Terms & Conditions at AppliedMicro
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1. ACCEPTANCE. The Terms of Sale described below govern all sales of products by AMCC Sales Corporation and its parent or affiliate companies including but not limited to AppliedMicro TPACK A/S Danish Reg. No. 26206723 (collectively “Seller”). These terms supersede and take precedence over any terms or conditions which may appear on Customer’s order form or other documentation. All such terms, including Customer’s terms and conditions, shall be of no force or effect and are hereby expressly objected to by Seller. Seller’s failure to specifically object to provisions contained in any communication from Customer shall not be deemed a waiver of any of these Terms of Sale, and Seller states its intent that sales of its Products occur only in accordance with these terms and conditions.
2. PRICE. The prices quoted hereon shall be valid for the period of time indicated on reverse hereof and the price upon which an order is accepted shall be as shown on Seller's acknowledgment. The prices quoted for the items described on said acknowledgment are firm and not subject to audit or price redetermination. Otherwise, prices are subject to change without notice.
3. TAXES. All fees and other payments under these Terms shall be net of any tax, including withholding taxes, if any. Customer shall pay, reimburse or neutralize the effect of all taxes and duties associated with transactions under these Terms, except taxes in Seller’s country of domicile based on Seller’s income.
4. PAYMENT. Allinvoicesaredueandpayablethirty(30)calendardaysfromdateofinvoice.Seller may at any time decline to make any shipments or deliveries or perform any work except upon receipt of paymentorupontermsandconditionsorsecuritysatisfactorytoSeller. Ifanysumisnotpaidbyitsduedate, then Seller without prejudice to its other rights and remedies reserves the right to charge interest on such sum from the due date to the date of payment at the rate of 1.5% per month.
(A) If in the judgment of Seller, the financial condition of Customer does not justify continuation of production or shipment on the terms of payment originally specified, Seller may require full or partial payment in advance.
(B) In the event of the bankruptcy or insolvency of Customer, or in the event any proceeding are brought against Customer under the bankruptcy or insolvency laws, to the extent permitted by law, Seller shall be entitled to cancel any order then outstanding, cease performance, and shall receive reimbursement from Customer for costs reasonably incurred, in additional to all other legal and equitable remedies. Such reimbursable costs shall include, but are not necessarily limited to, cancellation charges.
(C) In the event Seller does not ship or Customer does not take delivery of the full order quantity, Customer agrees to pay Seller, and Seller reserves the right to invoice Customer, for the actual quantity delivered against the order.
5. SHIPPING AND TITLE. All sales are made F.C.A. Applied Micro Circuits Corporation’s facility per INCOTERMS 2000. Title shall pass to Customer, and Seller’s liability as to delivery shall cease, upon delivery to the carrier at the facility. Risk of loss or damage shall be borne by Customer after the articles are delivered to the carrier and Customer shall be responsible for filing any necessary claims with the carrier. Seller will use its own discretion for selection of shipment mode unless Customer expresses specific instructions.
6. DELIVERY. Shipping dates are approximate and are based upon prompt receipt from Customer of all necessary information. Seller may ship products up to fourteen (14) calendar days early.
(A) If Seller should find that it will be unable to meet the shipping dates, Seller will notify Customer of the time when such delivery will be made and such date shall become the agreed-upon delivery date unless Customer objects to such date in writing within five (5) days of receipt of notice. Seller shall not be in breach of its obligations if it delivers products within a reasonable time, and in no event within thirty (30) days after Seller’s acknowledged delivery date. If Seller fails to deliver product within a reasonable time of its acknowledged delivery date, Customer may cancel its order, upon written notice delivered to Seller prior to Seller’s delivery of the products, as Customer’s exclusive remedy for Seller’s failure to deliver products.
(B) Excepting Images and Drivers provided under Section 8 below, delivery schedules are firm for sixty (60) days for standard products and ninety (90) days for all other products.
(C) Excepting Images and Drivers provided under Section 8 below, Customer’s order quantity will be delivered in full. However, due to the nature of the product and the associated variables in production runs, Seller reserves the right to overship production orders by an amount not to exceed ten percent (10%) of the total order quantity. Seller reserves the right to ship, and Customer agrees to accept, partial order quantities. Customer agrees to make appropriate adjustments to their Purchase Order to accommodate any quantity changes. Orders may not be placed for delivery later than twelve (12) months after order placement.
7. TERMINATION/ CANCELLATIONS/RESCHEDULES – Cancellation, reschedules, or termination may only be exercised as described below:
(A) Default - If either party breaches any material provision of an agreement, the other party may cancel and terminate all licenses provided written notice thereof is given the breaching party not later than thirty (30) days prior to the effective date of termination and such breach is not cured within the aforesaid period. In the event of such termination, if Seller is the breaching party, then Customer shall be entitled to recover all monies paid for product not delivered, as its exclusive remedy for breach by Seller. If Customer is the breaching party, then Seller shall be entitled to payment for all monies owed for products ordered prior to termination, including outstanding payments and royalties. In the event of termination for any reason, the duties and restrictions applicable to the Customer/Licensee, and the limitations and disclaimers of Seller shall survive.
(B) Cancellations - Customer may cancel an order for Supplier's completed engineering prototypes or production products upon written notice delivered to Supplier no less than sixty (60) days prior to the scheduled shipping date. Orders for Supplier's custom products may not be cancelled. Orders designated as Non-cancelable may not be canceled.
(C) Reschedules - Buyer may reschedule an order for Supplier's standard products up to three (3) times, upon written notice delivered to Supplier no less than sixty (60) calendar days prior to the scheduled shipping date, to a date no later than ninety (90) calendar days after the originally scheduled shipping date. Buyer may reschedule an order for Supplier's custom products up to three (3) times, upon written notice delivered to Supplier no less than ninety (90) calendar days prior to the scheduled shipping date, to a date no later than ninety (90) calendar days after the scheduled shipping date. Rescheduled orders may not be cancelled.
8. SPECIAL ADDITIONAL TERMS – the following additional terms shall apply only to the sale of FPGA Images and FPGA Drivers (For purposes of clarity FPGA device sales are a matter between the Customer/Licensee and a third party FPGA device supplier) :
(A) License Grant-
A.1 Seller grants to Customer (also referred to as “Licensee”) a non-transferable, non-exclusive, royalty-bearing license to manufacture, have manufactured, use, distribute and sell products containing certain encrypted FPGA design files, in binary code format, that are used to program FPGA components with a particular design (“Images”) and software drivers (“Drivers”) owned by and proprietary to Seller and identified in a written document signed by Seller and subject to these Terms and any additional terms and provisions laid out in the aforesaid document.
A.2 Images may only be downloaded onto FPGAs. Any download or other transfer of Images to other media, such as but not limited to, transfer from FPGA to a structured ASIC (such as Altera’s HardCopy® or Xilinx’s EasyPathTM and HardWireTM) or to ASIC, shall be subject to separate written agreement with Seller. Seller undertakes to support Licensee with regard to any conversion of Images to other media, subject to payment of a reasonable fee agreed separately in writing. If Licensee involves any third parties in the performance of downloads, such third parties shall be pre-approved by Seller in writing.
A.3 Drivers may only be used with Images. If the parties agree in writing that Licensee shall receive Driver source codes and be permitted to modify such codes, the following provisions shall apply as a minimum: (a) the number of employees permitted access to the source codes shall be limited to what is reasonably necessary and each employee shall personally undertake to treat and maintain the source codes as confidential and not to use the source codes or any modifications thereof except for making the permitted modification for Licensee; (b) the source codes and any modifications thereof may only be used with Images and any such use will be subject to Licensee’s paying of Royalty to Seller. Any such adaptations, translations, modifications, corrections or derivative works (“Modifications”) of the source codes shall remain subject to these Terms, except that Seller disclaims any and all liability and warranties concerning Modifications and anything caused by Modifications.
(B) Services – Special Configurations
B.1 Seller may undertake to configure or otherwise modify its Images and/or Drivers against payment of a separately agreed fee.
B.2 Seller retains all rights to configurations and other modifications and the right to use these in other contexts, unless Seller expressly and in consideration of separate payment has undertaken specific, time-limited and/or volume dependent limitations.
B.3 Any request for changes of Images, Drivers, configurations and other modifications undertaken by Seller whether in progress or completed shall be forwarded in writing. In reply to such requests Seller shall assess any influence on time and payment schedules agreed. Licensee may request that Seller suspends further work until revised terms have been agreed, but Seller shall not be obliged to change agreed specifications before agreement has been reached on the impact of the requested changes.
B.4 Seller’s liability for delays pursuant to this Section 8(B) shall be limited to not receiving milestone payments agreed for services that are not due. Payment for any services performed by Seller before termination of Seller’s services shall fall due upon termination.
(C) Restrictions
C.1 Licensee may not use the Images or Drivers except as expressly provided for in these Terms, or sublicense or transfer the Images or Drivers or rights thereto, unless expressly permitted by Seller in writing.
C.2 The source and object code of the Images and Drivers, and algorithms, concepts, techniques, methods and processes embodied therein, constitute trade secrets and confidential and proprietary information of Seller, and Licensee shall not access, decompile, disassemble, or otherwise reverse engineer, or attempt to access or derive the source or object code or use such trade secrets and information in any manner, except to the extent expressly permitted by Seller in writing.
C.3 Any copies and portions of the Images or Drivers made by or for Licensee shall include intellectual property notices, including copyright and proprietary rights notices, as reasonably determined by Seller.
C.4 Seller retains all rights with respect to the Images and Drivers, including any patent, copyright, trade secret and other proprietary rights, not expressly granted to Licensee herein.
C.5 Any attempt to assign the rights and obligations of these Terms by Licensee shall be null and void.
(D) Payments for Images and Drivers
D.1 Licensee’s right to use the licenses granted under these Terms is subject to payment of fees defined in a written document signed by Seller. The fee is payable for each Image downloaded or otherwise installed for execution in a product manufactured for Licensee’s own use, or distributed, shipped or sold by Licensee to a third party.
D.2 Seller may authorize a supplier or distributor of FPGAs to collect and receive the above- mentioned fees on Seller’s behalf implying that Licensee may fulfill its duty to pay the fees, including any minimum payments, by paying the authorized supplier or distributor of FPGAs aggregated amounts that cover payment for FPGAs as well as the fees. Seller may revoke such authorization with a written notice of at least 30 days.
D.3 Licensee shall by the end of each calendar quarter provide non-binding written forecasts covering each of the coming four calendar quarters, unless otherwise agreed. Licensee shall identify an employee or a staff function as responsible for submission of such forecasts to Seller.
D.4 Unless the provisions of sub-section D.2 above applies, Licensee shall provide written point of sales reports to Seller within 10 days after the end of each calendar month describing the number of products manufactured, the number of products put into use, distributed, shipped or sold by Licensee and the total fee due to Seller for such month. Unless otherwise agreed in writing, Licensee shall pay fees on a monthly basis concurrently with its submission of the applicable point of sales report.
D.5 Licensee shall keep all records of account as are necessary to demonstrate compliance with its obligations for a period of 5 years from the submission date of each point of sales report. Seller shall have the right, upon 5 business days’ advance notice to Licensee, to inspect, or have inspected by independent auditors Licensee’s books, records, and other documentation including computer files during normal business hours to determine whether Licensee is complying with these Terms and to determine the accuracy of royalty reports. Such audit shall be at Seller’s expense unless it reveals an underpayment of amounts due of 5% or more, in which case Licensee shall reimburse Seller for the reasonable costs of such audit. Any deficiencies shall be promptly corrected. Auditors may be subjected to usual confidentiality undertakings.
(E) Support, Maintenance and Bug Fixes
E.1 Until the first occurrence (the “Image and Driver Warranty Period”) of any of the following events: (i) the passing of pre-agreed tests; (ii) the commencement of commercial use or sale; or (iii) three months after delivery, Seller shall for Images or Drivers delivered to the Licensee (a) use commercially reasonable efforts to provide Licensee with fixes to imperfections in the Images or Drivers that cause the Images or Drivers not to conform in all material aspects to the specifications agreed by the parties in writing (“Bug Fixes”) and that are diagnosed as such and can be replicated by Seller; (b) provide Licensee with Bug Fixes to the Images and Drivers that Seller chooses to make generally available to its licensees without a separate charge; and (c) respond by telephone or email to inquiries from Licensee. Supply of enhancements and updates concerning new international standards and other new versions of Images and Drivers will be subject to separate agreement.
E.2 Any obligation by Seller to support, maintain or bug fix the Images or Drivers after the Image and Driver Warranty Period will be subject to payment to Seller in accordance with separate support and maintenance terms agreed. Seller’s liability for support and maintenance is limited to the most recent 12 months support and maintenance fee paid.
E.3 Seller reserves the right to change and update its Images and Drivers.
(F) Limited Warranties and Remedies for Images and Drivers
F.1 The Images or Drives shall be deemed accepted upon delivery by Seller. Seller represents and warrants that, during the Warranty Period, the Images and Drivers will in all material aspects conform to the specifications agreed by the parties in writing if used in compliance with Seller’s instructions.
F.2 Licensee’s sole remedy, and Seller’s sole obligation, for breach of this warranty shall be (a) for Seller to use commercially reasonable efforts to remedy the nonconformance by reprogramming, or (b) if Seller is unable in all material aspects to remedy the nonconformance by reprogramming, for Licensee to receive a credit not to exceed Royalty and payments made to Seller for the non- conforming configuration for Images and Drivers materially affected by the nonconformance. If Licensee receives a full credit, Licensee agrees that Licensee’s license and rights under these Terms for the non-conforming Images or Drivers shall immediately terminate.
F.3 The foregoing warranties are provided only to Licensee and may not be transferred or extended to any third party, and apply only for claims reported together with evidence thereof during the Warranty Period. Licensee shall comply with Seller’s processes as requested, and shall provide Seller with such evidence of alleged non-conformities as Seller may reasonably request, and Seller shall have no obligation to remedy any non-conformance that cannot be replicated. The warranties do not extend to any Images or Drivers which have been subject to misuse, negligence or accident, or modified by anyone other than Seller. Licensee shall not use the products in nuclear facilities, life support or other medical device applications, avionics for the control of or communication with aircraft or air traffic control, emergency communications or other public safety systems, or any other application constituting an inherently danger activity, or where their use could result in a risk of catastrophic loss involving a significant risk of personal injury or death, and Licensee shall indemnify and hold harmless Seller and its affiliates against claims, damages and losses resulting from such unauthorized use.
F.4 EXCEPT AS EXPRESSLY PROVIDED UNDER THESE TERMS, NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE IMAGES OR DRIVERS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN. EXCEPT AS OTHERWISE DESCRIBED UNDER THESE TERMS, LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE IMAGES OR DRIVERS AND ANY PRODUCT IN WHICH THE IMAGES OR DRIVERS MAY BE USED. SHOULD THE IMAGES OR DRIVERS PROVE NON-CONFORMING, SELLER DOES NOT ASSUME LIABILITY FOR ANY COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION, EXCEPT AS OTHERWISE DESCRIBED UNDER THESE TERMS OR AGREED BY THE PARTIES IN WRITING.
(G) Indemnification regarding Images and Drivers
G.1 Subject to the limitations below, Seller shall defend Licensee against any proceeding brought by a third party to the extent based on a claim that the Images or Drivers, as delivered by Seller and used in accordance with these Terms, directly infringes a third party’s United States or European Union member state patent issued prior to the date of Seller’s quote, or a third party’s copyright, trade secret or trademark, and pay any damages awarded in the proceeding as a result of the claim (or pay any amount agreed to by Seller as part of a settlement of the claim), provided that Seller shall have no liability hereunder unless (a) Licensee notifies Seller promptly in writing of any such proceeding or claim; (b) gives Seller sole and complete authority to control the defense and settlement of the proceeding or claim; (c) to the extent that any license held by Licensee with an allegedly infringed third party (e.g. cross licenses) can serve to shield Seller from such liability, and (d) provides Seller with any information, materials, and other assistance reasonably requested by Seller.
G.2 In the event of any such claim or proceeding or threat thereof, Seller may (and, in the event any such claim or proceeding results in the issuance of an injunction by a court of competent jurisdiction prohibiting Licensee from using the Images or Drivers, Seller shall), at its option and expense, but subject to the limitations below, seek a license to permit the continued use of the related Images or Drivers or use commercially reasonable efforts to replace or modify the Images or Drivers so that the replacement or modified version is non-infringing or has a reduced likelihood of infringement, provided that the replacement or modified version has functionality in all material aspects similar to that of the original. If Seller is unable reasonably to obtain such license or provide such replacement or modification, Seller may terminate Licensee’s license and rights with respect to the related Images or Drivers, in which event Licensee shall return to Seller the related Images or Drivers, including all copies and portions thereof in any form (including any portions thereof merged into a design or product), and certify the same to Seller, and Seller shall refund the fees paid by Licensee to Seller during the previous six months for the related Images or Drivers. For Images where fees have been included in the price for FPGAs (cf. sub-section
D.2), the amount to be refunded shall be determined as a reasonable percentage of the price paid
by Licensee for the FPGAs not to exceed 25% thereof.
G.3 Seller shall have no liability or obligation to Licensee hereunder for any infringement or claim based on or resulting from (a) the combination or use of the Images or Drivers with other products or components, to the extent that the infringement arises from such combination or use; (b) modification of the Images or Drivers by anyone other than Seller, (c) the use of other than the most recent version of the Images or Drivers made available to Licensee if the infringement or claim would have been avoided (or the likelihood thereof reduced) by use of this version; (d) special requirements specified by Licensee; (e) use of the Images or Drivers in any way that could not reasonably be expected by Seller; and (f) any use of the Images or Drivers, to the extent that Seller has indicated that third-party licenses may be required to use such Images or Drivers if Licensee has not obtained the necessary third-party licenses.
G.4 Licensee shall not be entitled to hold suppliers of FPGAs facilitated or authorized by Seller responsible any claimed or actual infringement of third parties’ intellectual property rights by Seller’s technology.
G.5 THE PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF SELLER, AND LICENSEE’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES, WITH RESPECT TO ANY PROCEEDING OR CLAIM RELATING TO INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT.
9. FORCE MAJEURE. Seller will not be liable for delay of delivery or other performance due to causes beyond its control, including but not limited to: Acts of God, acts of governmental, quasi- governmental or military authority, fires, floods, earthquakes or other natural disaster, epidemic or quarantine, acts of terrorism or the effects thereof, strikes, freight embargoes or the inability, due to causes beyond Seller’s reasonable control, to obtain necessary labor, materials or manufacturing. In the event of such delay, the delivery date shall be extended for a period equal to the time lost by reason of the delay. In the event production of the products ordered is curtailed for any of the above reasons such that Seller cannot deliver the full amount ordered, Seller may allocate deliveries among its various customers then under contract for similar goods. The allocation will be made in a commercially fair and reasonable manner. When allocation has been made, Customer will be notified of the estimated quota made available.
10. CONFIDENTIALITY.
(A) Each of the parties agrees to prevent any unauthorized disclosure and use of confidential information belonging to the other party. For avoidance of doubt, Seller’s confidential information includes information pertaining to the Images and the Drivers, including any accompanying manuals and other documentation, unless expressly intended for disclosure to end-users.
(B) Each of the parties agrees to provide prompt notice to the other party of any unauthorized disclosure or use of confidential information belonging to the other party which comes to its knowledge.
(C) Customer/Licensee may not disclose any of Seller’s source or object code or modifications thereto or derivative works thereof to any third party without Seller’s written consent.
(D) Unless otherwise agreed Seller shall be entitled to include Customer/Licensee in its list of references.
11. INVENTIONS AND INTELLECTUAL PROPERTY RIGHTS. Customer acknowledges that Seller or its affiliates own all rights, title and interest in and to the intellectual property rights and other proprietary rights embodied in the products, all mask sets and processing information relating thereto, and to all inventions conceived or improved in the performance of an order for the products. Supplier shall retain any and all rights to file any patent applications thereon. Except as expressly set forth herein, the sale of products by Seller does not transfer any of Seller’s intellectual property rights or convey any license, expressly or by implication, estoppel or otherwise, to any of Seller’s intellectual property, except for the limited right to incorporate the products (excluding the Images and Drivers referenced in Section 8 above) into Customer’s systems for re-sale in those systems.
12. WARRANTIES AND REMEDIES FOR ICs, HBA’s, RAID and Software not addressed in Section 8
Sales Terms Revised 2-10-11
13.
(A) SELLER’S WARRANTIES FOR PRODUCTS OTHER THAN THE FPGA IMAGES AND DRIVERS REFRENCED IN SECTION 8 HEREIN ARE ONLY AS FOLLOWS, AND ARE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 12(B) BELOW:
(i) All integrated circuits (“ICs”)that, pursuant to Customer’s order, are delivered not finished or fully encapsulated and all integrated circuits which Seller has not designated as “released for production”, including development grade devices and other engineering prototypes, are sold “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, AGAINST INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. For all 10Gb/s Integrated Circuits for the physical layer (PHY), the non-conformity of the products sold in bare die form is limited to failure to meet incoming visual inspection within sixty (60) days of receipt of products, following MIL-STD-883, Method 2010 or MIL-STD 750, Method 2072/2073, and must include a Failure Analysis and Return of Material Authorization from Seller prior to the return of the products. CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES AGAINST ANY AND ALL CLAIMS ASSERTED AGAINST THEM IN CONNECTION WITH SUCH PRODUCTS.
(ii) All IC’s which have been released to production by Seller and are Finished and Fully Encapsulated are warranted to operate in substantial conformance to Seller’s applicable specifications in effect at the time of shipment for a period of one year from the time of shipment under normal use.
(iii) All host bus adaptor products (“HBA’s”), and Redundant Array of Independent Disc (“RAID”) products are warranted for a period of three years from the time of shipment to operate in substantial conformance with Seller’s applicable specifications at the time of shipment under normal use.
(iv) Excepting the Images and Drivers referenced in Section 8 above, all Software, whether or not provided with IC’s, HBA’s or RAID products, is warranted for a period of 90 days after shipment to operate in substantial conformance with Seller’s applicable specifications at the time of shipment .
(v) Seller’s exclusive obligations and Buyer’s exclusive remedies under the foregoing warranties are, at its option, limited to replacing, repairing or giving credit for, any of said products which are returned to Seller, transportation prepaid, during the applicable warranty period.
(B) The warranties set forth in this section are subject to each of the following limitations:
(i) The foregoing warranties only apply to products which have been determined by Seller to not conform to the applicable warranty set forth above, and for which Seller has issued a Return Materials Authorization.
(ii) The foregoing warranties shall not apply to any product which shall have been repaired or altered, except by Seller, or which shall have been subjected to misuse, negligence or accident, or which was not used in accordance with its specifications.
(iii) Seller does not warrant that the product shipped will operate in combination with other products which may be selected for use by Customer unless such functionality is stipulated and agreed to in writing by Seller. Except where agreed in writing with Seller in designated instances, Customer shall not use the products in nuclear facilities, life support or other medical device applications, avionics for the control of or communication with aircraft or air traffic control, emergency communications or other public safety systems, or any other application constituting an inherently danger activity, or where their use could result in a risk of catastrophic loss involving a significant risk of personal injury or death, and Customer shall indemnify and hold harmless Seller and its affiliates against claims, damages and losses resulting from such unauthorized use.
(iv) THE WARRANTIES AND REMEDIES SET FORTH ABOVE REGARDING IC’s, HBA’s, RAID and SOFTWARE NOT ADDRESSED IN SECTION 8 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED OR STATUTORY. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR ANY WARRANTY OF TITLE OR AGAINST INFRINGEMENT. THERE ARE NO WARRANTIES EXCEPT AS SET FORTH IN THIS SECTION.
(C) This warranty allocates risks of product failure between Seller and Buyer. This allocation is recognized by both parties and is reflected in the price of the products. Buyer acknowledges that it has read this warranty, understands it, and is bound by its terms.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER OR ITS AFFILIATES BE LIABLE TO CUSTOMER, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNIFICATION OR ANY OTHER LEGAL THEORY, FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR DAMAGE TO PROPERTY, OR DAMAGE CAUSED BY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS EXCEPT AS EXPRESSLY SET FORTH HEREIN, EVEN IF SELLER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER AND ITS AFFILIATES’ LIABILITY HEREUNDER SHALL NOT EXCEED THE LESSER OF 1) THE PURCHASE PRICE PAID BY CUSTOMER FOR PRODUCTS PURCHASED FROM SELLER PURSUANT TO THIS ACKNOWLEDGEMENT WITHIN THE 6 MONTHS PRIOR EVENTS ON WHICH THE CLAIM IS BASED OR 2) FIVE HUNDRED THOUSAND DOLLARS ($500,000). THIS LIMITATION OF LIABILITY APPLIES TO ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST CUSTOMER AND SHALL NOT BE AFFECTED BY ANY FAILURE OF CUSTOMER’S REMEDIES SET FORTH ABOVE. ANY CLAIMS CONCERNING LOSSES OR DAMAGES SUFFERED BY CUSTOMER SHALL BE MADE AS SOON AS POSSIBLE AFTER CUSTOMER HAS BECOME AWARE OF THE BASIS FOR SUCH CLAIMS AND NO LATER THAN 2 YEARS AFTER THE DATE OF THE AGREEMENT THE CLAIMS PERTAINS TO. FOR IMAGES INCLUDING FPGAs (Section 8), THE AGGREGATE AMOUNT OF PAYMENTS MADE BY LICENSEE TO SELLER SHALL BE DETERMINED AS A REASONABLE PERCENTAGE OF THE PRICE PAID BY LICENSEE FOR THE FPGAS NOT TO EXCEED 25% THEREOF.
14. EXPORT CONTROL. Customer certifies that it will not transfer any information or product which it receives from Seller to any person, entity, or country prohibited from obtaining such information or product by the U.S. Department of Commerce Export Administration Regulations, or other agency of any government, and where export is permitted, obtain any necessary export license. Seller upon request will provide published technical information relating to any product to the extent required for export classification purposes.
15. GOVERNMENT CONTRACTS. If the products to be furnished under this order are to be used in the performance of a government contract or subcontract, there shall be incorporated herein such Federal Acquisition Regulations (FAR) and Department of Defense FAR Supplement (DFAR) as are required by law and such further FAR and DFAR regulations as are requested by Buyer in writing and accepted by Seller. 16. ASSIGNMENT. The rights and obligations under these Terms cannot be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that Seller may assign all its rights and obligations under these Terms to a purchaser of all or substantially all of its assets, and provided further that the assignee agrees in writing to be bound by and comply with these Terms.
17. INSURANCE. Customer assets, such as but not limited to test equipment, lent to Seller or placed at Seller’s facilities shall be fully insured by Customer and remain Customer’s risk. 18. ARBITRATION Except with respect to disputes regarding payment by Customer for devices ordered and/or delivered, any contInoversy or claim arising out of or relating to a contract, or the breach thereof, shall
be settled by arbitration before a single arbitrator in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties shall be entitled to pre-hearing discovery in accordance with the California Code of Civil Procedure, Section 1283.05. Such arbitration proceedings will be conducted in San Jose, California. Notwithstanding the above, Seller shall at its discretion be entitled to subject a dispute to settlement under the law and by the appropriate courts of the country in which Customer is domiciled.
19. NOTICE Any notice, request, demand or other communication required shall be deemed to be properly given (i) if personally delivered; or (ii) ten days after the postmark, if mailed by registered mail; or (iii) one business day after being facsimiled or sent via Federal Express or similar service to the addresses so specified by the Customer and Seller; or (iv) upon confirmation of receipt, if delivered via electronic mail.
20. WAIVER The failure of any party to enforce any provision shall not be construed as a waiver of such provision, nor prevent such party thereafter from enforcing such provision or any other provision.
21. ENTIRE AGREEMENT These provisions supersede all prior offers, negotiations or agreements between the parties whether written or oral, and all other terms, discussions or understandings, whether set forth in Customer’s purchase order or other documentation, and contain the entire agreement of the Parties respecting the sale. No modification of any provision of these Terms of Sale shall be effective unless agreed to in writing by Seller.
