These Standard Customer P.O. Terms and Conditions (“Standard Terms”) govern Customer’s past and future purchases from TeraSignal Corp. or any of its subsidiaries or affiliates (“TeraSignal”), of silicon or silicon-based hardware products (“Products”). These Standard Terms do not, by themselves, obligate either party to buy or sell any Product. Unless specifically agreed to in a writing signed by an authorized representative of TeraSignal, any additional or different terms or conditions provided by Customer on Customer’s purchase order, acknowledgement form, or any other material provided by Customer (“Customer Terms”) are deemed to be a material alteration of these Standard Terms, which have been accepted by Customer, and those additional or different terms or conditions are hereby rejected by TeraSignal.
1.1 If Customer would like to purchase Products, it must submit a purchase order to TeraSignal. If TeraSignal elects to fill the purchase order, it will send a written acknowledgement to Customer. The terms applicable to TeraSignal’s sales to Customer will be, in order or precedence: (i) the terms of any customer agreement signed by TeraSignal and Customer that has not been terminated, including these Standard Terms, if these Standard Terms have been incorporated into that signed agreement; (ii) unless contradicted by an agreement signed by TeraSignal and Customer as described in (i), these Standard Terms; and (iii) the terms of TeraSignal’s written quotation to which Customer’s offer relates, if any.
1.2 Products purchased hereunder are only to be used by Customer for integration and inclusion in Customer’s products and are not to be resold unless so integrated and included or otherwise expressly agreed in writing by TeraSignal. Customer agrees that it will not purchase Products from any source other than TeraSignal or a TeraSignal authorized distributor.
2.1 Product prices are specified in the applicable quotes and do not include taxes, tariffs, or any other customs duties or fees. If Customer wishes to claim a tax exemption, Customer must give TeraSignal a tax exemption certificate acceptable to the relevant taxing authority.
2.2 TeraSignal may adjust prices at any time on notice to reflect increases in manufacturing costs. Customer may issue a written notice rejecting a price adjustment within 5 days after receiving written notice of an adjustment, in which case TeraSignal may cease filling any Customer orders for the affected Product with no further obligation to Customer. If TeraSignal does not receive a written rejection within the 5-day period, the price adjustment will become effective at the end of the 5-day period.
2.3 Customer shall pay all invoices in US dollars, net 30 days from invoice date. TeraSignal reserves the right, in its sole discretion, to revoke any credit extended to Customer, at any time. Time is of the essence. All late payments shall be subject to a late payment fee calculated at the rate of two percent (2%) per month or the maximum amount allowable by law, whichever is less, unless agreed otherwise.
2.4 TeraSignal reserves, and Customer grants to TeraSignal, a purchase money security interest in all Product shipped to Customer (and all resulting proceeds) until TeraSignal receives payment in full for those Products and any related charges under Section 4 and this Section 2. TeraSignal may file a financing statement with appropriate state and local authorities to perfect TeraSignal’s security interest. At TeraSignal’s request, Customer will promptly execute all documents necessary to perfect TeraSignal’s interest in the secured property.
3.1 All shipments are EXW origin, freight collect (INCOTERMS 2020). Title to Products and all risk of loss, damage, or destruction passes to Customer at the TeraSignal facility that is the point of origin.
3.2 TeraSignal may ship a quantity of Products that is up to 10% less or more than the quantity specified in the applicable purchase order and that shipped quantity will fully satisfy TeraSignal’s obligation to deliver that Product.
3.3 Customer may reject any Product that fails to materially conform to its then applicable specifications by giving TeraSignal, within 5 days after receiving the Product, a written notice that specifies in reasonable detail the reasons for rejection. Customer may return a properly rejected Product under Section 5.3 for credit, replacement, or refund, at TeraSignal’s option. Products not properly rejected under this Section 3.3 will be deemed accepted at the end of the 5 day inspection period.
3.4 TeraSignal will endeavor to ship Products on TeraSignal’s acknowledged delivery date (“Acknowledged Date”). Acknowledged Date(s) represent TeraSignal’s best estimates. While TeraSignal will endeavor to meet the Acknowledged Date, TeraSignal shall not be liable for failing to do so.
4.1 Customer may not cancel orders. No reschedule is allowed, unless TeraSignal gives prior written permission.
5.1 TeraSignal warrants that each Product will be free from material defects in workmanship and materials for one year from the date of shipment (“Warranty Period”). TeraSignal further warrants that during the Warranty Period, the Product will substantially conform to TeraSignal’s relevant technical or functional specifications in effect on the date TeraSignal ships Customer’s order (“Specifications”). These warranties do not apply to any Product which has been misused (including static discharge), improperly installed, modified without TeraSignal’s authorization, damaged in transit, improperly used or operated not in accordance with instructions provided by TeraSignal, abused, neglected, or improperly stored. TeraSignal’s sole obligation to Customer for failing to meet these warranties are, at TeraSignal’s option, to replace or repair the Product, but only if (i) TeraSignal has received written notice of the warranty claim within the Warranty Period, (ii) Customer has returned the Product to TeraSignal under Section 5.3, and (iii) TeraSignal has verified that the Product is defective. TeraSignal warrants a replacement or repaired Product only for Products purchased under Section 1 and only for the unexpired term of the warranty for the defective Product.
5.2 NOTWITHSTANDING SECTION 5.1 OR ANY OTHER SECTION OF THESE STANDARD TERMS, TERASIGNAL PROVIDES ALL PROTOTYPES, PRE-PRODUCTION PRODUCTS, EVALUATION AND VALIDATION BOARDS, REFERENCE DESIGNS, AND SOFTWARE, “AS-IS” WITHOUT WARRANTY OF ANY KIND.
5.3 Before returning any Product to TeraSignal, Customer must contact TeraSignal for a return material authorization (“RMA”) and other instructions. Once received, Customer may return the Product according to those instructions, freight prepaid. After TeraSignal verifies that the Product was nonconforming under Section 3.3 or defective under 5.1, TeraSignal will credit Customer for the cost of returning the Product.
5.4 TeraSignal’s warranties shall not be enlarged by, nor shall any obligation or liability of TeraSignal arise due to TeraSignal providing technical advice or service in connection with any Product or order.
5.5 THE WARRANTIES AND REMEDIES STATED IN THIS SECTION 5 ARE EXCLUSIVE, TERASIGNAL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
6.1 TeraSignal recommends that Customer provide TeraSignal with a forecast of Customer’s intended Product purchase for a twelve-month period on a rolling monthly basis. Customer’s forecasts are estimates for planning purposes only and do not bind either party in any way.
7.1 Customer warrants that it shall comply, at its own expense, with the U.S. Foreign Corrupt Practices Act, the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and all other export, import, sanctions, restrictions, national security or foreign policy controls, and regulations of the United States and any applicable foreign agency or authority. Customer shall not export, import, re-export, or otherwise transfer, or authorize the export, importation, re-export, or transfer of the Product in violation of any such laws, restrictions, or regulations if such an export, import, re-export, or transfer would cause TeraSignal to violate such laws. Any and all obligations of TeraSignal to provide Product shall be subject in all respects to such laws, restrictions, and regulations. Customer agrees to indemnify and hold harmless TeraSignal from any and all fines, claims, damages, losses, costs, and expenses (including reasonable attorney’s fees) incurred by TeraSignal as a result of any violation of this section 7 by Customer.
8.1 Customer may acquire knowledge of information relating to TeraSignal’s business, Products or software (“TeraSignal Confidential Information”) and agrees to keep such TeraSignal Confidential Information in confidence. Customer agrees not to use the TeraSignal Confidential Information except as permitted by TeraSignal in writing. Customer agrees not to copy, alter or directly or indirectly disclose any TeraSignal Confidential Information. Customer agrees to use the degree of care and means that it uses to protect its own information of like kind, but in no event less than reasonable care to prevent the disclosure or unauthorized use of TeraSignal Confidential Information. Customer may disclose TeraSignal Confidential Information which is required to be disclosed pursuant to an enforceable requirement of a government agency or law so long as Customer provides prompt notice to TeraSignal of such requirement prior to disclosure. All TeraSignal Confidential Information is and shall remain the property of TeraSignal. Upon TeraSignal’s written request, Customer shall return, transfer or assign to TeraSignal all TeraSignal Confidential Information and all copies thereof.
9.1 SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THESE STANDARD TERMS, IN NO EVENT WILL TERASIGNAL, BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
9.2 EXCEPT FOR TERASIGNAL’S OBLIGATION TO MAKE WARRANTY REFUNDS UNDER SECTION 5.1 (WHICH IS LIMITED TO THE PRODUCT PURCHASE PRICE), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, TERASIGNAL’S LIABILITY TO CUSTOMER IS LIMITED TO THE LESSER OF (i) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TERASIGNAL FOR THE PRODUCT THAT IS THE SUBJECT OF SUCH DAMAGES, OR (ii) ONE HUNDRED THOUSAND UNITED STATES DOLLARS ($100,000.00 USD). MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
9.3 THIS SECTION 9 APPLIES WHETHER OR NOT DAMAGES WERE FORESEEABLE, EVEN IF TERASIGNAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THESE STANDARD TERMS. THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT APPLY TO DAMAGES FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY TERASIGNAL, FOR WHICH CUSTOMER HAS THE RIGHT TO ANY PROVEN DIRECT DAMAGES. THE REMEDIES IN THESE STANDARD TERMS ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
10.1 Unless otherwise agreed in writing, California law (excluding choice of law rules) will govern the interpretation and enforcement of these Standard Terms. The parties will submit any claim or action arising under these Standard Terms to the exclusive jurisdiction of the state and federal courts located in Orange County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from these Standard Terms. The prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred in any litigation arising under these Standard Terms.
11.1 These Standard Terms are intended to benefit TeraSignal and Customer; no third party beneficiaries are intended or created unless specifically agreed otherwise in writing.
11.2 Customer shall not assign these Standard Terms or any of its rights or delegate any of its duties under these Standard Terms without the prior written consent of TeraSignal. Subject to the foregoing, these Standard Terms will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this Section 11.2 shall be null and void.
11.3 A waiver of a breach of any term of these Standard Terms will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after the other’s breach will not be construed as a waiver of that breach.
11.4 These Standard Terms shall be applied to the extent permitted by applicable law. To the extent that any provision of these Standard Terms is determined to be illegal or unenforceable, the remainder of these Standard Terms will remain in full force and effect.
11.5 Customer may not (i) use the TeraSignal trademark or tradename or (ii) cause any advertising, publicity, release, or other disclosure of information concerning these Standard Terms without TeraSignal’s prior written consent.
11.6 Unless otherwise separately agreed in writing by TeraSignal, no provision herein shall be deemed an acceptance of any provisions required in any U.S. Government contract or subcontract relating thereto (“Government Contract”) nor shall any provision of any Government Contract become part of these Standard Terms, imposed upon or binding on TeraSignal.
11.7 TeraSignal will not be liable for delay, partial delivery or non-delivery due to any cause or event beyond TeraSignal’s reasonable control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies, materials or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, rolling blackouts, labor difficulties, delays in transportation, delays in delivery or defaults by TeraSignal’s suppliers, inadequate yield of Products despite reasonable efforts, or acts or omissions by Customer. In the event of delay due to any such cause, time for delivery will be extended for a period of time equal to the duration of such delay and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one-hundred-twenty (120) days, TeraSignal will have the right to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
11.8 All notices required or permitted under these Standard Terms shall be in writing and addressed to TeraSignal and will be considered given when (i) delivered personally, (ii) sent by commercial overnight courier with written verification receipt, or (iii) three (3) days after having been sent, postage prepaid, by first class or certified mail.