August 28th, 2008

Terms & Conditions of Sales

Tool Function and Reliability

Production, Test, Acceptance, and Diagnostics Procedures
  1. There is an internal set of specifications and pass criteria that each system must pass both before it ships to a customer and at the customer site during installation. Each system has a self-documenting built in self-test (BIST) and burn in routine. Every control box runs its own self-test mode and every circuit board is fully tested per our test procedure. Before any of the heads are assembled, each individual component is individually inspected and tested before it becomes part of a subassembly. Each sub-assembly is fully tested for function and performance to a test standard that has been developed over the past six years. Once an AFP head is assembled with all of the pre-tested sub-assemblies, it is aligned, calibrated, and tested. It is then tested for image noise, positioning accuracy, leakage current, and any other parameters of merit for specific options with which it may be configured. The fully assembled system goes through the full BIST and its actual values are recorded several times over the course of time it is under test.
  2. After installation at the customer site the same self-tests will be conducted to verify the tool performance according to spec. Its new values are recorded for future service and customer verification.
  3. If at any time the customer feels the AFP is down the first point of contact should be a designated owner of the tool at the customer site in order to eliminate simple operator issues. If possible, the designated contact will contact the service provider by phone or email. The service provider will respond to the customer at the given number (cell, pager, or office phone) within four business hours if no one is available to take the initial call. The service provider will troubleshoot the problem over the telephone, to resolve any issues with operation and to diagnose the issue(s) and plan a course of action for repair or replacement of hardware/software. If the service provider and the customer agree that the tool is “down” this begins the clock for support escalation. If hardware repair or upgrade is required, the service provider will provide in-stock replacements by overnight freight and instruct the customer in case of user serviceable parts. The customer will assist with part change-out to the best of their ability. If the service provider requires return of components, the customer will return these, if requested, by overnight freight of its choice.
    For necessary repairs and/or replacement parts that are not in stock, the service provider will provide, to the best of their ability, the hardware within five business days. After no more than ten days (starting from the time listed above) MultiProbe will supply the customer with a loaner probe(s) and/or controller as necessary. MultiProbe will provide repair or replacement units as required during the term of the loaner parts.

Tips
  1. Buyer may return unused tips that do not meet their specifications for free replacement.
  2. Seller will provide two to four test lots for Buyer approval before changing any tip manufacturing process.

Preventative Maintenance
Each AFP head will undergo auto calibration verifying all factory level specification and set points per initial BIST test at time of installation. Head Calibration, Test Calibration and testing of individual heads includes scan range, orthogonality, topographic and electrical resolution.

System Level Testing
MultiProbe to check that the integration of all the single components is optimal and that noise level falls within specification criteria. MultiProbe to ensure that enclosure is in good condition and performing to specification. MultiProbe will probe sample provided by customer to ensure the throughput conforms to specifications. Quality of measurements will also be checked. AFM images will be acquired and optimized for both the contact and current imaging modes.

Proper Probing Environment
(See facility requirement document)

Returns
Resistance test methodology AFP Probe Tips- Buyer has the ability to return unused tips that do not meet their specifications for free replacement.

Warranty
MultiProbe offers a standard one year warranty unless contract specifically states otherwise. Uptime Warranty>95% with a MTBF>1000hrs.

Additional Training
Additional training can be purchased if necessary should the customer want additional training for new users at a later date. Each additional day of training is $1850/day (plus travel and expenses) and performed by one of MultiProbe’s Applications Experts / Scientist. Up to TWO operators can attend the training.

DEFINITIONS AND DOCUMENTATION

Definitions
1. Down: The tool is considered down when it is not capable of performing according to the acceptance criteria, not including operator error. The tool is not considered down when it is not working optimally (e.g. noise is a little high but AFP still probes). Most service issues break down as follows: 70% - Operator issues (assistance with software features required, probe replacement needed, sample preparation, measurement methodology problems, etc); 20% -Suspected failure or sub-standard performance of components or computers; 10% - a problem so vexing that it cannot be diagnosed over the phone. Typical repair follows two courses, phone support or MultiProbe service. Phone support that diagnoses a suspected failure is typically followed by repair or replacement of hardware or software problem. Most replacements can be done by the user in a few minutes time. Repairs of the more vexing of problems or that require live MultiProbe support personnel will be scheduled as mutually agreeable and at the earliest possible opportunity.
2. Customer: Meaning ___________ or it’s assignees for the purposes of this document.

Documentation
The following Addendum’s are provided:
  • User’s Manual
  • Maintenance Manual
  • Installation and Acceptance Protocol
  • Sample Preparation
  • Tool Specification and Performance - Facility’s Requirement

RESPONSIBILITIES

MultiProbe Corporation
  1. MultiProbe or it’s agents will execute an initial site survey to determine the design for the system. If needed, MultiProbe may also conduct a full site survey to completely design the system. The site survey can include pictures of the lab area, measurements of the lab area, noise measurements, and anything else that may affect performance. The initial site survey is conducted by the customer and the full site survey is conducted by a MultiProbe representative.
  2. MultiProbe to provide Installation and product details that include:
    • Utility requirements
    • Dimensions of hardware
    • Interconnect information between the components
  3. MultiProbe will revise the system configuration, as shipped, if required by MultiProbe manufacturing changes. Customer generated scope changes or incomplete definitions by the customer are not the responsibility of MultiProbe and may require further charges at the customer’s expense.
  4. MultiProbe will verify system performance, via a factory integration test and again at the customer’s location following commissioning.
  5. MultiProbe will perform the following activities on location:
    • Power-up of system
    • System integrity verification
    • Calibration
    • User Training
Customer
  1. Assign a Tool Owner/Tool Engineer from the date of the system order to the project completion.
  2. Participate in the system description and schedule preparation. Provide timely responses to the details requested by MultiProbe.
  3. Attend MultiProbe training session at customer site.
  4. Assign a tool engineer, (“master trainer”) to support on-the-job training and spend time during the installation to become familiar with the MultiProbe system.
  5. Assume all responsibility for outside or inside contracting for equipment placements, wiring and utilities, as noted in the facility specifications.
  6. Provide a suitable work area for the equipment based on facility specifications.
Engagement
This contract includes one preventative maintenance visits. Ten tips per head during installation, acceptance, and training. It may also include other services that the customer and the service provider may agree upon from time to time.

PAYMENT & DELIVERY

Paymet Terms
  • 80% Net 30 day of shipment.
  • “Rapid Pay” discount for terms of 80% Net 15 of 2% will apply.
  • A “Late Penalty” for any payments past the agreed upon term will be assessed at the rate of 1.5%.
  • 20% net 30 after sign off of Acceptance.

Delivery
  • Delivery dates will be confirmed before acceptance of order.
  • Delivery will be FOB Santa Barbara, CA.
  • Shipping account number and specifications should be provided on purchase order.

Taxes
Customer is responsible to pay all taxes as required by Federal and State law on the purchase of this instrument. The taxes are in addition to the amount stated in the above quote. If your company has a tax-exempt status you will be required to submit the proper documentation to MultiProbe with your purchase order.

TERMS AND CONDITIONS


  1. PERFORMANCE
    • 1.1. MultiProbe Corporation (“MultiProbe”) agrees to use commercially reasonable efforts in the delivery of its products (“Products”) and/or the providing of its services (“Services”) or its research (“Research”) described on the quotation attached hereto (“Quotation”).
    • 1.2. The sale of Products, Services and/or Research by MultiProbe shall be governed by the Quotation and these terms and conditions (collectively, the “Terms and Conditions”). In the event of a conflict between these terms and conditions and the Quotation, these terms and conditions will control.
    • 1.3. MultiProbe shall have the right to use third party consultants (the “Consultants”) in the performance of its obligations. For purposes of the Terms and Conditions, all references to MultiProbe or its employees shall be deemed to include such Consultants.

  2. DELIVERY OF PRODUCTS
    • MultiProbe shall deliver Products (i) within the United States, "F.O.B. origin," and (ii) outside the United States, "Ex Works." Customer shall be responsible for all freight charges for delivery of Products. Risk of loss shall pass to Customer once Products are in transit and Customer shall be responsible for filing any damage claims with respect to the Products.

  3. PRICE AND PAYMENT
    • 3.1. The prices for the Products, Services and/or Research are set forth on the Quotation. In the event the Quotation does not reference any specific pricing, the Products, Services and/or Research shall be performed at MultiProbe then current standard time and material rates and charges.
    • 3.2. Customer shall reimburse MultiProbe for all reasonable travel, food, lodging and other out-of-pocket expenses incurred by MultiProbe in the performance of its obligations.
    • 3.3. For all deliveries of Products in the United States, payment shall be made within 30 days from shipment there of. With respect to the performance of Services and/or Research, payment shall be made within ten days as periodically billed by MultiProbe. For international deliveries of Products and/or the performance of Services and/or Research, payment shall be made by an irrevocable letter of credit in United States Dollars, issued by a financial institution located in California as designated by MultiProbe.
    • 3.4. The prices and charges hereunder do not include any amount for taxes or duties. If any duty, sales, use, excise, property, withholding or other tax, penalty or interest is, or should ultimately be, assessed against, or is required to be collected by MultiProbe or by any taxing authority in connection with its performance required hereunder, Customer agrees to pay any and all such charges.

  4. OWNERSHIP
    • 4.1. Unless otherwise specified in a written agreement signed by an officer of MultiProbe, any processes developed for Customer with respect to Products produced or Services and/or Research performed by MultiProbe using MultiProbe software, development, or business techniques, shall not be considered Works Made for Hire and shall be exclusively owned by MultiProbe, and no ownership rights thereto shall accrue in any manner to Customer. In addition, MultiProbe shall be the sole owner of all patents, copyrights, trade secrets and other intellectual property rights related to any Products, Services and/or Research delivered to Customer.
    • 4.2. To the extent Customer has any right, title, or interest in or to any processes developed with respect to Products produced or Services and/or Research, Customer hereby assigns to MultiProbe all of its right, title and interest in such item to MultiProbe, including all copyrights, patents, trade secrets, and all other, proprietary related rights therein and thereto.
    • 4.3. Nothing in this Agreement shall preclude MultiProbe from using in any manner, or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by MultiProbe in the performance of any of its obligations hereunder.
    • 4.4. Customer shall not analyze the composition of, or reverse engineer or decompile any tangible materials, components or software constituting confidential information provided by MultiProbe hereunder.

  5. CONFIDENTIALITY
    • 5.1. Customer agrees to maintain at all times the confidentiality of any business, operational or technical information provided by MultiProbe that is marked or otherwise identified by MultiProbe as confidential or proprietary, or, if the disclosure by MultiProbe is oral, that is orally identified as confidential or proprietary at the time of disclosure (the “Confidential Information”). For purposes herein, all information revealed by MultiProbe with respect to the Products, Services and/or Research should be deemed Confidential Information.
    • 5.2. Customer agrees to restrict access to the Confidential Information only to employees who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section 5.
    • 5.3. Customer acknowledges that MultiProbe shall at all times have the right to take all steps to protect its Confidential Information, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity in the event Customer does not fulfill its obligations under these Terms and Conditions.

  6. LIMITED WARRANTIES
    • 6.1. For a period of one year from the original invoice date, MultiProbe warrants that the Products will materially conform with the applicable specifications set forth on the applicable Quotation and be free of defects in material and workmanship under normal use and service when correctly installed and maintained.
    • 6.2. If system fails to meet acceptance criteria within one year of acceptance seller will, within 120 hours, arrange to have a technician on-site for further support. If tool or component requires factory repair, all repairs including freight will be at Sellers expense for a period of one year from acceptance, unless longer terms are stated and agreed upon. At which time the Buyer will have the option of purchasing extended warranty support. In the event that the tool is down for warranty repair time, we will extend the one-year warranty by one day for each day the tool is down.
    • 6.3. The above warranty does not apply to Products that have been repaired or modified without MultiProbe prior written approval, or Products subjected to unusual physical, thermal or electrical stress, improper installation, misuse, abuse, accident or negligence in use, storage, transportation or handling.
      MULTIPROBE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS LIMITED TO MULTIPROBE REPAIR OR REPLACEMENT OF THE PRODUCT (AT MULTIPROBE’S SOLE DETERMINATION). THE FOREGOING WARRANTY IN SECTION 6.1 IS EXCLUSIVE, AND MULTIPROBE DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO ANY USE OF ANY PRODUCT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 6.1 THE PRODUCTS ARE DELIVERED “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION.

  7. LIMITATION OF LIABILITY
    • 7.1. IN NO EVENT SHALL MULTIPROBE’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE PRODUCTS, SERVICES AND/OR RESEARCH, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE CHARGES ACTUALLY PAID BY CUSTOMER HEREUNDER FOR THE PRODUCTS, SERVICES AND/OR RESEARCH WHICH GIVE RISE TO SUCH CLAIM.
    • 7.2. IN NO EVENT SHALL MULTIPROBE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE MULTIPROBE PRODUCTS, SERVICES AND/OR RESEARCH (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF MULTIPROBE HAS BEEN PREVIOUSLY ADVISED OR WAS ACTUALLY AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ALL SUCH DAMAGES ARE EXPRESSLY DISCLAIMED, WAIVED AND RELEASED AS A MATERIAL CONDITION OF AND AS CONSIDERATION FOR MULTIPROBE PROVIDING TO CUSTOMERS ITS PRODUCTS, SERVICES AND/OR RESEARCH.
    • 7.3. MultiProbe shall not be liable to Customer for damages or for any delay or failure to perform its obligations hereunder if such damages, delay or failure arises from any cause or causes beyond MultiProbe’s reasonable control. Such causes shall include, but are not limited to fire, lightning, explosion, power surge or failure, water, acts of God, terrorism, war, revolution, civil commotion or acts of civil or military authorities or public enemies; any law, order, regulation, ordinance, or requirement of any governmental or legal body or any representative of any such government or legal body; or labor unrest, including strikes, slowdowns, picketing or boycotts, inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers. MultiProbe shall not be liable to Customer for any damages, delay or failure to perform due to Customer’s failure to comply in a timely manner with any of the Terms and Conditions herein.

  8. CUSTOMER’S PREMISES
    • To the extent required by MultiProbe, Customer will make available to MultiProbe certain details of its facilities, records, data, computer resources, software programs, personnel, and other relevant information as required by MultiProbe in order to provide Customers with Products, Services and/or Research.

  9. TERMINATION
    • 9.1. MultiProbe may terminate all of its obligations to Customer in accordance with the following:
      • 9.1.1. With respect to Services and/or Research, without cause, upon 30 days prior written notice to the Customer.
      • 9.1.2. With respect to Services and/or Research, in the event Customer has failed to perform any obligation required to be performed herein, provided such failure is not corrected within ten days for non-payment of any sums due MultiProbe from receipt of written notice from MultiProbe advising of such failure.
    • 9.2. Customer shall pay for all Services and/or Research performed through the effective date of termination, and shall return to MultiProbe all Confidential Information belonging to MultiProbe, and all copies thereof.
    • 9.3. If MultiProbe does not cancel delivery of the Products, Customer shall in all instances be obligated to pay for the Products pursuant to the provisions of the Quotation and the Terms and Conditions.
    • 9.4. Customer may terminate its obligations to MultiProbe only if (i) MultiProbe fails to comply with any of the material Terms and Conditions herein and such failure continues for a period of 90 days after Customer delivers written notice to MultiProbe describing the full details of such failure (provided however if such failure cannot be cured by MultiProbe within such 90 day period, and provided MultiProbe commences the cure within such 90 day period, MultiProbe shall have such additional time as may be reasonably required by MultiProbe to cure such failure); and (ii) all sums due and owing to MultiProbe through the date of such termination shall first be paid by Customer to MultiProbe.

  10. MISCELLANEOUS
    • 10.1. Customer may not assign or transfer (by operation of law or otherwise) all or any part of its rights herein without MultiProbe’s prior written consent.
    • 10.2. All notices required to be given shall be given in writing at the addresses given on the Quotation.
    • 10.3. If any of the Terms and Conditions shall be found to be illegal or unenforceable, then, notwithstanding such illegality or unenforceability, all other provisions shall remain in full force and effect and only such illegal or unenforceable provision shall be deemed to be deleted.
    • 10.4. The sole and exclusive statement of the agreement between the Customer and MultiProbe regarding the Products, Services and/or Research is set forth on the Quotation and in these Terms and Conditions, which supersedes any prior discussions, writings, and negotiations with respect thereto.
    • 10.5. No amendment to these Terms and Conditions shall be valid unless in writing and duly signed by both parties. Only an officer of MultiProbe may sign on behalf of MultiProbe.
    • 10.6. No waiver of any provisions herein by MultiProbe shall be effective unless made in writing by an officer of MultiProbe. Any waiver made by MultiProbe of any of the provisions herein shall not be deemed or construed to be a waiver of such term or condition for the future or any subsequent breach thereof.
    • 10.7. Any of the provisions herein which by its sense and context is intended to survive the expiration or termination of the Customer’s relation with MultiProbe shall survive the expiration or termination thereof.
    • 10.8. These Terms and Conditions shall be interpreted and enforced in accordance with the laws of the State of California without regard to its conflict of law provisions. Venue for any lawsuit or claim shall lie exclusively in Santa Barbara County, California.
    • 10.9. Customer hereby agrees that if Customer is a foreign entity or person, Customer hereby irrevocably appoints the California Secretary of State as its duly authorized agent to accept service of process on Customer’s behalf.
    • 10.10. Customer warrants and represents to MultiProbe that: (i) Customer’s use of the Products in any manner, including, without limitation, combining the Products with any other property or material, shall not violate the intellectual property rights of any third party, including, without, limitation, patent rights; (ii) Customer shall undertake all reasonable and/or necessary testing, research and precautions relating to its use of the Products; (iii) Customer shall comply at all times with all applicable laws, orders, regulations, ordinances and requirements of any governmental or legal body in regard to its use of the Products, including, without limitation, obtaining all required approvals, permits, and licenses. Customer shall be solely responsible for any use Customer may make of the Products and all recalls and health and safety risks associated with Customer’s use of the Products.
    • 10.11. Customer agrees to indemnify, defend, and hold harmless MultiProbe and MultiProbe directors, officers, employees, agents, successors, and assigns from and against all lawsuits, damages, losses, claims, and expenses, including, without limitation, attorneys’ fees and expenses and expenses relating to any recall, relating to and/or arising from any use of the Products by Customer, any breach of any of these Terms and Conditions and/or the Quotation, and/or any negligent act or omission by Customer.
    • 10.12. Customers may not solicit MultiProbe employees. Doing so will be considered a breach of our contract and will result in a fine of one (1) year’s salary of said such employee.