Warranty and Terms and Conditions
Wafer Process Systems Inc. warrants that the following goods and products sold and under the contract resulting there from will be free from defects in workmanship and materials for a period of three (3) years from the date of Start Up at customers facility: (1) microcomputer-based process controls and related components; (2) all pneumatic control components; and (3) all pneumatic DI Water fluid components. Wafer Process Systems, Inc. warrants that the following goods and products sold pursuant to this quote and under the contract resulting therefrom will be free from defects in workmanship and materials for a period of one(1) year from the date of Start Up at customers facility: (1) all chemical-related components including recirculation pumps and chemical dispense pump components. The warranties set forth above will be limited to the repair and replacement of parts and the necessary labor and services required to repair the goods and products. With respect to all goods and products sold by Wafer Process Systems Inc. to customer, customer agrees to submit all necessary information to that applicable product manufacturer to register customer for the manufacturers warranty for such product. Wafer Process Systems Inc. makes no warranty of any kind with regard to the goods and products sold pursuant to this quote and under the contract resulting there from, either express or implied, except as provided herein, including, without limitation warranties as to marketability, merchantability, fitness for a particular purpose or use, and against infringement of any patient. Wafer Process Systems Inc. shall not be liable to customer or any third person for any direct, incidental, special, exemplary, punitive, or consequential damages of any nature, expenses, losses, or corrective actions due to errors, omissions, delays in failures in performance of services and/or for defects, malfunctions, and/or use of the goods and products sold pursuant to this quote and under the contract resulting therefrom.
Terms and Conditions:
F.O.B. factories (Wafer Process Systems Inc., San Jose, CA ) with shipment via air ride van / air freight. All crating and shipping expenses will be billed at cost. Customer may elect to use own carrier and crating company, otherwise aforemention method is accepted.
Limitation of Liability:
In no event shall Wafer Process Systems Inc. total liability for any and all losses and damages arising out of any cause (including but not limited to contract, negligence, strict liability or other tort) exceed the purchase cost of the products. In no event shall Wafer Process Systems Inc. be liable for any incidental, consequential or punitive damages, whether or not based on an implied or express warranty, negligence or strict liability arising out of or in connection with in design, manufacture, sale use, repair or delivery of the product, or the engineering designs supplied to the buyer. Without limiting the generality of the foregoing,: if conditions arise which prevent compliance with delivery schedules, Wafer Process Systems Inc. shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay, and such delay shall not constitute grounds for cancellation or price adjustment. In addition, Wafer Process Systems Inc. shall not be liable for delay in delivery without regard to the cause of the delay, and delivery dates shall be deemed extended for a period equal to such delay.
The parties agree that any and all disputes, claims or controversies arising out of or relating to this quotation and any and all agreements arising therefrom (this “Agreement”) shall be submitted to JAMS, or its successor, for mediation, and if that matter is not resolved through mediation, then it should be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the arbitration clause set forth below. Both the medication and the arbitration shall take place in San Jose, California. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written. Made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The provisions of this paragraph may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered. If any party commences an action based on a dispute or claim to which this paragraph applies (other than seeking provisional remedies in aid of the arbitration), with out first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney’s fees, even if they would otherwise be available to that party in any such action. The pendency of the mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.
Any dispute, controversy or claim arising out of or relating to an Agreement or the breach, termination, enforcement, interpretation or validity thereof, includes the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Jose, California, before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This paragraph shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney’s fees of the prevailing party.
This agreement is intended as a final expression of the parties’ agreement with respect to such terms as are included herein including, but not limited to, the design, construction, installation, sale, and payment for the subject product/system. This Agreement is intended also as a complete and exclusive statement of the terms of the agreement between the parties. This writing contains the entire agreement between the parties with respect to the subject matter hereof, and it is intended to be “fully integrated”. This Agreement may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. Furthermore, the terms set forth in this Agreement may not be explained or supplemented by evidence of consistent additional terms. Parol evidence is inadmissible even to add terms not inconsistent with this writing.
Waiver and Amendment:
No breach of any provision hereof can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This Agreement may be amended only by a written agreement executed by the parties in interest at the time of the modification.
If any provision of an Agreement is held invalid or unenforceable by any court of competent jurisdiction, it is the intent of the parties that all other provisions of this Agreement be constructed to remain fully valid, enforceable, and binding on the parties.
If the performance by Wafer Process Systems Inc. (“WPS”) of any of its obligations or undertaking under an Agreement is interrupted or delayed by any occurrence not occasioned by the conduct of either party to this Agreement, whether that occurrence is an act of god or public enemy, or whether that occurrence is caused by war, riot, storm, earthquake, or other natural forces, or by the acts of anyone not a party to this contract, then WPS shall be excused from any further performance for whatever period of time after the occurrence is reasonably necessary to remedy the effects of that occurrence.
Mutual Hold Harmless:
Each party agrees to release the other from all liability arising from or related to the use of a subject product/system. This includes, but is not limited to, all liability for damages resulting from the active or the passive negligence of each party and their respective agents.