Cascade Microtech Terms, Conditions and Warranty Statement

These Terms and Conditions govern the sale of the products, listed on the face hereof (the "Products") or in a Cascade Microtech, Inc. (CMI) quotation or order shipped to Customer by CMI. CMI will not sell or otherwise distribute to any outside party any confidential information supplied by the Customer. These Terms and Conditions contain the complete and exclusive agreement between the parties regarding the sale of the Products (Contract). If conflict arises between any terms and conditions of those documents, the foregoing shall be their order of precedence. These Terms and Conditions supersede any and all prior or contemporaneous proposals, negotiations, understandings, agreements and representations between the parties, whether written or oral.

1. Acceptance
No order shall be binding on CMI unless and until accepted by CMI in writing in its sole discretion. Customer shall inspect all Products immediately upon receipt. If Customer does not notify CMI in writing within 30 days after receipt by Customer of any defect or shortage, the Products shipped will be deemed conclusively to have fulfilled the terms hereof and to have been accepted by Customer as delivered.

2. Delivery
Delivery of the Products will be ExWorks place of shipment. Customer bears all risks of loss or damage to the Products after delivery to the carrier. The approximate delivery dates for the Products are stated on the sales order or quotation. If no such dates are specified, then the approximate delivery date for the Products will reflect CMI’s then-standard lead-time for such Products. Seller will make commercially reasonable efforts to deliver the Products by such estimated delivery date; however, shipment of the Products is subject to availability, and seller hereby expressly disclaims liability for any failure to meet such delivery dates.

3. Price; Payment
Customer agrees to pay to CMI the purchase price and license fees for the Products set forth on the face hereof (the "Price"). The Price excludes, and Customer agrees to pay, all delivery charges, customs and related duties and any applicable local, state or federal taxes, which taxes may appear as a separate item on the invoice to the extent paid by CMI for Customer, unless Customer provides CMI with a valid tax exemption certificate. For Customers with credit terms, Customer shall pay CMI within thirty (30) days from the date of invoice, unless otherwise agreed in writing by CMI. Invoices not paid when due may be subject to a late charge at the lesser of eighteen percent (18%) per annum or the maximum interest rate allowed by law. If, in CMI’s sole judgment, Customer’s financial condition at anytime no longer justifies the sale of Products on credit, CMI may either require full or partial payment in advance of delivery or decline to deliver Product, except on modified payment terms and conditions satisfactory to CMI.

4. Software Licensing Agreement
Any software products acquired hereunder ("Software") are licensed, not sold, to Customer under the terms of CMI standard license agreement for such Software (the "License Agreement"), a copy of which is included within the software package and incorporated into these Terms and Conditions.

5. Custom Products
Any Products to be modified to fit unique applications or needs of Customer or which are produced by CMI in whole or in part to Customer’s specifications (as agreed to in writing by CMI) ("Custom Products") are subject to standard terms and conditions unless expressed otherwise in writing by CMI.

6. Government Contracts
Unless otherwise agreed to in writing between CMI and Customer, no term or condition required in any U.S. Government contract or related subcontract shall be part of this Contract or binding upon CMI and CMI rejects any government provisions included in or referred to by Customer’s request for quotation, purchase order, or any other document.

7. Limited Warranty
Products will be new unless otherwise stated. Customer assumes responsibility for the selection of the Products to achieve Customer’s intended results and for the use of the results obtained from the Products. CMI does not warrant that the products will meet customer’s requirements or that operation of the products will be uninterrupted or error free. Subject to the limitations set forth below and in paragraph 12 (with respect to exported products), and provided that Customer at all times remains in compliance with this Agreement, CMI warrants to Customer as follows: (a) hardware –for fifteen (15) months from date of sale or one (1) year from date of installation, whichever occurs first, all standard hardware Products manufactured by CMI will be free from defects in material and workmanship; (b) Software - For one (1) year from date of sale, all standard software Products developed by CMI will be capable of substantially performing the functions described in the standard CMI user manual delivered with the Software; (c) Repairs (outside of warranty period) - All hardware repairs made by CMI will be free from defects in material and workmanship for ninety (90) days from the date such repairs are made;(d) Custom Products - For one (1)year from date of sale all Custom Products will be capable of performing substantially in accordance with the applicable specifications accepted in writing by CMI.; (e) Engineering Probes, Pyramid Probes, Probe Card products, and other consumables will be free from defects in material and workmanship for ninety (90) days from date of sale. The foregoing warranty shall be void if the Products are not properly installed, serviced, used and maintained or if the Products have been damaged or modified after delivery. As CMI’s sole and exclusive liability, and as customer’s sole and exclusive remedy, for any breach of warranty, CMI shall, at its option, either replace or repair the defective part or parts of the Product or refund the purchase price for such part or parts after notification of the defect and return of such Product by Customer to CMI within the warranty period. All warranty repair work shall be performed by an authorized CMI service technician, an authorized repair facility or at CMI’s factory. Shipment to CMI’s facility shall be borne by or for the account of Buyer. Shipment from CMI’s facility shall be paid by CMI. To the extent permitted by the manufacturers of any original equipment manufacturer (OEM) Products resold by CMI, Customer shall be the beneficiary of the manufacturers’ warranties, if any, subject to the limitations stated therein. Copies of such manufacturers’ warranties are available to Customer upon request. CMI makes no warranty with respect to such products. The foregoing warranty and the manufacturers’ warranties, if any, are in lieu of all other warranties, expressed, implied or arising under law, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.

8. Limitation of Liability
In no event shall CMI be liable for any consequential, incidental, indirect, special or punitive damages arising out of, or relating in any way to the Contract or any defect in or failure of the products, even if CMI has been advised of the possibility of such damages, including but not limited to claims based upon loss of use, lost profits, revenue, system interruption, lost production, increased expenses of operation, cost of replacement products, or claims of Customer or Customer’s customer, whether or not based on contract, tort (including negligence and strict liability) or otherwise. Except with respect to the indemnity obligations undertaken in Section 11, CMI’s maximum liability arising under or in any way relating to this Contract shall not exceed the price Customer paid CMI for the products that are the subject of the claims upon which such liability is based, and all such liability shall terminate no later than one (1) year from the date of sale of the products. Except as set forth in Section 11, CMI shall not be liable for any third party claims.

9. Cancellations
Returns (a) Cancellations - Customer may cancel all or any portion of any order for standard Products within 20 days prior to shipment, subject to a cancellation charge of twenty percent (20%) of the Price for the canceled Products. Customer may cancel all or any portion of any order for Custom Products at any time prior to shipment, subject to a cancellation charge of fifty percent (50%) of the Price for the canceled Products. (b) Returns - Customer may return standard Products to CMI for any reason within thirty (30) days after delivery, provided that the returned Product is received in its original condition, including all packing materials, for a refund of the Price paid less a restocking charge of thirty percent (30%) of the total amount invoiced for the standard Product returned, unless such restocking charge is waived in writing by CMI. Custom products, as described in Section 5, are ‘nonrefundable’ and ‘non-returnable’ unless otherwise agreed to in writing by CMI. Customer must first obtain a return authorization number from CMI. Any Products returned to CMI without a return authorization number or more than thirty (30) days after delivery thereof will be returned to Customer freight collect.

10. Design Changes
CMI may make changes to the process, design, and materials used in the Products that do not adversely affect form, fit, and function without notice to and approval from Customer. CMI reserves the right to make changes in the design of its standard Products at any time without incurring any obligation to make equivalent changes in Products previously manufactured or shipped.

11. Indemnification
(a) Customer shall defend, indemnify and hold CMI, and its employees, agents, owners, affiliates and customers, harmless from and against all claims, damages, liabilities, losses and costs (including without limitation, reasonable attorneys’ fees) arising from or based upon the use, sale or manufacture, by CMI, Customer or any third party, of any portion of the Products produced, in whole or in part, to Customer’s specifications. (b) Except for Customer’s indemnification obligations stated above, CMI will indemnify Customer for any damages and costs finally awarded against Customer on the grounds that the Products manufactured by CMI, in the form delivered by CMI, infringe any existing United States patent, provided that Customer notifies CMI in writing of any such claim within ten (10) days after learning thereof and that Customer fully cooperates with CMI and gives CMI full control over the defense and settlement of the claim. If any such claim is brought or appears to CMI to be likely to be brought, CMI may, at its option, replace or modify the Products to make them non-infringing or refund to Customer, upon the return thereof to CMI, the price paid for the Products at issue, less a deduction of twenty percent (20%) of the price for each full year which has passed since the date of delivery. Customer shall discontinue all use of any portion of the Products that has been replaced or modified or for which the price has been refunded. The foregoing represents CMI’s sole responsibility, and the customer’s sole and exclusive remedy, for any infringements of any proprietary rights and is subject to the limitations upon CMI’s liability set forth in Section 8.

12. Export of Products
The export of any Products or other items acquired hereunder is subject to compliance with the export control laws of the United States and other jurisdictions. Customer represents and warrants that it is not subject to any order suspending, revoking or denying its export privileges and that any export of any Products or other items acquired from CMI will be in full compliance with all applicable United States and foreign export laws, regulations and orders. Customer shall defend, indemnify and hold CMI, and its agents and owners, harmless from and against any and all losses, costs, penalties, liabilities, obligations, claims, demands or expenses (including without limitation, reasonable attorneys’ fees) of any kind arising out of or occasioned by any export of the Products. All warranty service, updating and support commitments (if any) made hereunder or under any separate agreement are premised on the use in the United States of Products purchased at CMI’s domestic U.S. prices. Export of all such Products will void all such warranties and other service, updating or support obligations, unless Customer pays to CMI, within ten (10) days following such export, the difference between the domestic price paid and CMI’s price for such Products in the locale to which it is exported.

13. Confidentiality; Proprietary Rights
CMI’s proprietary data includes, without limitation, all non-public ideas, products concepts, hardware, engineering data, software, manufacturing processes and techniques, reports, drawings, films, tapes, computer data bases and other information embodied in any of the Products or otherwise disclosed to Customer by CMI. Customer promises to protect and preserve the confidentiality of all of the proprietary data known to Customer specifically, without limiting the generality of the foregoing, Customer will not use any portion of the proprietary data except as may be required in connection with Customer’s operation of the Products purchased from CMI. No proprietary data, nor any disclosure, publication or discussion thereof with or to third parties, other than employees who need to know the proprietary data for the purpose of utilizing the Products and who have agreed to protect its confidentiality, will be permitted without express prior written consent of CMI in each instance. Customer shall take all appropriate actions to secure the compliance by its officers, employees, agents and directors with the terms of this section. Customer acknowledges that CMI remedies for any breach of this section may include, in addition to damages and other available remedies, injunctive relief enjoining any such breach. Any dies, jigs, or other tools or equipment made or purchased by CMI remain CMI’s property, irrespective of whether or not CMI assessed charges to Customer. Such tool or equipment charges entitle Customer to have tools used on Customer’s Products but do not entitle Customer to title or possession of the tools or equipment.

14. Limitation on Actions
No action, regardless of form, arising out of this Agreement or the services or Products provided hereunder maybe brought by either party more than one year after the cause of action has occurred, except that an action for non-payment of any portion of the price or any other amounts owed to CMI under this Agreement may be brought at any time within one year after the last payment thereon.

15. Force Majeure
CMI will not be in breach of its obligations hereunder if performance of such obligations is prevented, delayed or made impracticable by any cause beyond the reasonable control of CMI, including without limitation, acts or omissions of Customer, acts of God or government, natural disasters or storms, fire, terrorism, political strife, labor disputes, failure or delay of transportation, default by suppliers or unavailability of parts.

16. General
No modification or amendment thereof will be binding on the parties unless made in a written instrument signed by both parties. No waiver of a right in any instance will constitute a waiver of the same or any other right in any other instance. Neither this Agreement nor any of Customer’s rights or obligations under it may be assigned, delegated or otherwise transferred by Customer without the prior written consent of CMI. All notices and other communications hereunder shall be in writing and shall be personally delivered, sent by facsimile, or mailed by certified mail, return receipt requested and postage prepaid, to the other party at its address set forth on the face hereof. Notices are effective on the earlier of receipt or the third business day following the date of mailing. Any party may change its address by notice to the other party. This Agreement will be governed and construed in accordance with the laws of the State of Oregon, without regard to the rules relating to conflicts of laws. Any litigation between the parties concerning this Agreement shall be brought exclusively in Washington County, Oregon. In the event of any dispute arising hereunder the prevailing party therein shall recover its reasonable attorneys’ fees. If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the parties’ fundamental intentions hereunder, and the remaining provisions shall not be affected.

Cascade Microtech, Inc. Purchase Order Terms & Conditions