1. Scope and Acceptance.
These Terms and Conditions of Purchase of MKS Instruments, Inc. and its affiliates, related corporations, successors and assigns (collectively referred to hereinafter as "MKS") apply to all purchases made by MKS. These Terms and Conditions and any purchase order issued by MKS ("PO") (collectively "Agreement") constitute the entire Agreement between MKS and the person or entity named on the PO as the supplier or seller ("Supplier") of the equipment or hardware ("Hardware"), programming, firmware, code or software ("Software") and deliverables provided during the course of providing Services ("Deliverables") (Hardware, Software and Deliverables collectively referred to herein as "Products") and all professional, maintenance, manufacturing, support and other services (collectively, "Services") identified on the PO, and supersede all prior understanding or agreements, oral or written, with respect to their subject matter, except if such agreement is a written agreement signed by authorized representatives of Supplier and MKS. No change, addition or modification to this Agreement will be effective unless set forth in a record that is signed by a duly authorized representative of MKS. If the PO shall be deemed an offer, any proposal for additional or different terms or any attempt by Supplier to vary in any degree any of the terms of the offer in Supplier's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of the offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the Products or Services, but shall be deemed a material alteration thereof, and the offer shall be deemed accepted by Supplier without said additional or different terms. If the PO shall be deemed an acceptance of a prior offer by Supplier, such acceptance is limited to the express terms contained in this Agreement.
2. Invoices; Payment Terms, Price.
2.1 Invoices shall contain PO number, a description of Products and Services, the quantity, totals, unit prices, applicable taxes and any other information specified by MKS. MKS will pay Supplier for the Products and Services delivered under the PO. Payment of an invoice shall not constitute acceptance of Products and Services and shall be subject to adjustment for errors, shortages, defects, or other causes. MKS may set off any amount owed by MKS against any amount owed by Supplier or any of its affiliated companies to MKS. Payment terms for an undisputed invoice shall be 60 days from the later of the: (a) scheduled delivery date, (b) actual delivery date, or (c) date an acceptable invoice is received. In case of payment within 10 days of one the above, MKS is entitled to a discount of 2% of the total invoice amount. Date of payment under a discount term is deemed made on the date of MKS' Electronic Funds Transfer (EFT) or the date of mailing of MKS' check.
2.2 Price. The price shown on the front of the applicable PO is the total amount MKS will pay for the Products and Services. Supplier shall not add additional amounts for taxes, packing, crating, shipping, expenses, tariffs, or anything else unless specifically agreed to in a writing signed by an authorized representative of MKS. If there is no price stated on the applicable PO, the price shall be deemed to be the price last quoted to MKS or the prevailing market price, whichever is lower. To the extent permitted by applicable law, Supplier warrants that the price for Products sold or Services provided to MKS under this PO is not greater than the price for comparable Products or Services sold in comparable quantities to any other purchaser. In the event Supplier reduces its price for any Products or Services, Supplier agrees to reduce the prices of the Products and Service, as applicable, covered by this Agreement correspondingly.
3. Marking, Shipping and Delivery.
3.1 All packages must be clearly labeled with Supplier's name and address, list of contents and related PO number, shipment number, MKS part number and bar codes, and country-of-origin, unless otherwise agreed in writing by MKS. All Products shall be packed and labeled (at no additional charge) in accordance with good commercial practice and all applicable federal, state and local laws, regulations and orders (a) to protect against damage to the Products from weather, handling, and/or transportation, and against any personal injury (including death) or damage to other property, (b) to permit efficient handling and secure lowest transportation charges, and (c) to satisfy all other applicable laws and regulations. Supplier shall be responsible for any damage or injury resulting from improper packaging of the Products.
3.2 With each shipment, Supplier shall provide (i) a packing list containing all information as required by MKS; (ii) a commercial invoice; (iii) all required security-related information needed for the export and import of the goods as applicable; and (iv) all other applicable information as required by law or MKS. The commercial invoice shall include: contact names and telephone numbers of representatives of MKS and Supplier who have knowledge of the transaction; MKS' order number; order line item; part number(s); detailed description of the merchandise; quantity; unit purchase price in the currency of the transaction; delivery terms, including named place of delivery consistent with the terms of this Agreement; country-of-origin of the goods; customs tariff numbers; and the applicable national export control numbers (including ECCN or USML classification if applicable). Furthermore, Supplier represents and warrants that all Products and Services supplied hereunder have been performed, designed, produced, packaged, shipped and sold in compliance with all applicable federal, state and local laws, orders, rules and regulations.
3.3 The terms of delivery are as stated on the face of the applicable PO. If not stated, all Products shall be delivered DDP destination (INCOTERMS 2010). The obligation of Supplier to meet the delivery dates, Specifications (as defined in Section 5 herein), and quantities set forth herein are the essence of this order. If the applicable PO indicates MKS will be responsible to pay for the shipment of Products, then Supplier will use the carrier and service level (e.g., ground, air, second-day, next-day) specified by MKS, and adhere to those instructions communicated by MKS. No partial delivery or delivery of added quantities shall be made unless MKS has given prior written consent. Supplier shall report delays in shipment to MKS immediately. If Supplier fails to make deliveries in accordance with MKS' delivery schedule, Supplier will, at no additional cost to MKS, employ accelerated measures such as material expediting fees, premium transportation costs, or labor overtime required to meet the specified delivery schedule or minimize the lateness of deliveries. If Supplier fails to deliver all or any part of the Products or Services in accordance with MKS' delivery schedule, then MKS may, at its sole discretion and in addition to any other available rights or remedies, cancel the PO with respect to any Products or Services not yet delivered to and accepted by MKS, and MKS may procure substitute Products or Services and charge Supplier for the cost of cover. In the event of any such cancellation, MKS' sole liability to Supplier shall be limited to payment for units delivered to and accepted by MKS at the time of Supplier's receipt of the notice of cancellation. With respect to the portion of the PO not cancelled, if any, the unit price will not change and Supplier will otherwise continue performance under the PO. Products that are delivered in advance of schedule are delivered at the risk of Supplier and may, at MKS' option, be returned at Supplier's expense for proper delivery and/or have payment therefore withheld by MKS until the date that the Products are actually scheduled for delivery.
4. Responsibility for Products; Risk of Loss.
Notwithstanding any prior inspections, the risk of loss with respect to Products shall transfer from Supplier to MKS in accordance with DDP (Incoterms 2010) MKS location, unless different delivery terms (based on the most current INCOTERMS) are set forth on the applicable PO or otherwise applicable in accordance with Section 3.3 above, and title to the Products pass when risk of loss transfers in accordance with this Section. Notwithstanding the foregoing, Supplier bears all such risks with respect to any Products that are (a) rejected by MKS; or (b) required to be corrected; provided, however, that MKS shall be responsible for loss directly and solely caused by MKS' gross negligence.
5. "Copy Exact" Requirements.
As of the date of the agreement under an initial PO for specific Products purchased under that PO (or such time as MKS approves a version of a Product and associated Specifications in writing), Supplier shall not make any changes, including, without limitation, changes in or obsolescence of components, changes in manufacturing or testing processes (including transfer of any manufacturing, assembly or testing to a different facility), or changes to the design (firmware, hardware or software) of the Products that may alter the specifications applicable to or required by MKS for the Products ("Specifications"), changes to sub-tier suppliers, or the form, fit, function, interchangeability, performance or reliability of Products (collectively, "Changes") without obtaining MKS' express prior written consent. To obtain such consent, Supplier shall submit a Process Change Notification ("PCN") form in accordance with MKS' PCN procedure, unless otherwise instructed in writing by MKS. MKS, in its sole discretion, may approve or reject such Change. If MKS approves the Change it will state the date upon which Supplier may implement the Change, which shall be at least 180 days from the date MKS receives the PCN from Supplier, unless otherwise agreed in writing by MKS. Supplier shall comply with MKS' PCN Procedure for any other change it or its suppliers would like to make to the Products or Specifications. The requirements contained in this Section 5 shall apply for purposes of any future orders under additional POs for the same Products. Failure to comply with the Copy Exact requirements stated herein shall be a material breach of this Agreement and MKS may terminate or cancel this order immediately in addition to any other rights and remedies available to MKS without liability to Supplier. Subject to the foregoing, with regards to any Software provided hereunder, in the event that Supplier develops, provides or otherwise makes available or plans to make available an update, bug fix, improvement or new version of any such Software (each an "Update") after delivery of the original Software to MKS pursuant to the applicable PO, Supplier shall provide MKS with prior notification of such Update and shall provide the Update to MKS before it is fully released to allow MKS to test such Update in order to confirm its interoperability and performance. MKS shall be entitled to all such Updates at no cost.
6. Change Orders.
By written notice, MKS may suspend performance under this Agreement, change the quantities of Products, extend or shorten delivery requirements or make other changes, including without limitation: (a) applicable Specifications, designs, drawings, and other documents; (b) materials, method of shipment or packing; and (c) place or date of delivery, inspection or acceptance. If such a change causes an increase or decrease in the cost of or time required for Supplier's performance, an equitable adjustment shall be made in the price to the extent mutually agreed to in writing by both parties. If Supplier and MKS cannot agree to an equitable adjustment, MKS may cancel the order without liability. Unless Supplier presents to MKS an itemized claim within thirty (30) days after the receipt of notice of such change, Supplier shall be conclusively deemed to have waived all claims against MKS with respect thereto. A change by MKS pursuant to this Section shall not constitute a breach or default by MKS.
7.1 Termination for Cause. MKS may cancel this Agreement in whole or in part by written or electronic notice, if Supplier: (i) fails to deliver Products or Services in accordance with specified delivery times or milestones, (ii) fails to comply with the Specifications or other MKS requirements; (iii) fails to replace or correct defective Products or re-perform Services as MKS requires; (iv) fails to comply strictly with any provision of this Agreement; (v) becomes insolvent, files a petition for relief under any bankruptcy, insolvency or similar law, makes an assignment for the benefit of its creditors, pursues any other remedy under any law relating to the relief of debtors, or in the event a receiver is appointed for Supplier's property or business, or Supplier takes any action for (or in anticipation of) any of the foregoing; or (vi) there is a change in control or ownership of Supplier's business.
7.2 Upon Termination for Cause. Upon cancellation pursuant to this Section, Supplier shall: (i) supply any portion of the Products or Services for which this Agreement is not cancelled; (ii) be liable for additional costs, if any, for the purchase of similar products and services; and (iii) protect all property in which MKS has or may acquire an interest, and at MKS' request, transfer title and deliver to MKS (a) any completed Products (or deliverables generated during the performance of Services), (b) any partially completed Products and partially completed deliverables generated during the performance of Services and (c) all materials and tooling or other property held or acquired by Supplier in connection with the terminated portion of this Agreement. Prices for partially completed Products or Services, materials and tooling requested by MKS to be delivered to MKS shall be negotiated, but in no event shall they exceed the price set forth herein. MKS shall have no further liability to Supplier in the event of termination pursuant to this Section 7. MKS' rights and remedies as described herein are in addition to any other rights and remedies provided at law or in equity.
8. Termination for Convenience.
MKS may terminate this Agreement for its convenience in whole or in part at any time by written or electronic notice. Upon such termination, Supplier shall stop work immediately, notify its suppliers to stop all work and incur no further direct cost under the Agreement, protect all property in which MKS has or may acquire an interest, and, upon MKS' request, transfer title and make delivery to MKS of all Products or Service deliverables, materials or other property held or acquired by Supplier in connection with the terminated portion of this Agreement. MKS' maximum liability for Products and Services related to such termination shall be a pro-rata amount of the total Agreement price, less advances or other payments, based upon the price for Products and Services delivered or completed prior to termination no earlier than required to meet the agreed upon delivery schedule, and the actual costs incurred by Supplier for materials and work in process procured and/or fabricated no earlier than required to meet the agreed upon delivery schedule, which are allocable to the terminated portion of this Agreement. In no event shall Supplier be compensated in any way for (1) any raw materials or work in process which may be incorporated into any standard or other products manufactured by Supplier, (2) any raw materials ordered or work performed after receipt of MKS' notice of cancellation, (3) any costs Supplier could reasonably have avoided, or (4) any indirect overhead and administrative charges or profit of Supplier. In no event shall such cancellation charges exceed the contract price for the cancelled Products or Services. MKS shall be provided with all completed Products or Service deliverables and work in process and materials that it pays for hereunder. Supplier must submit a detailed claim to MKS within thirty (30) days after MKS notice of termination to recover the payments described in this Section 8. This paragraph states MKS' sole responsibility and liability in the event of cancellation of the PO and this Agreement. Supplier shall reasonably assess open orders, raw materials and WIP to determine whether or not such items can be cancelled, returned, or used by Supplier for the manufacture of other products, and shall correspondingly reduce the amounts owed by MKS hereunder by the value of any cancelable, returnable or usable items.
9.1 Product and Services Warranty. Supplier represents and warrants that the Products and Service deliverable: (a) shall be new and of good quality and workmanship and free from patent and latent defects in material, workmanship and design; (b) shall conform to all samples furnished by Supplier, Supplier's Specifications (in the case of standard products of Supplier), and all Specifications, drawings, and descriptions furnished, specified, or adopted by MKS (in the case of Products customized for MKS); (c) shall be merchantable, suitable, fit and sufficient for their intended purpose; (d) do not infringe the patent, copyright, or other intellectual property rights of any third party (except to the extent that such infringement arises solely as the result of a detailed design furnished by MKS and would not have occurred but for such specific MKS furnished design); (e) shall be free of any claim of any third party; (f) do not contain any open source or other third party code that subjects MKS to a third party license agreement; (g) do not contain any harmful code, viruses, disabling technology, or other code that has the potential to cause unplanned disruption to the performance of the Products or to the networks or systems to which such Products connect; (h) in the case of Services, will be performed in a professional and workmanlike manner consistent with applicable industry standards by personnel possessing competency sufficient to perform the services properly; and (i) will be provided in accordance with all applicable laws and MKS policies and procedures. The foregoing warranties represented in (a) - (c) and (f) - (i) shall extend five (5) years from the delivery of such Product or Service. All of the foregoing warranties shall extend to MKS, its successors, assigns and customers, and users of goods sold by MKS. Supplier agrees to promptly replace (or re-perform, in the case of Services), correct defects of, or issue a refund for, any defective or nonconforming Product or Service deliverables, at MKS' option and at no expense to MKS, when notified of such defect or nonconformity by MKS. In the event of failure of Supplier to correct defects in or replace nonconforming goods or re-perform services promptly, MKS, after reasonable notice to Supplier, may make such corrections or replace such Products or Service deliverables and charge Supplier for the cost incurred by MKS in doing so. None of the remedies available to MKS for a breach of any of the foregoing warranties may be disclaimed or limited. MKS' inspection, testing and/or acceptance of and/or payment for any Products or Services shall not constitute a waiver by it of any warranties. MKS' approval of any sample or acceptance of any Products or Services shall not relieve Supplier from responsibility to deliver Products and Services in accordance with the Specifications or drawings and descriptions provided by or on behalf of MKS. Supplier warrants that all Products furnished hereunder are not Counterfeit (as defined herein). A "Counterfeit" good is defined as an unlawful or unauthorized reproduction, substitution or alteration that has been knowingly mismarked, misidentified or otherwise misrepresented to be an authentic, unmodified part from the original manufacturer. In the event that Product delivered hereunder constitute or include Counterfeit goods, Supplier shall, at its expense, promptly replace such Counterfeit goods with genuine Products conforming to the requirements of the PO, and Supplier shall be responsible for all costs and damages incurred by MKS relating to the removal and replacement of Counterfeit goods.
9.2 In the event MKS reasonably determines that the Products or Service deliverables are being purchased as capital equipment (i.e. Products or Service deliverables meant to be used for the general conduct of MKS business and not to be embedded into MKS products and distributed to third parties) for use by MKS or, for non-capital equipment purchases, if MKS notifies Supplier in writing at the time of purchase that post-warranty support services are otherwise required for the Products or Service deliverables, the following provisions will apply in addition to the above provisions of Section 9: Supplier shall provide post-warranty technical, repair and maintenance support services and spare parts for the Products or Service deliverables for a period of at least ten (10) years following the date of installation of the Products or Service deliverables. Such services and spare parts will be provided at Supplier's then-current standard rates and to the extent permitted by applicable law, at prices at least as favorable as Supplier gives to its other customers purchasing comparable products in similar volume.
10. Inspection and Acceptance.
Products are subject to inspection and test by MKS at all times and places, including during the period of manufacture. If defects are revealed or the Products fail to conform to the applicable Specifications, MKS may elect, in its discretion, either to reject all or any portion of the entire shipment as defective, requiring a full credit or replacement at Supplier's expense including, without limitation transportation costs both ways, and all expenses of unpacking, examining, repacking and reshipping such Products, in addition to MKS' other rights. Products are not deemed accepted by reason of any preliminary inspection or payment of any invoice. Supplier shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. Acceptance of Products by MKS shall not be deemed a waiver of MKS' rights and Supplier obligations under Section 9 above.
10.1 If the Products require installation at MKS' facility, Supplier shall provide installation Services and the following provisions will apply in lieu of the above provisions of Section 10: except as otherwise stated in the PO, Supplier shall, at no additional cost, install the Products and provide training related to the Products at MKS' facility. MKS and Supplier shall conduct a Products acceptance test following installation of the Products at MKS' facility in accordance with the acceptance criteria specified or otherwise approved by MKS. If the Products do not meet such acceptance criteria, Supplier shall, at its sole expense, promptly make corrections, repairs or modifications to the Products (provided that Supplier shall obtain MKS' written approval prior to making any such modifications) and re-conduct the Products acceptance test. MKS reserves the right to reject Products that do not meet the acceptance criteria or are otherwise defective or do not comply with the applicable Specifications and to return the Products to Supplier for a full refund of the purchase price. In such event, MKS may also charge Supplier for all expenses of unpacking, examining, repacking and reshipping such Products. Acceptance of Products by MKS shall not be deemed a waiver of MKS' rights and Supplier obligations under this Agreement, including without limitation the warranty rights and obligations specified in Section 9 above.
11. Confidential Information.
11.1 MKS "Confidential Information" means all information disclosed by or on behalf of MKS pursuant to this Agreement or otherwise obtained or accessed by Supplier in connection with this Agreement or MKS' receipt of Products and Services hereunder, including (i) any and all know-how, samples, schematics, drawings, designs, specifications, manuals, forecasts, other technical, business, financial or trade secret information, and data, including, without limitation, information regarding MKS' customers or such customer's information, (ii) any and all modifications and derivatives of any of the above and (iii) any employee data and/or customer data. MKS retains sole ownership of all Confidential Information. The terms of this Agreement and the existence of a business relationship between MKS and Supplier is also Confidential Information. MKS grants to Supplier the right to use the Confidential Information solely for the purpose of providing Products and Services to MKS. Supplier shall clearly mark Confidential Information as MKS Confidential. Supplier shall use at least that degree of care to protect the confidentiality of the Confidential Information that Supplier uses to protect its own similar information, but in no event shall Supplier use less than reasonable care to protect the confidentiality of the Confidential Information. Supplier shall solely allow its employees to use or access the Confidential Information to the extent that such employees have a need to know such Confidential Information in order to provide the Products and Services hereunder to MKS and in no event shall Supplier disclose any Confidential Information to any third party. Unless otherwise agreed to in a separate confidentiality Agreement executed by authorized representatives of MKS and Supplier, no commercial or technical information disclosed in any manner or at any time by Supplier to MKS shall be deemed secret or confidential and Supplier shall have no rights against MKS with respect thereto, except as may exist under any applicable patent law. The obligations under this Section 11 shall survive the cancellation, termination, or completion of the applicable PO. On request, and in any event, upon termination of this Agreement or applicable PO, Supplier will return to MKS or destroy (and certify destruction to MKS) all Confidential Information. The provisions of this Section 11.1 shall not apply to: (a) any information which was in the public domain at the date of the Agreement; (b) any information which comes into the public domain subsequently other than as a consequence of any breach of the Agreement or any related agreement; (c) any information which is independently developed by the Supplier without using information supplied by MKS; or (d) any disclosure required by law or a regulatory authority or otherwise by the provisions of this Agreement.
11.2 Further, for purposes of any Services requiring access to MKS' networks, systems, databases or facilities, Supplier shall: (i) solely access such networks, systems, databases and facilities with express permission and supervision of an authorized MKS employee; (ii) comply with all MKS policies and procedures regarding information security, access control, badging requirements, health and safety; and (iii) limit such access to the minimum necessary in order to be able to provide the Services requested by MKS. For purposes of any remote Services provided hereunder, Supplier shall comply with the information security requirements of MKS and associated network access protocol as notified to Supplier at the time of such Services.
11.3 Except as required for delivery of Products or Services to MKS, Supplier will not reverse engineer, develop, design, manufacture, refurbish, sell or offer for sale (directly or indirectly) any Products or Services based on or incorporates MKS Confidential Information. Further, as applicable, MKS may provide certain tangible materials for processing or use as part of certain Services (the "Materials"). MKS retains ownership of all such Materials and Supplier shall solely use such Materials as expressly authorized by MKS in connection with MKS' receipt of the specific Services identified on the PO.
11.4 To the extent that Supplier obtains any personally identifiable information or Supplier is able to access to or the ability to process any such data in connection with the Products or Services provided hereunder, the terms of the MKS Data Privacy Agreement found at www.mksinst.com/suppliers (the "DPA") shall apply and is hereby incorporated by reference and made a part of this Agreement. In the event of a conflict between the terms of this Agreement and the DPA, the DPA shall control for purposes of the access to, use of and processing of any personally identifiable information hereunder.
11.5 Supplier agrees that MKS may suffer irreparable harm for which monetary damages may be an inadequate remedy, and that equitable relief may be appropriate (and MKS may seek such equitable relief without posting bond or similar requirements), if Supplier were to breach or threaten to breach any obligations in this Section 11.
12. Intellectual Property Rights and Licenses.
12.1 MKS IP Rights. "IP Rights" means all rights arising under patent, copyright, trade secret, trademark, mask works, moral rights or other intellectual property rights in any jurisdiction. "MKS IP" means (i) Confidential Information and Materials; (ii) Specifications provided by MKS; (iii) all IP Rights owned or controlled by MKS prior to the effective date of this Agreement or otherwise developed or acquired by MKS independently from this Agreement or the receipt of Products and Services hereunder; and (iv) all modifications, improvements and derivatives of (i) through (iii) including all products and services based thereon. Any and all rights in the foregoing MKS IP constitute "MKS IP Rights" and shall be irrevocably assigned by Supplier to MKS. MKS IP Rights do not include IP Rights which (i) were developed entirely independent of, do not contain and are not derived from MKS IP and do not otherwise reflect the assistance (financial or otherwise), collaboration, input, involvement, development efforts, of MKS or its employees, consultants, contractors or other suppliers and (iii) are not an improvement, enhancement, modification, or derivative work of any IP Right belonging to MKS or transferred to MKS by this Section. Supplier shall cause its employees, agents, contractors and sub-tier suppliers (regardless whether they sell directly to Supplier) to also assign and transfer all such IP Rights to MKS consistent with the above terms.
12.2 License to MKS. (a) Supplier IP. Supplier, as partial consideration for this Agreement, grants to MKS, its successors and assigns, an irrevocable, perpetual, non-exclusive, royalty-free, fully paid-up, world-wide right and license, with rights of sublicense (through multiple tiers), to use, distribute, import, improve, sell and have sold such Supplier IP Rights as is necessary for MKS to fully exploit the Products and Services. MKS shall also be entitled to grant licenses to its customers and other users of goods sold by MKS to use such Supplier IP Rights as related to the operation of MKS' products (b) Software License. Supplier grants MKS an irrevocable, perpetual, non-exclusive, fully-paid, royalty-free, world-wide license (with the right to sublicense through multiple tiers) license to use, access, embed and integrate all Software in connection with the development, manufacture and sale of MKS Products and Services.
12.3 MKS' Property: All special tools, dies, patterns, jigs, fixtures, information, drawings, specifications, materials and other materials supplied or paid for by MKS remain MKS' property and Supplier agrees to comply promptly with all disposal and shipping instructions furnished by MKS. Supplier agrees, at its expense, to maintain all of MKS' property in Supplier's possession in good condition and repair and adequately insured and to indemnify MKS for any damage or loss to such property, to any third party. For purposes of any Services provided pursuant to this Agreement, to the extent that such Services include Supplier's development or creation of any work product, testing results, reports, data, or other deliverables on behalf of MKS (collectively "Deliverables"), MKS shall solely own such Deliverables and Supplier hereby assigns all right, title and interest in and to such Deliverables to MKS.
13. Indemnity by Supplier.
Supplier shall indemnify, defend and hold MKS its customers, and their respective affiliates, end users, officers, directors, employees and agents (collectively, the "Indemnitees") harmless from all suits, claims, losses, damages, injuries, costs and expenses (including attorneys' fees) arising out of, or caused by: (i) Supplier's breach of this Agreement; (ii) any defects of the Products or Services; (iii) any claim that the Products or Services (or use thereof) infringe the intellectual property rights of a third party; and (iv) damage to real or personal property, bodily injury or death caused by the Products or Services. MKS shall give Supplier prompt notice of any such suits or claims, and shall permit Supplier to direct the defense and the settlement of such suits or claims, provided, however, that MKS may participate in the defense of such suits or claims at its expense with counsel of its choosing, and no settlement may be effected by Supplier on behalf of MKS without MKS' prior written consent. In the event that any Products or Services are alleged or found to be infringing a third party's intellectual property rights, Supplier shall, at MKS' option, promptly (1) procure for the Indemnitees the right to continue using such infringing Products or Services; (2) replace the infringing Products or Services with non-infringing Products or Services of substantially similar form, fit and function; (3) modify the Products or Services so that they no longer infringe; or (4) remove the Products or cease providing the Services and refund the purchase price and any other amounts paid by MKS for the infringing Product or Service to MKS. Supplier agrees to maintain, at its expense, general liability insurance (including product liability) and such other insurance with such limits, terms and conditions as MKS may specify (if not specified, limits that are standard in the industry for the types of Products and Services being provided hereunder) and which includes MKS as an additional insured. Supplier shall provide a certificate of insurance to MKS upon request, and shall give MKS at least thirty (30) days notice of any cancellation of any insurance policy.
14. Disclaimer and Limitation of Liability for Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MKS BE LIABLE TO SUPPLIER OR TO ANY OTHER PERSON OR ENTITY UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR CONTINGENT DAMAGES, OR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, RESULTING FROM LOSS OF SALE, BUSINESS, PROFITS, DATA, OPPORTUNITY OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE, AND EVEN IF MKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MKS' MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID UNDER THE APPLICABLE PO IN THE SIX MONTHS IMMEDIATELY PRECEDING THE RELEVANT CLAIM. THIS SECTION 14 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Compliance with Law and Policies
15.1 General. Supplier shall comply with all applicable U.S. and international applicable import, export, and sanctions laws and regulations (collectively known as "Import/Export Laws"), including but not limited to: (i) the International Traffic In Arms Regulations (ITAR); (ii) Export Administration Regulations (EAR); (iii) Foreign Assets Control Regulations (FACR); (iv) U.S. Customs and Border Protection Regulations (CBP); and (v) all applicable Import/Export Laws of other jurisdictions. In addition, Supplier shall comply with any local laws in Supplier's jurisdiction that may impact Supplier's import, export or use of Products, components, MKS Confidential Information, or MKS export-controlled technical data. Supplier shall comply with all instructions and/or policies provided by MKS necessary for complying with Import/Export Laws. Supplier shall secure, at its sole expense, all necessary export and import clearance requirements, including but not limited to, export and import licenses. Supplier shall not cause or permit any Products, technical data/technology, or the direct product thereof furnished by MKS in connection with this Agreement, to be exported, transshipped, diverted, re-exported, or transferred, directly or indirectly, unless expressly permitted by Import/Export Laws and with approval from MKS, if applicable. Supplier is responsible for the accuracy of any statement made or documentation supplied in support of import or export certifications, and shall be responsible for, and indemnify MKS for, any costs incurred (including legal fees) due to its inaccuracy. Supplier represents and warrants that it is not suspended, debarred or declared ineligible to import or export by any government entity and shall immediately notify MKS in the event Supplier is suspended, debarred or declared ineligible by any government entity. In such an event, MKS may terminate this Agreement immediately without any liability.
15.2 Trade Restrictions. MKS may, from time to time and for business reasons, withdraw from and/or restrict its business dealings in certain jurisdictions, regions, territories and/or countries. Thus, subject to applicable Import/Export Laws, Supplier hereby agrees not to supply any Products or Services to MKS under this Agreement that are sourced directly or indirectly from a prohibited (i.e, embargoed under the applicable government embargo lists) jurisdiction or person, or where the circumstances otherwise impose a prohibition.
15.3 Marking, Labeling and Packaging. Supplier shall comply with all applicable country-of-origin marking requirements for the Products and components, ensure shipments are properly packaged and labeled as required under Import/Export Laws, and provide all required certificates of origin.
15.4 Preferential Trade Agreements. If Products will be delivered to a destination country having a trade preferential or customs union Agreement ("Trade Agreement") with Supplier's country, Supplier shall cooperate with MKS to review and confirm the eligibility of the Products for any special program for MKS' benefit and provide MKS with any required documentation, including declarations or certificates of origin to support the applicable special customs program or Trade Agreement to allow duty free or reduced duty for entry of the Products into the destination country. Supplier shall promptly notify MKS of any known documentation errors and/or changes to the origin (as defined by applicable laws) of the Products. Supplier shall indemnify MKS for any costs, fines, penalties or charges arising from Supplier's inaccurate documentation or untimely cooperation.
15.5 Supply Chain Security. Supplier shall ensure the physical integrity and security of all shipments under this Agreement against the unauthorized introduction of harmful or dangerous materials or introduction of unauthorized personnel in transportation. Supplier's security measures must include, but are not limited to: (i) physical security of manufacturing, packing and shipping areas; (ii) restrictions on access of unauthorized personnel to such areas; (iii) personnel screening to the maximum limits of laws or regulations in Supplier's country; and (iv) establishing security procedures to protect the security and integrity of all shipments.
15.6 Hazardous Substances and Conflict Minerals. Supplier represents and warrants: (i) that it is in full compliance with the most current applicable hazardous substance laws and regulations; (ii) MKS' related policies; and (iii) that the Products meet all EU requirements for CE marking and any other local law marking requirements. Supplier shall declare each Product's compliance with the most current applicable hazardous substance laws and regulations, including those stated at: www.mksinst.com/Suppliers, and identify any substances that are restricted or must be declared under such applicable laws. In addition, Supplier shall make available to MKS any documentation that supports such declaration.
(a) Supplier shall cooperate with MKS to make available to MKS and/or its agents, in a timely manner, accurate and complete declarations that identify (i) all substances contained in the Products, (ii) the sources of such substances and (iii) the amount of such substances contained in the Products.
(b) Without any additional consideration, Supplier shall also provide further cooperation and documentation as MKS may reasonably require in order to meet any obligations it may have under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 as may be amended from time to time, hazardous substances laws or MKS' customer's requirements. Without limiting the generality of the foregoing, Supplier agrees to (i) take reasonable steps to determine the country of origin and the source and chain of custody of any "conflict minerals" (as such term is defined by U.S. regulations, and currently consists of tantalum, tin, tungsten and gold) contained in the Products supplied hereunder, (ii) to provide complete and accurate information regarding such conflict minerals to MKS, in a timely manner, as reasonably requested by MKS and (iii) if required by MKS as part of the Specifications for the Products, to ensure that any such conflict minerals are sourced only from "conflict-free" mines and smelters.
15.7 Government Contracts. To the extent that the PO is being issued, directly or indirectly, as a result of a contract from the United States Government, all terms and conditions required by applicable law, regulation or by such Government contract are hereby incorporated herein by reference, including, but not limited to, the Federal Acquisition Regulation ("FAR") and Defense Federal Acquisition Regulation ("DFAR") listed on www.mksinst.com/Suppliers. To the extent that this Agreement is inconsistent with any of the above referenced requirements, the requirements above will prevail and be binding on Supplier, to the extent applicable to the Government Contract. Supplier represents and warrants that it is in compliance with the foregoing requirements, unless exempted or inapplicable. Supplier agrees that it will furnish to MKS upon request a certificate or certificates in such form as MKS may require certifying that Supplier is in compliance with such provisions and any other applicable terms, conditions, laws or regulations. Supplier shall include the terms of this clause in all subcontracts awarded under the PO.
15.8 Supplier shall comply with the MKS Supplier Manual, if any, and policies set forth on www.mksinst.com/Suppliers including without limitation, the Supplier Code of Conduct (the "Code"), and such other policies and requirements that MKS communicates to Supplier. Without limiting the generality of the preceding sentence, in conducting its business, Supplier shall prohibit corruption and bribery, prohibit child labor, forced labor, slavery or human trafficking, ensure the health and safety of employees and the protection of the environment, and ensure compliance with all applicable laws, rules and regulations, including, without limitation those laws listed or referenced on MKS' Supplier Website, located at https://www.mksinst.com/suppliers#code. If, at any time, MKS determines that Supplier is in violation of the Code, or any applicable laws, rules and regulations, MKS may cancel this PO upon written notice to Supplier, and MKS shall have no further obligations or liability to Supplier.
15.9 Unless exempt, the Supplier and all of its affiliates and subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identification or national origin. Moreover, these regulations require that covered prime Suppliers and its affiliates and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identification, national origin, protected veteran status or disability. If applicable, the Supplier and its affiliates and subcontractors shall also abide by the requirements of 41 CFR § 61-300 regarding veterans' employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
15.10 Supplier will, at its expense, defend, indemnify and hold harmless MKS and its customers and their respective officers, directors, employees and agents, from and against any liabilities, losses, damages, fines, penalties, costs and expenses (including reasonable attorney's fees) arising out of any breach of Section 15 or the foregoing provision or any failure by Supplier or its employees, agents or independent contractors, to comply with all applicable federal, state and local laws, orders, rules and regulations.
16.1 Assignments. No right or obligation under this Agreement may be assigned by Supplier without the prior written consent of MKS. MKS may assign the rights or obligations of this Agreement in whole or part at any time. Supplier may not subcontract the work to be performed by it under any PO, the provision of Services, or the manufacture of any critical component of the Products to be delivered under any PO, without MKS' prior written approval. This Agreement shall apply to any permitted successors and assigns.
16.2 Waiver. If MKS fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder, such failure shall not constitute a waiver of such term, condition, right or privilege. No waiver by MKS of any breach of any provisions of this Agreement and no amendment of modification thereof shall be effective unless made in writing and signed by MKS.
16.3 Survival of Obligations; Severability. The obligations of the following provisions shall survive the cancellation, termination or expiration of this Agreement: Sections 1 through 4, 7 through 9, and 11 through 16. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable (invalid or illegal), that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.
16.4 Governing Law, Exclusive Forum. The Agreement shall be interpreted, enforced and governed by the laws of the Commonwealth of Massachusetts, excluding its choice of law rules, and the exclusive forum for any dispute related in any way to the Agreement or the Parties' relationship shall lie in the courts, state or federal, of Massachusetts, and venue shall lie in the courts of Boston, Massachusetts. Each Party consents to personal jurisdiction in the above court. The rights and obligations of the parties under the Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
16.5 Independent Contractor: The performance by Supplier of its duties and obligations under the PO shall be that of an independent contractor and nothing contained therein or herein shall create or imply an agency relationship between Supplier and MKS, nor shall this Agreement be deemed to constitute a joint venture or partnership between Supplier and MKS. Neither party has any authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other party. When work of any description is performed in furtherance of Supplier's obligations under any PO on the premises of MKS or any of MKS' customers, Supplier shall provide all safeguards and take all necessary precautions to prevent the occurrence of any accident, injury, death or loss to any person or property and shall be solely responsible therefore.
16.6 Record Retention and Audit Rights: For the purposes of ensuring compliance with this Agreement and with all applicable laws, MKS may conduct audits of the Suppliers relevant book, records, and manufacturing processes, at MKS' expenses, at the Supplier's place of business during regular working hours. Further, the Supplier agrees to retain all records, documents, POs, and any other applicable document for at least ten (10) years from the date of such document.
16.7 Specific Exceptions: Appendix A sets forth specific exceptions to this Agreement. To the extent that any provision in Appendix A is in conflict with any other term or condition in this Agreement, Appendix A will supersede such other terms and conditions.
If the Supplier is a German Entity and is supplying to MKS in Germany, the following applies:
If the Supplier is a UK entity and is supplying to MKS in the UK, the following applies:
If the Supplier is a French entity and is supplying to MKS in France, the following applies:
People's Republic of China:
If Supplier is in the People's Republic of China and supplied the Product(s) or Software directly to MKS' subsidiary in the People's Republic of China then the following applies:
If supplier is in Singapore and supplying Product(s) or Software directly to MKS' subsidiary in Singapore then the following applies:
If the Supplier is a Korean Supplier and is supplying to MKS in Korea, the following applies: