Terms and Conditions
1. Definitions: "Customer" means the company that submits a purchase order to Key. "Documentation" means all written material (whether in tangible, electronic or any other form) that Key provides with or for the Products, including all Product safety notices, warnings, instructions and training materials, manuals, video tapes or similar materials. "Includes" or "including" means includes or including without limitation. "Key" means the Key Technology, Inc. business unit or subsidiary that accepts an Order. "Order" means a purchase order that Customer submits to Key and that Key accepts but only if and to the extent that purchase order is modified by these Terms. "Product" means the Key goods (including software) and services described in an Order. These "Terms" means these Terms and Conditions of Sale.
2. Orders; Entire Agreement: All purchase orders are subject to acceptance by Key either in writing or by beginning performance, and that acceptance is expressly conditioned upon Customer's agreement that its purchase order will be governed by these Terms. These Terms take precedence over any terms and conditions in Customer's purchase order or any of Customer's other documents and supersede all prior agreements, express, implied, written or oral.
3. Prices; Taxes: Prices for Products are subject to change without notice. Products will be sold at the prices prevailing at the time of shipment. The prices for Products set forth in any quotation, price list or other document are exclusive of transportation charges, tariffs, duties and sales, use, excise, value added and all other taxes, and Customer will pay those charges, tariffs, duties and taxes.
4. Payment Terms: Payment for all Products sold on open account is due 30 days following the date of Key's 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. Key's invoices will be deemed accepted and conclusively binding upon Customer as an account stated, and will not be subject to any audit claim, unless Customer notifies Key in writing within 10 days after the date of that invoice.
5. Packaging; Shipping; Delivery; Risk of Loss: Unless Key expressly agrees otherwise, all Products consisting of tangible goods are shipped Ex Works-Key's loading dock. Customer will bear all risk of loss and damage to those Products after Key delivers them to the carrier at Key's loading dock, and Customer will submit all claims for damage or shortages to the responsible carrier.
6. Inspection-Claims: Customer agrees to thoroughly and carefully inspect all goods and shipping papers promptly upon their arrival at the shipping destination. No claim for shortages will be valid or enforceable against Key unless Customer mails Key written notice specifying the extent of the shortage within five business days from the date of the shipment arrives at the shipping destination 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.
7. Safety: Customer will (a) cause each person who receives or uses a Product to read and comply with all safety instructions in the Documentation for that Product; (b) instruct the user in the proper use of the Product; and (c) implement and enforce the safety provisions of all Product safety notices, warnings, instructions or similar Documentation. Customer will not remove any shields, guards, or other safety devices.
8. Software License: All software related to the Product, whether downloaded over the Internet, provided on a disk or embedded in a tangible Product (“Software”), is Key's proprietary property and is licensed, not sold, to Customer. Customer will not use the Software except on or in conjunction with the Products. Customer will not copy, modify, reverse engineer or decompile the Software. Subject to full payment and Customer's strict compliance with these Terms, Key grants to Customer, 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 provided with the Product. The Software is "commercial computer software" and the related documentation is "commercial computer software documentation" under 48 CFR 12.212 and is provided to US Government licensees with restricted rights. Use, duplication, reproduction or transfer of this commercial Software is restricted in accordance with FAR 12.212 and DFARS 227.7202 and these Terms.
9. Ownership: Key is the exclusive owner of all rights in and to all patents, all patentable and unpatentable know-how, inventions, discoveries and improvements, all designs, drawings, other Documentation, other original works of authorship, all technical information, data and all other intellectual property rights in any way associated with the Product (collectively, the "Key Intellectual Property"), and Key reserves all rights with respect to that Intellectual Property except those expressly granted to Customer in these Terms and the Documentation.
10. Protections and Restrictions: Customer will not (a) use the Software, Documentation, Product or Key Intellectual Property except as expressly provided in these Terms and in the Documentation or (b) disclose them to any other person without the prior written consent of Key. To protect the Key Intellectual Property and to ensure that Key knows to whom and where to send product safety notices and other product updates, Customer will not transfer any Product containing Key Intellectual Property to anyone other than to one of Customer's affiliates unless Customer first: (a) gives Key written notice at least 30 days before the removal of the Product from Customer's plant, including (i) the identity of the proposed transferee; (ii) if applicable, the location where the proposed transferee will install and use the Product; and (iii) the financial and other terms of the transfer; (b) gives Key the opportunity to inspect the Product before it is removed from Customer's plant; and (c) receives Key's express written consent to the transfer. If the proposed transferee intends to use the Product in commercial production in the ordinary course of its business, any consent by Key will include commercially reasonable terms under which Key will permit the proposed transferee to use the Key Intellectual Property. In no event will Key consent to a transfer to a person in the business of manufacturing or distributing optical inspection, material handling or processing equipment unless Key is first permitted to disable and/or remove Key's Intellectual Property from the Product. Customer will fully indemnify Key for all damages, costs and expenses, including attorney fees, resulting from any person gaining access to Key's Intellectual Property due to any transfer of a Product by Customer in violation of this provision.
11. 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 the sole responsibility of Customer. Key does not undertake or assume any of the responsibility or obligations of Customer for the safety of the workplace where the Product is used, whether that responsibility or those obligations are imposed by code, regulation, or judicial decision, and Key makes no warranty or representations with respect thereto.
12. Limited Warranty: Key warrants only to Customer, the original purchaser, that for 12 months following the shipment of each complete Product, 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 the tolerances and variations consistent with usual and customary trade practices, and Key warrants title. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THIS LIMITED WARRANTY MAY NOT BE MODIFIED OR EXPANDED EXCEPT IN A WRITING SIGNED BY ONE OF KEY'S EXECUTIVE OFFICERS. This warranty does not extend to any Products that have been subjected to misuse, neglect, excessive deterioration, or erosion, abuse, accident, improper installation, or any use in violation of or contrary to Key's instructions, or that have been repaired or altered in any manner by anyone other than by Key or Key's authorized agents.
13. Limited Remedy: If any Product fails to conform to the limited warranty in the preceding paragraph and if: (a) Customer gives Key prompt written notice specifying in detail the nonconformity; (b) within 10 days after written authorization from Key, Customer returns any defective Product consisting of goods to a Key repair facility at Customer expense; (c) the inspectors at the Key repair facility determine that item is in fact nonconforming or defective; and (d) Customer has paid for the Product; then Key will, at its option, either repair, replace or re-perform the defective Product or refund the purchase price for that Product. THE PRECEDING REMEDY IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THESE TERMS OR ANY LOSS OR DAMAGE ARISING OUT OF THE PRODUCT OR ANY ORDER, WHETHER IN CONTRACT, TORT OR OTHERWISE.
14. Indemnity: (a) Customer will indemnify, defend and hold Key and Key's successors and assigns harmless from and against all damages paid or payable to any unrelated person, including attorney fees incurred prior to, at trial and on appeal, arising from or related to any of the following (each, a "Claim"): (i) if Customer designed or furnished the specifications for that Product, any product liability claim (except product liability claims caused solely by defects in the materials Key supplied or solely by Key's negligence) or any claim that the Product infringes any other person's intellectual property rights or defective; (ii) that Customer breached 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 any other misuse; and (v) any failure to provide, implement or enforce any Product notices.
(b) Key will indemnify, defend and hold Customer harmless from and against any Claim: (i) that the Product as Key designed it and when used as set forth in the Documentation infringes any other person's intellectual property rights; and (ii) that Key breached 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 KEY HARMLESS FROM ANY CLAIMS BY ANY OF CUSTOMER'S EMPLOYEES AND TO THE EXTENT PERMITTED BY LAW, CUSTOMER EXPRESSLY WAIVES ANY IMMUNITY OR EXEMPTION FROM LIABILITY FOR THE PERSONAL INJURY OR DEATH OF CUSTOMER'S EMPLOYEES THAT MAY EXIST UNDER, OR ANY RIGHT TO RECEIVE CONTRIBUTION FROM KEY, CREATED BY, THE WORKERS' COMPENSATION LAWS OF THE STATE WHERE THE INJURY OCCURS OR THE EMPLOYEE IS LOCATED.
15. LIMITATION OF LIABLITY: IN NO EVENT WILL (a) KEY BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, OR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR (b) KEY'S LIABILITY EXCEED THE PRICE OF THE PRODUCT GIVING RISE TO THE CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE.
16. Cancellation: A request to cancel or change an Order that has been received by Key must be made in writing at least 30 days before the requested shipment date and is subject to Key's approval. In any event, the customer will be responsible for all costs incurred by Key prior to receiving a notice to cancel the order. Key manufactures Products to Customer's specific needs, and therefore the Products have no value to Key. When Customer places an annual Order or other long-term supply Order, and/or schedules shipment and payment in installments, Key may manufacture all those Products at anytime, and Customer will be liable for all Products that Customer orders, whether or not those Products have been delivered to Customer.
17. Force Majeure: Key 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 Key's reasonable control, whether affecting procurement, production, transportation or any other phase related to an Order.
18. Security Agreement; Remedies; Rights: To secure payment and performance of all of Customer's current and future obligations to Key, Customer grants to Key a security interest in all Products that Customer has purchased or may at any time in the future purchase from Key and in all proceeds of the Products (collectively, the "Collateral"). If Customer defaults in any of its obligations to Key, Customer will, at its sole cost and expense, assemble the Collateral and deliver that Collateral to Key at any location in the United States reasonably requested by Key. If Customer fails to make any payment when due or defaults on any other obligation to Key, or if Key discovers that Customer is insolvent, Key may, at Key's discretion, cancel any Order or any other agreement with Customer, cease manufacturing Products described in any Order, refuse to ship Products, stop delivery of Products in transit, reclaim any Products for which payment has not been made, and exercise all of Key's other rights and remedies. Key may at any time in its sole discretion immediately terminate Customer's ability, if any, to purchase Products on credit or otherwise.
19. Attorney Fees; Governing Law; Venue: Customer will pay all costs, collection agency commissions, expenses and reasonable attorney fees (prior to, at trial and on appeal) incurred by Key in collecting the price for any Product. The laws of Oregon, USA will govern, excluding (a) its choice of law rules; and (b) if Customer is a citizen of a county other than the United States, the Convention for the International Sale of Goods. All disputes relating to these Terms or the Products will be tried in Oregon, and Customer will not initiate suit against Key in any other place.
20. Assignment: Customer may not assign any Order without Key's prior written consent.
21. U.S. Export Laws and Regulations: Neither Customer nor Key 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.
22. Severability: If any provision of an Order is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from the remainder of that Order, which will remain in full force and effect.
23. No Waiver; Modification; Entire Agreement: 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 bound. So long as it does not add to or conflict with these Terms, Key will be entitled to rely on any written or telephonic request or notice that appears to be from an employee or authorized agent of Customer. These Terms supersede all prior and contemporaneous oral and written agreements and understandings that conflict or are inconsistent with the subject matter of these Terms.