that such substitutions or modifications of such Products do not have a material adverse change of the specification of the Products."

8. Section 8.2 is deleted and replaced with the following:
"In connection with a repair, MKS with the consent of the Purchaser, may determine that certain additional remedial repairs or replacement of consumable items are necessary to bring the Product in conformance with the Specifications, and such repairs and consumables shall be made at Purchaser's cost."

9. Section 9, sentence 5 is deleted.

10. Section 9, sentence 7 is deleted and replaced with the following:
"Purchaser shall not, nor shall it permit any employee or agent of purchaser to, adapt, modify, copy, reproduce, reverse engineer, decompile, decrypt or disassemble the Software in any way without the prior written consent of MKS, save for the action described under section 10.1."

11. Section 10.1, first sentence is deleted and replaced with the following:
"Purchaser may not copy, modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, disassemble, or otherwise reduce any Products. The foregoing restriction on reverse engineering shall not apply only to the extent reverse engineering is explicitly permitted by law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs (sec. 69d and 69e of the German Copyright Code)."

12. Section 10.1, last sentence is deleted and replaced with the following:
"Unless otherwise agreed in writing by MKS, any data provided under this Contract or related Order under a German contract is subject to the General Data Protection Regulation of 14 April 2016 (Regulation (EU) 2016/679)".

13. Section 12 is deleted and replaced with the following:
"(A) Products.
MKS warrants, to the original purchaser of the Products (excluding Software, where Section 12 (B) applies), that for the applicable warranty period for each such Product set forth in www.mksinst.com/warranties or otherwise provided by MKS in writing but at least for (1) one year starting from delivery ("Warranty Period"), the Products shall be free from defects in materials and workmanship and will conform in all material respects to the applicable MKS Product specifications, under normal use and service when correctly installed, maintained, serviced and operated within the MKS Product 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. Products shall be returned by purchaser when accompanied by a return material authorization number ("RMA#") issued by MKS' Return Department, which RMA# shall be clearly marked on the outside of the shipping container. Any Spare Parts or replacement Products shall be warranted for the remainder of the original warranty or for three (3) months, whichever is longer. For parts or Products returned for repair that are not covered under warranty, MKS' standard repair charges shall be. Unless otherwise stated in MKS' repair quote, any such out-of-warranty repairs are warranted for ninety (90) days from date of shipment of the parts or repaired Product.
This warranty does not apply to any Product or parts which, (a) has been installed, operated, maintained, serviced, modified, altered or used other than in accordance with MKS Product specifications recommended by MKS for the proper and normal use of the part or Product; (b) has been repaired, modified or altered by any party other than MKS or a third-party authorized in writing by MKS; (c) has been used in conjunction with parts or equipment not provided or authorized by MKS; (d) has been contaminated with corrosive, reactive, harmful chemicals, gases or any radioactive materials; (e) has been subjected to unusual physical, thermal, electrical or optical stress, misuse, abuse, tampering, accident, contamination, negligence or neglect in use, storage, transportation or handling (including any failure to maintain appropriate environmental conditions as specified by MKS for a particular Product); (f) is considered a consumable item or an item requiring repair or replacement due to normal wear and tear or (g) is based on designs or specifications provided to MKS. Calibrations performed in accordance with the application user manual shall not void the warranty if performed properly. The foregoing warranty does not apply to or cover (i) any Customer Furnished Material incorporated into the Products; or (j) damage to sensors.
(B) Software.
Unless otherwise provided in the Order, for Software, MKS warrants to the original licensee or purchaser of the Products that, for a period of one (1) year from the date of delivery, the Software shall be free from significant programming errors or defects when properly installed. For Software upgrades or reconfigurations performed in connection with Services, MKS warrants that, for the longer of: (a) a period of ninety (90) days following completion of the upgrade or reconfiguration, or (b) the remaining Software warranty period, if any, on the associated Product sold by MKS (if applicable) to purchaser, the Software shall be free from significant programming errors or defects when properly installed. During the applicable warranty period, if Purchaser promptly notifies MKS in writing of possible errors or defects in the Software, identifying any such error or defect in reasonable detail sufficient to allow MKS to identify and replicate such error or defect, MKS shall, at no cost to purchaser, repair and correct such errors or defects in the Software. The foregoing warranty is nontransferable unless approved by MKS in writing. These warranties shall not apply to any errors or defects in the Software to the extent caused in whole or in part by (a) any combination of the Software with functionality, software, hardware or other products not supplied or approved by MKS; (b) any correction or modification of the Software not made by MKS or corrections or modifications made by MKS but to purchaser's written specifications; or (c) the failure of purchaser to use the most current release of the Software provided to purchaser or to follow the most current instructions as may be provided by MKS from time to time with respect to the proper use of the Software. Except for Software upgrades or reconfigurations provided in connection with Services pursuant to a MKS quote and/or order acknowledgment, these warranties do not apply to, and do not obligate MKS to develop or to provide, any future releases, updates, upgrades or modifications to the Software or develop or provide Software development tools to purchaser. On-site repair service is not covered under the foregoing warranty, unless otherwise stated in MKS' quotation or otherwise agreed upon by the parties in writing.
Notwithstanding the foregoing, if the Software is provided free of charge, the Software is provided "AS IS" and as such, MKS shall have no warranty obligations to purchaser.
(C) Services.
MKS warrants that any Services will be of a professional quality conforming to generally accepted industry standards and practices, provided that purchaser notifies MKS of any non-conforming Service within thirty (30) days from completion of that Service. This warranty and MKS' Service obligations shall not apply in the event purchaser fails to comply with Section 8.4."

14. Section 13 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 as stated above. Otherwise, liability on the part of MKS shall be excluded. In so far as MKS' liability is excluded by the above clauses, this shall also apply to MKS' employees and executives."

15. The last two sentences of Section 14 are deleted.

16. Section 17 is deleted and replaced 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 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."

17. Section 19, sentence 7 is deleted and replaced with the following:
"MKS shall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) purchaser's breach of this Contract; or (b) MKS' learning that the ultimate destination of the Products is other than that set forth in the MKS quote."

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

1. Section 17 is deleted and replaced with the following:
"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 Israeli laws, without regard to conflict of law provisions and without reference to the provisions of any convention that applies to international sale of goods (including without limitation the Uniform Commercial Code and the United Nations Convention on Contracts for the International Sale of Goods). Each party hereby irrevocably submits to the exclusive jurisdiction of the applicable courts in Israel, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper."

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

1. Section 7.1, first sentence is deleted and replaced with the following:
"MKS reserves the right to (a) make changes in Products or make substitutions and modifications in the specifications of the Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to purchaser, unless an Order has been agreed upon under this Contract, and (b) ship to purchaser the most current Product regardless of catalog description, if applicable, provided that such substitutions or modifications of such Products do not have a material adverse change of the specification of the Products."

2. Section 19, delete the second sentence and replace with the following:
"To the extent that any such provision, or portion thereof, is found to be invalid, illegal or unenforceable, (i) that provision shall be deemed valid and enforced to the maximum extent permissible so as to effect the intent of the parties, and (ii) the parties will negotiate in good faith to substitute for such provision, to the extent possible, a new provision that most nearly effects the parties' original intent in entering into this Contract or to provide an equitable adjustment in the event no such provision can be added."

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

1. Section 13 shall be deleted and replaced with the following:
"13. 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, PRAT, SOFTWARE 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 THOSE RELATING TO COMMERCIAL LOSSES, LOST REVENUES OR PROFITS, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, INCONVENIENCE, DELAY OR FAILURE OF DELIVERY, LOST, DAMAGE OR DESTROYED DATA OR DOCUMENTATION, OR COST OF REMOVAL AND REINSTALLATION OF GOODS) OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER BASED IN LAW OR EQUITY, IN CONTRACT, TORT OR OTHERWISE, AND WHETHER FROM BREACH OF THIS CONTRACT, DEFECTIVE PRODUCTS, PARTS OR SOFTWARE OR OTHERWIES, EVEN IF MKS HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF THE SAME."

2. Section 17 shall be deleted and replaced with the following:
"17. 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. Any dispute, arising from or in connection with this Contract shall be submitted to the Shenzhen Court of International Arbitration ("SCIA") for arbitration which shall be conducted in accordance with the SCIA'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. The rights and obligations of the parties under the Contract shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods."

Singapore:
If Purchaser is in Singapore and obtained the Product(s), Software or Services directly from MKS' subsidiary in Singapore then the following applies:

1. Add the following sentence to the end of Section 2:
"Purchaser acknowledges that the interest rate set forth herein is reasonable in the event of the Purchaser's breach or delay in payment as set out herein."

2. Delete Sections 5 and 6 and replace with the following:
"5. Risk of Loss.
Risk of damage to or loss of the Products shall pass to the purchaser upon delivery (except for title to any Software which shall at all times remain with MKS). In the event that delivery is delayed or not effected at all for reasons beyond the control of MKS, the risk shall be deemed to have passed to the purchaser on the date of MKS' notification of readiness for delivery (unless otherwise agreed by both parties in writing). Upon MKS' request, the purchaser shall provide for the necessary insurance cover.
6. Retention of Title.
Notwithstanding delivery of the Products to the purchaser or to any independent carrier or any other third party, both legal and equitable title to the Products shall remain with MKS and shall not pass to the purchaser until full payment with cleared funds of all monies due from purchaser to MKS under all contracts between them has been made. From the time of delivery until title to the Products passes to the purchaser, the purchaser shall insure the Products for their full replacement value with a reputable insurer and shall hold the proceeds of any claim on such insurance policy on trust for MKS and shall not mix them with any other money nor pay the proceeds into an overdrawn bank account. The purchaser shall store the Products (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. Until title to the Products has passed, the purchaser shall be entitled to use or otherwise dispose of the Products only 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.
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 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 during normal business hours to remove them and/or may sell or otherwise deal with them. All costs arising in relation to or in connection with the return, removal, sale or other dealing with the Products shall be borne by the purchaser. Nothing in this Contract shall prevent title vesting in some other person by the operation of any statute at any time."

3. Add the following sentence to the end of Section 13:
"NOTWITHSTANDING THE FOLLOWING, NOTHING IN THIS CONTRACT SHALL EXCLUDE OR LIMIT THE LIABILITY OF MKS FOR DEATH OR PERSONAL INJURY RESULTING FROM MKS' NEGLIGENCE."

4. Delete Section 17 and replace with the following:
"17. 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 Republic of Singapore, without regard to conflict of law provisions and without reference to the provisions of any convention that applies to international sale of goods (including Contracts for the International Sale of Goods). Purchaser consents to the exclusive jurisdiction of the courts of the Republic of Singapore. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts of the Republic of Singapore for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper"

5. Insert new Section 21 as follows:
"21. Personal Data.
The Purchaser confirms, where relevant and appropriate, that he or it has obtained all necessary consent of all involved individual for the collection, usage and disclosure of their respective personal data by MKS for the purpose of processing the sale and delivery of MKS' Products and/ or Services to the Purchaser"

6. Insert new Section 22 as follows:
"22. Rights of Third Parties.
Save for MKS (which includes its affiliates, related corporations, successors and/ or assigns), a person who or which is not a party to this Contract shall not have any right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore (or its equivalent under applicable law) to enforce or enjoy any provision of this Contract and notwithstanding any term of this Contract, the consent of any third party is not required for any variation (including any release or compromise of any liability) or termination of this Contract."

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

1. Section 1.1, first sentence is deleted and replaced with the following:
"All prices published by MKS may be changed at any time without notice, save with respect to any binding Order already agreed under a Contract."

2. Section 2, first sentence is deleted and replaced with the following:
"Unless otherwise expressly stated in writing by MKS, payment terms are net cash thirty (30) days from the date of receipt of the invoice"

3. Section 2, second sentence is deleted and replaced with the following:
"MKS may request alternative payment terms but for Orders already agreed these will only be applicable with the consent of the purchaser"

4. Section 2 sentence 11 is deleted and replaced with the following:
"Overdue payments shall, to the extent permitted by law, be subject to interest charges accrued daily on a compound basis and computed using a rate of eight per cent per annum."

5. Section 2 sentence 12 is deleted and replaced with the following:
"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, unless such cancellation or suspension is not based on purchaser's fault."

6. Section 2 last sentence is replaced with:
"Amounts owed by purchaser shall, to the extent not subject to a legitimate dispute, be paid without set-off, deduction or withholding for any amounts which purchaser may claim are owed by MKS."

7. Section 3, last sentence is deleted.

8. Section 4 third sentence is replaced with:
"MKS does not assume any liability in connection with shipment (except to the extent liability is caused by MKS' negligence or willful misconduct), nor constitute any carrier as MKS' agent."

9. Section 6 is deleted and replaced with the following:
"Retention of title. Title in Products is retained by MKS until full payment for those Products has been received by MKS. Until title to the Products has passed to the purchaser, the purchaser shall (i) hold the Products as bailee for MKS; and (ii) store the Products in a separately identifiable manner. In the event that the Products are combined with other goods, the purchaser shall immediately assign to MKS its ownership rights which correspond to the value of the Products concerned which are subject to retention of title. The purchaser shall also be responsible for holding such Products and goods in safe custody on behalf of MKS at purchaser's own expense."

10. Section 7.1, first sentence is deleted and replaced with the following:
"MKS reserves the right to (a) make changes in Products or make substitutions and modifications in the specifications of the Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to purchaser, save that such changes may not be applied with respect to the Products still to be provided under any Order already agreed upon under this Contract, and (b) ship to purchaser the most current Product regardless of catalog description, if applicable, provided that such substitutions or modifications of such Products do not have a material adverse change of the specification of the Products."

11. Section 8.2 is deleted and replaced with the following:
"In connection with a repair, MKS with the consent of the purchaser may make certain additional remedial repairs or replacement of consumable items necessary to bring the Product in conformance with the Specifications, and such repairs and consumables shall be made at purchaser's cost."

12. Section 9, sentence 3 is deleted and replaced with the following:
"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: upon MKS' receipt of full payment for the Software, purchaser shall be entitled to use the Software and the Documentation only for its own internal use; 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 a reasonable number of copies of the Documentation to use the Software; and purchaser agrees to any shrinkwrap and/or clickwrap related to third party software which is provided or made available to purchaser before conclusion of the Contract."

13. Section 9, sentence 5 is deleted.

14. Section 9, sentence 7 is deleted and replaced with the following:
"Purchaser shall not, nor shall it permit any employee or agent of purchaser to, adapt, modify, copy, reproduce, reverse engineer, decompile, decrypt or disassemble the Software in any way without the prior written consent of MKS, save for the action described under section 10.1."

15. Section 10.1, first sentence is deleted and replaced with the following:
"Purchaser may not copy, modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, disassemble, or otherwise reduce any Products. The foregoing restriction on reverse engineering shall not apply to the extent reverse engineering is explicitly permitted by law for reasons indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs."

16. Section 10.1, last sentence is deleted and replaced with the following:
"Unless otherwise agreed in writing by MKS, any data provided or made available under this Contract or related Order is subject to the Data Protection Act 2018."

17. Section 12 is deleted and replaced by the following:
"12. Limited Warranties and Remedies.
(A) Products.
MKS warrants, to the original purchaser of the Products (excluding Software, and parts, consumables and prototypes), 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 material defects in materials and workmanship and will conform in all material respects to the applicable MKS Product specifications, under normal use and service when correctly installed, maintained, serviced and operated within the MKS Product specifications for which they were designed. During the Warranty Period, MKS will, selecting the corresponding option in its sole discretion, either (i) repair or replace any Product which does not comply with the above warranty without charge to 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, provided, that, within the Warranty Period, purchaser notifies MKS in writing promptly after discovery of the noncompliance. Products shall be returned by purchaser using the return material authorization number ("RMA#") issued by MKS' Return Department, which RMA# must be clearly marked on the outside of the shipping container. Any Spare Parts or replacement Products shall be warranted for the remainder of the original warranty [or for three (3) months, whichever is longer]. For parts or Products returned for repair that are not covered under warranty, MKS' standard repair charges shall be applicable in addition to all shipping expenses. Unless otherwise stated in MKS' repair quote, any such out-of-warranty repairs are warranted for ninety (90) days from date of shipment of the parts or repaired Product.
This warranty does not apply to any Product or parts which, (a) have been installed, operated, maintained, serviced, modified, altered or used other than in accordance with MKS Product specifications recommended by MKS for the proper and normal use of the part or Product; (b) has been repaired, modified or altered by any party other than MKS or a third-party authorized in writing by MKS; (c) [has been used in conjunction with parts or equipment not provided or authorized by MKS]; (d) has been contaminated with corrosive, reactive, harmful chemicals, gases or any radioactive materials other than due to defect in the Product; (e) has been subjected to unusual physical, thermal, electrical or optical stress, misuse, abuse, tampering, accident, contamination, negligence or neglect in use, storage, transportation or handling (including any failure to maintain appropriate environmental conditions as specified by MKS for a particular Product); (f) is a consumable item or similar item where requiring repair or replacement due to normal use, wear and tear; (g) is based on designs or specifications provided to MKS; or (h) has been modified or altered such that verifying alleged warranty nonconformance is not reasonably practical. Calibrations performed in accordance with the application user manual shall not void the warranty if performed properly. The foregoing warranty does not apply to or cover (i) any Customer Furnished Material incorporated into the Products; (j) damage to sensors; (k) Products that are marketed and sold by MKS as a distributor for a third-party manufacturer and under such third-party manufacturer's name, except to the extent of any warranty that is expressly provided to MKS by such third-party manufacturer and is assignable by MKS to its customers; or (l) on-site warranty repair unless otherwise stated in MKS' quotation.
(B) Software.
Unless otherwise provided in the Order, for Software, MKS warrants to the original licensee or purchaser of the Products that, for a period of twelve (12) months from the date of delivery, the Software shall be free from significant programming errors or defects when properly installed. For Software upgrades or reconfigurations performed in connection with Services, MKS warrants that, for the longer of: (a) a period of ninety (90) days following completion of the upgrade or reconfiguration, or (b) the remaining Software warranty period, if any, on the associated Product sold by MKS (if applicable) to purchaser, the Software shall be free from significant programming errors or defects when properly installed. During the applicable warranty period, if purchaser promptly notifies MKS in writing of possible errors or defects in the Software, identifying any such error or defect in reasonable detail sufficient to allow MKS to identify and replicate such error or defect, MKS shall, at no cost to purchaser, use commercially reasonable efforts to promptly repair and correct such errors or defects in the Software. The foregoing warranty is nontransferable unless approved by MKS in writing.
These warranties shall not apply to any errors or defects in the Software to the extent caused in whole or in part by (a) any combination of the Software with functionality, software, hardware or other products not supplied or approved by MKS; (b) any correction or modification of the Software not made by MKS or corrections or modifications made by MKS but to purchaser's written specifications; or (c) the failure of purchaser to use the most current release of the Software provided to purchaser or to follow the most current instructions as may be provided by MKS from time to time with respect to the proper use of the Software. Except for Software upgrades or reconfigurations provided in connection with Services pursuant to a MKS quote and/or order acknowledgment, these warranties do not apply to, and do not obligate MKS to develop or to provide, any future releases, updates, upgrades or modifications to the Software or develop or provide Software development tools to purchaser. On-site repair service is not covered under the foregoing warranty, unless otherwise stated in MKS' quotation or otherwise agreed upon by the parties in writing.
Notwithstanding the foregoing, if the Software is provided free of charge, the Software is provided "AS IS" and as such, MKS shall to the fullest extent permitted by law have no warranty obligations to purchaser.
(C) Services.
MKS warrants that any Services will be of a professional quality conforming to generally accepted industry standards and practices, provided that purchaser notifies MKS of any non-conforming Service within thirty (30) days from completion of that Service. This warranty and MKS' Service obligations shall not apply in the event purchaser fails to comply with Section 8.4.
(D) Limitations.
(i) The foregoing warranties shall constitute the exclusive and sole warranties of MKS for Products, parts, Software and Services, and are in lieu of all other warranties, representations, promises or guarantees, express or implied, to the fullest extent permitted by law. (ii) Except as expressly provided herein, to the fullest extent permitted by law MKS makes no warranties, either express or implied, either in fact or by operation of law, statutory or otherwise, regarding the Products, parts, Software or Services. (iii) MKS expressly disclaims any implied warranties of merchantability or fitness for a particular purpose for the Products, parts, Software or Services and any warranties arising from a course of dealing or usage of trade. (iv) Without limiting the foregoing and for the avoidance of doubt, all consumable and expendable components are provided "as is"."

18. Section 13 is deleted and replaced by the following:
"13. Liability.
13.1 Nothing in this Contract (whether in this Clause 13 or otherwise) shall limit or exclude MKS's liability for: (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability the exclusion or limitation of which is not permitted by applicable law.
13.2 Subject to 13.1 above, in no event shall MKS be liable under or in connection with this Contract (whether based in law or equity, in contract, tort or otherwise) for: (a) incidental, consequential, punitive, exemplary, special or indirect damages; (b) lost revenues or profits, loss of business opportunity, interruption of business or loss of goodwill; (c) lost, damaged or destroyed data, even if MKS has been advised or should be aware of the possibility of the same.
13.3 Subject to the above, in no event shall MKS's aggregate liability for any damages, losses or costs under or in connection with this Contract exceed the total amount of fees paid for the specific Product, part, Software or Service which caused the damage, loss and/or cost.
13.4 No suit or action shall be brought against MKS more than one year after the cause of action has accrued or the cause of action has come to the attention of the purchaser, whichever is the later.
13.5 The above limits on liability will also apply with respect to any licensor or supplier whose Products, parts, Software or Services are provided by MKS to purchaser under the Contract.
13.5 This Section 13 shall apply to the fullest extent permitted by law."

19. Section 14 is deleted and replaced by the following:
"14. Infringement.
In the event a Product is adjudicated by a court of competent jurisdiction in a final, non-appealable order to infringe the intellectual property right of a third party, MKS shall, at its expense and option either (I) procure for 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. If neither of the foregoing remedies can be obtained upon commercially reasonable terms, MKS may allow 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 MKS Product specification or if the Product is based on purchaser's or its customer's designs or specifications."

20. Section 17 is deleted and replaced with the following:
"Governing Law. This Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including any non-contractual disputes or claims) shall be interpreted, enforced and governed by the laws of England and Wales. The parties hereby accept the exclusive jurisdiction of the English courts in relation to any dispute or claim arising under or in connection with this Contract."

Rev. 02.23.19