OEM Group LLC, Terms & Conditions
The terms “Seller” “Business” and “Company” are synonymous with OEM Group LLC.
WARRANTY ON ALL NON-CONSUMABLE PARTS
OEM Group LLC warrants the equipment to be free from defects in material and workmanship for a period as defined in the quote. The warranty will begin upon shipment of system unless otherwise noted in the quote. Should the equipment fail to be free from defects in material and workmanship during the applicable warranty period, OEM Group LLC will repair or replace the defective material at no additional charge as specified. Repaired parts will be furnished on an exchange basis and may be new or reconditioned. All returned parts will become property of OEM Group LLC If repair parts are to be exchanged by mail, Purchaser agrees to insure returned parts or assume risk of loss or damage occurring during transit. Purchaser also agrees to prepay shipping charges and to use appropriate shipping materials and containers. This warranty does not cover expendable parts, damaged parts through improper use, customer negligence or error. This warranty is covered by the Terms and Conditions document of OEM Group LLC.
START-UP OF SYSTEMS
Purchaser will provide all support staff and equipment necessary for start-up of Systems supplied hereunder or shall arrange with the Seller in advance of shipment for the attendance of a Company Field Service Engineer(s). Purchaser shall affect start-up within thirty (30) days of receipt of a System. Costs resulting from any delays in the start-up due to lack of preparedness by Purchaser will be billed at standard rates provided by OEM Group LLC’s Field Service Policy. If start-up of the system is done by other than the Sellers personnel, the warranty indicated herein is no longer valid.
TIER I STARTUP
OEM Group LLC will perform the following activities:
• System power-up
• Interlock verification
• EMO testing
• Vacuum integrity checks
• Mainframe He leak check
• Chamber He leak check
• Gas Panel He leak check
• Chamber leak rate tests
• Wafer handling calibration and setup
• Wafer handling marathon 1000 wafers (continuous without error)
• Mechanical particle check
• RF calibration
• Provide OEM Group LLC proper access to fab and sub-fab areas as necessary to conduct startup tasks
• Provide leak detector for vacuum integrity testing
• Provide support equipment e.g., leak detector, watt meter, dummy load, etc.
• Provide 50 dummy wafers for wafer handling setup and wafer marathon testing
• Provide bare silicon wafers for mechanical particle testing
• Provide proper training on the operation of the particle tester
TIER II STARTUP
OEM Group LLC will perform the following activities:
• MFC Flow verification
• Gas on particle checks
• Strike RF plasma in each process chamber
• Season chamber
• Dial in recipe to match daily qualification (duplicate daily qualification recipe used on like tool.)
• Read 6 wafers over a boat of 25 wafers and verify repeatability
• Load qualification recipe and sequence in tool
• Confirm specification of daily qualification recipe
• Provide 6 qualification wafers and dummy wafers for repeatability run
• Provide 10 qualification wafers for dialing in the qualification recipe
• Provide bare silicon wafers for gas on particle checks.
TIER III STARTUP
Not Included in Standard Installation Startup. If required, OEM Group LLC will bill Tier III Startup separately.
This phase is defined as any work required by the customer in order to release the tool into production, this includes but is not limited to the following:
• Short loop qualification
• Additional recipe or step qualification and repeatability testing
• SEM analysis
• Multi layer or stack film testing
The quoted price includes labor for 40 hours per week, travel expenses, hotel, and per diem. Any hours in excess of 40 hours per week will be billed separately (on a weekly basis) at the rate of $150 per hour.
Final acceptance occurs at signoff of Tier II or release of tool into production, whichever occurs first unless otherwise stated in the quote.
SOFTWARE & LICENSING
The system is supplied with original software for standard tool utilization, unless otherwise notated in the quote. OEM Group LLC grants the buyer the use of said software. Software is non-transferrable, non-assignable, non-exclusive, royalty free to use. This grant does not extend to systems not purchased from OEM Group LLC. This grant is limited for use with the system and purpose for which the software is obtained. Buyer may make one (1) copy of said software for backup purposes only, provided all copyrights and proprietary markings are maintained with the copy. Use of this software for any purpose other than for which it is intended terminates this grant.
PATENTS & INTELLECTUAL PROPERTY
All patents and intellectual property owned by OEM Group LLC shall remain the property of OEM Group LLC Buyer is granted use of said patents and intellectual property only for use with the system that it was originally intended for. All patents and intellectual property provided with the system are to be treated as confidential information and shall not be disclosed to any third party, and shall remain the sole property of OEM Group LLC.
Process kits are always supplied by the customer unless stated in the quote.
The equipment will be demonstrated at OEM Group LLC’s facility in the conditions defined in the source inspection and final test documents of OEM Group LLC, which meet the original equipment manufacturers system specifications. Process demonstration will be limited to inert, non-corrosive, non-toxic products and procedures. Should Purchaser waive the opportunity to attend source inspection, the source inspection sign-off milestone will automatically occur and the tool will ship as scheduled.
Shipping will be made in accordance with the shipping schedule that is mutually agreed upon by the Purchaser and Seller. Packing technique, preparation and materials are to be consistent with the nature of the equipment and the hazards of transportation. At Purchaser’s request, Seller will coordinate shipment of equipment using carrier of Purchaser’s choice. Cost of rigging, crating, shipping and insurance is the responsibility of the Purchaser.
This quotation is the property of OEM Group LLC and contains confidential information. The contents of this proposal, including but not limited to pricing and structure, shall not be disclosed beyond the customer or disclosed in whole or in part for any purpose other than to evaluate the quotation. Upon award, the terms of the award will remain confidential.
VALIDITY OF QUOTE
All parts and equipment are subject to availability.
Seller agrees, at their own discretion, to assist the customer in achieving the desired process results. Seller is not responsible for lost wages, expenses or damages that occur as a result of delay. Seller hereby disclaims all other expressed and implied warranties of merchantability and fitness for a particular use.
The prices, terms and conditions quoted herein are firm through the expiration date stated, unless modified in writing by OEM Group LLC prior to acceptance of the purchase order or contact. All purchase orders shall be subject to OEM Group LLC Standard Terms and Conditions.
The acceptance of Purchaser’s Order is expressly made conditional upon Purchaser’s assent to the terms and conditions set forth herein, and OEM Group LLC agrees to furnish the systems materials, and any spare parts (“Products”) and services covered thereby only upon these terms and conditions.
This document constitutes the entire agreement of the parties with respect to the subject matter hereof. Any term or condition of Purchaser’s order inconsistent with or in addition to these Terms and Conditions hereof shall not be binding on the Seller unless Purchaser notifies the Seller in writing to the contrary within ten (10) business days of receipt hereof, acceptance of these Terms and Conditions shall be conclusively presumed. In the absence of such notification, the sale and delivery by the Seller of the items covered hereby shall be conclusively presumed to be subject to these Terms and Conditions. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Seller unless made in writing and signed by an authorized representative of OEM Group LLC. All orders or contracts must be approved and accepted by the Company. These Terms and Conditions shall be applicable whether or not they are attached to or enclosed with the products sold hereunder.
Payment for Products and services is due at or before shipment of Products or provision of services, unless Seller grants credit in writing. If credit is granted, credit terms for services or spare parts shall require payment in U.S. Dollars thirty (30) days from date of invoice and for Systems, payment in U.S. Dollars is due per the schedule set forth in Seller’s quotation or sales order. Unless OEM Group LLC’s quotation or sales order provides to the contrary, final payment is due no later than net thirty (30) days from the date of invoice. The Company reserves the right to require an irrevocable letter of credit from a bank, which it designates. Sums unpaid thirty (30) days after date of invoice shall be subject to a late payment charge of one and one-half percent (1.5%) per month from the due date, or the maximum amount permitted by law, if less, and, in addition, Purchaser shall pay all costs incurred by Seller which relate to the credit extension. In the event of any default in payment, Purchaser shall pay all costs of collection. If delivery is delayed or this contract is canceled by the Purchaser, OEM Group LLC shall retain payments already made to Seller and apply said payments to payments required, pursuant to Purchaser’s and Sellers order or contract.
OEM Group LLC retains a security interest in Products delivered hereunder and in proceeds from the sale, exchange, collection, or disposition thereof, until Purchaser has made payment in full for such Products. Purchaser shall, upon request by Seller, provide all information and signatures required by Seller to perfect such security interest, OEM Group LLC reserves all rights granted to a secured creditor under the Arizona Uniform Commercial Code, including the right to repossess upon default by Purchaser. To simplify such repossession, Seller may require the Purchaser to assemble the collateral and make it available to the Seller at a place reasonably convenient to both parties and agreed upon by the Seller.
DELIVERY AND DELAY
Terms of sale are Free On Board (FOB) at OEM Group LLC’s facility. Title to Products shall pass to Purchaser on Seller’s tender of the Products to Purchaser or a carrier. All risk of loss or damage of Products in transit shall be borne by Purchaser, unless otherwise agreed. Seller reserves the right to make partial deliveries, and all such partial deliveries shall be separately invoiced and paid for when due. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept such later deliveries. In any event, delivery times shall not be considered absolute and no breach shall be found if the Products herein specified are delivered within a reasonable time after the delivery date set forth.
OEM Group LLC shall not be liable for any loss or damage as a result of any failure to perform or any delay in delivery or equipment start-up (if required) due to any cause beyond the Companies control, including but not limited to, acts of God, acts of Purchaser, fire, theft, accident, flood, war, sabotage, slowdown, strikes, or other labor difficulties, riot, embargo, government act, regulation, rule, ordinance or request or inability to obtain necessary labor, materials, manufacturing facilities, or transportation. In the event of any such contingency, the date of performance or delivery shall be extended by a period equal to the time lost by the delay. If, due to any such contingency, and the Seller is unable to supply the total demands for any Product specified hereunder, the Seller shall have the right to allocate its available supply among customers and its departments and divisions. The Seller shall not make or participate in any shipment which does not conform to the requirements of the U.S. Export Administration Act or any other relevant export-import law or regulation.
TAXES AND OTHER CHARGES
Any manufacturer’s tax, sales tax, use tax, excise tax, custom, inspection or testing fee, or any other tax, fee, or charge of any nature whatsoever imposed currently or in the future by any federal, state, or other governmental authority, upon or with respect to the sale, purchase, delivery, shipment, storage, processing, use, or consumption of any of the Products covered hereby, including taxes, fees, or charges upon or measured by the receipts from the sale thereof shall be borne by Purchaser in addition to the prices quoted or invoices. In the event OEM Group LLC is required to pay any such tax, fee, or charge, Purchaser shall reimburse Seller therefore.
Cancellations for Convenience, Shipment Holds, and Liquidated Damages whereby the Purchaser may request a delay in delivery for a maximum of ten (10) business days from the contract scheduled delivery at no charge, and the Seller shall proceed with completion of the work. Purchaser’s payments shall in such event be due and payable to the Seller with the contract scheduled delivery. In the event Purchaser is unable to receive any Product at the time Seller is prepared to make delivery, Seller may, upon notice to Purchaser, giving Purchaser reasonable opportunity to designate a location for storage, deliver such Product and ship it to storage at any suitable location including OEM Group LLC’s facilities. All costs incurred by the Seller including but not limited to preparation for the placement into storage, inspection, insurance, rental fees, and any taxes shall be borne by Purchaser. Seller will take all reasonable steps to minimize such expenses. When Purchaser is ready to receive the Product, Seller shall arrange, at Purchaser’s expense, removal of the Product from storage and shipment of the Product to Purchaser.
Purchaser has the right to cancel this contract for convenience upon prior written notice. A request by Purchaser for delay in delivery beyond ten (10) working days from the contract delivery date shall be deemed to be a cancellation of the contract. Inasmuch as contract cancellation would cause substantial damage to OEM Group LLC in an amount that would be difficult to ascertain, Purchaser shall pay liquidated damages for cancellation in accordance with the table set forth below.
Unless otherwise stipulated in the quotation, canceled orders shall be subject to cancellation charges as a function of the number of weeks the Company received notice before the stipulated delivery date as follows or the customer will be responsible for all costs related to project to date plus 25% of purchase order value:
NOTICE RECEIVED PRIOR TO STIPULATED SHIPPING DATE
Percent of Face Value of PO
Fewer than 2 weeks: 100%
2 to 4 weeks: 90%
4 to 6 weeks: 70%
6 or more weeks: 50%
Seller makes no claims or guarantees as to process performance or particle performance specifications on the unit. However, Seller agrees, at its own discretion, to assist the customer in achieving the desired process results. Seller is not responsible for lost wages, expenses or damages that occur as a result of delay. Seller hereby disclaims all other expressed and implied warranties of merchantability and fitness for a particular use.
LIMITATION OF LIABILITY
OEM Group LLC’s liability on any claim of any kind, whether based in contract, in tort (including negligence and strict liability) or otherwise for any expense, injury, loss, or damage arising out of or in connection with the provision of any service or the design, manufacture, sale, delivery, inspection, repair, maintenance, installation, or use of any product furnished under this contract shall in no case exceed the purchase price of the product or service which gives rise to the claim in no event shall OEM Group LLC be liable for any special indirect, incidental, consequential, or contingent damages, whether or not the Company has been advised of the possibility of such damages.
PATENT AND TRADEMARK INDEMNITY
The Company accepts no liability for, and Purchaser shall hold OEM Group LLC harmless against any expense or loss from infringement of patents, trademarks, or other intellectual property rights of others arising from the Companies delivery of Products or compliance with Purchaser’s design, formulae, processes, specifications, or instructions, or with Purchaser’s requirements that a design be produced to perform a specific process.
WARRANTY AND RETURNS
OEM Group LLC warrants to the Purchaser that all Products provided by the Company shall conform to the published specifications and shall be free from defects in material and workmanship when used under normal operating conditions, and that all service provided by the Company shall be performed in a workmanlike manner.
The foregoing warranty shall apply to such period of time and under such conditions as are specified in the Companies standard warranty for such Product as designated in the quotation. If not otherwise specified, the warranty for Systems shall apply for ninety (90) days from the date of Tier I completion. The warranty provided hereunder shall not include parts or materials which the Seller considers as consumables under normal operating conditions. During this warranty period, the Purchaser shall perform all monthly preventative maintenance checks prescribed in the relevant Original Equipment Manufacturer’s equipment manual.
The foregoing warranty for spare parts shall apply for a period of thirty (30) days from the date of delivery of the spare parts by the Seller. The warranty granted hereby shall not include spare parts which OEM Group LLC considers as consumables under normal operating conditions.
The foregoing warranty for service shall apply for a period of thirty (30) days from performance of the service.
The foregoing warranties are exclusive of all other warranties whether written, oral, or implied, including any warranty of merchantability or fitness for a particular purpose.
If any Product delivered hereunder does not meet the above warranty, Purchaser shall promptly notify the Seller and make the product available for correction. The Company shall, during its normal business hours, correct any defect in said Product at its option, by repairing any defective part thereof, if other remedies fail, by replacing the Product. If a spare part delivered hereunder does not meet the above warranty, Purchaser shall promptly advise OEM Group LLC and, upon obtaining a Return Material Authorization, ship the defective spare part to the Seller. If the service provided hereunder does not meet the above warranty, Purchaser shall promptly notify the Company and make the affected Product available for correction. Seller shall, during its normal business hours, correct any defect by re-performing the service.
All returned Products must be accompanied by a Return Material Authorization signed by an authorized representative of OEM Group LLC. The Company is under no obligation to accept, inspect, replace, or repair unauthorized shipments, and the Purchaser shall bear all expenses incurred by such unauthorized shipments to the Company unless specifically noted otherwise in writing, return of Products constitutes Purchaser’s authorization for the Company to repair said Products and to invoice Purchaser for any and all reasonable costs of repair, labor, parts, and freight on items not covered by the terms of this warranty. Such authorization includes charges for handling of returned items found not defective, including a fifteen percent (15%) restocking charge for spare parts. Purchaser shall bear the risk of loss or damage during transit of Products whether or not the Product meets warranty requirements. Any parts replaced shall become the property of OEM Group LLC.
The Company shall not be obligated to repair or replace any Product rendered defective, in whole or in part, by external causes, such as but not limited to catastrophe, power failure or transients, over-voltage on interface, environmental extremes, or improper use, maintenance, or application.
The Company’s liability arising from the sale or use of Products or service shall be limited to the cost of correcting defects, as provided herein, or the price allocable to the Product or part thereof which gives rise to the claim, or the amount of purchase order, whichever is least. All such liabilities will terminate upon expiration of the warranty period.
The foregoing constitutes the Purchaser’s sole and exclusive remedy for the Seller’s furnishing of nonconforming or defective products or service, and OEM Group LLC shall not in any event be liable for any special, indirect, consequential, or incidental damages by reason of the fact that such products shall have been nonconforming or defective.
In the event any of the Products furnished hereunder is subjected to, or a claimed defect arises, as a result of accident, misuse, neglect, alteration, failure to install or removal of safety devices provided or required by the Original Equipment Manufacturer, unauthorized relocation, or improper repair or maintenance or is installed, maintained, or used contrary to OEM Group LLC’s printed warnings, instructions or recommendations, Purchaser agrees to defend, protect, indemnify, and hold OEM Group LLC harmless from and against all claims of any kind, whether based in contract, in tort including negligence or strict liability), or otherwise for any losses, expenses, damages, and liabilities, direct, indirect, special or consequential which may arise out of the use of Products except those caused solely by defects in materials or workmanship or by the sole negligence of the Seller.
Purchaser shall not assign its rights hereunder.
CUSTOMER HIRING PRACTICES
Without the prior written consent of the Company, Purchaser will not, directly or indirectly, alone, through, or with any other person or persons, in any manner, for the period of two years after the later of the last date of contact or the date hereof directly or indirectly solicit or entice away from the Company any person who at the date hereof is an officer, manager or employee of the Business whether or not such person would commit a breach of contract by reason of leaving service or transferring business; or employ or otherwise engage the services of any such officer, manager or employee, except as such employment or engagement may be accomplished pursuant to the consummation of a transaction with the Company as contemplated by this quotation.
ARIZONA LAW AND DISPUTES
The agreement hereunder shall be governed by and construed in accordance with the laws of the State of Arizona. Any action based on this contract must be commenced within one (1) year after the cause of action arises.
EFFECTIVE DATE: JANUARY 1, 2013
PARTS RUSH/EXPEDITE TERMS, MINIMUM ORDER SIZE AND RETURNING NEW PARTS POLICIES
1. TOOL DOWN ORDERS
OEM Group LLC Tool Down/Expedite orders are given absolute top priority. All available resources will be engaged to get in-stock Tool Down/Expedite orders out the same day. However, depending on what time of day the order is received, it may be shipped the next day. The following applies to those orders: ·
- US and international customers with EXW and FOB Plant terms will be charged a $100 USD expedite fee. ·
- All customers with DAP terms (old DDU terms) will be charged a $200 USD expedite fee, which includes additional “priority” shipping charges to approved locations. This will apply to all parts ordered that fit within a single (one) carton of "parcel size and weight". The maximum “parcel size and weight” specifications per each Tool Down/Expedite order must not exceed the following dimensions; 24” x 12” x 12” and must have a gross shipping weight equal to or less than 30 US pounds. A package exceeding these specifications will be subject to additional freight charges which will be charged to the customer at the time of shipment. The method of transportation will be at the sole discretion of OEM Group.
2. MINIMUM ORDER SIZE
Customers with DAP terms are subject to a minimum order of $250.00 USD. Customers with EXW or FOB Plant terms are subject to a minimum order of $100.00 USD.
3. RETURNING NEW MATERIALS FOR CREDIT, POLICY AND CHANGES
All new, unused, undamaged OEM Group parts still in their original sealed packaging may only be returned to stock for credit if accompanied by a Return Material Authorization Form (RMA) signed by an authorized representative of the respective OEM Group company from which the part was originally purchased. Special ordered or modified to customer’s specifications parts are non- returnable for credit. All authorized new returned parts transactions originally shipped under EXW or FOB Plant will be charged a 20% restocking fee and 30% for DAP terms; with the balance of the returned part credit posted to the customer’s original account. No cash refunds will be issued. Authorized new returned parts must be received by OEM Group, freight prepaid and the sender will bear the risk of loss or damage during transit. All returned parts are subject to inspection upon receipt by OEM Group, and if found to be noncompliant with the foregoing conditions, shall be rejected and held for only 30 days for the sender to collect at their expense, thereafter, such rejected parts will be scrapped.