TERMS & CONDITIONS FOR SALE OF PRODUCTS

1.  APPLICABILITY. These Terms and Conditions for the Sale of Products (“Terms”) are the only terms governing the sale of all Systems, Components, and Services (collectively the “Products”, and each separately defined below) by the seller, Carl Zeiss Industrial Metrology, LLC (“ZEISS”) to the buyer (“Buyer”), each of which is identified in the accompanying quotation, purchase order, order acknowledge, invoice, or master agreement (the “Order”).  These Terms: (i) supersede any prior or contemporaneous agreements, representations, and warranties, whether written or oral, between Buyer and ZEISS; (ii)  may not be amended or modified except by a writing signed by both parties; and (iii) will prevail over any inconsistent terms, regardless of when created.  ZEISS’S acceptance of Buyer’s Order is limited to these terms, and is conditioned on Buyer's acceptance of these terms.  ZEISS’S lack of objection to any terms submitted by Buyer, or ZEISS’S fulfillment of a Buyer Order, does not constitute an acceptance of Buyer terms.  Buyer accepts these Terms by: (i) signing and returning ZEISS’S quotation; (ii) sending ZEISS an Order in response to ZEISS’S quotation; or (iii) instructing ZEISS to ship the Product(s) or commence work on the Order.

2. DEFINITIONS.
A. “Component(s)”means parts, spare parts, retrofits, and retrofit parts.
B. “Service”
means the labor required for the installation or completion of the work under these Terms.
C. “System(s)” means a complete and functioning system as configured and sold under these Terms.

3. CANCELLATION POLICY. ZEISS’S prior written consent is required for any and all Order cancellations.  Buyer will pay ZEISS a 20% (of the Order) cancellation fee for any cancelled Orders.  If Buyer and ZEISS agree to cancel or amend part of an Order, ZEISS may adjust the price and discounts for the revised Order.  Original discounts may no longer apply.

4. RETURN POLICY. ZEISS’S prior written consent is required for the return of any and all Product(s).  Buyer will pay ZEISS a 20% (of the Order) restocking fee for any returned Product(s).  The Product(s) must be in its original, unopened packaging, and in new condition, unless otherwise approved by ZEISS in writing.

5. PRICE; TAXES.  The price of the Product(s) (the “Price”) is the price specified in the Order.  The Price includes all packaging costs.  The Price excludes, and Buyer is responsible for: (i) delivery; (ii) transportation; (iii) installation; (iv) additional fittings or adjustments; and (v) any tax, fee, levy, assessment, exaction, imposition or other charge imposed by any local, state or federal government levied upon the production, sale, use, import, export, ownership or shipment of the Products, except for taxes on ZEISS’S net income, unless otherwise agreed to in writing by ZEISS.

6. PAYMENT.  Payment is due as follows:
A. For Components:
100% due within 30 days of the shipment of the Product(s). 
B. For Systems: 30% due upon receipt of Order, net 30 days; 60% due upon shipment, net 30; and 10% due upon approval after installation, net 45 days.  Invoice must be presented for each payment. 
C. For Services: 100% due within 30 days of completion of Services.
Past due amounts are subject to a service charge at the maximum rate of interest then-permitted by law until paid in full.

7. DELIVERY; SHIPPING; DELIVERY SUSPENSION. Product(s) will be shipped promptly after the receipt of Buyer’s Order, subject to Product availability, or as indicated in Order.  Shipping dates are estimates.  ZEISS shall not be liable for any delays, loss, or damage in transit.  All shipments are made EXW (2010 INCOTERMS) ZEISS’S location (the “Shipping Point”) using ZEISS’S standard packaging methods.  Buyer shall take delivery of Product(s) within 30 days of ZEISS’S notice that the Product(s) has been delivered to the Shipping Point.  For Product(s) stored or held by ZEISS longer than 30 days, Buyer will be charged a daily storage fee comparable to then-current, local (to the Shipping Point) warehousing costs.  ZEISS may, at its sole discretion, without liability or penalty, make partial shipments of Product(s) to Buyer.  Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped, whether such shipment is in whole or partial fulfillment of the Buyer’s Order.  Packaging is designed to permit safe transportation and handling.

8. TITLE & RISK OF LOSS. Title and risk of loss will pass to Buyer at the Shipping Point.  ZEISS is only responsible for making Product(s) available at the Shipping Point.  Buyer bears the full risk from the Shipping Point to the destination  If Buyer does not designate and provide the carrier, ZEISS will do so. 

9. SECURITY INTEREST & FINANCIAL INSECURITY.  As collateral security for the payment of the Price of the Product(s), until ZEISS is paid in full, Buyer hereby grants to ZEISS a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Product(s), wherever located, whenever arising, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the State of New York Uniform Commercial Code.  Buyer warrants that it: (i) has established a budget, (ii) approved financing, (iii) is able to pay its debts as they become due, (iv) is in fact now paying its debts in the ordinary course of business, and (v) is not insolvent within the meaning of the Federal Bankruptcy Act.  Buyer understands that ZEISS is relying upon these representations in extending credit under this Agreement.  ZEISS may, at any time(s), suspend shipment, cancel its obligations under these Terms, require cash payment(s), require payment(s) in advance, or other adequate assurances of performance satisfactory to ZEISS, when in ZEISS’S sole and commercially reasonable opinion, such measures are warranted because of Buyer’s financial condition or other grounds for insecurity regarding Buyer’s ability to perform under this Agreement.

10.  ACCEPTANCE OF PRODUCT(S). On delivery, Buyer will inspect the Product(s) and inform ZEISS within 3 business days of any apparent physical damage (if the Product remains in its shipping container, then the inspection is only of the container).  If ZEISS is installing the Products: ZEISS will perform all testing required to verify that the Product(s) is fully functional and meets all ZEISS specification.  Buyer shall perform any acceptance testing within 7 business days of (a) delivery to Buyer (if Price excludes install by ZEISS); or (b) certification by ZEISS that the Product(s) have been installed and meet ZEISS'S specifications (if Price includes install by ZEISS)(the “Inspection Period”).  Buyer will be deemed to have accepted the Product(s) unless it notifies ZEISS in writing of its rejection of the Non-Conforming Product , before the end of the Inspection Period. “Non-Conforming Product” means: (i) Product that different than for what is identified in the Order; or (ii) Product that does not conform to ZEISS’S published specifications. Buyer’s use of the Product(s) will also constitute acceptance.  If Buyer timely notified ZEISS of its rejection of the Non-Conforming Product(s), ZEISS will, in its sole discretion: (i) replace the Non-Conforming Product with a conforming Product; (ii) repair the Non-Conforming Product; or (iii) credit or refund the any amounts paid back to the Buyer.  If Buyer engages in a third-party financing relationship, the terms of such agreement shall include a provision that incorporates these Terms, specifically a provision that indisputably compels Buyer to provide the third-party financing entity with a certification of acceptance in accord with the terms of this paragraph. THE REMEDIES ESTABLISHED IN THIS SECTION ARE THE BUYER’S EXCLUSIVE REMEDY AND ZEISS’S ENTIRE LIABILITY FOR THE DELIVERY OF NON-CONFORMING PRODUCTS.

11. WARRANTY.
A.  Duration of Limited Warranty and Coverages. 

(i) For Systems: ZEISS warrants to Buyer that for a period 12 months from the date of the ZEISS installation of the System,  that the System will conform to the specifications set forth in ZEISS’S published specifications for that System, and will be free from defects in material and workmanship.
(ii) For Components: Zeiss warrants to Buyer that for a period of 6 months from the date of installation, if installed by Zeiss, that the Component(s) will be free from defects in material.
(iii) For Services: Zeiss warrants to Buyer that for a period of 30 days from the completion of the work, that labor will be free from defect in workmanship, and will be performed in a workman-like manner.
(iv) What ZEISS Will Do: Zeiss will, at its sole option, repair or replace any parts it reasonably determines to have failed due to defects in material or workmanship during the applicable warranty period.
B. Non-Covered Items.  Warranty does not cover high-wear, consumable items (e.g.: styli, air filters, items in the ZEISS Styli & Accessory Product Catalog) or the servicing/replacement of other manufacturer’s equipment or accessories. These items, and any third-party supplied items (software or hardware) are covered by their manufacturer’s warranty and arrangements for service or replacement must be made through that manufacturer. This Warranty does not cover failure that has resulted from improper third party services, improper or unreasonable use or maintenance, accident, or environmental conditions outside of those prescribed in the Product specifications or industry standards, improper packaging or shipment, electrical failure, or unauthorized tampering, alteration or modification. On-site planned or preventive maintenance activities are not included as a part of this Warranty. This Warranty does not apply to Software, which is warranted separately.
C. Exclusive Warranty.  THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  This Warranty does not apply to Software, which is warranted separately.
D. Exclusive Remedy.  THE OBLIGATION TO REPAIR, REPLACE, OR REFUND DESCRIBED IN THIS SECTION IS THE ONLY REMEDY FOR A BREACH OF THE LIMITED WARRANTIES.

12. LICENSE FOR USE OF SOFTWARE. ZEISS grants Buyer a non-exclusive, non-transferable license to use the Software, solely for Buyer’s internal uses in association with the Product(s). This license does not include the right to make copies of Software, extract, modify or incorporate any part of the Software, nor reverse engineer, decompile, or disassemble the Software. ZEISS does not have an obligation to supply software upgrades (i.e., new versions, or new, or in-line releases).  This license may be supplemented or modified by specific licenses incorporated with or attached to the Software.

13. CONFIDENTIAL INFORMATION. All non-public information that relates to the existing or reasonably foreseeable business of a disclosing party, whether disclosed directly or indirectly, which has been expressly or implicitly protected by a disclosing party, or which, from all of the circumstances, a receiving party knows or has reason to know that the disclosing party intends or expects the secrecy of such information to be maintained, shall be considered Confidential Information, and may not be used, disclosed, or copied unless authorized in advance, in writing, by the other party.  This Section does not apply to information that is (i) in the public domain; (ii) is known to the other party at the time of the disclosure; (iii) is rightfully obtained by a party on a non-confidential basis from a third party; (iv) developed independent of Confidential Information it receives from the other party; or (v) is compelled to be disclosed by a judicial or governmental decree, demand, or order.

14. INDEMNIFICATION. ZEISS will indemnify Buyer against judgments on claims (“Judgments”) for: (i) bodily injury or death, to the extent that Judgment(s) are caused by, or based on the strict products liability or gross negligence of, ZEISS; and (ii) damage to Buyer real property caused by ZEISS.  ZEISS may, at its sole discretion, elect to assume the defense of claims for bodily injury or death to the extent as described above.  If ZEISS assumes defense, it will seek Buyer's consent to settlement, which will not be unreasonably withheld or delayed, only if to Buyer’s consent is necessary to protect the Buyer’s interests.

15. PATENT INDEMNITY. ZEISS will defend or settle any claim, suit, or proceeding (a “Claim”) brought against Buyer based on allegations that the Product(s) infringe on a third party patent, provided that Buyer: (i) promptly notifies ZEISS of such Claim; (ii) reasonably cooperates with ZEISS’S efforts to defend or settle the Claim; and (iii) grants ZEISS the sole authority to defend or settle the Claim.  If the Product(s) are held to infringe on any patent, and the use of the Product(s) is enjoined, Zeiss, in its sole discretion, may either: (i) acquire Buyer the right to use the Product(s); (ii) modify the Product(s) so that they no longer infringe; or (iii) refund Buyer the depreciated value of the Product(s) and accept the return thereof. This indemnity will not apply to changes made by Zeiss at Buyer’s instruction or by Buyer, or by the use of third party items in conjunction with the Product(s) (unless sold or directed by Zeiss). Zeiss’s total liability to Buyer shall not exceed the depreciated value of the Product(s).

16. LIMITATION OF LIABILITY.  NEITHER PARTY WILL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF: USE, REVENUE, BUSINESS OPPORTUNITY, PROFIT, LOSS OF DATA, VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO ZEISS FOR THE PRODUCT(S) SOLD.

17. FORCE MAJEURE.   Neither party will be liable to the other, or deemed to be in breach of these Terms, for any failure or delay in performance of any Terms if it is caused by or results from acts or circumstances beyond the (relevant) parties’ reasonable control  including, without limitation, acts of nature, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, third party labor strikes, or other third party labor disputes.  The party experiencing the force majeure will inform the other party promptly of the delay.

18. ASSIGNMENT. Neither party may assign or transfer their rights or obligations under these Terms, except that ZEISS may, without the Buyer’s consent, assign its rights and obligations to its parent, subsidiaries, or affiliates.  Any other purported assignment or delegation in violation of this Section is invalid.  No assignment or delegation relieves either party of any of its obligation under these Terms.

19. RELATIONSHIP. The Parties are independent contractors, and these Terms do not create any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship.

20. THIRD PARTY BENEFICIARIES.  This Agreement is for the sole benefit of the Parties, and their respective successors and permitted assigns, and not for any other third party.

21. SURVIVAL.  The rights and obligations established in this Agreement will survive the termination or expiration of the Terms, unless otherwise limited by any provision contained herein.

22. SEVERABILITY.  If a court of competent jurisdiction deems any of the provisions in this Agreement to be invalid, illegal, or unenforceable, the remainder of the Agreement will remain valid and the Parties will work in good faith to amend such invalid provision in a manner that lawfully accomplishes the original intent of the invalid provision. If removing or amending the invalid provision has a material adverse effect on either party, then either party may terminate these Terms without further obligation or liability.

23. WAIVER.   The failure of a Party to enforce this Agreement or any provision of it shall not constitute a waiver of this Agreement or that provision.

24. NOTICE. All notices, requests, consents, claims, demands, waivers, and other communications (a “Notice”) must be in writing and addressed to the parties indicated on the face of the Order. All Notices shall be delivered by hand, nationally recognized overnight courier (with all fees pre-paid), fax (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).  A Notice only is effective upon its receipt by the receiving party, and if the party giving the Notice has complied with the requirements in this section.

25. EXPORT/RE-EXPORT. The Product(s) may be subject to United States Export Administration Regulations and diversion contrary to U.S. law is prohibited. All transactions are conditioned on compliance with all applicable export control laws and regulations and all other applicable laws and treaties, including without limitation the Foreign Corrupt Practices Act, of the U.S.A., international treaty and/or the Buyer’s country. Buyer agrees that it shall not, except as permitted by those laws, regulations or treaties, make any disposition, either by transshipment, re-export, diversion or otherwise, of Products in whole or in part. Buyer warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Buyer has obtained all required permits and approvals. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the Department of Commerce. All obligations in this paragraph survive any termination of site access, and discharge of any other contract obligations.

26. INSURANCE. Zeiss will maintain commercially reasonable insurance coverages, including General Liability, Products Liability, and Worker’s Compensation coverages.

27. GOVERNING LAW AND VENUE. These Terms are governed by New York law, without use of any of its conflict-of-laws provisions.  The parties will resolve any disputes between them in the courts in New York, and waive the right to a trial by jury.  The venue for any disputes will be in the State of New York, and the parties consent to the exclusive jurisdiction of the federal and state courts located in Westchester County, New York, U.S.A.

28. COUNTERPARTS.  This Agreement and any amendment to it may be executed in several counterparts, each of which, when executed and delivered shall be an original, and all together constituting the same instrument.  A faxed signature, or a signature delivered as an imaged attachment to an e-mail message is deemed equivalent to an original ink signature.