PURCHASE ORDER TERMS & CONDITION

1. Acceptance of Purchase Order: Buyer shall not be bound by this Purchase Order until Seller executes and returns to Buyer the acknowledgment copy of this Purchase Order (email acknowledgement will be sufficient). Seller shall be bound by this Purchase Order and its terms and conditions when it executes and returns the acknowledgment copy (and/or acknowledgement email), when it otherwise indicates its acceptance of this Purchase Order, when it delivers to Buyer any of the items ordered herein or when it renders for Buyer any of the services ordered herein. This Purchase Order expressly limits acceptance to the terms and conditions stated herein, and any additional or different terms or conditions proposed by Seller are rejected unless expressly assented to in writing by Buyer. No contract shall exist except for that formed by the Buyer’s acceptance of this Purchase Order without change as provided above.
2. Entire Agreement: The parties agree that this Purchase Order, including the terms and conditions on the face and reverse side hereof together with any documents attached hereto or incorporated herein by reference contains the complete and final contract between Buyer and Seller; that no agreement or understanding to modify this Purchase Order shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representative. All specifications, drawings, and data submitted to Seller with this Purchase Order or referred to by this Purchase Order are hereby incorporated herein and made a part of this Purchase Order.
3. Changes:
   1. Buyer Changes. Buyer reserves the right at any time to make written changes to any one or more of the following: (a) Specifications, drawings and data incorporated in this Purchase Order; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery; and (f) quantities. If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, Seller shall be entitled to claim an equitable adjustment in the price consistent with original pricing. Any adjustments/requests will be accompanied by written evidence and subject to audit by Buyer. Any claim for adjustment under this Article shall be deemed waived unless asserted within ten (10) calendar days from the date of receipt by Seller of the change order; provided, however, that Buyer, if it decides in its sole discretion that the facts justify such action, may receive and act upon any such claim submitted at any time prior to final payment under this Purchase Order. Any claim by Seller for adjustment under this Article must be approved by Buyer in writing before Seller proceeds with the claimed adjustment. Price increases shall not be binding on Buyer unless evidenced by an amendment to the Agreement signed by Buyer’s and Seller’s authorized representative.
   2. Seller Changes. As stated in Article 2 above, no change in pricing or other terms by the Seller shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representative.  Accordingly, the price(s) for the goods and services specified in the Purchase Order may not be unilaterally changed and shall remain fixed until the Purchase Order has been performed in full.  Any assertion by the Seller that prices have unilaterally increased shall be deemed a repudiation of the contract formed by the acceptance of the Purchase Order with consequent liability for the Seller.
4. Delivery: Time is of the essence in the performance of this Purchase Order, and if delivery of items is not made in the quantities and at the times specified, or rendering of services is not completed at the times specified, Buyer reserves the right without liability, and in addition to its other rights and remedies, to take either or all of the following actions: (a) direct expedited routings of items (the cost of expedited routing shall be paid by Seller); (b) terminate this Purchase Order by notice to Seller as to items which were not received by Buyer or services which were not rendered at the time notice is sent to Buyer and to purchase substitute items or services elsewhere and charge Seller with any loss incurred; or (c) require review by Seller’s senior management in order to resolve Seller’s failure to comply with Seller’s delivery obligations.

   Seller shall be liable for transportation charges, delays or claims resulting from Seller’s deviation from Buyer’s routing instructions. Seller shall not be liable for excess costs of deliveries or defaults due to acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any government authority, war, civil unrest, terrorism, riot, fires, strikes or labor disputes or other causes beyond its control and without its fault or negligence (“Force Majeure”); provided, however, that when Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to Buyer. If Seller’s delay or default is caused by the delay or default of a subcontractor, such delay or default shall be excusable only if it arose from Force Majeure.

   Buyer will have no liability for payment for items delivered to Buyer which are in excess of quantities specified in this Purchase Order, Buyer’s Supplier Portal, or delivery schedules. Such items shall be subject to rejection and return at Seller’s expense, including transportation charges both ways. Buyer will not be liable for any material or production costs incurred by Seller in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedules.

   All sales of items are made FOB/FCA Buyer’s facility or designated location. Delivery shall occur and title and risk of loss shall pass to the Buyer upon delivery of the item to Buyer’s facility or designated location.

5. Delivery Instructions: Seller shall only make deliveries during Buyer’s normal business hours and to Buyer’s receiving dock at the appropriate address listed below, or as otherwise notified by Buyer (for ship from suppliers). This may include international deliveries.

Axcelis Technologies, Inc.
105 Sam Fonzo Drive
Beverly, MA 01915

6. Inspection and Acceptance: Payment is due 45 calendar days after the later of the date when Buyer receives a correct invoice or the date when Buyer receives conforming items. All items purchased hereunder are subject to inspection at Buyer’s designated location either before or after payment at Buyer’s option. Payment for any items under this Purchase Order shall not constitute acceptance thereof. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings, and data or Seller’s warranties (express or implied) or which fail to conform to this Purchase Order (whether due to Seller’s failure to perform, Force Majeure or otherwise), or which contain other defects, whether latent or obvious. Buyer retains the right to reject items with latent defects that are not discovered until after acceptance of such items, provided such rejection is made within a reasonable period of time after the discovery of the defect.

   Goods not accepted will be returned to Seller for full refund or credit or replacement at Buyer’s option and Seller’s risk and expense, including transportation charges both ways. No replacement of rejected items shall be made unless specified by Buyer in writing. In addition, Buyer may make a claim for damages, including manufacturing costs, damage to materials, or articles caused by improper boxing, crating or packing, and loss of profits or other special damages incurred by Buyer. Such right shall be in addition to any other remedies provided by law. In connection with any defective items provided to Buyer by Seller hereunder, and in addition to other charges and expenses that might apply, Buyer may issue a Part Defect Traveler report to Seller. In the event of Seller unable to meet Buyer quality performance expectation, Seller shall, upon Buyer’s request, engage Seller’s senior management to review and help resolve Seller’s failure to comply with Seller’s quality obligations.

   Acceptance of all or any part of the items shall not be deemed to be a waiver of Buyer’s right to reject other items or other orders. Acceptance of any of the items shall not bind Buyer to accept future shipments.

7. Restricted Materials:
   Seller certifies that it will notify the Buyer of any products provided to the Buyer that contain any substances that are restricted under applicable law (including the laws of any export destination).  Seller also certifies that it will not provide the Buyer with substances, preparations or articles that require governmental authorization or which would otherwise violate applicable laws.

   Seller agrees that it is responsible for determining the material content of products provided to the Buyer, and for continually monitoring applicable laws restricting certain materials (including the laws of any export destination). Seller further agrees that if Buyer accepts any Seller product after disclosure of restricted content, Seller will notify Buyer if and when the Seller product content is modified so that the restricted material is no longer present in Seller’s product.

8. Packing, Labeling and Containers: No charges for packing or containers may be billed to Buyer unless specified on the face of this Purchase Order. Seller shall, if requested by Buyer, deliver parts/assemblies in individual and reusable, clean room ready shipping containers. Seller shall prepare labels for the boxes and shipping containers containing such information, if any, as Buyer may specify. Seller shall be liable for damage to materials or articles described herein caused by improper boxing, crating, or packing.
9. Seller’s Warranties: Seller hereby warrants that the items furnished hereunder shall be free from defects in material, workmanship, and design, of merchantable quality and fit for Buyer’s purposes, and that they shall conform with Buyer’s instructions, specifications, drawings, and data. Seller hereby further warrants that the items furnished hereunder shall conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of this Purchase Order. Seller agrees that these warranties shall survive acceptance of the items. Seller further warrants that all services performed for or on behalf of Buyer will be performed in a competent, workmanlike manner and shall be free from faults and defects. The warranty period for parts and assemblies under this Agreement shall be thirty-six (36) months from the date of shipment of the parts and assemblies to Buyer. All of the foregoing warranties shall be in addition to any warranties of additional scope given by Seller to Buyer. None of said warranties and no other implied or express warranties shall be deemed disclaimed or excluded unless evidenced by a purchase order change notice or revision issued and signed by Buyer’s authorized representative. In the event of a breach of warranty, Buyer shall be entitled to all remedies under the Uniform Commercial Code or other applicable law arising from such breach.
10. Interchangeability; Manufacturing Location: All items purchased hereunder (or part hereof) are to be completely Interchangeable with like items (or parts thereof) purchased from Seller previously by Buyer or Buyer’s customer. “Interchangeable” means there have been no changes (i) to form, fit or function or (ii) negatively impacting quality or reliability. To this end, all designs, processes or procedures used by Seller in supplying like items (or parts thereof) previously are to be used by Seller in supplying the items (or parts thereof) purchased herein. Any deviation to any of (i) Buyer’s components, assemblies, designs, processes, or procedures provided or used in connection with this Purchase Order or (ii) Seller’s components, assemblies, designs, processes or procedures provided or used in connection with this Purchase Order requires Buyer’s prior written approval via an Advanced Deviation Request (“ADR”) Form signed by Buyer. In connection with any proposed change affecting Interchangeability, Seller shall request the ADR Form from Buyer and submit a completed ADR Form no later than six (6) months prior to the change date. Seller shall be liable for all of Buyer’s costs associated with the discovery and retrofit of non-Interchangeable items (or parts thereof) resulting from Seller’s failure to comply with the requirements of this Article.

    Seller must obtain the prior written consent of Buyer prior to any change by Seller in the location where the items provided under this Purchase Order are manufactured.

11. Quality: Seller shall meet the following quality requirements: (i) continual improvement based on scorecard, by reducing the rejection rate 20% on yearly basis; (ii) delivery for replenishment systems orders at 100% on-time, plus or minus zero; (iii) product lead-times at industry benchmarks levels; and (iv) ISO-9001 or IATF-16949 registration or compliance with ISO-9001 or IATF-16949 quality standards. If prior to accepting this Purchase Order Seller fails to meet any of the above requirements, Seller shall submit for Buyer’s approval, within ninety (90) calendar days of acceptance of the Purchase Order, a plan detailing the procedures it shall undertake to meet the above requirements.

    Buyer shall provide Seller written notice whenever Buyer identifies a failure by Seller to meet any of the above quality requirements. If Seller identifies a failure to meet any of the above quality requirements, Seller shall immediately notify Buyer in writing. Within two (2) business days of receiving Buyer’s notice/Seller’s initial notification to Buyer of the failure, Seller shall provide Buyer written notice describing how Seller has contained the quality failure.   Within fourteen (14) business days of receiving Buyer’s notice/Seller’s initial notification to Buyer of the failure, Seller shall correct the failure and verify in writing to the Buyer that the failure has been corrected.

    Seller shall maintain the following quality control records (“Quality Records”) for a period of five (5) years: (i) Seller’s first article inspection reports (when applicable); (ii) Seller’s verification of test results (when applicable); (iii) Seller’s certificate of conformance (when applicable); (iv) Seller’s supplier’s certificate of conformance (when applicable); (v) first pass test yield; (vi) any Buyer’s corrective action requests, and Seller’s responses to Buyer’s corrective action requests; (vii) any of Seller’s supplier’s corrective action requests; and (viii) any other quality documentation deemed necessary by Seller. Quality Records shall be made legible and in ink or other permanent media.   Corrections to Quality Records shall be made by lining through the error, completing the change, and initialing and dating adjacent to the correction.

    To ensure that Seller has met the quality requirements described in this section, Buyer reserves the right to inspect the Quality Records, upon reasonable prior notice at Buyer’s expense. Further, Buyer may inspect, or utilize a third party to inspect, upon three (3) business days’ notice and at Buyer’s expense, Seller’s manufacturing operations and quality control systems and procedures to determine Seller’s compliance with the requirements of this quality section. Additionally, upon request of Buyer, Seller shall use best efforts to arrange for Buyer to conduct a quality inspection of any of Seller’s suppliers.

12. Property of Buyer: Unless otherwise provided in this Purchase Order or agreed to in writing, property of every description including but not limited to all tooling, tools, equipment, and materials furnished or made available to Seller, title to which is in Buyer, and any replacement thereof shall be and remain the property of Buyer. Such property, other than material intended to be modified shall not be modified without the written consent of Buyer. Such property shall be plainly marked or otherwise adequately identified by Seller as “Property of Axcelis Technologies, Inc.” and shall be safely stored separately and apart from Seller’s property. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property, while in Seller’s possession or control, shall be held at Seller’s risk, and be kept in safe and good condition at Seller’s expense and insured by Seller, at its expense, in an amount equal to the replacement cost with loss payable to Buyer. To the extent such property is not material consumed in the performance of this Purchase Order, it shall be subject to inspection and removal by Buyer, and Buyer shall have the right of entry for such purposes without any liability to Seller. On an annual basis, or more frequently of requested by Buyer, Seller shall provide Buyer an inventory of all tooling, tools, equipment and materials furnished or made available to Seller, title to which is in Buyer. As and when directed by Buyer, Seller shall disclose the location of such property, prepare it for shipment, and ship it to Buyer in as good condition as originally received by Seller, reasonable wear and tear excepted.
13. Special Tooling: The term “special tooling” as used in this Article shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauges, special test equipment, other special equipment and manufacturing aids, and drawings and any replacements of the foregoing, acquired or manufactured or used in the performance of this Purchase Order which are of such a specialized nature that without substantial modification or alteration, their use is limited to the production of the items or parts thereof or performance of the services of the type required by this Purchase Order. The term does not include (a) items of tooling or equipment heretofore acquired by Seller, or replacement thereof, whether or not altered or adopted for use in the performance of this Purchase Order, (b) consumable small tools, (c) general or special machine tools or similar capital items, or (d) tooling, title to which is in Buyer.

    Seller agrees that special tooling shall be retained and not used or reworked except for performance of work hereunder or as authorized in writing by Buyer. While in Seller’s possession or control, Seller warrants that it will keep the special tooling in good condition and fully covered by insurance at Seller’s expense, and will replace it, at Seller’s expense, when lost, destroyed, or necessary for performance of work hereunder. Upon cessation or termination of the work under this Purchase Order for which the special tooling is required, Seller shall furnish Buyer a list of the items, parts, or services for the manufacture or performance of which such special tooling was used or designed and a list indicating where each item of the special tooling is located, and shall transfer title to and possession of the special tooling to Buyer [for an amount equal to the reversed amortized cost thereof], or dispose thereof as Buyer may direct in writing. In addition, Buyer shall have the right to take possession of any special tooling at any time, title to which Buyer acquires hereunder, [upon payment of Seller’s reversed amortized cost], and Seller grants Buyer the right of entry for such purposes which right may be exercised by Buyer without any liability to Seller.

14. Press Releases: The Seller agrees that no acknowledgement or other information concerning this business relationship between Seller and Axcelis, as well as this order and the goods or services provided hereunder will be made public by Seller without the prior written agreement of Buyer.
15. Confidentiality, Inventions: All information furnished or made available by Buyer to Seller or to Seller’s employees or subcontractors in connection with the items or services covered by this Purchase Order shall be treated as confidential and shall not be disclosed by Seller, its employees, and subcontractors to any third party either in whole or in part without Buyer’s prior written consent. Seller agrees not to assert any claim against Buyer with respect to any information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the items or services covered by this Purchase Order. Seller agrees that all designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller or provided by Buyer in connection with the items or services covered by this Purchase Order, including all rights thereto, shall be the sole and exclusive property of Buyer, free from any restriction, and Seller shall protect same against unauthorized disclosure to or use by any third party.

    Seller agrees that, as to all inventions and improvements in such designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller in connection with the items or services covered by this Purchase Order, Seller will promptly identify and disclose such inventions or improvements to Buyer and execute or obtain the execution of any papers and take such actions as may be necessary to perfect ownership of the inventions or improvements in Buyer or as may be necessary in the procurement, maintenance, or enforcement by Buyer of any patent, trademark, copyright, trade secret, mask work right or other proprietary right pertaining to the inventions or improvements. Seller hereby appoints Buyer as Seller’s attorney-in-fact to execute such papers or take such actions. The confidentiality and assignment of inventions obligations of this Article shall survive termination or completion of this Purchase Order.

    The Seller agrees to exclusively manufacture the items covered by this Agreement for the Buyer. The Seller shall not sell any item covered by this Agreement directly or indirectly to any of Buyer’s customers or any third-party operations. The exclusivity obligations herein shall survive termination or completion of this Purchase Order.

16. Intellectual Property Indemnification: Seller agrees (a) to defend, indemnify and hold harmless Buyer, its successors and customers against all claims, demands, losses, suits, damages, liability and expenses (including reasonable attorney’s fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of or inducement to infringe, any United States or foreign patent, trademark, copyright, mask work or other proprietary right by reason of the manufacture, use or sale of the items or services covered by this Purchase Order, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions, (b) to waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for patent, trademark, copyright or mask work right infringement or the like, including claims arising out of compliance with specifications furnished by Buyer, and (c) that Buyer shall have a worldwide, nonexclusive, royalty free, irrevocable license to use, sell and have sold, repair and have repaired, and reconstruct and have reconstructed the items covered by this Purchase Order. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights, and mask work rights in any material created for Buyer in connection with this Purchase Order. The obligations of this Article shall survive termination or completion of this Purchase Order.
17. Indemnification: Seller further agrees to indemnify and hold Buyer harmless from any and all losses, liabilities, damages, claims, demands, suits, actions, proceedings, subrogations and expenses, including court costs and reasonable attorney(s) fees, related in any way to this Purchase Order, or the services performed or items delivered under this Purchase Order, except for items manufactured entirely to Buyer’s specifications, which are claimed or made by any person, firm, association or corporation, including employees, workers, servants or agents of Seller and its subcontractors arising from any cause or for any reason whatsoever. Seller further agrees upon receipt of notification to promptly assume full responsibility for the defense of any and all such suits, actions, or proceedings which may be brought against Seller or against Buyer. In the event Buyer’s machinery or equipment is used by Seller in the performance of any work that might be required under this Purchase Order, such machinery or equipment shall be considered as being under the sole custody and control of Seller during the period of such use by Seller.
18. Insurance: If this Purchase Order covers the performance of labor for Buyer, Seller agrees to indemnify and protect Buyer against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of this Purchase Order. Seller further agrees to furnish an Insurance Carrier’s Certificate showing that Seller has adequate insurance coverage in the following minimum amounts:

    (a) Worker’s Compensation; Statutory limits for state(s) in which the work is to be performed.

    (b) Comprehensive General Liability, including Contractual Liability; Completed Operations/Products; Broad Form Property Damage; and Contractor’s Protective Liability, if subcontractors are used. Minimum limits Personal injury, including death and Property Damages $250,000 each occurrence, $1,000,000 aggregate.

    (c) Automobile Liability, including Owned, Hired and Non-owned vehicles. Minimum limits-Bodily injury $250,000 each person, $500,000 each occurrence and Property Damage $250,000 each occurrence.

    Said Certificate must set forth the name of insurer, policy number, expiration date, limits of liability and a provision providing for at least ten (10) calendar days written notice of cancellation. If Seller is a self-insurer, the Certificate of the Department of Labor and industry of the State in which said labor is to be performed must be furnished by such Department directly to Buyer. Compliance by Seller with insurance requirements does not in any way affect Seller’s indemnification of Buyer under Article 16 above.

19. Cancellation for Default: Buyer shall have the right to cancel for default all or any part of the undelivered portion of this Purchase Order if Seller fails to make reasonable progress towards completion of the Purchase Order at the times specified, if Seller does not make deliveries as specified in the delivery schedule, if Seller breaches any of the terms hereof including warranties of Seller, if Seller makes an arrangement, extension or assignment for the benefit of creditors, if Seller dissolves or otherwise ceases to exist or conduct business in the ordinary course, or liquidates all or substantially all of its assets, if Seller becomes insolvent or if Seller generally does not pay its debts as they become due. If this Purchase Order is canceled for default, Buyer may require Seller to transfer title and deliver to Buyer, any (a) completed items, and (b) partially completed items and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights that Seller has specifically produced or acquired for the terminated portion of this Purchase Order. Seller shall also protect and preserve property in its possession in which Buyer has an interest. The rights and remedies of Buyer set forth in this Article are in addition to, and not in lieu of, any other remedies which Buyer may have in law or equity or pursuant to other Articles of this Purchase Order. If, after cancellation pursuant to this Article, it is determined by a court of competent jurisdiction, or otherwise, that the Seller was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued pursuant to Article 19 hereof.
    Prior to Buyer exercising its right to cancel for default, Buyer shall provide Seller an opportunity to cure Seller’s default. Buyer shall first provide Seller written notice of Seller’s default. Seller must then outline in a writing postmarked within ten (10) business days of receiving Buyer’s notice of default how Seller intends to cure Seller’s default. Buyer shall evaluate Seller’s written response and determine how much time to grant Seller to cure its default. Any time period granted to Seller to cure a default will vary, depending on the circumstances surrounding the default. At a minimum, Buyer shall grant Seller a thirty (30) day period for Seller to cure its default.
20. Termination for Convenience: Buyer may terminate performance of work under this Purchase Order in whole or from time to time in part by written notice of termination, whereupon Seller will stop work on the date and to the extent specified in the notice and terminate all orders and subcontracts to the extent they relate to the terminated work. Seller will promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof, Seller will comply with Buyer’s instructions regarding transfer and disposition of title to the possession of such work and material. Within 60 calendar days after receipt of such notice of termination, Seller will submit all its claims for payment as specified in this Section resulting from such termination. Buyer will have the right to check such claims at any reasonable time or times by inspecting and auditing the records, facilities, work or materials of Seller relating to this Purchase Order. Buyer will pay Seller without duplication the Purchase Order price for finished work accepted by Buyer and the cost to Seller of work in process and raw materials allocable to the terminated work, based on any audit Buyer may conduct and generally accepted accounting principles, less, however (a) the value or cost (whichever is higher) of any items used or sold by Seller without Buyer’s consent; (b) the agreed value of any items used or sold by Seller with Buyer’s consent; and (c) the cost of any defective, damaged or destroyed work or material. Buyer will make no payments for finished work, work in process or raw material fabricated or procured by Seller in excess of the aggregate price specified in this Purchase Order, less payments otherwise made or to be made, and adjustments shall be made reducing the payments hereunder for cost of work in process and raw material to reflect on a pro rata basis any indicated loss on the entire Purchase Order had it been completed. Payment made under this Article constitutes Buyer’s only liability in the event this Purchase Order is terminated pursuant to this Article. Except as otherwise provided in this Purchase Order, the provisions of this Article will not apply to any cancellation by Buyer for default by Seller or for any other cause allowed by law or under this Purchase Order. In no event shall Seller be entitled to anticipatory profits or to special or consequential damages under this Purchase Order.
21. Compliance with Applicable Laws & Regulations:
    
    1. Compliance with Export/Import Regulations. Seller understands that its products may be subject to laws regarding export controls, national security and any and all other laws and regulations of the United States of America and other countries and regions (collectively the “Export/Import Regulations”) which regulations are enforced, inter alia, by governmental agencies. The Export/Import Regulations, in part, may prohibit export, import, or diversion or support, directly or indirectly, of Seller’s products to certain countries and certain end users without the express prior written approval of the applicable government. Seller agrees to abide by all Export/Import Regulations, including those concerning the resale, disposition and support of Seller’s products. Seller will not sell, transfer, or support or assist in any sale, transfer or support of any Seller products to countries not approved under applicable Export/Import Regulations. Seller shall defend, hold harmless and indemnify Buyer for any damages resulting to Buyer from a breach of this paragraph by Seller.
    2. General Laws. Without limiting the foregoing, each of Buyer and Seller hereby represents that in its performance of this agreement, it will not violate any applicable laws, including without limitation, any laws or regulations of the United States of America, or any other country or countries, including (a) any export controls laws or regulations, (b) any currency laws or regulations, (c) the United States Foreign Corrupt Practices Act, (d) any tax laws or regulations, (e) any customs laws and regulations, and (f) any other laws or regulations of the United States of America or any other country or countries. Each of Buyer and Seller hereby agrees to do all acts, make all applications or do any other review, function or thing necessary to assure that this Agreement and its performance complies with all laws and regulations of the United States of America, and the country or countries in which such performance occurs. Each party further agrees to defend and indemnify the other from and against any loss, claim, penalty, or liability that may arise from any violation of any such applicable laws or regulations by the indemnifying party.
    3. Applicability of Fair Labor Standards Act.  Without limiting the generality of the foregoing, Seller agrees that, to the extent that the US Fair Labor Standards Act of 1938, as amended, applies to the production of the Seller products covered by this Purchase Order, then in order to be approved for payment, the Seller must include on all applicable invoices the following statement:
       1. Seller represents that, with respect to the production of the items covered by this invoice, it has fully complied with all provisions of the Fair Labor Standards Act of 1938, as amended.”
    4. US Government Contracts. Seller will comply with US Federal Acquisition Regulations (FAR) specifically identified on the Buyer PO submitted to the Seller.
    5. Evidence of Legal and Environmental and Export Compliance. At the request of the Buyer, Seller will provide any requested evidence of compliance of any applicable law or regulation, including but not limited to environmental and export regulation to Buyer, or any Buyer designated compliance partner, using the requested by Buyer industry standardized formats.  These declarations will be provided on a reasonably timely basis, as requested by Buyer.
    6. Support of Axcelis Compliance Requirements: Seller agrees to provide Buyer or any Buyer designated compliance partner, with information as requested by Buyer, to allow the Buyer to comply with laws and regulations that apply in any region that the Buyer is interested in doing business with, in regards to the sale of Buyer’s products that contain in-whole or in-part the Seller’s products/materials.
    7. Greenhouse Gas Emissions: Seller agrees to provide Buyer or any Buyer designated compliance partner, with information as requested by Buyer, to identify greenhouse gas emissions related to Seller’s sourcing, manufacturing, delivery, use, and disposal of Seller’s products. Information can be provided using industry accepted greenhouse gas estimation method.
22. Axcelis Supplier Code of Conduct: Seller acknowledges receipt of the Axcelis Supplier Code of Conduct and confirms that it currently conforms to all requirements of the Axcelis Supplier Code of Conduct and agrees such conformance will continue during the transactions contemplated by this Purchase Order. The Axcelis Supplier Code of Conduct incorporates the Responsible Business Alliance (RBA) Code of Conduct.
23. Waiver: The failure of Buyer to insist, in any one or more instances upon the performance of any of the terms, covenants or conditions of this Purchase Order or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of Seller with respect to such future performances shall continue in full-force and effect.
24. Assignment: None of the work to be performed under this Purchase Order shall be assigned by the Seller nor shall Seller subcontract for completed or substantially completed materials called for by this Purchase Order without Buyer’s prior written consent, which consent may be withheld for any reason in Buyer’s sole discretion. Seller shall not assign, sublicense, or transfer any of its other obligations, responsibilities, rights or interests (including, without limitation, its right to receive any moneys due hereunder) under this Purchase Order without the written consent of Buyer. Any assignment, subletting, or transfer by Seller in violation of this Section shall be void and without force or effect. For purposes of this Section, an assignment means any assignment, whether voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law or any other manner. A change of control is deemed an assignment of rights. A “merger” refers to any merger in which a party participates, regardless of whether it is the surviving or disappearing corporation.
25. Remedies: The remedies provided for herein shall be cumulative and in addition to any other or further remedies provided by law or equity. Buyer shall have the right to set off against any amounts payable by Buyer to Seller under this Purchase Order or otherwise. In the event of any disputes arising under this Purchase Order, Buyer and Seller shall proceed diligently with the performance required hereunder pending resolution of any such dispute. If any portion of this Purchase Order is invalid or unenforceable, the remaining portions of this Purchase Order shall remain valid and enforceable.
26. Dispute Resolution: In the event of a dispute between the parties arising out of or related to this Purchase Order which solely concerns monetary damages or money due, the parties agree that a meeting shall be held promptly attended by representatives of each party having decision-making authority regarding the dispute to attempt in good faith to negotiate a resolution of the dispute. If within thirty (30) calendar days after such meeting the parties have not succeeded in negotiating a resolution of the dispute, the parties shall use their best efforts to select an alternative dispute resolution procedure (“ADR”), such as arbitration or mediation, to resolve the dispute. If the parties are unable to agree upon a form of ADR within fifteen (15) calendar days after the thirty (30) day negotiation period, then either party may pursue other available remedies upon seven (7) calendar days written notice to the other party of its intent to do so. If the parties are able to agree upon a form of ADR, they shall pursue its implementation in good faith and in a timely manner. In the event the ADR does not result in a resolution of the dispute after a reasonable period of time, then either party may pursue other available remedies upon seven (7) calendar days written notice to the other party specifying its intended course of action.
27. Governing Law: This Purchase Order shall be governed, interpreted and construed by, and in accordance with, the laws of the Commonwealth of Massachusetts.