Terms and Conditions of Sale for Engineering Samples
NOTICE: THESE TERMS AND CONDITIONS APPLY ONLY TO ENGINEERING SAMPLES. ALL ENGINEERING SAMPLES PURCHASED PURSUANT TO THESE TERMS AND CONDITION ARE SOLD “AS IS” WITH NO WARRANTIES AND MAY ONLY BE USED FOR ENGINEERING DEVELOPMENT PURPOSES. BUYER IS NOT PERMITTED TO SELL ANY PRODUCT TO ANY THIRD PARTY IF SUCH PRODUCT CONTAINS AN ENGINEERING SAMPLE.
1. BINDING, EXCLUSIVE AGREEMENT.
These terms and conditions of sale (“Agreement”) apply to any sale or transfer of Engineering Sample(s) by Seller to Buyer, including any sales that may be fulfilled by one of Seller’s distributors. Buyer accepts and agrees to be bound by this Agreement by: (a) ordering based on a Seller’s price quote or (b) accepting or paying for Engineering Samples. Seller objects to and rejects any additional or different terms or conditions in any form tendered by Buyer, including expressly rejecting any provisions that dictate that Buyer’s terms control or any additional or different provisions in a Buyer’s electronic business portal. Seller’s failure to object to any provision or terms from Buyer will not be a waiver or amendment of any of the provisions of this Agreement. .
2. PAYMENT; SECURITY.
Prices are quoted and all invoices are due and payable in full by Buyer in U.S. Dollars the earlier of (i) net 30 days after the date of invoice or (ii) the due date in an Order Document. Seller’s pricing and cost structure are confidential and not subject to audit. Unless otherwise noted, quotes expire three months from their date of issuance. Interest will accrue on all past due amounts at the lesser of 1.5% per month or the maximum rate allowable by applicable law. Buyer will pay for all Engineering Samples Delivered. Seller may, without incurring any Seller liability, suspend or cease any Delivery and/or cancel any Orders if Buyer is in breach of this Agreement or an Order, or if Seller determines, in its sole judgment, that there is a risk that Buyer will not fulfill its obligations.
3. ORDER PLACEMENT.
All orders and requested changes to orders are subject to acceptance by Seller, which acceptance will be (i) through Seller’s written order acceptance sent to Buyer, (ii) by Delivery, or (iii) through electronic acceptance by Seller by mutually agreed upon methods. Notwithstanding anything to the contrary, however, no acceptance other than actual Delivery shall be valid for orders placed with less than Lead Time. Seller reserves the right in its sole discretion to reject any order given by Buyer regardless of whether Seller gave Buyer a price quote. The minimum Order amount will be in Seller’s suggested tube, tray, or tape and reel quantities for each separate Engineering Sample ordered. As to each Order, Seller may deliver 5% more or less (+/-5%) than the quantity ordered, and such quantity will be accepted in compliance with and in full satisfaction of the Order, and Buyer will pay for the actual quantity Delivered.
4. DELIVERY.
Delivery of Engineering Samples will be EX WORKS (EXW) Seller’s Plant (INCOTERMS 2010). Scheduled Dates are estimates and subject to change. Actual Delivery dates are not of the essence. Seller will have no liability to Buyer or any third party with regard to any delay in Delivery, regardless of the reason.
5. ACCEPTANCE; REJECTION.
Conditioned upon providing prompt notice within 10 days after Delivery, Buyer may reject any Engineering Samples that do not conform to the applicable Order Documents with respect to identity or marking. Any Engineering Sample that is not properly rejected by Buyer in accordance with this Section is deemed irrevocably accepted.
6. CANCELLATION, RETURNS.
Purchase orders for Engineering Samples are non-cancelable. Once accepted pursuant to Section 5, Engineering Samples may not be returned to Seller or to any of Seller’s distributors for any reason. Seller has the right to cancel an Order at any time if Buyer becomes insolvent or if voluntary or involuntary proceedings are commenced as to Buyer under any bankruptcy or insolvency law, or upon default or breach by Buyer of this Agreement or applicable law.
7. TAXES.
All taxes, assessments, fees, and charges applied by any Government to the Engineering Samples or their sale, delivery, shipment or use will be added to the purchase price of the Engineering Samples and will be paid by Buyer, except to the extent that Buyer provides Seller with an acceptable tax exemption certificate.
8. INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE.
Unless provided otherwise in a separate license agreement between Seller and Buyer, the following terms apply to Software (including firmware in all references to “Software”, unless stated otherwise) and documentation provided or made available to Buyer in connection with Engineering Samples:
a. To the extent Software is installed or embedded in or furnished with Engineering Samples, Seller grants Buyer a nonexclusive, non-assignable license to use Software in machine-readable form, only in combination with or as part of the Engineering Sample for which the Software has been provided and solely to the extent necessary for development engineering. No right or license is granted for distribution of Software to third parties. No rights or licenses with respect to any software source code are granted to Buyer. Seller grants Buyer a nonexclusive license to use non-confidential documentation with the Engineering Sample for which the documentation has been provided and only one copy for each such Engineering Sample. Buyer will reproduce all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the Software and on copies thereof.
b. With respect to Engineering Samples, Software, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate Software into any other software. Should Buyer create any modifications or derivative works of Engineering Samples, Software, documentation or a portion thereof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer's rights under this Agreement are conditional upon Buyer not performing any actions that may require any Software, Engineering Samples and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
c. If Buyer is in default of any of the terms herein, Buyer’s license to Software and documentation will automatically terminate. Buyer shall indemnify Seller against and hold Seller harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 8 and Buyer shall reimburse all costs and expenses incurred by Seller in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
d. To the extent that Software and/or documentation is embedded in an Engineering Sample, the sale of such Engineering Sample shall not constitute the transfer of ownership rights or title in such Software and/or documentation, and all references to “sale” or “sold” of any Software or documentation shall be deemed to mean a license. Except for those rights specifically granted in this Section 8 in connection with Software and documentation: (i) Seller and its suppliers reserve all right, title and interest, together with all intellectual property rights thereto, in all Software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or any other intellectual property right is granted hereunder.
e. Any open source software included in the Software is not licensed or warranted under the terms of this Agreement, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. In no event will Buyer cause the Software to become subject to the terms of an Excluded License. Buyer is solely responsible for obtaining any necessary third party approvals and any licenses for any necessary essential patents for their use in connection with Engineering Samples or Software that Buyer incorporates into Buyer’s system or software (whether as part of the Software or not).
f. Neither the sale of any of the Engineering Samples, nor any terms of this Agreement, shall be construed as conferring any right, license or immunity: (i) under any intellectual property rights to any combination, machine, or process in which Engineering Samples might be used, or to any modifications of Engineering Samples, Software, or documentation; (ii) with respect to any trademark, trade or brand name, corporate name, or any other name or mark, or contraction, abbreviation or simulation thereof; (iii) under any intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or (iv) under any intellectual property rights with respect to which Seller has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied.
g. With respect to any Micrium Software embedded in Engineering Samples or separately licensed to Buyer, Buyer’s use of such Software is subject to the terms and conditions of the license agreement executed by or accepted by Buyer when Buyer downloaded the Software. The Micrium Commercial License is available at www.silabs.com.
9. INTELLECTUAL PROPERTY RIGHTS.
As between Buyer and Seller, Seller owns and retains all IP in, relating to, or arising from or with respect to each Engineering Sample. Other than the Software license above, Seller does not grant, convey, or confer any ownership, interest, right, or license, express or implied, in or to any IP of Seller. Seller owns and retains all interest in, title to and possession of all tooling of any kind (including masks and pattern generator tapes) and related IP used in production of the Engineering Samples.
10. NO WARRANTIES.
To the fullest extent permitted by law, Seller makes no express warranties and disclaims all implied warranties, including all warranties of merchantability, fitness for a particular purpose, title, ownership, non-infringement, and non-misappropriation. Engineering Samples, labeling on Engineering Samples and packaging that are intended solely for compliance with applicable law, and all Software are provided “as is” and without any warranty of any kind. The warranty obligations of Seller and the remedies of Buyer set out in this Section 10 are the sole and exclusive obligations of Seller and the sole and exclusive remedies of Buyer for all Claims and other liabilities arising out of or in connection with any warranty, nonconformance, failure, defect or breach of warranty. No obligation or liability will arise out of Seller’s rendering of advice or service in connection with Buyer’s purchase of the Engineering Samples or any repair or replacement of an Engineering Sample. Seller does not offer any warranties of any kind, and expressly disclaims all implied warranties, on services provided by Seller which are ancillary to the purchase of Engineering Samples by Buyer including, but not limited to, Software modifications, board-level designs, and reviews of Buyer’s products or designs. Buyer is solely responsible for complete and thorough testing of Buyer’s hardware and software and their interaction with the Engineering Samples even if Seller has advised or assisted Buyer with such or testing. Seller is not liable for any defect in Buyer’s product, including but not limited to those that would have been detected if Buyer had adequately tested its product.
11. LIMITATIONS OF LIABILITY.
The aggregate cumulative liability of Seller, its affiliates, and their employees, directors, or agents (“Seller Parties”) for all Claims ever made by Buyer against Seller (inclusive) arising out of or in connection with any and all Orders, Order Documents, Engineering Samples, Software or Claims shall not exceed, individually or collectively, and Buyer releases all such Claims against (and liability of) Seller Parties in excess of the net proceeds received by Seller for the affected Engineering Samples during the 12 months preceding the event giving rise to first claim, or $1,000,000, whichever is less. The existence of one or more Claims will not enlarge or extend this limit. These limitations apply notwithstanding any failure of essential purpose of any limited or exclusive remedy. In no event will Seller Parties be liable to Buyer or any third party for any special, collateral, indirect, incidental, consequential, exemplary, punitive, or enhanced damages (“Excluded Damages”). Excluded Damages include costs of inspection, removal, and reinstallation of products or other items, rework, re-procurement or recall costs (including administrative and personnel costs) of replacing or substituting items, loss of goodwill, loss of revenue or profits, and loss of use, without regard to whether Seller has been notified in advance of the possibility of any such Claim or damage. Except to the extent liability is not excludable by applicable law, these limitations apply to personal injuries (including death) caused by Seller’s negligence. The allocation of risk contained in this Agreement is reflected in the price of the Engineering Samples and is reasonable in all circumstances having regard to all relevant factors, including the parties’ relative bargaining positions.
12. CONFIDENTIALITY.
Absent written permission from Seller, Buyer will keep in confidence, will not disclose to any person, and will not use (other than for purposes of performance under the Order) the Confidential Information. Buyer will not be liable for the unauthorized disclosure of Confidential Information if it: (i) is or becomes generally available to the public, except as the result of unauthorized disclosure by Buyer; (ii) was known, without confidentiality restriction, to Buyer and such knowledge has been documented in writing prior to its receipt; (iii) is independently developed by Buyer without use of Seller’s data; or (iv) is disclosed as required by law or a governmental or judicial order (provided that Buyer has given prompt written notice to Seller prior to disclosure and an opportunity to object). Immediately upon request by Seller, Buyer will return or destroy the Confidential Information and all copies, records, and documents incorporating or derived from such information. The terms of any applicable non-disclosure agreement are cumulative of the confidentiality provisions herein.
13. UNAUTHORIZED USES.
The Engineering Samples are not designed, intended, authorized, or warranted for use or inclusion in life support, financial institution, Government, aeronautical, aerospace, military, or nuclear applications, or FDA Class III or other devices for which FDA premarket approval is required, implantable devices or in life support or life endangering applications where failure or inaccuracy might cause death or personal injury. Engineering Samples shall not be used for automotive or transportation applications or environments. Engineering Samples shall not be used if they have been subjected to operating or environmental conditions in excess of limits established in the Specifications or otherwise has been subjected to static, failure to ground properly, accident, mishandling, damage, misuse, abuse, neglect, alteration, or improper or unauthorized testing, installation or repair. Any unauthorized sale, use or inclusion by Buyer or any of its direct or indirect customers is fully at Buyer’s risk and voids any and all of Seller’s obligations and warranties.
14. GOVERNMENT CONTRACTS.
Under no circumstances is Buyer permitted to sell any product to any Government, Government prime contractor or subcontractor if such product contains an Engineering Sample.
15. LEGAL COMPLIANCE.
Buyer will comply with all applicable laws and regulations. The Engineering Samples, Software or related technologies may be subject to export license or other international trade controls. Buyer represents, warrants and certifies that Buyer will comply with applicable laws and regulations relating to export or re-export, including the Export Administration Act of 1979, as amended, the U.S. Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”) and U.S. Foreign Assets Control Regulations (“OFAC”), 31 C.F.R., Chapter V. Buyer shall not export, or transfer for the purpose of re-export, any Engineering Samples or Software to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any U.S. or foreign law or regulation. Buyer represents, warrants and certifies that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List, is not located in a country subject to embargo under EAR, ITAR or OFAC regulations and is not otherwise prohibited by U.S. or foreign law from purchasing the Engineering Samples hereunder.
16. BUYER'S DUTY TO DEFEND.
Buyer will defend Seller Parties and reimburse Seller Parties for all Claims, taxes, penalties, interest, costs, assessments and expenses (including court and attorneys’ fees) that arise as a result of or in connection with any inadequacy or invalidity of any tax exemption certificate submitted by Buyer or any act, omission or misrepresentation of Buyer or any of its affiliates, employees, agents, contractors, customers, users or representatives, including any breach of Sections 12, 13, 14 or 15.
17. DISPUTES, APPLICABLE LAW AND FORUM.
All disputes relating to this Agreement or any other Claims arising out of or related to the relationship of the parties (“Disputes”) shall be resolved exclusively by the following sequential methods, except that Seller may take immediate legal action to prevent immediate or irreparable harm to it or for Buyer’s failure to make payments under Section 3. Upon written notice by one party to the other of a Dispute, the parties will first attempt to promptly resolve the Dispute by negotiation for a 45-day period. If not so resolved, all Disputes shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (or, if in Singapore, the Rules of the Singapore International Arbitration Centre) by one or three arbitrators appointed in accordance with said Rules. Discovery will be reasonably limited according to the amount in dispute. If a party unreasonably delays in submitting to binding arbitration, then the other party may commence litigation in a court of competent jurisdiction specified in this Section 17. Litigation or arbitration shall be commenced solely in the parties’ respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. Each of the parties waives its right to a jury trial. Each party will bear its own costs in dispute resolution including attorney fees, except to the extent that a court or arbitrator awards costs to one party. All Dispute negotiations will be confidential settlement negotiations that are inadmissible as provided by applicable rules of evidence in litigation. The English version of any documents shall control and all proceedings will be in English. The parties consent to the sole, exclusive personal jurisdiction, choice of law (without regard to conflicts of law principles) and venue for all meetings, hearings, or proceedings as follows: (i) if Seller is Silicon Laboratories Inc.: City of Austin, Travis County, State of Texas, USA; and (ii) if Seller is Silicon Laboratories International Pte. Ltd.: Singapore. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any Order, Order Document, or any sale of Engineering Samples to Buyer.
18. MISCELLANEOUS.
This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. There are no third party beneficiaries to this Agreement. Buyer may not assign this Agreement in any respect without the prior written consent of Seller. Seller may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder without notice to or consent by Buyer. Seller may subcontract manufacturing, order fulfillment or other work as to any or all Engineering Samples without notice to or consent of Buyer. The failure of a party to enforce any right hereunder shall not waive that or any other right. If any provision of this Agreement or any Order Document is held to be illegal, invalid or unenforceable, then (i) such provision will be reformed to cure or remove such defect and if not reformed will be severed, (ii) the legality, validity and enforceability of the remaining provisions will not be affected or impaired, and (iii) the parties will endeavor in good faith to replace the severed provisions with valid provisions of the same or similar economic effect. The invalidity of a provision in a particular jurisdiction will not render unenforceable such provision in any other jurisdiction. No amendment or modification to the Order Documents will be effective unless specifically agreed in a writing signed by Seller. Notices to Seller should be in writing sent by tracked next-day delivery service to: Silicon Laboratories, 400 West Cesar Chavez, Austin, Texas 78701, Attn. VP of Sales; cc: General Counsel. All rights, remedies and powers of Seller are cumulative and may be pursued or enforced in any manner or order. Section headings are included for convenience of reference only. The word “including” will be interpreted to mean “including but not limited to”. Sections 11 to 20 survive any termination of this Agreement.
19. NO COMMITMENT TO SUPPLY.
Nothing in this Agreement shall be interpreted as a commitment or agreement by Seller to release the production version of Engineering Samples or to sell the production version of Engineering Samples to Buyer. Seller makes no such commitment. Under no circumstances shall Seller be liable to Buyer or any third party due to any delay or cancelation of any plans to release the production version of Engineering Samples.
20. DEFINITIONS.
Buyer - the person or entity purchasing or taking delivery of Engineering Samples or Software, including the entity named on the Order Document or the person or entity who downloads Software from Seller’s website.
Claim - any and all claims, demands, causes of action, damages, injuries or liabilities, whether arising, at law or in equity, including those with respect to or arising under breach of contract, tort, negligence, delay in or failure of Delivery, nonperformance, infringement, misappropriation, product or strict liability.
Confidential Information - all confidential or proprietary information or property of Seller or any of its affiliates (including samples, evaluation boards, designs, trade secrets, concepts, drawings, IP, pattern generator tapes, masks, technical information, technology, manufacturing processes, research, development, product roadmaps, costs, and pricing).
Custom Product - a product as sold by Seller to Buyer that (i) is not a Standard Product, (ii) is a customized product or a modification of a Standard Product done at the request of or especially for Buyer, (iii) has been programmed, marked or labeled according to Buyer’s specifications, (iv) is an unpackaged Product sold in die or wafer form, (v) is classified as other than a commercial production unit (e.g. evaluation boards, design verification units, samples, preproduction units, developmental units, or units provided pursuant to a waiver), or (v) has been packaged with other components or integrated circuit devices not produced by Seller.
Deliver or Delivery - the placement by Seller of Engineering Samples for receipt by Buyer at Seller’s Plant.
Engineering Sample - a pre-production standard product offered by Seller for engineering development by Buyer. Engineering Samples have not been modified especially for Buyer, are available, on a restricted basis, for purchase from Seller in limited quantities, and have been packaged and tested prior to Delivery to Buyer. Engineering Samples are subject to modification and revision by Seller at any time without notice to Buyer.
Excluded License - any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Force Majeure - Collectively or individually, acts of God or of public enemy; acts of war, civil or military authority; Government actions, regulations, priorities, causes beyond Seller’s reasonable control, allocations, or controls, whether or not valid, and including but not limited to exercise of sovereign or contractual power; fires, floods, weather, epidemics, strikes, lockouts, slow-downs, shortages, factory or port conditions or freight embargoes; yield problems; inability to obtain necessary labor, materials, or manufacturing facilities or services at a commercially reasonable cost; civil or other disobedience, insurrection, rebellion, acts of a terrorist or other enemy or any other act of force majeure.
Government - any governmental entity, authority, agency, official, or department at the national, state, county or local level.
Intellectual Property or IP - all intellectual property including, without limitation, patents, patent applications, copyrights, mask works, designs, utility models, moral rights, licenses, confidential or proprietary information, trade secrets, trade indicia (including trademarks, trade names, logos, product names and slogans), and all legal rights to inventions, know-how, methods, processes, Software, protocols, schematics, specifications, web sites, works of authorship, and databases.
Lead Time - a date at least sixteen (16) weeks before the Scheduled Date.
Order - an order from Buyer for the purchase of Engineering Samples that has been accepted by Seller in accordance with Section 5.
Order Documents - this Agreement, and any and all of the following, if applicable: a) Seller’s (i) written price quote to Buyer, (ii) written acceptance of an order from Buyer, (iii) invoice for Engineering Samples sold to Buyer, or b) a written sales agreement signed by Seller and Buyer for the purchase by and sale to Buyer of Engineering Samples.
Scheduled Date - the date that Seller estimates as the Delivery date for Engineering Samples at Seller’s Plant with respect to a certain Order.
Seller - the Silicon Laboratories entity on the applicable Order Document.
Seller’s Plant -the location specified by Seller where Engineering Samples are held for Delivery.
Specifications - Seller’s electrical and physical specifications for an Engineering Sample in the applicable Seller’s data sheet. Seller may modify the Specifications over time. Specifications do not include any advertisements or marketing or sales materials.
Software - all programs, algorithms, source, object, machine readable or executable code, and all operating, processing, or other instructions, for computers, devices or Engineering Samples, provided, stored, used or delivered in any medium and all related documentation.
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