Terms and Conditions

Definitions: "You" or "your" means the company that submits a purchase order to us. "We", "us" or "our" means the Key Technology, Inc. business unit or subsidiary that accepts that purchase order. "These Terms" means these Terms and Conditions of Sale. "Agreement" means any quotation, purchase order, order acknowledgement or invoice submitted either by you or us, as modified by these Terms. "Includes" or "including" means includes or including without limitation. "Documentation" means all written material (whether in tangible, electronic or any other form) we provide with or for the Products (defined below), including all product safety notices, warnings, instructions and training materials, manuals, video tapes or similar materials.
Orders; Entire Agreement: Our acceptance of your purchase orders is expressly conditioned upon your agreement that those orders will be governed by these Terms. These Terms take precedence over any terms and conditions in your purchase order or any of your other documents and supercede all prior agreements, express, implied, written or oral.
Prices; Risk of Loss: The prices for our goods (including software) and services (collectively, "Products") are exclusive of transportation charges and sales, use, excise, value added and all other taxes, and you will pay those charges and taxes. Unless we expressly agree otherwise, all goods are shipped FOB our loading dock (Ex Works). You will bear all risk of loss and damage to the goods after we deliver them to the carrier at our loading dock, and you will submit all claims for damage or shortages to the responsible carrier.
Terms of Sale: All orders are subject to our acceptance, and we will be deemed to have accepted your orders only if we confirm acceptance in writing or begin performance. Payment for all Products sold on open account will be due 30 days following the date of our invoice unless otherwise stated on the face of that invoice. Any sums not paid when due are subject to a service charge of one and one-half percent per month or the maximum rate permitted by law, whichever is lower. If you fail to make any payment when due or are otherwise in default of any other obligation to us, or if we discover that you are insolvent, we may, at our discretion, cancel any order or any other agreement with you, cease manufacturing your order, refuse shipment of your order, stop delivery of any goods in transit, reclaim any goods for which payment has not been made, and exercise all our other rights and remedies. Our invoices will be deemed accepted and conclusively binding upon you as an account stated, and will not be subject to any audit claim, unless you notify us in writing within 10 days after the date of that invoice. We may immediately terminate your ability, if any, to purchase Products on credit or otherwise, at any time in our sole discretion.
Software License Agreement: All software Products, whether downloaded over the Internet, provided on a disk or embedded in our goods ("Software"), are our proprietary property and are licensed, not sold, to you. You will not use the Software except on or in conjunction with our goods. You will not copy, modify, reverse engineer or decompile the Software. Subject to full payment and your strict compliance with these Terms, we hereby grant to you, the original purchaser, for the useful life of the related Product, a nonassignable, nonexclusive license to use the Software in the manner and subject to the restrictions in the Documentation we provide with the Product.
Ownership: We are the exclusive owner of all rights in and to all patents, all patentable and unpatentable know-how, inventions, discoveries and improvements, and all technical information, drawings, data and other intellectual property rights in any way associated with the Products (collectively, the "Intellectual Property"), and we reserve all rights with respect to that Intellectual Property except those expressly granted to you in these Terms and the Documentation. You will not use any of our Intellectual Property except as expressly provided in these Terms and in the Documentation.
Confidentiality: The Software, the Documentation, and our other Intellectual Property are our confidential and proprietary property, and you will not disclose them to any other person without our prior written consent.
Safety: You will cause each person who receives or uses a Product to read and comply with all safety instructions in the Documentation for that Product. You agree to instruct the user in the proper use of the Product and implement and enforce the safety provisions of all Product safety notices, warnings, instructions or similar Documentation.
Limited Warranty: We warrant only to you, the original purchaser, that for 12 months following the shipment of each entire system, and for 90 days following the shipment of any replacement part or the provision of any services, those goods and services will conform to the description on the face of the order, subject to tolerances and variations consistent with usual and customary trade practices, and we warrant title. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON INFRINGEMENT. THIS LIMITED WARRANTY MAY NOT BE MODIFIED OR EXPANDED EXCEPT IN A WRITING SIGNED BY ONE OF OUR EXECUTIVE OFFICERS. This warranty does not extend to any Products which have been subjected to misuse, neglect, excessive deterioration, or erosion, abuse, accident, improper installation, or any use in violation of or contrary to our instructions, or which have been repaired or altered in any manner by anyone other than by us or our authorized agents.
Limited Remedy: If any Product fails to conform to the limited warranty in the preceding paragraph and if: (a) you give us prompt written notice specifying in detail the nonconformity; (b) within 10 days after written authorization from us, you return the defective Product to our repair facility at your expense; (c) the inspectors at our repair facility determine that the item in fact is nonconforming or defective; and (d) you have paid for the Product; then, we will, at our option, either repair or replace the defect or refund the purchase price for that Product. THE PRECEDING REMEDY WILL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF PARAGRAPH 9, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
Laws, Codes, Regulations: Compliance with local, state and federal laws, codes, or regulations relating to environmental, public and user safety, training, Product use, maintenance and transportation is your sole responsibility. We do not undertake or assume any of your responsibility or obligations for the safety of the workplace where the Product is used that may be imposed on you by code, regulation, or judicial decision and make no warranty or representations with respect thereto.
Indemnity: (a) You will indemnify, defend and hold us and our successors and assigns harmless from and against any and all loss, damage, liability, claims, demands and suits asserted by any unrelated third party, including attorney fees prior to, at trial and on appeal (each, a "Claim") arising from or related to: (i) any Product if you designed or furnished the specifications for that Product, including any actual or alleged infringement and product liability (except those caused solely by defects in the materials we supplied or our sole negligence); (ii) your breach of these Terms; (iii) any improper alteration, installation, repair or maintenance including removal of guards or defeating of interlocks or other safety devices; (iv) any use contrary to the Documentation or applicable law, other than the purpose for which the Product was designed or other misuse; and (v) any failure to provide, implement or enforce any product notices. (b) We will indemnify, defend and hold you harmless from and against any and all Claims: (i) if the Product as we designed it and when used as set forth in the Documentation infringes any other party's intellectual property rights; and (ii) caused solely by our breach of these Terms. The obligation of each party (the "Indemnitor") to indemnify the other party is conditioned upon that other party (1) giving the Indemnitor prompt written notice of the Claim (except that any delay in giving notice will not limit the indemnitor's obligations unless it has been prejudiced by the delay and then only to the extent of the prejudice); (2) tendering defense and settlement of the Claim to the Indemnitor; and (3) cooperating with the Indemnitor in the defense of that Claim.
TO THE EXTENT NECESSARY TO INDEMNIFY AND HOLD US HARMLESS FROM ANY CLAIMS BY ANY OF YOUR EMPLOYEES AND TO THE EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE ANY IMMUNITY OR EXEMPTION FROM LIABILITY FOR THE PERSONAL INJURY OR DEATH OF YOUR EMPLOYEES THAT MAY EXIST UNDER, OR ANY RIGHT TO RECEIVE CONTRIBUTION FROM US, CREATED BY, THE WORKERS' COMPENSATION LAWS OF THE STATE WHERE THE INJURY OCCURS OR THE EMPLOYEE IS LOCATED.
NOTWITHSTANDING THE FOREGOING AND IN CONSIDERATION OF OUR NOT INCREASING THE PRICE FOR THE PRODUCTS, WE AND YOU EXPRESSLY WAIVE ALL RIGHTS, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR UNAUTHORIZED USE ASSERTED BY THE LEMELSON MEDICAL EDUCATION AND RESEARCH FOUNDATION LIMITED PARTNERSHIP, SOLAIA TECHNOLOGY, INC. OR ANY OF THEIR AFFILIATES.
LIMITATION ON DAMAGES: WE WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF USE. IN NO EVENT WILL OUR LIABLITY EXCEED THE PRICE OF THE PRODUCT GIVING RISE TO THE CLAIM.
Cancellation: A request to cancel or change an order which has been entered into our order system must be made in writing at least 30 days before the requested shipment date and is subject to our approval. We will manufacture all Products for your specific needs, and they will therefore have no value to us. When you place an annual order or other long-term supply order, and/or schedule installment shipments and payments of that order over a period of time, we may manufacture all those Products at anytime, and you will be liable for all Product you order, including those actually manufactured by us pursuant to your order, whether or not those Products have been delivered to you.
Force Majeure: We will not be liable for failure or delay in filling any order when due to: an Act of God; war; mobilization; insurrection; rebellion; civil commotion; riot; act of an extremist or public enemy; sabotage; labor dispute; lockout; strike; explosion; fire; flood; storm; accident; drought; power failure; inability to obtain suitable and sufficient energy, labor or material; delay of carriers; embargo; any existing or future law, ordinance, rule or regulation, whether valid or invalid, of the federal or of any state or foreign government effecting the conduct of business, including priority, requisition, allocation or price control; or due to any other cause beyond our reasonable control, whether or not affecting the procurement, production or transportation of your particular order.
Security Agreement: To secure payment and performance of all of your current and future obligations to us, you hereby grant to us a security interest in all goods that you have purchased or at any time in the future may purchase from us.
Inspection-Claims: You agree to thoroughly and carefully inspect all goods and shipping papers promptly upon delivery. No claim for shortage or damaged goods will be valid or enforceable against us unless you mail us written notice specifying in detail the nature and extent of the shortage or damage within five days from the date of delivery accompanied by the original freight bill, with notation on its face by the authorized agent of the carrier as to the items and quantities claimed to be short or damaged.
Commercial Use: You hereby warrant that you will use all Products solely for commercial purposes.
No Waiver; Modification: None of these Terms may be waived or modified (including by course of performance, course of dealing or usage of trade) unless that waiver or modification is in writing and is signed by the party to be charged.
Attorney Fees; Governing Law; Venue: You will pay all costs, collection agency commissions, expenses and reasonable attorney fees before trial, at trial and on appeal that we incur in collecting the price for any Product. The laws of Oregon, USA will govern, excluding (a) its choice of law rules; and (b) the Convention for the International Sale of Goods. All disputes relating to these Terms or the Products will be tried in Oregon, and you will not initiate suit against us in any other place.
Assignment: You may not assign any agreement without our prior written consent.
U.S. Export Laws and Regulations: Neither you nor we will export any Products except in compliance with applicable law, including the United States Export Administration Act of 1969, as amended, and the related regulations issued by the United States Department of Commerce.
Severability: If any Term is unenforceable, that Term will continue in effect only to the extent it is enforceable.