Cascade Microtech Terms & Conditions of Sale
1. Scope. These terms and conditions (“Terms”) shall govern the sale of the products and services ("Products") described in an order acknowledgement to Customer by Cascade Microtech, Inc. (“Cascade”), unless Customer and Cascade have signed a separate written agreement governing the sale of the Products. The terms on the face of the order acknowledgement, any separate written agreement, and these Terms contain the complete and exclusive agreement (“Agreement”) between Cascade and Customer regarding the sale of the Products, and shall be interpreted giving precedence first to the terms on the face of the order acknowledgement, followed by any signed agreement, followed by these Terms.
2. Agreement. Customer’s purchase order shall be treated as an offer by Customer to contract with Cascade, but shall not be binding on Customer until accepted by Cascade through the issuance of an order acknowledgement at its sole discretion. No statements or representations by any other employee or agent of Cascade shall constitute an acceptance of an order or a binding commitment on Cascade’s behalf. Acceptance of Customer’s purchase order is conditional upon Customer’s acceptance of this Agreement. Terms and conditions on or referenced in Customer’s order are of no force or effect, and Cascade hereby expressly rejects such terms. All references to “days” shall mean calendar days.
3. Standard, Custom and Refurbished Products.
3.1 Standard Products shall mean price list Products without customization.
3.2 Custom Products shall include any Products indicated with a part number that begins with SQ or any Products that are designed or modified to fit unique applications or needs of Customer.
3.3 Refurbished Products shall mean any Products that are identified in a Cascade quotation as a certified refurbished product. Refurbished Products may have been previously used by Cascade or by third parties.
4. Delivery and Title Transfer.
4.1 Unless stated otherwise in the Agreement, shipping terms will be FCA (Free Carrier) Incoterms 2010 or, if SelectShip is available and is selected by Customer, CPT (Carriage Paid To) Incoterms 2010. Title and risk of loss to all Products pass to Customer on delivery of the Products to the carrier at the Cascade factory (“Delivery”).
4.2 Unless otherwise specified in the Agreement, Cascade will select the method and routing of transportation and the right to make Delivery early and from multiple origins. Any prepaid freight costs, and any fees incurred by Cascade as a result of any Customer’s specific routing, packaging, labeling or documentation instructions, will be added to the purchase price and itemized as a separate line item on the invoice. If Customer selects the SelectShip option, the SelectShip fee includes door-to-door shipping, export/import duties/taxes and customs clearance. Under all circumstances, Customer is responsible for arranging and paying for any insurance.
4.3 The estimated ship date (“Estimated Ship Date”) for each Product is stated on the order acknowledgement. Cascade will make commercially reasonable efforts to ship the Products by the Estimated Ship Dates; however, shipment of the Products is subject to availability, and Cascade hereby expressly disclaims liability for any failure to meet such Estimated Ship Dates.
4.4 Customer shall inspect all Products immediately upon receipt. If Customer does not notify Cascade in writing within 30 days after Delivery of a shortage or any other nonconformity with the shipping documents and the Agreement, the Products will be deemed conclusively to have been accepted by Customer.
5. Order Cancellations.
5.1 Standard and Refurbished Products. Customer may cancel a Standard Product or Refurbished Product order without penalty if the cancellation is made more than 31 days before the Estimated Ship Date. Order cancellations within 31 days from Estimated Ship Date will be subject to one of the following cancellation charges:
Days before Estimated Ship Date % of Total Order Value
31 - 21 Days 25%
20 - 11 Days 35%
10 - 0 Days 45%
5.2 Custom Products. Requests for cancellation of Custom Product orders must be made more than 60 days before the Estimated Ship Date, and will be subject to a cancellation charge of 65% of the price of the Customer Product. Orders cancelled 60 days or less before the Estimated Ship Date will be charged at full price.
6. Price and Payment.
6.1 Customer agrees to pay to Cascade the purchase price and license fees for the Products set forth in the Agreement ("Price"). Unless Customer selects the SelectShip option described in Section 4.1, the Price excludes, and Customer agrees to pay, all inland and international transport, freight, insurance and other charges, customs and related duties and any applicable local, state or federal taxes past the designated Delivery point. Any sales, use, revenue, excise, value added, import or export, or other tax, fee, or charge of any nature imposed by any government or public authority (national, state, local or other) applicable to the Products, or the manufacture, sale, delivery, shipment or use thereof, excluding taxes payable by Cascade that are based on its income, shall be the sole financial responsibility of and paid by Customer. Freight and taxes may appear as separate line items on the invoice to the extent paid by Cascade for Customer, unless Customer provides Cascade with a valid tax exemption certificate. If Customer selects the SelectShip option described in Section 4.1, the SelectShip pricing includes duties, fees or taxes related specifically to the export or import of the SelectShip order, but does not include insurance. All Price quotations are valid for the period stated on the quotation.
6.2 For Customers with pre-approved Cascade credit terms, payment shall be due 30 days from the date of Delivery, unless specified otherwise in the Agreement. Cascade reserves the right to require payment in advance, letter of credit, or other terms of payment if, in its sole discretion, Cascade determines that such terms are required to assure payment to Cascade.
6.3 Invoices not paid when due may be subject to a late charge at the lesser amount of one and one-half percent (1.5%) compounded monthly on the outstanding overdue balance, or the maximum interest rate allowed by law. If, in Cascade’s sole judgment, Customer’s financial condition at anytime no longer justifies the sale of Products on credit, Cascade may either require full or partial payment in advance of Delivery or decline to deliver Product without modified payment terms and conditions satisfactory to Cascade.
7.1 Cascade may terminate this Agreement in the event that Customer breaches any provision contained in this Agreement and fails to cure said breach after 30 days following notice in writing from Cascade describing the breach.
7.2 In the event of Bankruptcy or insolvency of Customer, or the filing of any proceedings by or against Customer, under any bankruptcy, insolvency or receivership law, or in the event Customer makes an assignment for the benefit of creditors, and Customer fails to pay Cascade any sums due or under any agreements or otherwise, Cascade shall deem Customer in material default under this Agreement. In the event of a material default by Customer, Cascade may, upon written notice to Customer (a) suspend its performance and withhold shipments and service in whole or in part, (b) terminate the Agreement, (c) declare all sums owing to Cascade immediately due and payable and/or (d) recall products in transit, retake same, and repossess any products held by Customer without the necessity of any other proceedings, and Customer agrees that all products so recalled, taken or repossessed shall be the property of Cascade, provided that Customer is given credit in an amount to be determined, at its sole discretion, by Cascade. Exercise of any of the foregoing remedies by Cascade shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Cascade under applicable law.
7.3 If either party initiates legal proceedings of any kind and in any venue to collect delinquent accounts or enforce any rights and obligations under the Agreement, Customer agrees to pay Cascade for reasonable attorney’s fees, court, collection, and other dispute resolution costs.
8. Software Licensing Agreement. Unless otherwise agreed by Cascade, all software products acquired hereunder, whether as stand-alone Products, in association with other Cascade Products, or embedded in Cascade Products are licensed to Customer under the terms of the Cascade standard license agreement for such software, a copy of which is included within the software package. Software licenses are non-transferable.
9. Government Contracts. Unless otherwise agreed to in writing by authorized personnel between Cascade and Customer, no term or condition required in any U.S. Government contract or related subcontract shall be part of this Agreement or binding upon Cascade. This Agreement and its terms and conditions are intended strictly for application to Products for sale to and use by commercial, non-U.S. local, state, or federal governmental end users. Any Cascade products destined for sale to or use by governmental purchasers and/or end users shall be governed by separate terms and conditions. Therefore, Cascade rejects any government provisions included in, or referred to, by Customer’s request for quotation, order, or any other document.
10. Limited Warranty.
10.1 Subject to the limitations set forth below (with respect to domestic or exported products), and provided that Customer at all times remains in compliance with this Agreement, Cascade warrants to Customer as follows: As Cascade’s sole and exclusive liability, and as Customer’s sole and exclusive remedy hereunder, Cascade warrants to Customer that, at Cascade’s option, Cascade shall either replace or repair any defective Product after written notification of the alleged defect and return of such Product by Customer to Cascade, transportation costs to be borne by Cascade, within the warranty period as set forth below. Purchased Products will be new unless otherwise specified on the order acknowledgement. Repair and replacement Products, at Cascade’s sole discretion, may be new or refurbished items equivalent to new in performance.
(a) New Products - Hardware. With the exception of items described in Section 10.1(c), for fifteen (15) months after Delivery or twelve (12) months after date of installation, whichever occurs first, except that High Temperature Ceramic Film/Stainless Steel DUT Board Fixtures are warranted for twenty four (24) months after date of installation, and all standard hardware Products manufactured or sold by Cascade will be free from defects in material and workmanship;
(b) New Products - Software. For 15 months after Delivery or 12 months after date of installation, whichever occurs first, all standard software Products developed by Cascade will be capable of performing the functions described in the standard Cascade user manual delivered with the Software;
(c) Consumable Parts – Production probes will be free from defects in material and workmanship for 180 days after date of Delivery. Probe card products will be free from defects in material and workmanship for 90 days after date of Delivery. Engineering probes, and any other item that comes into contact with the measured medium or is intended to be replaced based on use or wear will be free from defects in material and workmanship for 90 days after date of Delivery;
(d) Refurbished Products – Refurbished Products are warranted to conform to Cascade’s then-current functional specifications for such Refurbished Products when used in conformance with Cascade environmental and operating specifications, for 15 months after date of Delivery or 12 months after date of installation, whichever occurs first, except for refurbished thermal systems included in Refurbished Products, for which the warranty period is six months after date of Delivery or three months after date of installation, whichever occurs first. Customer acknowledges that the Refurbished Products may have been exposed to chemicals and processes that are potentially harmful. Customer acknowledges that residual contaminants may exist on the Refurbished Products, and that CASCADE EXPRESSLY DISCLAIMS ANY LIABILITY FOR DAMAGES OR INJURY RESULTING FROM ANY RESIDUAL CONTAMINANTS.
(e) Repair and Replacement – In-Warranty Repairs. Provided that Customer gives Cascade written notice within the Original Warranty period, and any alleged defect is not excluded as otherwise stated in this Article, then Cascade will warrant the repair or replacement items to be free from defects in material and workmanship for the longer of the remaining Original Warranty period or 90 days. All warranty repair work shall be performed by an authorized Cascade service technician, an authorized repair facility or at Cascade’s factories. Transportation cost shall be borne by Cascade.
(f) Repair and Replacement – Out-of-Warranty Repairs. Cascade will warrant out-of-warranty repair and replacement items to be free from defects in material and workmanship for 90 days from date of Delivery.
10.2 Customer assumes responsibility for the selection of Products to achieve Customer’s purposes and intended results and solutions, and for the use of the results obtained from the Products. Cascade does not guarantee a specific solution, or that the Products will meet Customer’s requirements, or that operation of the Products will be uninterrupted or error free. Customer is solely responsible for instructing and training its personnel, contractors and agents on the proper handling of the Products, and for the proper calibration and qualification of methods and procedures for testing in Customer’s environment.
10.3 For certain third-party products, the warranty will run from the manufacturer to Customer (if so identified in the quotation and order acknowledgement), and Customer shall be the beneficiary of the manufacturer’s warranty, if any, subject to the limitations stated therein. Copies of such manufacturers’ warranties for such designated products are available to Customer upon request. Cascade makes no warranty with respect to such designated third-party products.
10.4 Any Products returned to Cascade without a return authorization number will be refused or returned to Customer freight collect.
10.5 Warranty Exclusions. Cascade’s warranty of Products does not apply to any Product that Cascade determines has, by Customer or any other party (whether or not the intended end-user): (a) been returned in other than its original condition; (b) has changed or degraded due to normal or extraordinary wear and tear; (c) been used or misused outside the scope of the intended or design use of the Product; (d) been subjected to operating or environmental conditions in excess of limits set forth in an applicable operating manual or established in the applicable specifications, including any chemicals, gases, parts, materials, substances, and products provided or repaired by any party other than Cascade, (e) been commingled or incorporated with Products not approved by Cascade, (f) not been properly installed, serviced, used and maintained or (g) been damaged or modified after Delivery.
10.6 Warranty Limitations. Cascade’s warranty set forth above for the Products is Cascade’s sole and exclusive liabilities and Customer’s sole and exclusive remedies under the Agreement and any remedies extend to Customer only and not to Customer’s customers or users of Customer’s products. Except for its express limited warranty above, Cascade makes no other warranty and disclaims all warranties or liabilities as to any Product or Intellectual Property, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular or intended purpose, title, ownership, and as to non-infringement, and misappropriation. The warranty obligations of Cascade and the remedies of Customer set out herein are the sole and exclusive remedies of Customer and exclusive obligations of Cascade for all Claims and other liabilities arising out of or in connection with any warranty or nonconformance, defect or other breach of warranty. The foregoing warranties shall be void if the Products are (a) not properly installed, serviced, used and maintained (b) damaged or modified after Delivery, or (c) exported or re-exported in violation of U.S. or other national export control laws and regulations. As defined in applicable U.S. laws and regulations, “re-export” means relocation or transfer of an exported Product or related technical data from the country of original delivery or disclosure inside the country of original delivery to a foreign third party.
11. Limitation of Liability.
11.1 In no event shall Cascade be liable for any consequential, incidental, indirect, special, punitive or other similar damages arising out of or relating in any way to this Agreement or any defect in or failure of the Products, including but not limited to claims based upon loss of use, lost profits, lost yield, lost revenue, system interruption, lost production, increased expenses of operation, cost of replacement products, or claims of Customer, Customer’s customer or any third party, whether or not based on contract, tort (including negligence and strict liability) or otherwise.
11.2 Except with respect to the indemnity obligations undertaken in Section 14, Indemnification, Cascade’s maximum liability arising under, or in any way relating to this Agreement shall not exceed the Price paid by Customer for the Product(s) that gave rise to the liability, and all such liability shall terminate no later than the Warranty periods set forth herein.
11.3 Except as set forth in Section 14, Indemnification, Cascade shall not be liable for any third-party claims.
11.4 No action, regardless of form, arising out of this Agreement or the services or Products provided hereunder may be 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 Cascade under this Agreement may be brought at any time, as allowed by applicable law, after receipt of the last payment thereon.
12. Intellectual Property Rights. Cascade does not grant, convey or confer upon Customer or Customer’s customers, or anyone claiming by, through or under Customer, any ownership, interest, right, or license, express or implied, in or to any Intellectual Property of Cascade, except for the limited license implied by law for Customer to use and operate the Products sold to Customer for the normal and intended use of such Products. In addition, Cascade owns and retains all Intellectual Property in, to, relating to, or arising from or with respect to each Product developed by Cascade, whether or not such Product is developed to specifications furnished by Customer, and without regard to whether such Product is a Standard, Custom or Refurbished Product.
13. Design Changes. Cascade may make changes to the process, design, software and materials used in the Products that do not adversely affect form, fit, and function without notice to and approval from Customer. Cascade 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, shipped or sold.
14.1 Customer shall indemnify, defend, and hold Cascade and its officers, directors, employees, agents, owners, subsidiaries, and affiliates harmless from and against all claims, damages, liabilities, losses and costs (including without limitation, dispute resolution costs and reasonable attorneys’ fees) arising from or based upon the following: (a) the manufacture and sale by Cascade the use or operation by Customer or any third party, of any portion of the Products produced, in whole or in part, to Customer’s specifications, (b) the breach by Customer of any representation, warranty or covenant contained in this Agreement, (c) any third party claims or claims by Customer or Customer’s employees, subcontractors and agents relating to or arising out of use or operation of the Products, as well as any property damage or personal injury (including death) relating to or arising out of use or operation of the Products, and (d) any costs, expenses, claims, and liability relating to or arising out of Customer’s general business operations. 14.2 Except for Customer’s indemnification obligations stated above, Cascade will indemnify Customer for any damages and costs finally awarded against Customer on the grounds that the Products manufactured by Cascade, in the form delivered by Cascade, infringe any patent publicly registered as of the date of this Agreement, provided that Customer notifies Cascade in writing of any such claim within ten days after learning thereof and that Customer fully cooperates with Cascade and gives Cascade full control over the defense and settlement of the claim if so requested. If any such claim is brought or appears to Cascade to be likely to be brought, Cascade may, at its option, replace, modify, or obtain the necessary rights in respect of the Products to make them non-infringing or refund to Customer, upon the return thereof to Cascade, the Price paid for the Products at issue, less a deduction of 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 Cascade’s sole responsibility, and the Customer’s sole and exclusive remedy, for any infringements of any patent rights and is subject to the limitations upon Cascade’s liability set forth in Section 11.
15. Trade Compliance.
15.1 Customer shall at all times comply with the United States and foreign laws and regulations governing export and import control. Customer shall not use, sell, lease, or otherwise transfer to any third party any Cascade Products in any country other than the country of destination and end user specified in the Agreement, except with prior written consent from authorized Cascade personnel and full and timely compliance with all applicable U.S. and foreign export and import control laws. Any breach of this Section 15 by or on behalf of Customer shall immediately void all warranties and other sales, service, update or support obligations.
15.2 Customer represents and warrants that it is not subject to any order suspending, revoking or denying its export privileges of the U.S. or other countries, and that any export of any Products or other items acquired from Cascade will be in full compliance with all applicable United States and foreign export laws, regulations and orders.
15.3 Customer shall defend, indemnify and hold Cascade, and its owners, officers, directors, subsidiaries, affiliates, and agents harmless from and against any and all fines, 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 breach of this Section 15 by or on behalf of Customer.
16. Confidentiality and Proprietary Rights.
16.1 "Confidential Information" means all information published or unpublished, oral, written or electronic (including, but not limited to, server-based, internet-based, CD-ROM, DVD, and email) and conveyed in any form or media that relates in any way to Cascade’s past, present, and future business practices, operations, financial and investor information, business plans and development ideas, concepts, engineering data, manufacturing processes and techniques, reports, films, tapes, computer data bases and other information embodied in any of the Products or otherwise disclosed to Customer by Cascade, also including all patents, copyrights, trademarks, know-how, trade secrets, or other intellectual property, drawings, blueprints, designs, specifications, diagrams, flowcharts, software and complete or partial coding, contracts, equipment, machinery, chemical processes, business methodologies, and technology of any type which has been disclosed either prior to or subsequent to the date of this Agreement by Cascade directly or indirectly to Customer as part of this Agreement as well as either party’s ongoing business relationships. Said disclosure through business relationships includes but is not limited to information generated by either party or generated on its behalf by third parties regarding the Confidential Information, such as reports, communications, and evaluations. For the purposes indicated below, the exchange of all information between the parties shall be considered Confidential Information (regardless of whether it is or is not stamped or marked “confidential”), unless otherwise mutually agreed.
16.2 Both parties acknowledge and agree that the Confidential Information disclosed by Cascade to Customer is of significant value and that Customer shall not, without Cascade’s express prior written permission in each instance, use the Confidential Information or any part thereof, either directly or indirectly, for any purpose whatsoever other than as needed to use and maintain the Products.
16.3 Customer agrees to retain in strict confidence all such Confidential Information, and to take all precautions to prevent disclosure of the Confidential Information to any third parties, including affiliated companies, individuals, consultants, and agents, if any, unless those third parties have previously executed a Confidentiality Agreement with Cascade with substantially the same terms as this Agreement covering the Confidential Information.
16.4 Confidential Information may only be disclosed within Customer’s organization on a “need-to-know” basis. Furthermore, it shall be treated with at least the same degree of care as the recipient treats its own proprietary information, but in no event with less than a reasonable degree of care and may be copied only to the extent necessary for the purpose(s) mutually agreed by the parties. At all times, the Confidential Information, including all copies, and derivative works incorporating or discussing the Confidential Information shall remain the property of Cascade.
16.5 Customer acknowledges that Cascade remedies for any breach of this section may include, in addition to damages and other available remedies, injunctive relief enjoining any such breach.
16.6 Any dies, jigs, or other tools or equipment made or purchased by Cascade remain Cascade’s property, irrespective of whether or not Cascade 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.
17. Force Majeure. Cascade 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 Cascade, whether or not foreseeable by either party, including without limitation, acts or omissions of Customer, acts of God or government, natural disasters or storms, fire, terrorism, war, political strife, labor disputes, failure or delay of transportation, denial of export license, default by suppliers or unavailability of parts or labor.
18. General Terms.
18.1 No modification or amendment of the Agreement will be binding on Cascade OR Customer unless made in a written instrument signed by an authorized signor of both Customer and Cascade. No waiver of a right in any instance will constitute a waiver of the same or any other right in any other instance.
18.2 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 Cascade.
18.3 All notices and other communications hereund