Sigma Delta Technologies Inc.
Terms of Sale
Last Updated: October 15, 2018
Sigma Delta Technologies Inc.
(Hereinafter collectively referred to as “SDT”)
TERMS OF SALE
1. Offer and Acceptance
Buyer may offer to buy Products under these terms by submitting an order to SDT. SDT may accept or reject any order at SDT’s sole discretion. The terms in this contract are the sole terms governing SDT’s sale of Products to Buyer. SDT’s acceptance of Buyer’s offer is expressly limited to these terms. SDT hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless SDT expressly agrees to such terms in writing. Capitalized words will have the meaning described in the Glossary of Defined Terms located at the end of this contract.
SDT communicates pricing to customers in various ways (e.g., quotes) and confirms transaction prices with its order acknowledgements. Prior to shipment, SDT’s price may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price in effect on the date of shipment as stated in SDT’s invoice applies. Unless otherwise agreed, prices are in U.S. Dollars and Payment must be in U.S. Dollars.
Unless SDT notifies Buyer otherwise, shipments will be delivered FCA (Incoterms 2010) SDT’s point of shipment. Risk of loss or damage will pass to Buyer upon SDT’s delivery to the SDT designated shipping point. Any subsequent loss or damage will not relieve Buyer from its obligations. Buyer is solely responsible for costs of freight and insurance after delivery to the SDT designated shipping point. If SDT incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse SDT for such freight or insurance costs.
Buyer is importer of record and is responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. SDT may deliver Products in installments.
SDT will communicate to Buyer an Estimated Ship Date. SDT will not be liable for any damage, loss, or expense incurred by Buyer if SDT fails to meet the Estimated Ship Date.
4. Cancellations and Rescheduling
Buyer may cancel or reschedule orders according to the following rules:
< 30 Days before Estimated Ship Date: Not allowed for Standard Products / Not allowed for Non-Standard Products
30-90 Days before Estimated Ship Date: Allowed for Standard Products / Not allowed for Non-Standard Products
> 90 Days before Estimated Ship Date: Allowed for Standard Products / Requires SDT approval for Non-Standard Products (charges may apply)
Notwithstanding the above rules, certain Products are subject to special cancellation and reschedule terms that SDT will communicate to Buyer prior to order acceptance.
5. Payment Terms
Payment is due thirty (30) Days after SDT’s invoice date. SDT may change or withdraw credit amounts or payment terms at any time for any reason. If Buyer fails to make Payment when due, SDT may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders. SDT will not be liable for, and Buyer will hold SDT harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make Payment. Buyer may not deduct any Payment amounts on account of unresolved disputes. SDT may charge Buyer 1.5% per month on overdue accounts (18% per year) to the extent permitted by law.
Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. SDT will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides SDT with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its Payment to SDT, Buyer will take all reasonable steps to minimize such withholding tax, provide SDT with a receipt or certificate as evidence the tax has been paid, and reimburse SDT for the amount of withholding so that SDT receives Payment for the full value of the invoice.
Unless SDT notifies Buyer otherwise, with regard to international shipments that transit through international waters or airspace, title transfers to Buyer immediately after Products leave the jurisdictional territory of SDT’s point of shipment. Unless SDT notifies Buyer otherwise, with regard to domestic shipments and international shipments that do not transit through international waters or airspace, title transfers upon delivery to Buyer’s carrier or nominee at SDT’s point of shipment.
SDT will not be in breach of this contract and will not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond SDT’s reasonable control, whether foreseeable or unforeseeable, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act, or Act of God. In the event of a shortage of components, SDT may, at its sole discretion, allocate Product production and deliveries.
8. Warranties and Related Remedies
8.1 Subject to Sections 8.2 through 8.4, 9 and 11 below, SDT warrants to Buyer that each Product conforms to SDT’s published Specifications for such Product. This warranty lasts for twelve (12) months after the date SDT or a SDT-authorized distributor delivers the Product. Notwithstanding the foregoing, SDT will not be liable for a nonconforming Product if:
the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than SDT, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than SDT;
the nonconformity resulted from Buyer’s design, specifications, or instructions for such Products or improper system design; or
Buyer has not paid on time.
Testing and other quality control techniques are used to the extent SDT deems necessary. SDT does not necessarily test all parameters of each Product.
Buyer’s claims against SDT under this Section 8 are void if Buyer fails to notify SDT of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
8.2 SDT’s sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above, or credit Buyer’s account for such Products. SDT’s liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by SDT and that are determined by SDT not to conform to such warranty. If SDT elects to repair or replace such Products, SDT will have a reasonable time to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
8.3 EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS SCOPE OF LIABILITY TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
8.4 SDT may provide Buyer technical, applications, or design.
9. Buyer’s Applications and Compliance
9.1 General. Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer’s application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
9.2 Industry Standards. Unless SDT has explicitly designated an individual Product as meeting the requirements of a particular industry standard, SDT is not responsible for any failure to meet such industry standard requirements.
9.3 Safety Requirements. Where SDT specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety-related requirements and standards applicable to its applications.
9.4 Specifically Designated Qualification. SDT may expressly designate certain Products as completing a particular qualification. Buyer agrees that it has the necessary expertise to select the Product with the appropriate qualification designation for its applications and that proper Product selection is at Buyer’s own risk. Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
9.5 Life-Critical Medical. Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death (e.g., life support, pacemakers, defibrillators, heart pumps, neurostimulators, and implantables). Such equipment includes, without limitation, all medical devices identified by the U.S. Food and Drug Administration as Class III devices and equivalent classifications outside the U.S.
9.6 Indemnification by Buyer. Buyer will fully indemnify SDT and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with Section 9.
10. Intellectual Property Indemnification
10.1 Subject to Sections 8, 9, 10.2 through 10.5, and 11, SDT will defend Buyer against any claim, suit, or proceeding brought against Buyer, insofar as such claim, suit, or proceeding is based on an allegation that Products manufactured and supplied by SDT to Buyer directly infringe any United States, Canadian, Japanese, or European Union member country patent (excluding utility models), copyright, or trade secret (“Covered Claim”), and SDT will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by SDT as settlement or compromise of a Covered Claim.
SDT has no obligation to defend or indemnify Buyer unless Buyer:
promptly informs SDT of the Covered Claim and furnishes SDT a copy of the claim, suit, or proceeding,
gives all evidence in Buyer’s possession, custody, or control to SDT, and
gives SDT reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to SDT the benefit of any defense available to Buyer to any Covered Claim hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such Covered Claim. Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
10.2 If SDT is obligated to defend Buyer pursuant to Section 10, SDT may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or
(c) if neither (a) nor (b) is available to SDT at a commercially reasonable expense, then SDT may stop selling the Products to Buyer without being in breach of this contract.
If SDT elects to provide either of the options set forth in clauses (a) and (b) above, SDT’s obligation pursuant to Section 10.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to SDT taking such action. If SDT elects the option set forth in clause (c) above, SDT’s indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to SDT any and all Products remaining in Buyer’s possession, custody, or control.
10.3 SDT will have no liability or obligation under Sections 10.1 or 10.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the thirty-six (36) months preceding the date Buyer informed SDT of the Covered Claim,
(b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer’s customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without SDT’s prior written consent, and
(e) to the extent that a Covered Claim is based upon:
ⅰ. Buyer’s use of the Products in combination with any other Product, device, software, or equipment,
ⅱ. Buyer’s use of the Products in a process, including a manufacturing process,
ⅲ. Buyer’s modifications to the Products,
ⅳ. SDT’s compliance with Buyer’s particular design, instructions, or specifications, or
ⅴ. SDT’s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e., those set forth in (i) through (v) above - are individually and collectively referred to herein as “Other Claims”).
10.4 Buyer will defend SDT against any claim, suit, or proceeding brought against SDT insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against SDT for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. SDT will be entitled to participate in its defense at its own expense with counsel of its own choosing.
10.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
11. Limitations and Damages Disclaimer
11.1 General Limitations. SIGMA DELTA TECHNOLOGIES WILL NOT BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ASSOCIATED WITH THIS CONTRACT OR THE USE OF THE PRODUCTS, WHETHER OR NOT SIGMA DELTA TECHNOLOGIES HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, REMOVAL OR REINSTALLATION COST, COST PERTAINING TO PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST SIGMA DELTA TECHNOLOGIES MORE THAN TWELVE (12) MONTHS AFTER THE OCURRENCE OF THE EVENT WHICH INDUCED THE CAUSE OF ACTION.
11.2 Specific Limitations. SIGMA DELTA TECHNOLOGIES’ AGGREGATE LIABILITY FROM ANY USE OF A PROVIDED PRODUCT, INCLUDING FROM ANY WARRANTY, INDEMITY OR OTHER OBLIGATION ASSOCIATED WITH THIS CONTRACT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO SIGMA DELTA TECHNOLOGIES BY USER FOR THE PARTICULAR PRODUCTS AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THIS LIMIT SHALL NOT BE ENLARGED OR EXTENDED BY THE EXISTENCE OF MORE THAN ONE CLAIM.
11.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
12. Non-Waiver of Default
In the event of any default by Buyer, SDT may decline to make further shipments. If SDT elects to continue to make shipments, SDT’s action will not be a waiver of any such default or affect SDT’s legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
13. Governing Law and Venue
This contract is governed by and interpreted in accordance with the laws of the Republic of Korea, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the Republic of Korea and consents to venue in Seoul, Republic of Korea. Notwithstanding the foregoing, any judgment may be enforced in any Republic of Korea or foreign court and SDT may seek injunctive relief in any Republic of Korea or foreign court.
14. Export Control
14.1 Buyer acknowledges and agrees that it will comply, and will ensure that its subsidiaries comply, with all applicable laws and regulations whenever it exports, re-exports, or transfers Products.
14.2 Buyer also acknowledges and agrees to observe all other applicable restrictions concerning other end-uses/end-users according to other laws and regulations (e.g., European Commission regulations or any other national regulations).
To the extent applicable, Buyer undertakes to refrain from the following transactions under all circumstances: (a) transactions involving persons, organizations, or institutions listed in any applicable sanctions list, (b) prohibited transactions involving embargoed countries, and (c) transactions subject to any license requirement for which the necessary export license has not been granted.
14.3 Buyer further agrees to obtain any necessary export authorization prior to the exportation, re-exportation, or transfer of any Product acquired from SDT under this contract. Each party will secure, at its own expense, such authorization and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. Further, Buyer will give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Product from Buyer with the intention of exportation. If government approvals cannot be obtained by SDT, SDT may terminate, cancel, or otherwise be excused from performing any obligations it may have under these terms.
14.4 If Buyer violates any of its obligations and commitments under Section 14, SDT may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Buyer will fully indemnify SDT and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with Section 14. Section 14 will survive termination of this contract.
15. Assignment and Third Party Beneficiaries
This contract is not assignable by Buyer without SDT’s prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or SDT. SDT’s affiliates and subsidiaries may perform all or any part of SDT’s obligations under this contract.
This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this contract will be binding upon SDT unless made in writing and signed by a duly authorized SDT representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.
Notice to Customers Purchasing From Distributors
SDT strongly encourages purchasing from a SDT authorized source to receive the following benefits:
Genuine SDT devices with traceability
Handling and storage according to SDT quality standards
Support with the most up-to-date technical and product information
Purchases from unauthorized sources carry the risk of receiving counterfeit devices or Products where original quality and reliability have been compromised.
Glossary of Defined Terms
Buyer means a person or entity purchasing Products directly from SDT.
Covered Claim has the meaning defined in Section 10.1.
Days means calendar days unless otherwise stated.
Estimated Ship Date or ESD means the date estimated by SDT for shipment of the Product from the applicable SDT location.
IC means integrated circuit.
Non-Standard Product means a Product designated by SDT as “Non-Standard.” This designation includes Products customized for a single customer, or non-custom Products primarily purchased by a single customer.
Other Claim has the meaning defined in Section 10.3(e).
Payment means SDT has received cleared funds from Buyer in SDT’s bank account on or before the invoice due date.
Product means a packaged integrated circuit product that SDT has qualified and released to market. For clarity, and without limitation, the term “Product” or “Products” excludes: services, reference designs, marketing collateral, software, Samples (or SDT’s Sample program), wafer and/or die products, prototypes, experimental devices, and evaluation modules (EVM’s). SDT may provide these items or services to Buyer under separate terms.
Safety-Critical Application means systems whose failure or malfunction may result in death or serious injury to persons, loss or severe damage to equipment, or harm to the environment.
Sample means a Product or pre-production IC that SDT provides to Buyer free of charge for evaluation or testing purposes.
Specification means measurable electrical and physical characteristics of a particular Product listed in the then-current official data sheet (including errata) for that Product.
Standard Product means a Product designated by SDT as “Standard.” This designation includes catalog Products offered and/or sold to many customers.