TERMS AND CONDITIONS OF SALE AND QUOTATION
ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY CONFIRMATION IN WRITING BY SELLER'S AUTHORIZED OFFICERS. These items and conditions apply to all quotations made and purchase orders accepted by Seller; they are an integral part of the sale contract between Seller and Buyer. Whenever these terms and conditions conflict with or are expanded or added to by any terms and conditions of Buyer's order, these terms and conditions shall govern and supersede the terms and conditions of the Buyer's order. Seller's failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions. Any changes in the terms and conditions of sale contained herein must be specifically agreed to in writing signed by an authorized officer of Seller before becoming binding on Seller.
Subject to the provisions hereof, all quotations submitted are firm for thirty (30) days from the date of the quotation unless indicated differently on the face of the quotation, and thereafter Seller may change the quotation without notice. Price quotations, including any applicable quantity break prices, apply only to quantities shipped within twelve (12) months from date of quotation.
Applicable prices are those specified in Seller's quotation or, if the quotation has expired, those specified in Seller's confirmation and do not include applicable destination charges or taxes. Seller reserves the right to quote and/or adjust prices involving precious metal content of products to reflect fluctuations in precious metal prices. Prices are subject to revision when interruptions, delays, engineering changes or changes in the quality are caused or requested by Buyer. Prices are also subject to revision based on changes in economic and financial conditions after the date of quotation or confirmation over which Seller has no control. All prices quoted and confirmed are subject to correction for clerical errors.
In addition to the applicable prices, Buyer agrees to pay an amount equal to any and all applicable federal, state, and local taxes, duties and other levies, which amounts shall be an additional charge to Buyer hereunder.
Standard packaging for domestic commercial shipment is included in the quoted price. When special packaging is specified or required involving expense exceeding that for standard domestic commercial shipment, Buyer will reimburse Seller for the additional expense. Reasonable care is exercised in packaging goods for shipment and no responsibility is assumed by Seller for delay, breakage or damage after delivery to the carrier. Buyer will file any claims for breakage or damage with the carrier but Seller will render reasonable assistance in securing satisfactory adjustment of such claims.
6. TITLE AND DELIVERY:
(a) All sales are F.O.B. point of shipment. Title and risk of loss pass to Buyer upon delivery items to carrier at shipping point, which delivery shall constitute delivery to Buyer for all purposes. Unless otherwise specified by Seller, the point of shipment shall be Seller's plant. Unless specific instructions from Buyer specify which method of shipment is to be used, Seller will exercise its own discretion. Shipping dates are approximate and are based upon prompt receipt by Seller from Buyer of all necessary information.
(b) If the quotation calls for delivery by installments, each such installment will be deemed sold under a separate and independent contract, and default in any shipment or delivery shall not invalidate this contract as it pertains to any other shipments or deliveries. Delay in delivery of any installment will not relieve Buyer of its obligation to accept remaining deliveries.
(c ) Seller reserves the right to allocate production and deliveries among its various customers at Seller's sole discretion under any circumstances. Seller may vary quantities of custom products to be delivered up to ten percent.
(d) Buyer will be deemed to have waived any and all claims for shipments containing less than the number of items indicated on the shipping documents unless written notice of such claim is given to Seller within ten (10) days after receipt of shipment.
(e) In the event of any default by Buyer, Seller may decline to make further shipments or may elect to continue to make shipments notwithstanding such default, and such action shall not constitute a waiver of such default or otherwise affect Seller's remedies for Buyer's default.
(a) Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice. The amount of credit may be changed, or credit withdrawn, or terms of payment changed, by Seller at anytime. Unless credit is extended, payment will be required in full prior to shipment. In the event Buyer becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay Seller's invoices as they become due, Seller may cancel any order then outstanding and receive reimbursement for the cancellation damages.
(b) Each shipment shall be considered a separate independent transaction, and payment thereof shall be made accordingly. If shipments are delayed by Buyer, Seller may invoice on the date when Seller would have made shipment but for the delay.
(c ) In case of a partial return of goods by Buyer owing to defects covered by warranty, the relevant invoice shall be paid within the term stated, for the amount corresponding to the products accepted. Buyer is in no event entitled to make reductions on the invoice unit prices or quantities without prior written approval of Seller. If invoiced amounts are not paid when due, Buyer will pay, in addition to all amounts otherwise due Seller and without limiting any remedies available to Seller at law or in equity, a delinquency charge in the amount of one and one-half percent per month (eighteen percent per annum) on such overdue amounts.
(d) Buyer grants to Seller a security interest in all items purchased by Buyer from Seller to secure payment in full of all amounts due from Buyer to Seller. Buyer will cooperate with Seller to do all acts deemed necessary or advisable by Seller to perfect said security interest.
(a) No cancellation for Seller's default shall be effective unless Seller shall have failed to correct such alleged default within forty five (45) days after receipt by Seller from Buyer or written notice of default.
(b) Orders accepted by Seller are firm and non-cancelable. Seller will not accept cancellations or reschedule of orders, other than for default of Seller or upon payment of all Seller's costs incurred for and reasonably allocated to the portion of the work already terminated and/or work in process, in accordance with generally accepted accounting principles, and together with cancellation charges shown in (f) below. Deliveries scheduled within sixty (60) days from time of shipment cannot be changed unless authorized in writing by the Seller.
(c ) If the termination involves custom products, such as but not limited to, Special Screened products, cancellation charges for such products shall equal the order price for the total number of units representing work in process. Unless otherwise agreed and confirmed in writing by Seller, items scheduled for shipment are not subject to revision, reschedule or termination within sixty (60) days prior to date quoted by Seller.
(d) Seller reserves the right to cancel the remaining quantity of an item or an order when the value of the remaining quantity is below minimum item or order value accepted by Seller.
(e) Seller reserves the right to cancel all or part of any order accepted if inaccurate or incorrect information is supplied by Buyer, which in Seller's judgment, affects Seller's financial risk or ability to perform its obligations under the order, or otherwise materially changes the rights or responsibilities of Buyer and/or Seller under the order.
(f) The Seller reserves the right to invoice the Buyer a cancellation charge which may include, but not be limited to, bill back to the unit price of the quantity accepted, times that quantity, less a credit for any amount previously paid by the Buyer and one-third cancellation charge based on the value of the unshippable value of the order.
9. CHANGES TO SPECIFICATIONS:
Seller reserves the right to change the specifications of any product (including all statements and data appearing in Seller's catalogs, data sheets and advertisements) without notice. If specifications are changed, Seller assumes no obligation to provide the change on products previously purchased or to continue to supply discontinued products or versions. Seller may substitute products manufactured to such modified specifications for those specified herein provided such products substantially conform to the products described in the sale contract.
10. INSPECTION & ACCEPTANCE:
Within thirty (30) days after delivery to Buyer of products sold by Seller, Buyer will inspect them and give written notice to Seller of any products rejected, describing the product or products rejected and specifying in detail the reason or reasons why the rejected products do not conform to the sale contract. Upon receiving authorization and shipping instructions from authorized personnel of Seller, Buyer may return rejected products, transportation charges prepaid, for replacement. Buyer will be deemed to have irrevocably accepted any and all products with respect to which Buyer has failed to give Seller written notice of rejection by registered or certified mail within the 30-day period. Buyer's inspection and/or acceptance tests shall not exceed the inspection and/or test procedures customary in the industry for the products delivered by Seller and shall be at Buyer's expense. Seller may charge to Buyer any costs resulting from the testing, handling, and disposition of any products returned by Buyer which are not found by Seller to be nonconforming.
11. SELLER'S WARRANTY:
(a) LIMITED WARRANTY: IT IS EXPRESSLY AGREED THAT NO WARRANTY, OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTY (EXPRESS, IMPLIED OR STATUTORY) IS MADE BY SELLER, EXCEPT THAT SELLER WARRANTS THE GOODS TO BE FREE FROM DEFECTS IN MATERIALS AND NORMAL WORKMANSHIP AS GOVERNED AND DEFINED BY SEMICONDUCTOR TECHNOLOGY, INC.
(1) STI will replace or credit, at their option, any product they deem defective. STI will not be under any obligation to replace any device but will issue credit, at their option, upon verification of the Buyer's complaint. If, after the Seller's evaluation of, it is found the defect was caused by the Buyer or the device is acceptable, the Seller will return said device to the Buyer and rebill or deny the debit. (2) All transportation charges will be the obligation of the Buyer. (3) This warranty period is limited to thirty (30) days from date of shipment unless stated otherwise in writing by the Seller. In no event shall the Seller be liable for loss of profit, loss of use, incidental damages, consequential damages or any loss, cost, or damages of any kind based upon a claim for defective products or breach of warranty.
(b) DEVELOPMENTAL ITEMS: DEVELOPMENTAL, EXPERIMENTAL OR PROTOTYPE ITEMS DELIVERED HEREUNDER SHALL BE SUBJECT TO ALL OF THE PROVISIONS OF THE FOREGOING WARRANTY EXCEPT THAT SUCH ITEMS ARE WARRANTED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND TO MEET THE APPLICABLE PRELIMINARY SPECIFICATIONS ONLY AT THE TIME OF RECEIPT BY BUYER AND FOR NO LONGER PERIOD OF TIME.
(c ) NONSTANDARD ITEMS: SELLER MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO SALES OR ORDERS FOR NONSTANDARD OR SUB-GRADE ITEMS. ITEMS SOLD UNDER SUCH SALES OR ORDERS ARE FURNISHED "AS IS".
(d) LIFE SUPPORT DEVICES: SELLER'S PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS OF LIFE SUPPORT DEVICES OR SYSTEMS. SELLER DISCLAIMS ANY WARRANTY OR RESPONSIBILITY FOR SUCH USAGE, WHICH SHALL BE AT BUYER'S SOLE RISK, EVEN IF SELLER HAS BEEN PREVIOUSLY NOTIFIED OF SUCH USAGE. AS USED HEREIN, "LIFE SUPPORT DEVICES OR SYSTEMS" ARE DEVICES OR SYSTEMS WHICH ARE INTENDED FOR IMPLANT INTO THE BODY TO SUPPORT OR SUSTAIN LIFE, OR TO ASSIST THEREIN, AND WHOSE FAILURE TO PERFORM CAN BE REASONABLY EXPECTED TO RESULT IN SIGNIFICANT INJURY TO THE USER. A "CRITICAL COMPONENT" IS ANY COMPONENT OF A LIFE SUPPORT DEVICE OR SYSTEM WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE OR RESULT IN THE FAILURE OF PERFORMANCE OF A LIFE SUPPORT DEVICE OR SYSTEM OR TO ADVERSELY AFFECT ITS SAFETY OR EFFECTIVENESS.
(e) TECHNICAL ADVICE: SELLER'S WARRANTIES AS HEREIN ABOVE SET FORTH SHALL NOT BE ENLARGED, DIMINISHED, OR OTHERWISE AFFECTED BY, NOR SHALL ANY OBLIGATION OR LIABILITY OF SELLER ARISE OUT OF SELLER'S RENDERING OF TECHNICAL ADVICE OR SERVICE IN CONNECTION WITH BUYER'S ORDER OR THE PRODUCTS FURNISHED HEREUNDER.
(a) Buyer shall indemnify, defend and hold Seller harmless against any expenses, damages, cost or losses including attorneys fees, resulting from any suit or proceeding instituted or claim asserted (including settlement of any of the foregoing), for infringement of patents, copyrights, trademarks or other intellectual property rights or for unfair competition arising from compliance with Buyer's designs or specifications or arising from use of products furnished hereunder in any manufacturing or other process or the combination of such products with items not supplied by Seller.
(b) The sale of products or any parts thereof hereunder confers upon Buyer no license, express or implied, under any patent rights of Seller.
(c) The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties or other obligations, express, implied or statutory, with respect thereto.
13. LIMITATION OF LIABILITY:
LIABILITY OF SELLER TO BUYER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ANY ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE SHALL BE LIMITED TO THE PRICE SPECIFIED IN THE SALE CONTRACT FOR THE SPECIFIC PRODUCT OR PRODUCTS THAT CAUSED THE DAMAGES OR THAT ARE THE SUBJECT MATTER OF, OR ARE DIRECTLY OR INDIRECTLY RELATED TO THE CAUSE OF ACTION. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR OTHERS FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OR OTHER SPECIAL COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION THEREOF, WHETHER IN CONTRACT OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST BUYER BY ANY THIRD PARTY. BUYER ASSUMES ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH, THE USE OR MISUSE OF THE PRODUCTS BY BUYER, ITS EMPLOYEES, OR OTHERS.
14. FORCE MAJEURE:
Seller will not be responsible or liable for any delay or failure in performance arising as a result of fire, accident, acts of God, acts of public enemy, war, labor disputes, failure or delays, transportation, inability to secure product, raw materials or machinery for the manufacturing process, requirements or acts of any government or agency thereof, judicial action or other causes beyond Seller's control. In such event, Seller may defer performance for a period equal to the time lost by reason of the delay. If such time exceeds forty-five (45) days, Seller may by written notice to Buyer cancel the affected order(s) as to any products then undelivered without liability to Buyer.
15. CONFIDENTIAL INFORMATION:
All drawings, diagrams, specifications, technical information, and other material and information furnished by Seller and identified as confidential (hereinafter collectively called "Confidential Information") are proprietary to Seller and contain trade secrets. Buyer shall not use, reproduce, distribute or disclose such Confidential Information, except that Confidential Information may be disclosed, with appropriate safeguards against re-dissemination, to employees of Buyer with respect to whom such information is necessary to the performance of their duties hereunder. Buyer recognizes that such proprietary information is unique and consents to the remedy of injunction in addition to damages for a violation of this provision.
16. PROPERTY USED:
Unless otherwise agreed in writing, all tooling, dies, equipment, drawings, tapes, fixtures and documentation, whether supplied by Seller or Buyer, used by Seller in furnishing items hereunder shall be and remain the property of the Seller. Seller shall not be liable for any loss or damage to property of Buyer in Seller's possession unless solely caused by Seller's gross negligence.
Buyer will not assign or subcontract its order or any interest therein or any right thereunder without the prior written consent of Seller.
18. GOVERNING LAWS:
This contract will be governed by and construed in accordance with the laws of the State of Florida, and in the case of international sale of goods with respect to which the Convention or Contracts for the International Sale of Goods ("CISG") or any other law would otherwise apply, the Uniform Commercial Code as adopted in the State of Florida, and not CISG or any such other law, shall apply. Buyer agrees that it will submit to the personal jurisdiction of the competent courts of the State of Florida and of the United States sitting in Martin County, Florida, in any controversy or claim arising out of the sale contract, and that service of process mailed to it at 3131S.E. Jay Street, Stuart, Florida 34997, by registered mail, return receipt requested, shall be effective service of process in any such court.
19. EXPORT CONTROL:
(a) With respect to the resale, export or any other disposition of products of technical information furnished hereunder, Buyer will comply fully with all export control laws and regulations of the United States Government and with any applicable laws and regulations of any other country.
(b) Buyer agrees not to export or re-export either directly or indirectly any technical data furnished hereunder or the direct product of such technical data to any country which, as set forth in the Export Administration Regulations of the United Sates Department of Commerce, is prohibited.
20. U.S. GOVERNMENT CONTRACTS:
If this sale contract is entered into in connection with or under a U.S. Government contract or subcontract, the subcontract clauses mandatory required by applicable U.S. Government procurement regulations to be included in subcontracts of the same type, amount and tier as this sale contract shall be incorporated herein by reference, unless Seller takes exception thereto or receives a waiver therefrom. Unless Seller specifically agrees otherwise in writing, Seller takes exception to any and all requirements for certification in writing of cost and pricing data, and compliance with Cost Accounting Standards.
21. SEVERABILITY OF PROVISIONS:
In the event of any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
22. COMPLETE AGREEMENT:
This quotation, confirmation (acknowledgment) or invoice including these terms and conditions and all attachments and documents incorporated by reference herein, constitute the complete and exclusive statement of the terms and conditions of the sale contract between Seller and Buyer and supersede all prior or contemporaneous agreements, representations and/or communications, either oral or written, between the parties hereto or any representative of such parties with respect to the subject matter hereof. No change to this contract or waiver of any provision hereof will be binding on Seller unless made in writing and signed by a duly authorized officer of Seller. No field representative of Seller has authority to sign such a writing.
(c) 1998, Semiconductor Technology, Inc. ALL RIGHTS RESERVED.