Terms and Conditions

TERMS AND CONDITIONS OF SALE

 

The sale of products and services (“Products”) by Fremont Micro Devices USA, Inc. and its

Affiliates (“FMD”) are subject to these terms and conditions

(“Agreement”) regardless of other or additional terms or conditions that conflict with or

Contradict this Agreement in any purchase order, document, or other communication

(“Order”). Preprinted terms and conditions on any document of customer (“Customer”)

(For example: Orders or confirmations) and/or FMD’s failure to object to conflicting or

Additional terms will not change or add to the terms of this Agreement.

 

1. ORDERS. Quotes from FMD are invitations to tender and are subject to change at any time

without notice. All Orders are subject to acceptance by FMD. Contracts between Customer and

FMD are formed upon FMD’s written acceptance or execution of Customer’s Order and shall

be subject to this Agreement. FMD reserves the right to allocate the sale of Products among its

Customers. Orders for special, customized, and value-added Products and Products specifically

identified by FMD as non-standard or “NCNR” are non-cancelable, non-reschedulable,

nonchangeable, and non-returnable. Customer may not change, cancel or reschedule

Orders for standard Products without FMD’s consent.

 

2. PRICES. Prices are subject to change at any time. Prices are for Products only and do not

include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for

special packaging and labeling of the Products, permits, certificates, customs declarations and

registration (collectively, “Additional Fees”). Customer is responsible for any Additional Fees.

 

3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is

due 30 days from the invoice date or as otherwise approved in writing by FMD. On any past

due invoice, FMD may charge (i) interest from the payment due date to the date of payment at

18% per annum), plus reasonable attorney fees and collection costs; or (ii) the maximum

amount that is allowed under the applicable law if FMD’s interest rate is deemed invalid. At any

time, FMD may change the terms of Customer’s credit, require financial data from Customer

for verification of Customer’s creditworthiness, require a bank guarantee or other security, or

suspend any outstanding Orders of Customer. FMD may apply payments to any of Customer’s

accounts. If Customer defaults on any payment under this Agreement, FMD may reschedule or

cancel any outstanding delivery and declare all outstanding invoices due and payable

immediately. Unless otherwise provided by applicable law, any credit issued by FMD to

Customer in respect of any of Customer’s accounts will expire if unused for twelve (12) months

following the date of issuance of such credit.

 

4. DELIVERY AND TITLE. Unless otherwise specified by FMD in writing, all deliveries by

FMD are EXW FMD’s warehouse (INCOTERMS 2000). Title and risk of loss pass to Customer

upon delivery of the Products to the carrier. FMD’s delivery dates are estimates only and

subject to timely receipt of supplies by FMD. FMD is not liable for delays in delivery. FMD

reserves the right to make partial deliveries and Customer will accept delivery and pay for the

Products delivered. A delayed delivery of any part of an Order does not entitle Customer to

cancel other deliveries.

 

5. FMD’S LIMITED WARRANTY.

FMD warrants that at the time of delivery, the Products shall have the specifications stated in

its published data sheet for the Products for 12 months from delivery of Products. FMD warrants

that for a period of 90 days after delivery of the Products to Customer,value-added work performed

by FMD on Products will conform to Customer’s specifications that are in writing and accepted by

FMD, and Customer shall be deemed the manufacturer of such value-added Products.

To the extent permitted by law, FMD makes no other warranty, express or implied,

such as warranty of merchantability, fitness for purpose or non-infringement.

Customer’s sole remedies for breach of FMD’s warranty are, at FMD’s

choice: (i) repair the Products; (ii) replace the Products at no cost to Customer; or (iii) refund

Customer the purchase price of the Products.

 

6. PRODUCT RETURN Customer may return Products to FMD only with a return material

authorization (“RMA”) number issued by FMD. Customer must notify FMD in writing of any

damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”)

within 3 days after receipt of the shipment; otherwise, Customer is deemed to have accepted

the Products and may not revoke acceptance. RMAs will be issued only for Visual Defects

created solely by FMD or the original manufacturer, and only if Customer satisfies the notice

requirement. RMAs will not be granted for damage, shortage, or other discrepancy created by

Customer, the carrier or freight provider, or any other third party. Product return pursuant to a

warranty requires written notice from Customer to FMD within the warranty period detailing the

Product defect. Customer must return the Products to FMD freight prepaid in original

manufacturer’s shipping cartons or equivalent, along with acceptable proof of purchase, within

the warranty period and as specified in the RMA. At FMD’s discretion, FMD will return all

Products not eligible for return to Customer, freight collect, or hold Product for Customer’s

account at Customer’s expense

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7. LIMITATION OF LIABILITY. To the extent permitted by law, neither FMD nor its

employees or agents are liable for and customer is not entitled to any indirect, special,

incidental or consequential damages; for example, loss of profits or revenue, loss of

data, loss of use, rework, manufacturing expense, injury to reputation, or loss of

customers. To the extent permitted by applicable law, Customer’s recovery from FMD

for any direct damages will not exceed the price of the Product at issue. To the extent

the preceding limitation of liability is deemed invalid under applicable law, FMD’s total

liability in any event will not exceed USD 50,000 or the equivalent thereof. Customer will

indemnify, defend and hold FMD harmless from any claims based on; (i) FMD’s

compliance with customer’s designs, specifications, or instructions, (ii) modification of

any Product by anyone other than FMD, or (iii) use of Products in combination with

other products or in violation of clause 9 below.

 

8. FORCES BEYOND FMD’S CONTROL. FMD is not liable for failure to fulfill its obligations

under this Agreement due to causes beyond its reasonable control, (for example: acts of nature,

acts or omissions of the Customer, operational disruptions, man-made or natural disasters,

epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or

transportation, or inability to obtain labor or materials through its regular sources).

 

9. USE OF PRODUCTS. Customer shall comply with the manufacturer’s or supplier’s Product

specifications. Products are not authorized for use in critical safety or other applications where a

failure may reasonably be expected to result in personal injury, loss of life, or serious property

damage. If Customer uses or sells the Products for use in any such applications or fails to

comply with the manufacturer’s Product specifications, Customer acknowledges that such use,

sale, or non-compliance is at Customer’s sole risk.

 

10. EXPORT/IMPORT. Certain Products sold by FMD and other related technology and

documentation are subject to export control laws, regulations and orders of the United States,

the European Union, and/or other countries (“Export Laws”). Customer shall comply with such

Export Laws and obtain any license, permit, or authorization required to transfer, sell, export, reexport,

or import the Products and related technology and documentation.

 

11. PRODUCT INFORMATION. Product information (for example, statements or advice

(technical or otherwise) advertisement content, and information related to a Product’s

specifications, features, export/import control classifications, uses or conformance with legal or

other requirements) is provided by FMD on an “AS IS” basis and does not form a part of the

properties of the Product. FMD makes no representation as to the accuracy or completeness

of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND

LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION.

FMD recommends Customer validate any Product Information before using or acting on such

information. All Product information is subject to change without notice. FMD is not responsible

for typographical or other errors or omissions in Product information.

 

12. GOVERNMENT CONTRACTS. FMD is a distributor of “Commercial Items” as defined in

FAR 2.101. FMD agrees only to the clauses in the Federal Acquisition Regulation (“FAR”) and

Defense Federal Acquisition Regulation (“DFAR”) that are required to be inserted in

subcontracts for commercial items as set forth in FAR 52.244-6(c)(1), FAR 52.212-5(e)(1), and

DFAR 252.244-7000 if it is a subcontract under a Department of Defense prime contract. In

accordance with FAR 12.211, Customer will receive only those rights in technical data

customarily provided to FMD by the manufacturers. By no means will this be interpreted as

providing to Customer unlimited rights in data, software, or intellectual property rights provided

by the manufacturers or any other third party. FMD specifically rejects the flow down of the

requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; (ii) the

Buy American Act, FAR 52.225-1 or DFARS 252.225-7001; and (iii) any Preference for

Domestic Specialty Metals regulation.

 

13. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products

utilizes electronic data interchange, customer’s internal portal or third party portal, or any other

electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the

purchase and sale of Products between Customer and FMD.

 

14. GENERAL.

a. This Agreement shall be governed, construed, and enforced in accordance with the laws of

the country where the FMD entity that accepted Customer’s Order (“Governing Country”) is

located. The courts of the Governing Country shall have jurisdiction and venue over all

controversies arising out of, or relating to, this Agreement. If the Governing Country is the

United States of America, the laws and courts of the State of California will apply without

reference to California’s conflict of laws principles. The United Nations Convention for the

International Sale of Goods shall not apply.

b. Customer may not assign this Agreement without the prior written consent of FMD, and

FMD’s affiliates may perform FMD’s obligations under this Agreement. This Agreement is

binding on successors and assigns.

c. This Agreement can only be modified in writing signed by authorized representatives of both

FMD and Customer.

d. FMD and Customer are independent contractors and agree that this Agreement does not

establish a joint venture, agency relationship, or partnership.

e. FMD’s failure to object to any document, communication, or act of Customer will not be

deemed a waiver of any of these terms and conditions.

f. The unenforceability of any of these terms or conditions will not affect the remainder of the

terms or conditions.

g. Products, including software or other intellectual property, are subject to any applicable rights

of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with

such rights.

h. Customer and FMD will comply with applicable laws and regulations.