Scope. The terms and conditions of sale contained herein apply to all quotations and offers made by MXIC, including all purchase order ("PO") accepted by MXIC for the manufacture and sale of product and services (the "Products"). These terms and conditions may in some instances conflict with some of the terms and conditions affixed to the PO or other procurement documents issued by the Buyer ordering Products. In the case of any such conflict, the terms and conditions herein shall govern. MXIC's failure to object to conflicting terms and conditions affixed to any PO or other communication from Buyer shall not be deemed a waiver of these terms and conditions. Any modification of these terms and conditions must be agreed upon by MXIC in writing.
Payment. Unless expressly stated in the PO confirmed by MXIC, all prices quoted shall be FCA Taiwan for all locations of Buyer (as defined by INCOTERMS 2010). Payment for Products due to MXIC shall be thirty (30) days from date of invoice. All payments shall be in United States dollars, unless otherwise agreed upon in writing, and shall be electronically transferred to a bank or other financial institution of MXIC's choice. Unless expressly waived by MXIC, late payments will bear interest at the lesser of the three months LIBOR rate plus two percent, or the maximum rate allowed by applicable law. If MXIC determines that it is necessary to bring legal action to collect delinquent accounts, Buyer will pay or reimburse MXIC for the reasonable costs of suit, collection and attorney's fees. In addition, upon delinquency, or if MXIC has reason to doubt the creditworthiness of Buyer, MXIC at its sole discretion, may delay delivery of Products, cancel outstanding orders, reduce amounts, deliver C.O.D., require Buyer to post an appropriate letter of credit, Bank Guarantee or any other security, and/or seek to enforce any of MXIC's other available legal remedies. MXIC shall retain a security interest and right of possession in the Products until Buyer makes full payment.
Taxes. All quoted prices are exclusive of any present or future sales or use tax, revenue or value-added tax, import duty (including brokerage fees) or any other tax or charge applicable to the manufacture, sale or delivery of any Products. Such taxes and charges, when applicable, shall be paid by Buyer, or immediately reimbursed to MXIC upon delivery of an invoice for same if applicable law requires MXIC to collect and remit such taxes or charges to relevant authorities.
Delivery. Buyer shall acknowledge to MXIC the receipt of each delivery of Products stating quantity, type, and damages (if any) existing at delivery, within fourteen (14) days following delivery of Products. MXIC shall not be responsible for any claims relative to quantity and type made after such 14-day period. On-time delivery shall be deemed to be any delivery made to Buyer within the period of five (5) days prior to until three (3) days after the scheduled delivery date, or as agreed upon by the parties in writing. However, shipping up to fourteen (14) days ahead of delivery schedule is authorized. MXIC shall use its commercially reasonable efforts to meet Buyer's delivery schedules. Delivery schedule changes on existing POs may be made by mutual agreement of the parties hereto and shall be raised by Buyer at least thirty (30) days prior to the scheduled delivery date. MXIC reserves the right to make deliveries of Products in installments and these terms and conditions shall be severable with respect to such installments. Delivery delay or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries of Products.
Acceptance. a) Buyer shall accept Products or reject them as nonconforming within fourteen (14) days of receipt of each delivery. Failure to notify MXIC in writing of nonconforming Products within such period shall be deemed an unconditional acceptance. b) The determination of conformity will be based solely on final electrical testing to be conducted using MXIC's standard procedures and the yield guarantees, if any, agreed upon by the parties in writing. Should the Products meet or exceed the criteria of the above, Buyer will not be allowed to reject Products. To reject Products Buyer must request a return material authorization ("RMA") from MXIC. Buyer may ship the rejected Products to MXIC only after receiving an RMA. Buyer shall bear all risk of loss, damage, or destruction to the Products rejected by Buyer until same are returned to MXIC. MXIC will retest the Products and if they fail, MXIC will either credit Buyer for the price of the Products or replace it with conforming Products.
Price. MXIC will provide the Buyer the quotation of Products and is entitled to change upon ten (10) days written notice to Buyer.
(a) Price Increases. Prior to the effective date of a price increase, subject to written consent from MXIC, the Buyer may order Products at the prior (i.e., lower) price. PO's accepted by MXIC prior to notification of a price increase are exempt from the increase, and will be shipped and invoiced at the price in effect at the time of order placement.
(b) Price Decreases. In the event MXIC decreases the price of any product, MXIC will grant the Buyer a credit equal to the difference between the price the Buyer paid for the product but not yet sold to third party (less any prior credits taken by the Buyer on such product) and the new decreased price for such Product multiplied by the quantity of such Product in the Buyer's inventory on the effective date of such price decrease.
Intellectual Property Rights. All patent rights, copyrights, trademarks, trade names, trade dress, designs, mask works, trade secrets, know-how, ideas, proprietary information, confidential information, inventions, technical data, and any other information or materials commonly recognized as intellectual property in the semiconductor industry (collectively, "Intellectual Property Rights") owned by either party (or their respective licensors) shall continue to be owned by such party and no license is granted herein.
Warranty. MXIC warrants that the Products shall conform to MXIC's published specifications for a period of one (1) year from the shipment of Products to Buyer. The foregoing warrant does not apply to (a) any Products which have been subject to misuse, neglect, accident, or modification or which have been altered and are not capable of being tested by MXIC under its normal test conditions, (b) non-conformities which result from Buyer's and/or its customer's design or process or which result from testing procedures not previously agreed upon by MXIC in writing, (c) any Products that are intended to be prototypes, risk production or engineering products, or (d) any Products used in unauthorized applications. MXIC's sole obligation, and Buyer's and/or its customer's sole remedy hereunder for Products failing to meet the aforesaid warranty shall be, at MXIC's sole discretion, to replace the nonconforming Products or issue Buyer and/or its customer a credit for the purchase price of the nonconforming Products, where within the warranty period: 1) MXIC has received written notice of such nonconformity; 2) after MXIC's written authorization to do so (represented by an RMA) Buyer has duly returned the nonconforming Products to MXIC, freight prepaid; and 3) MXIC determines that the Products are nonconforming. Any replacement Products shall be subject to the foregoing warranty for only the unexpired term of the warranty with respect to the original nonconforming Products. MXIC warrants that Products sold hereunder shall at the time of delivery be free and clear of liens and encumbrances. THIS WARRANTY EXTENDS TO BUYER ONLY AND MXIC SHALL HAVE NO OBLIGATION TO ACCEPT WARRANTY RETURNS DIRECTLY FROM BUYER'S CUSTOMERS OR ANY OTHER USERS OF CUSTOMER'S GOODS. THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL MXIC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHETHER UNDER CONTRACT OR TORTS, EVEN IF MXIC HAS BEEN ADVISED OF THE POSSIBILITY OF SAME, AND MXIC'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING HEREUNDER, REGARDLESS OF THE LEGAL THEORY, SHALL BE LIMITED TO THE LOWER OF (1) THE TOTAL AMOUNTS OF SUCH DEFECTIVE PRODUCTS ACTUALLY RECEVIED BY MXIC FROM BUYER FOR A TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING MXIC'S RECEIPT OF BUYER'S INITIAL ASSERTION OF SUCH DEFECTIVE CLAIM; OR (2) THE AMOUNT AGREED BY THE PARTIES HERETO IN WRITING.
Life Support/Military Use. Products shall not be used for military or as a critical component in life support devices or systems (as defined herein) without the express written permission of the chief executive officer of MXIC. For these purposes, "life support devices or systems" are devices or systems which (a) are intended for the surgical implant into the human body or (b) support or sustain human life, and whose failure to perform can be reasonably expected to result in a significant injury to or death of the human subject, and a "critical component" is any component of a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system, or to affect its safety or effectiveness. Buyer shall indemnify, defend and hold MXIC harmless from and against any and all claims, damages, liabilities, costs and expenses incurred by MXIC resulting from any claims, actions or proceedings brought against MXIC arising out of any unauthorized use of Products in breach of this provision.
Export Control. Buyer agrees to fully comply with applicable export laws and regulations, including but not limited to U.S., E.U., and other countries; and hereby assure MXIC that, unless prior authorization is obtained from the competent government agency, Buyer does not intend and shall not knowingly export or re-export, directly or indirectly, any Products, technology or technical information received from MXIC in contravention of any of such laws and regulations. Buyer states that he is not on the Restricted Company List of the United States Department of Commerce, nor shall Buyer knowingly export or re-export, directly or indirectly, any wafer, devices, technology or technical information received from MXIC to companies and/or individuals on the Restricted Companies List.
Force Majeure. In case of delays in manufacturing or in delivery of Products owing directly or indirectly to any condition of force majeure or other cause beyond MXIC's control, the anticipated delivery dates for products shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision. MXIC shall also be entitled to an extension of time for other commercially reasonable delays. However, it is possible that due to the complexity of such upgrades, the necessity to rely on external vendors and other reasons beyond MXIC's reasonable control, some interruption may occur causing delays in delivery of Products.
Governing Law and Venue. The terms and conditions contained herein shall be governed by and construed under the laws of the Republic of China without giving effect to its provisions regarding conflicts of laws. Any proceeding brought by Buyer arising out of, under or relating to any dispute under this Agreement shall be brought in a competent court in Taiwan and the Buyer hereby submits itself to the jurisdiction of such courts for purposes of any such action.
