74
Terms and Conditions
the case of a compromise or settlement by Seller, Seller shall have the right, at its
option and expense, to procure for Buyer the right to continue using such Goods, or
replace them with non-infringing Goods, or modify same to become non-infringing,
or grant Buyer a credit for the depreciated value of such Goods and accept return of
them. In the event of the foregoing or, if in Seller’s opinion, Seller receives a credible
allegation of infringement, Seller may also, at its option, cancel or suspend this
agreement as to future deliveries of such Goods, without liability.
8. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance
or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather;
sabotage; epidemics; strikes or labor disputes; civil disturbances or riots; governmental
requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of
or delays in transportation; default of suppliers; or unforeseen circumstances or any
events or causes beyond Seller’s reasonable control. Deliveries or other performance
may be suspended for an appropriate period of time or canceled by Seller upon notice
to Buyer in the event of any of the foregoing, but the balance of the agreement shall
otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Goods, or
to obtain material used directly or indirectly in the manufacture of the Goods, is
hindered, limited or made impracticable due to causes set forth in the preceding
paragraph, Seller may allocate its available supply of the Goods or such material
(without obligation to acquire other supplies of any such Goods or material) among
its purchasers on such basis as Seller determines to be equitable without liability for
any failure of performance which may result therefrom.
9. RESCHEDULE/CANCELLATION: Unless otherwise agreed in writing by Seller, orders
under this agreement may not be rescheduled or canceled by Buyer for any reason.
10. CHANGES: Buyer may request changes or additions to the Goods and/
or Software consistent with Seller’s specifications and criteria. In the event such
changes or additions are accepted by Seller, Seller may revise the price, license
fees and dates of delivery.
Seller reserves the right to change designs and specifications for the Goods and/or
Software without prior notice to Buyer, except with respect to Goods and/or Software
being made to order for Buyer. Seller shall have no obligation to install or make such
change in any Goods and/or Software manufactured prior to the date of such change.
11. NUCLEAR/MEDICAL: GOODS AND SOFTWARE SOLD HEREUNDER ARE
NOT FOR USE IN CONNECTION WITH ANY NUCLEAR, MEDICAL, LIFE-
SUPPORT AND OTHER HIGH RISK APPLICATIONS WHERE GOODS OR
SOFTWARE FAILURE COULD LEAD TO LOSS OF LIFE OR CATASTROPHIC
PROPERTY DAMAGE. Buyer accepts Goods and Software with the foregoing
understanding, agrees to communicate the same in writing to any subsequent
purchasers or users and to defend, indemnify and hold harmless Seller from
any claims, losses, suits, judgments and damages, including incidental and
consequential damages, arising from such use, whether the cause of action be
based in tort, contract or otherwise, including allegations that the Seller’s liability is
based on negligence or strict liability.
12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder
or any interest herein without the prior written consent of Seller, and any such
assignment, without such consent, shall be void.
13. SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller
or applicable third party licensor to Seller shall retain all rights of ownership and title
in its respective Software, including without limitation all rights of ownership and title
in its respective copies of such Software. Except as otherwise provided herein, Buyer
is hereby granted a nonexclusive, non-transferable royalty free license to use the
Software incorporated into the Goods solely for purposes of Buyer properly utilizing
such Goods purchased from Seller. All other Software shall be furnished to, and
used by, Buyer only after execution of Seller’s (or the licensor’s) applicable standard
license agreement, the terms of which are incorporated herein by reference. The
Software is Seller’s own or Seller’s supplier’s proprietary information, and Buyer and
its employees and agents shall not disclose the Software to others without Seller’s
prior written consent.
14. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the
Goods and are due and payable upon completion of the tooling. All such tools, dies
and patterns shall be and remain the property of Seller. Charges for tools, dies, and
patterns do not convey to Buyer, title, ownership interest in, or rights to possession
or removal, or prevent their use by Seller for other purchasers, except as otherwise
expressly provided by Seller and Buyer in writing with reference to this provision.
15. INTELLECTUAL PROPERTY: Seller’s intellectual property, including without
limitation, all patents, copyrights, trade secrets, trade-dress and any other intellectual
property of any kind (including without limitation, that which exists in the underlying
technology), furnished by Seller to Buyer in connection with this agreement is the
property of Seller and Seller retains all rights, including without limitation, exclusive
rights of use, licensing, and sale. Possession of Goods, pre-production units,
specifications, prints or drawings, or any other materials does not convey to Buyer
any rights or license thereto.
16. BUYER’S COMPLIANCE WITH LAWS: In connection with the transactions
contemplated by this agreement, Buyer is familiar with and shall fully comply with all
applicable laws, regulations, rules and other requirements of the United States and
of any applicable state, foreign and local governmental body in connection with the
purchase, license, receipt, use, transfer and disposal of the Goods and/or Software.
17. EXPORT/IMPORT: Buyer agrees that all applicable import and export control
laws, regulations, orders and requirements, including without limitation those of the
United States and the European Union, and the jurisdictions in which the Seller and
Buyer are established or from which Goods and/or Software may be supplied, will
apply to their receipt and use. In no event shall Buyer use, transfer, release, import,
export, Goods and/or Software in violation of such applicable laws, regulations,
orders or requirements.
18. GOVERNMENT CONTRACT CONDITIONS: In the event Buyer supplies
Goods or Software to the U.S. Government or to a prime contractor selling to the
U.S. Government, the following Federal Acquisition Regulation (FAR) clauses are
accepted by Seller and are made part of this agreement applicable to such supply:
52.222-21 Prohibition of Segregated Facilities; 52.222-26 Equal Opportunity;
52.222-35 Equal Opportunity For Special Disabled Veterans, Veterans of Vietnam
Era, and Other Eligible Veterans; 52.222-36 Affirmative Action For Workers with
Disabilities; and 52.219-8 Utilization of Small Business Concerns. No additional FAR
or FAR Supplement clauses are accepted by Seller. In the event Buyer elects to
sell Goods or Software to the U.S. Government or any national, state, provincial or
local non-U.S. governmental entity or to a prime contractor selling to such entities,
Buyer does so solely at its own option and risk, and agrees not to obligate Seller
as a subcontractor or otherwise to the U.S. Government or other governmental
entity except as described in this Section 18. Buyer remains solely and exclusively
responsible for compliance with all statutes and regulations governing sales to the
U.S. Government or any national, state, provincial or local non-U.S. governmental
entity. Seller makes no representations, certifications or warranties whatsoever with
respect to the ability of its Goods, Software, or prices to satisfy any such statutes
and regulations.
19. GENERAL PROVISIONS: These terms and conditions supersede all other
communications, negotiations and prior oral or written statements regarding the
subject matter of these terms and conditions. No change, modification, rescission,
discharge, abandonment, or waiver of these terms and conditions shall be binding
upon the Seller unless made in writing and signed on its behalf by a duly authorized
representative of Seller. No conditions, usage of trade, course of dealing or
performance, understanding or agreement purporting to modify, vary, explain, or
supplement these terms and conditions shall be binding unless hereafter made
in writing and signed by the party to be bound, and no modification or additional
terms shall be applicable to this agreement by Seller’s receipt, acknowledgment, or
acceptance of purchase orders, shipping instruction forms, or other documentation
containing terms at variance with or in addition to those set forth herein. Any such
modifications or additional terms are specifically rejected and deemed a material
alteration hereof. If this document shall be deemed an acceptance of a prior offer
by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any
additional or different terms set forth herein. No waiver by either party with respect
to any breach or default or of any right or remedy, and no course of dealing, shall
be deemed to constitute a continuing waiver of any other breach or default or of
any other right or remedy, unless such waiver be expressed in writing and signed
by the party to be bound. All typographical or clerical errors made by Seller in any
quotation, acknowledgment or publication are subject to correction. In the event that
any provision or portion thereof contained in the Contract is held to be unenforceable,
the Contract shall be construed without such provision or portion thereof.
(A) If Seller is a U.S. incorporated entity: This Agreement shall be governed by the
laws of the State of Delaware, U.S.A., without reference to its choice or conflict of
laws principles. The parties agree to submit to the exclusive jurisdiction of the courts
of the State of Delaware for all actions arising in connection herewith.
(B) If Seller is a European incorporated entity: This Agreement shall be governed by
the laws of England. Any dispute arising out of or in connection with this Agreement
that cannot be resolved through friendly consultation shall be referred to and finally
resolved by arbitration in London, England before the London Court of International
Arbitration in accordance with its arbitration rules. The arbitral award shall be final
and binding on the parties.
(C) If Seller is an entity incorporated in the Asia Pacific region: This Agreement shall
be governed by the laws of the Hong Kong Special Administrative Region of the
People’s Republic of China. Any dispute arising out of or in connection with this
Agreement that cannot be resolved through friendly consultation shall be referred to
and finally resolved by arbitration in Hong Kong before the Hong Kong International
Arbitration Centre in accordance with its arbitration rules. The arbitral award shall be
final and binding on the parties.
(D) No action, regardless of form, arising out of transactions relating to this
agreement, may be brought by either party more than two (2) years after the cause
of action has accrued. The U.N. Convention on Contracts for the International Sales
of Goods shall not apply to this agreement.
Revised March 13, 2012