Terms & Conditions - Archive
1. APPLICABILITY. THIS DOCUMENT (THE “AGREEMENT”) IS INCORPORATED BY
THIS REFERENCE INTO, AND IS SUBJECT ONLY TO THE EXPRESS PROVISIONS OF, ANY ORDER
ACKNOWLEDGEMENT PROVIDED BY TRIQUINT SEMICONDUCTOR, INC. (“SELLER”). ANY
ADDITIONAL OR DIFFERENT TERM(S) OR CONDITION(S) SHALL BE DEEMED A MATERIAL
ALTERATION OF, AND BE INAPPLICABLE TO, THIS TRANSACTION UNLESS SPECIFICALLY
AGREED TO IN WRITING BY AN OFFICER (OR DESIGNEE) OF SELLER. SUBJECT TO THE
FOREGOING, THIS AGREEMENT EXCLUSIVELY GOVERNS ALL QUOTATIONS AND SALES ENTERED
INTO BY SELLER. ACCEPTANCE OF A BUYER'S ORDER AND SELLER'S AGREEMENT TO FURNISH
PRODUCTS OR SERVICES ARE EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO THIS
AGREEMENT. An order or acceptance by a buyer (“Buyer”) of the products and
services which are subject of the order shall constitute Buyer’s acknowledgement
and agreement that this Agreement is intended to be the parties' final
expression and exclusive statement of the terms of their agreement and supersede
and prevail over all terms and conditions otherwise discussed or proposed by
Buyer or Seller, except as otherwise provided above. No course of dealing, no
usage of trade and no acceptance of or acquiescence to any course of performance
shall modify, alter or be relevant to explain or modify this Agreement.
2. PRICES AND TAXES. Prices are specified by Seller in U.S. dollars (unless another denomination is expressly identified). Prices do not include any taxes, now or hereafter enacted, applicable to the products sold or this transaction, and such taxes are to be paid by Buyer. Buyer shall submit any applicable tax-exemption certificate to Seller. Any tax-exemption certificate or other document related to Buyer’s tax liability hereunder shall be the sole responsibility of Buyer.
3. DELIVERY. Delivery of the products is EX Works (Incoterms 2000) Seller's factory or EX Works facility of Seller's agent, as designated by Seller (“Delivery”). Seller reserves the right to make partial deliveries or partial performance, which may be separately invoiced. Delay in Delivery shall not relieve Buyer of its obligation to pay for products or to accept subsequent deliveries. Seller shall not be liable for any costs, losses, damages, claims or expense (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified Delivery schedule because of production or other delays. Seller is not liable, either wholly or in part, for nonperformance or a delay in performance caused by acts of Buyer or Buyer's customer. If such a delay or a Force Majeure event under Paragraph 19 below occurs, Seller may, at its option, (1) extend the Delivery date for a time equal to the period of the delay and/or (2) allocate its available supply among its customers when it is unable to supply its total demands and/or commitments. In no event shall Seller be obligated to compensate Buyer for the re-procurement of products, services or other items from others.
4. TRANSFER OF TITLE. Title and risk of loss or damage to the products shall pass to Buyer upon Seller's Delivery of the products as described in Paragraph 3 above, whether made available to Buyer or a carrier on Buyer’s behalf for shipment to Buyer. Any loss or damage after Delivery shall not relieve Buyer from any obligations hereunder. Buyer shall be responsible for all duties, taxes, and any other expenses incurred after Delivery.
5. TERMS AND METHOD OF PAYMENT. Payment for all sales is due in advance unless credit terms have been approved by Seller. When Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, unless otherwise stated on an applicable order acknowledgement from Seller. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time for any reason. If Seller makes partial deliveries, Buyer shall pay for each partial delivery in accordance with the terms of payment hereof. When Buyer fails to make each payment when it is due, Seller reserves the right to withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. Seller's suspension of performance may result in a rescheduling delay contingent on current product availability. In the event of default by Buyer, Seller shall be entitled to costs, fees and expenses, including, but not limited to, recovery of attorneys’ fees, court costs and fees, and collection costs.
6. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS. Seller may at any time, without notice to Buyer, make changes to a product that do not adversely affect the form, fit or function of such product. Seller will notify Buyer of any major changes that affect form, fit or function of any product for which Buyer has placed an order and has an order still outstanding.
7. PATENT INDEMNITY. Seller shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any products designed and manufactured for Buyer by Seller and supplied hereunder constitute direct infringement of any duly issued United States patent of a third party, and Seller shall pay all damages and costs finally awarded therein against Buyer, provided that Seller is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at Seller's expense) necessary to defend or settle such suit or proceeding.
Seller shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with Buyer's specifications, or from a combination with, an addition to, or a modification of the products after delivery by Seller, or from use of the products in a manner inconsistent with Seller's recommendation or its intended purpose, or from the use of the products, or any part thereof, in the practice of a process. Seller's obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such suit or proceeding or other communication alleging the infringement unless Seller has given written permission for such continuing alleged infringement.
If any products manufactured and supplied by Seller to Buyer shall be held to infringe any United States patent and Buyer shall be enjoined from using same, Seller's sole obligation shall be to exert all reasonable efforts, at its sole option and at its expense, to (a) procure for Buyer the right to use such products free of any liability for patent infringement, or (b) replace such products with a non-infringing substitute otherwise complying substantially with all requirements of this Agreement, or (c) refund the purchase price and the transportation costs of such products. The extent of Seller's entire liability for any such infringement will be the purchase price paid by Buyer for such products. If the infringement by Buyer is alleged prior to completion of delivery of the products under this Agreement, Seller may decline to make further deliveries without being in breach of this Agreement.
If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Buyer's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The sale by Seller of the products ordered hereunder does not grant to, convey, or confer upon Buyer or Buyer's customers, or upon anyone claiming under Buyer, a license, express or implied, under any patent rights of Seller covering or relating to any combination, machine or process in which such products might be or are used.
The foregoing provisions of this Paragraph 7 state the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto.
8. EXCLUSIVE WARRANTIES. Except as otherwise provided herein, Seller warrants that the products are free from faulty workmanship or defective materials and conform to Seller's applicable specifications or data sheets or other mutually agreed upon written specifications, for the applicable period set forth below. Seller warrants that at the time of Delivery, Seller has title to the products free and clear of any and all liens and encumbrances. Seller's warranties shall be for the following period from date of Delivery: (a) unassembled semiconductor devices (die or wafer form) - thirty (30) days; and (b) assembled and packaged products – one (1) year.
Seller makes NO WARRANTY as to software products, experimental or developmental products, pre-production qualified products, products used as described in Paragraph 17 below, or products not manufactured by Seller, provided that as to products not manufactured by Seller, Seller, to the extent permitted by Seller's agreement with the relevant supplier, shall assign to Buyer any rights Seller may have under any warranty of that supplier. All such unwarranted products as sold to Buyer “AS IS.” Seller's warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Seller's rendering of technical advice or service in connection with Buyer's order of the products furnished hereunder.
If Seller breaches its warranties as contained herein, Seller's sole and exclusive maximum liability shall be (at Seller's option) to replace, repair, or credit Buyer's account for any such non-complying products that are returned by Buyer during the applicable warranty period set forth above, and the extent of Seller's entire liability will be the purchase price of such products, provided that Seller shall have no liability unless (a) Seller is promptly notified in writing upon discovery by Buyer that such products failed to conform to this Agreement with a detailed explanation of any alleged deficiencies, (b) Buyer receives a Return Material Authorization (“RMA”) number from Seller, (c) Seller is notified of the intended shipment date to allow Seller to arrange for shipment should Seller so desire, and (d) Seller's examination of such products shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, abuse, mishandling, neglect, alteration, negligence, improper installation, improper testing, or unauthorized repair or alteration by anyone other than Seller. Transportation charges in connection with returned products shall be at Seller's expense only if Seller is responsible under the terms of this warranty. If Seller elects to repair or replace such products, Seller shall have a reasonable time to make such repair or replacement. Such repair, replacement or credit shall constitute fulfillment of all liability of Seller to Buyer under any legal theory, including, but not limited to, contract, tort, indemnity, statutory provision or otherwise.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY AND CAN BE AMENDED ONLY BY WRITTEN INSTRUMENT SIGNED BY AN OFFICER OF SELLER. SELLER DISCLAIMS ALL OTHER WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY OTHER REPRESENTATION OR WARRANTY OBLIGATION ON THE PART OF SELLER.
9. LEGAL COMPLIANCE. Seller and Buyer shall comply at all times with all applicable federal, state, and local laws and regulations.
The products covered by this Agreement are subject to export license control by the U.S. government including, but not limited to, the U.S. Export Administrations Regulations (EARs). Buyer warrants that it will comply with all applicable export, re-export and foreign policy controls imposed by the U.S. and the country in which each is located. Buyer will take the necessary actions and precautions to ensure that its customers do not contravene such laws or regulations. Buyer agrees not to export, re-export or transship directly or indirectly, any product or Seller's technical data to any country restricted by the U.S. Government, except as authorized by the appropriate U.S. governmental agencies.
Delivery of products under this Agreement shall be subject to the ability of Seller to make such Delivery under the laws, rules and regulations of the U.S. government that are in any way related to export controls, at any time such laws, rules and regulations are in effect. Any order that has been accepted by Seller, but which cannot be fulfilled due to such laws, rules or regulations, shall be considered to have been rejected when submitted to Seller, and Seller shall have no obligations in connection therewith.
The parties acknowledge that they may each be subject to penalties for transacting business involving product, or Seller's technical information, with any customers that it knows or has reason to know are subject to denial of U.S. Export privileges, or engages, directly or indirectly in prohibited nuclear, chemical, biological or missile technologies. Buyer shall indemnify and defend Seller and Seller’s officers, directors, shareholders, employees and agents, and its successors and assigns (collectively and severally, “Indemnified Seller”) against, and hold Indemnified Seller harmless from, any loss, claim, damage, suits, costs, expenses (including without limitation attorneys, accountants and other professional fees), that arise out of or result from any breach of this Paragraph 9 by Buyer.
10. LIMITATION OF LIABILITY. Seller's sole and exclusive maximum liability to Buyer or any other third-party for all types of losses or damage, whether on account of negligence, strict liability in tort, breach of contract, breach of warranty or otherwise, at law or in equity, shall in no event exceed the total contract price for any products with respect to which losses or damage occur and shall be limited as set forth in Paragraph 8 above.
THE FOREGOING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDY FOR SELLER FURNISHING DEFECTIVE OR NONCONFORMING PRODUCTS, MATERIALS, SPARE PARTS, OR SERVICE. IN NO EVENT, INCLUDING LATE DELIVERY OR FAILURE TO DELIVER, SHALL SELLER BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, PROVISIONS REGARDING WARRANTIES, GUARANTEES, INDEMNITIES, AND PATENT INFRINGEMENT (SUCH EXCLUDED DAMAGES TO INCLUDE BUT NOT BE LIMITED TO, COSTS OF REMOVAL AND REINSTALLATION OF PRODUCTS OR ITEMS, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF USE). THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. TERMINATION/CANCELLATION, RESCHEDULE AND DEFAULT. Buyer may terminate this Agreement in whole or, from time to time, in part upon advance written notice to Seller. In such event, Buyer is subject to termination charges which shall include a price adjustment based on the quantity of products actually delivered, and all costs, direct or indirect, incurred and committed for this Agreement together with a reasonable allowance for prorated expenses and anticipated profits.
Orders may be rescheduled once with 30 days advance written notice prior to the confirmed Delivery date. In no event shall the newly requested Delivery date extend beyond 30 days from the originally confirmed Delivery date, except as otherwise permitted by Seller in its sole discretion, provided that if Seller permits such action, Seller shall have the right to require that Buyer cancel and re-submit such order. Rescheduled orders may not be later canceled, except as otherwise permitted by Seller in its sole discretion.
In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, Seller's action shall not constitute a waiver of any default by Buyer or in any way affect Seller's legal remedies for any such default.
12. U.S. GOVERNMENT CONTRACTS. If the products to be furnished under this Agreement are to be used in the performance of a U.S. Government contract or subcontract, then Buyer represents and warrants that Buyer has fully advised Seller of any related requirements under applicable U.S. Government procurement regulations or other federal law.
13. NO RIGHTS IN TECHNICAL DATA. Inasmuch as manufacturing is accomplished using Seller’s proprietary software and existing Seller technology, no rights are implied or granted to any of Seller's proprietary technical data, computer software or unique design/manufacturing processes.
14. ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the parties and the successors and assigns of the entire business and goodwill of either Seller or Buyer, or of that part of the business of either used in the performance of this Agreement, but shall not be otherwise assignable or delegated. Unauthorized assignment or delegation shall be void.
15. WAIVER. Failure by a party to take affirmative action with respect to any breach of these terms and conditions by the other party shall not be construed as a waiver of, or estoppel with respect to, that breach or any future breach. To be effective, waivers must be in writing and signed by the party waiving such breach and then, shall only be effective as to the specified breach and not to any future breach.
16. PROPRIETARY INFORMATION/RELEASE OF INFORMATION. Except as required by law, neither Seller nor Buyer shall publicly announce or disclose the existence of this Agreement or its terms and conditions, or advertise or release any publicity regarding this Agreement, without the prior written consent of the other party. This provision shall survive the expiration, termination or cancellation of this Agreement. The protection of any confidential or proprietary information of either shall be governed by the terms and conditions of any applicable Mutual Non-Disclosure Agreement executed between the parties.
17. LIFE SUPPORT POLICY. SELLER'S PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS WITHOUT THE EXPRESS PRIOR WRITTEN APPROVAL OF SELLER. As used herein: (1) life support devices or systems are devices or systems which (a) are intended for surgical implant in the body, or (b) support or sustain life and whose failure to perform when properly used in accordance with instructions for use provided in the labeling can be reasonably expected to result in a significant injury to the user; and (2) a critical component is any component in a life support device or system whose failure to perform can be reasonably expected to cause failure of the life support device or system or to affect its safety or effectiveness. Buyer shall indemnify and defend Indemnified Seller against, and hold Indemnified Seller harmless from, any loss, claim, damage, suits, costs, expenses (including without limitation attorneys, accountants and other professional fees), that arise out of or result from any breach of this Paragraph 17 by Buyer.
18. PRODUCT LIABILITY. In the event of any claim by a third party against Seller for personal injury or property damage arising out of or connected with Buyer’s product or Buyer’s design of products furnished under this Agreement, Buyer shall, at its own expense, indemnify Seller for and, defend and hold harmless Seller against, any and all losses, costs, expenses (including, without limitation, attorneys', accountants and other professional fees), or liability arising out of such claim.
19. FORCE MAJEURE. Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation (whether similar or dissimilar), acts of God, acts of a public enemy, terrorist acts, fires, floods, wars, civil disturbances, accidents, insurrections, blockades, embargos, storms, explosions, damage to its plants, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy), acts of any governmental body (whether civil or military, foreign or domestic), all perils of the seas and other waters, failure of or delay of third parties or governmental bodies from whom a party is obtaining or must obtain rights of way, easements, franchises, permits, machinery, materials, equipment, transportation, independent contracting, or supplies to grant or deliver the same, or inability to obtain labor, materials, equipment, or transportation (collectively and severally referred to herein as a “Force Majeure” event), nor shall any such failure or delay give the other party the right to terminate this Agreement. Each party shall use its reasonable efforts to minimize the duration and consequences of any failure or delay in performance resulting from a Force Majeure event.
20. SEVERABILITY. If any provision of this Agreement, or the application thereof to any circumstance, person or place, shall be held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other circumstances, persons or places shall remain in full force and effect.
21. GOVERNING LAW & VENUE. The validity, performance, interpretation and construction of this Agreement shall be governed by the laws of the state of Oregon (excluding its choice of law rules and excluding the 1980 United Nations Convention on Contracts for International Sale of Goods). Subject to Paragraph 22 below, any suit or action arising out of or in connection with this Agreement, or any breach hereof, may be brought and maintained in the federal or state courts in Portland, Oregon. The parties hereby irrevocably submit to the jurisdiction of such courts for the purpose of such suit or action and hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection it may now or hereafter have to the venue of any such suit or action in any such court.
22. DISPUTE RESOLUTION. If there is a dispute between Seller and Buyer arising from this Agreement (a “Dispute”), and the parties cannot promptly resolve it through negotiation, then either party may submit the Dispute to binding arbitration by one arbitrator in Portland, Oregon, in accordance with the rules of the American Arbitration Association, and judgment upon the arbitral award may be entered in any court having jurisdiction over Buyer or Seller or their respective assets. Buyer and Seller shall select a mutually acceptable arbitrator. If, within twenty (20) days of the notice of intent to arbitrate from one party, Buyer and Seller have failed to select an arbitrator, then the arbitrator shall be selected by the American Arbitration Association. Buyer and Seller shall be allowed reasonable depositions and discovery with the advance leave granted by the Arbitrator. Either party may, without inconsistency with this Agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect either party's rights under this Agreement pending the establishment of the arbitral tribunal or its determination of the merits of the Dispute.