LIMITED WARRANTY.
Denton warrants that the system (the “System”),and/or parts (the “Parts”) described on the attached Order Confirmation will substantially conform to all material specifications set forth in the Summary Specification delivered by Denton to Buyer, for the applicable period specified in the Order Confirmation (the “Warranty Period”). The Warranty Period for a System will begin on the date the System passes acceptance testing at Denton’s facility, as confirmed by the earlier to occur of: (i) Buyer’s written acknowledgment; or (ii) Buyer’s use of the System for its intended purpose. If no acceptance test is applicable, the Warranty period will begin upon shipment from Denton’s facility. The Warranty Period for Parts will begin on the date the Parts are shipped from Denton’s facility. If, during the Warranty Period, the System and/or Parts, as applicable, do not conform to this Limited Warranty and Buyer provides written notice to Denton of same, then Denton shall, at its expense, repair same so that it does so conform, provided that Buyer complies with these Terms including the notice requirements below. Denton also warrants that any services (the “Services”) described in the attached Order Confirmation will be performed in a professional and workmanlike manner in accordance with all terms applicable thereto set forth in such Order Confirmation If, during the Warranty Period applicable to such Services (as set forth in the Order Confirmation), Buyer provides written notice to Denton that the Services do not conform to their applicable Limited Warranty, Denton shall, at its expense, reperform the Services in a manner that does so conform, provided Buyer complies with these Terms including the notice requirements below. This remedy shall be Denton’s sole obligation, and Buyer’s sole remedy, for any breach of this Limited Warranty.
Exceptions.
Notwithstanding the foregoing, the Limited Warranty shall not apply: (i) if the System and/or Parts which are subject to the Limited Warranty have been modified, changed or altered by anyone other than Denton or subcontractors, agents or other persons acting at Denton’s direction or with Denton’s consent, (ii) if the System and/or Parts which are the subject of the Limited Warranty are being improperly operated and/or used in any material way other than as contemplated by the Summary Specification; (iii) if the System and/or parts which are the subject of the Limited Warranty fail due to Buyer’s failure to maintain same in accordance with the system documentation delivered by Denton to Buyer with same (the “System Documentation”), (iv) if the damage or defect is caused by fire, flood, wind, lightning or similar act of God; or (v) to consumable items included in the System and/or Part including, without limitation, bell jars, pump oils, viewports, O-rings, gauge tubes and the like (“Consumables”). Consumables are warranted only as of the date of acceptance testing of the System and/or Parts, as applicable, in which the consumable item is included, at Denton’s facility to confirm to Denton’s applicable written specifications for same, delivered by Denton to Buyer. Denton’s sole obligation, and Buyer’s sole and exclusive remedy, for any breach of the warranty on Consumables shall be for Denton to repair or replace the Consumable at Denton’s sole cost and expense, provided Buyer notifies Denton of the breach on or prior to the date of acceptance testing at Denton’s facility.
Warranty Service.
All warranty related service requests of Buyer shall be directed to Denton’s on-call service desk for tracking, coordination and resolution. Upon receipt of any service request, Denton shall promptly assist Buyer in resolution of the warranty matter. If Denton is unable to resolve the issue over the phone, Denton shall dispatch one or more technicians to the Delivery Location for analysis and resolution of the problem. Denton shall use reasonable commercial efforts to resolve any such problem promptly. In the event Denton confirms that the problem is the result of a breach of warranty, all warranty related work performed by Denton during the Warranty Period shall be without charge to Buyer, and Denton shall be responsible for all costs and expenses, including travel, lodging, meal and other costs associated with dispatching its technicians. In the event Denton determines that the problem is not the result of a breach of warranty, Buyer shall pay Denton for such work at Denton’s then-current hourly rate, and shall be responsible for all costs and expenses incurred in providing such work, including travel, lodging, meal and other costs associated with dispatching Denton’s technicians.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IN ADDITION, DENTON SPECIFICALLY DISCLAIMS ALL SUCH OTHER EXPRESS OR IMPLIED WARRANTIES AND/OR AGREEMENTS INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
BUYER’S OBLIGATIONS.
Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of the System and Parts, and that it possesses the skill and expertise necessary to comply with its obligations hereunder. Buyer shall indemnify, defend, and hold Denton harmless from and against any claims, losses, liabilities, costs, expenses and fees (including, without limitation, reasonable attorneys’ fees) arising out of a breach of Buyer’s obligations under this paragraph, and/or Buyer’s discharge, storage, handling and/or use of the System and Parts.
DENTON’S LIABILITY. UNDER NO CIRCUMSTANCES SHALL DENTON BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, INJURIES TO PERSONS OR PROPERTY, LOSS OF USE OF PROPERTY, OR DAMAGES FOR WHICH BUYER MAY BE LIABLE TO OTHER PERSONS OR ENTITIES. EVEN IF DENTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,AND WHETHER THE CLAIM IS FOR BREACH OR REPUDIATION OF CONTACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR OTHERWISE. DENTON’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, THE ORDER CONFIRMATION AND THE SYSTEM, PARTS AND SERVICES SHALL NOT EXCEED THE PRICE PAID BY BUYER TO DENTON FOR SAME. BUYER ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF LIABILITY SET FORTH HEREIN ARE MATERIAL AND ESSENTIAL TERMS,AND THAT THE FEES REFLECTED IN THIS INVOICE ARE A DIRECT RESULTS OF THOSE TERMS.
DELIVERIES.
Seller shall not be liable to Buyer for any damages claimed or other liabilities resulting from delay in delivery.
PAYMENT.
Payment terms for the System, Parts and Services purchased by Buyer from Denton pursuant hereto shall be those set forth on the first page of this Order Confirmation, unless otherwise agreed by the parties in writing. All sums shall be payable in legal tender of the United States of America. Buyer shall reimburse Seller for all taxes or other charges or fees Seller is required to pay to any governmental authority as a result of the manufacturer, sale, shipment or use of the System. If Buyer is in any respect in default under any provisions hereof, Seller may suspend further deliveries until the default is remedied. Any past due amounts owing to Seller shall accrue interest a the lesser of one percent (1%) per month, or the maximum interest rate permitted by applicable law. Buyer shall pay to Seller all costs, expenses and fees including, without limitation, attorneys’ fees, incurred by Seller in collecting any amounts due and owing hereunder. In the event Buyer fails to make a required payment hereunder, or otherwise defaults under these Terms of the Order Confirmation, Seller may, in addition to any other rights or remedies it may have, defer shipments, accelerate due dates on some or all amounts owned, and/or require cash or other security.
CONFIDENTIALITY.
The parties anticipate that both will obtain and have access to confidential information (“Confidential Information”) of the other as a consequence of the transactions contemplated by these Terms and the Order Confirmation. “Confidential Information” of Denton shall include the System Documentation. The parties therefore agree, on behalf of themselves, their agents, employees, parents, subsidiaries, officers, directors, and all other persons acting on or for their behalf, (i) to keep all Confidential Information of the other party confidential and not to disclose such Confidential Information, either directly or indirectly, to any third party, and (ii) not to use any such Confidential Information for any purpose other than for performance of the transaction contemplated by these Terms and the Order Confirmation without the prior written consent of the non-disclosing party. These obligations shall not apply to any: (i) information that either party knows about the other prior to the receipt of the Order Confirmation except any information which is the subject of unexpired confidentiality obligations; (ii) information that is publicly known, or becomes publicly known, through no breach by either party; (iii) information that is rightfully obtained by either party from any third party who has no duty of confidentiality under these Terms; (iv) information that is independently developed by or for a receiving party completely apart from the disclosures hereunder, (v) information that is released pursuant to a binding court order or government regulation, provided that the receiving party delivers a copy of such order or action to the other party and reasonably cooperates with the other party if it elects to contest such disclosure or seek an appropriate remedy such as a protective order or (vi) is otherwise necessary to disclose in order to comply with applicable law, but only to the extent that any such disclosure is reasonably necessary. The parties mutually agree to take all reasonably necessary steps, and to prepare and execute all necessary documents, to protect and prohibit the disclosure of Confidential Information, using the higher of a reasonable standard of care or the care used by such party to protect its own confidential or proprietary information. Each party will immediately notify the other party of any information that comes to its attention which might indicate that there has been a loss of confidentiality with respect to the other party’s Confidential Information. In the event of a breach or threatened breach by either party of such party’s confidentiality obligations hereunder, the parties acknowledge and agree that it would be difficult to measure the damage to the non-breaching party, that injury to such non-breaching party would be impossible to calculate and that money damages would therefore be an inadequate remedy for such breach. Accordingly, the non-breaching party, in addition to any and all other rights which may be available, shall have the right of injunctive relief and other appropriate equitable remedies to restrain any such breach or threatened breach. Upon request, each party shall immediately return to the other party the originals and all copies of any Confidential Information of the other party.
INTELLECTUAL PROPERTY.
Buyer acknowledges that Denton is in the business of designing and producing vacuum systems, including production sputtering systems similar to that contemplated by these Terms and the Order Confirmation, all or many of which share many common components and elements, including, without limitation, the source code for the operating system of the System (the “Core System”). Accordingly, Buyer agrees that Denton shall retain exclusive ownership of all worldwide intellectual property rights in and to the Core System, as well as the System, Parts, Summary Specification, System Documentation, and all other deliverables hereunder, all of which shall also be considered “Confidential Information” of Denton.
INDEMNITY.
Denton shall indemnify, defend and hold Buyer, and its affiliates, and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively “Buyer Indemnitees”) harmless from and against any and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs or expenses, including reasonable attorneys’ fees and disbursements, of any kind whatsoever resulting from infringement or misappropriation by Denton of any patent, copyright or trade secret right in connection with its manufacture or sale of the System and/or Parts. Buyer shall indemnify, defend and hold Denton, and its affiliates, and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively “Denton Indemnitees”) harmless from and against any and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs and expenses, including reasonable attorneys’ fees and disbursements, of any kind whatsoever resulting from Buyer’s ownership or operation of the System and/or Parts.
MISCELLANEOUS.
Restocking Fee.
In the event Buyer cancels an order for Parts within thirty (30) days from the date of the applicable Order Confirmation, Buyer agrees to pay a restocking fee of twenty-five percent (25%) of the price of the canceled portion of the order.
Cancellation.
In the event the buyer cancels an order for a System within 30 days of the scheduled delivery date, Buyer agrees to pay a cancellation fee equal to ninety-five percent (95%) of the price of the system. In the event the buyer cancels an order for a System within 60 days of the scheduled delivery date, Buyer agrees to pay a cancellation fee equal to eighty–five percent (85%) of the price of the system. In the event the buyer cancels an order for a System more than 60 days from the scheduled delivery date, Buyer agrees to pay a cancellation fee equal to fifty percent (50%) of the price of the system.
Assignment and Delegation.
Neither these Terms or the Order Confirmation, nor any right, obligation or duty hereunder of either party, may be assigned to, or assumed or performed by, any third party, without the prior written consent of the non-assigning party. Any purported assignment or delegation made without compliance with the requirements of this paragraph shall be wholly void and ineffective for all purposes.
Remedies.
The remedies of the parties contained in these Terms and the Order Confirmation are cumulative with one another and with any other remedies which the parties may have at law, in equity, under these Terms or otherwise, and the exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. No waiver of a breach of any provision of these Terms or the Order Confirmation shall constitute a waiver of any other breach or of such provision. The invalidity in whole or in part of any condition of these Terms or the Order Confirmation shall not affect the validity of other conditions.
Integration.
These Terms and the attached Order Confirmation set forth the entire agreement and understanding of the parties with respect to transactions contemplated hereby and supersedes any and all prior contracts, agreements and understandings of the parties relating to the subject matter hereof.
Amendment/Waiver.
These Terms and the Order Confirmation may be amended, modified, superseded or canceled, and any of the terms, representations, warranties, covenants and conditions herein may be waived, only by an instrument in writing executed by both parties or, in the case of a waiver, by the party waiving compliance.
Force Majeure.
If the actual performance of the transaction contemplated by these Terms and the Order Confirmation is prevented by any Force Majeure, the party affected by such Force Majeure event is excused on a day-by-day basis to the extent of the prevention; provided, that such party notifies the other party as soon as practicable of the nature and expected duration of the claimed Force Majeure, uses all commercially reasonable efforts to avoid or remove the causes of nonperformance and resumes performance promptly after the causes have been removed.
Governing Law.
These Terms and the Order Confirmation shall be construed in accordance with, and governed in all respects by, the internal laws of the State of New Jersey, USA (without giving effect to principles of conflicts of laws).
Dispute Resolution.
In the event of any dispute or controversy arising under or in connection with these Terms or the Order Confirmation, the parties shall first promptly try in good faith to settle such dispute or controversy by mediation, with a mediator to be jointly selected by the parties before resorting to litigation. If, after a 20 day period, the parties are unable to resolve the dispute through mediation (or to agree to a mediator), either party may submit the matter to a court having jurisdiction. In connection therewith, both parties irrevocably submit to the non-exclusive jurisdiction of the state and federal courts located in the State of New Jersey and both parties waive any right to object to the jurisdiction or venue of the courts in the State of New Jersey for such purpose. Notwithstanding the foregoing, nothing herein shall limit the right of either party to seek temporary injunctive relief from a court of competent jurisdiction at any time such party believes such relief is warranted.
Severability.
The invalidity or unenforceability of any provision of these Terms and the Order Confirmation shall not affect the validity or enforceability of any other provision contained herein.
Headings.
The headings used in these Terms and the Order Confirmation are for convenience of reference only, shall not be deemed to be a part of these Terms or the Order Confirmation and shall not be referred to in connection with the construction or interpretation of same.
Construction.
In the interpretation and construction of these Terms and the Order Confirmation, the parties acknowledge that the terms hereof reflect extensive negotiations between the parties and shall not be deemed, for the purpose of construction and interpretation, to have been drafted by either party. Unless otherwise specifically agreed, the parties acknowledge that the pre-printed provisions on the reverse side of any quotation, order, acknowledgement or invoice will be deemed inapplicable and of no effect whatsoever.
Further Assurances.
Both parties agree to execute such additional documents and perform such acts as are reasonably necessary to effectuate the intent of these Terms and the Order Confirmation. The United Nations Convention on the International Sale of Goods shall not apply.