This is an offer by MaxLinear, Inc. (hereafter the “Supplier”) to sell to the addressed party on the face hereof (hereafter the “Customer”) the goods and services specified on the face hereof (hereafter the “Products”), subject to the Terms and Conditions of Sale set out herein. Any additional or different terms and conditions, including but not limited to those on Customer’s purchase order, are hereby objected to by the Supplier unless otherwise specified on the face hereof, or otherwise stated in a written agreement signed by the Supplier.
PRICES AND PACKAGING
(a) Prices shown on the face hereof are in US dollars, with delivery terms as specified herein, and are exclusive of any other amounts including without limitation fees for export, special packaging, freight, insurance, and similar charges.
(b) Prices do not include any taxes, customs duties, tariffs, or any other such levies. When Supplier has the legal obligation to pay or collect any such charges, Customer shall reimburse the appropriate amounts to Supplier. If Customer is exempt from any such charges, Customer must provide Supplier with valid exemption documentation.
(c) Prices are subject to change by Supplier upon Customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases, whereupon, Customer may cancel the undelivered portion of any affected order by delivering written notice to Supplier prior to the shipment thereof and within ten (10) calendar days of Customer’s receipt of notice of the price increase.
(d) Packaging shall be Supplier’s standard shipping materials or as specified on the face hereof. Any cost of non-standard packaging and handling requested by the Customer shall be abided by the Supplier provided the Customer has give precise written instructions with reasonable prior notice with written agreement that any corresponding additional costs shall be paid by the Customer.
(a) Delivery dates specified in this document are estimates only. Customer acknowledges such dates may change due to unpredictable market trends and agrees to accept delivery dates for Products as determined by Supplier, in Supplier’s order acknowledgement form or equivalent document. Failure to deliver by a specified date shall not give Customer any right to compensation nor impose any liability on Supplier.
(b) Delivery shall be made Ex-Works as per INCOTERMS- 2000 from Supplier’s designated shipping location.
(c) Products shall be marked for shipment to the destination specified in the Customer’s purchase order that has been acknowledged by Supplier, and shall be made available for pickup at Supplier’s designated shipping location.
(d) Customer shall pay all freight charges, insurance, and other shipping expenses. Freight charges, insurance, and other shipping expenses itemized in advance of actual shipment, if any, are estimates only that are calculated on the basis of standard tariffs and may not reflect actual costs. Customer must pay actual costs.
CHANGES AND CANCELLATIONS
(a) No order may be cancelled, rescheduled or reconfigured except: (i) upon Supplier’s default which shall not have been corrected within thirty (30) days from Customer’s notice to such effect, or (ii) with Supplier’s prior written authorization and in such event, Customer will be liable to Supplier for any additional costs and expenses incurred by Supplier. Customer will pay for storage charges if Supplier holds Products at Customer's request pending instructions or rescheduled delivery.
(b) Supplier may, from time to time in its sole discretion: (i) discontinue or limit its production of any Product; (ii) allocate, terminate or limit deliveries of any Product in time of shortage; and (iii) modify the design of, specifications for, or construction of any Product, provided the modification has equivalent form, fit, and function.
(c) In the event of any default by Customer, Supplier may decline to make further deliveries or may elect to make deliveries notwithstanding such default.
(a) Supplier will invoice Customer for each shipment. The amount invoiced will include the price of the Products plus all applicable taxes, packaging, transportation, insurance, and other charges. If all Products in Customer’s purchase order are not shipped at the same time, Supplier will invoice Customer at the time of shipment only for the Products that are shipped.
(b) Provided Customer has an approved credit application, payments, in US dollars, are due thirty (30) calendar days after the date of invoice. Any unpaid due amounts will be subject to interest at one decimal five percent (1.5%) per month, or, if less, the maximum rate allowed by law.
(c) For Products that are to be exported, payment must be by a confirmed, irrevocable letter of credit, sufficient to cover the full amount of the invoice, and shall be made against Supplier's invoice upon presentation of Supplier's shipping documents.
TITLE AND RISK OF LOSS
Supplier’s responsibility for any loss or damage ends, and title passes, when Products are delivered Ex-Works as per INCOTERMS2000 from Supplier’s designated shipping location to carrier, to Customer, or to Customer's agent (including, without limitation, any test house or value added service provider), whichever occurs first.
Supplier retains a purchase money security interest in the Products sold and in the proceeds of resale of such Products until Customer has paid all charges in full. In such case, Supplier retains all right and remedies available to Supplier under the Uniform Commercial Code.
Specifications for Products shall be Supplier's specifications as existing in published data sheets at the time of the order acknowledgment, except if particular specifications are given by Customer and accepted by Supplier (the “Specifications”). Except as otherwise specifically agreed in writing by Supplier, Supplier reserves the right to change at any time the Specifications of any Product manufactured by Supplier (including all statements and data appearing in Suppliers'catalogues, data sheets, and advertisements) without notice.
ACCEPTANCE AND RETURN
(a) All deliveries and charges set forth on any invoice will be deemed correct unless Supplier receives from Customer, no later than fifteen (15) calendar days after the date of delivery, a written notice specifying the delivery date, the purchase order number, and the exact nature of the incorrect matter.
(b) Products are deemed conforming to applicable Specifications and accepted by Customer unless Customer notifies Supplier in writing of non-acceptance and the reasons therefore within thirty (30) calendar days of delivery. Any claim regarding non-conformity of Products with Specifications will be accepted by Supplier only if each of the following three conditions have been met: (i) Products must not have been modified or damaged or manipulated for any reason whatsoever; (ii) the Customer's claim must be submitted in writing to Supplier within thirty (30) calendar days after the delivery date. After agreement with Supplier, Customer shall return the whole batch of non-accepted Products. Each allegedly non-conforming batch of Products must be accompanied by the precise reason for rejection and the corresponding test report and proof of purchase; and (iii) the return must be made at the Customer's cost.
(c) No Product returns may be made for any reason without a return material authorization (“RMA”), issued by Supplier. If Customer refuses to accept delivery of any Products or returns any Products without RMA from Supplier, such Products will be held by Supplier awaiting Customer's instruction for thirty (30) calendar days, after which Supplier may deem the Products abandoned and dispose of them as it sees fit, without crediting Customer's account.
WARRANTY AND INDEMNIFICATION
(a) Supplier warrants to Customer that each Product assembled by Supplier will conform to the applicable Specifications referred to in these Terms and Conditions of Sale and will be free, as delivered, from defects in materials and workmanship for a period of ninety (90) calendar days from the date such Product is delivered to Customer (“Warranty Period”). Supplier's sole liability and Customer's exclusive remedy for Products that fail to conform to this Supplier Product limited warranty ("Nonconforming Products") is limited to repair or replacement of such Nonconforming Products, or issue a credit or rebate of no more than the purchase price of such Nonconforming Products, at Supplier’s sole option and election. Supplier shall pay the freight expenses incurred in connection with such repair or replacement, and Customer will be responsible for the removal of the Nonconforming Product and installation of its replacement at no charge to Supplier. Customer shall bear all risk of loss or damage to returned goods while in transit. The warranty for the repaired or replaced Product is limited to the scope and duration of the original warranty for the Nonconforming Product. This warranty shall not apply: (i) if Products have been damaged; or (ii) if Products have been submitted to abnormal conditions (mechanical, electrical, or thermal) during storage, installation, or use; or (iii) if Products are used in a non-standard environment, where a non-standard environment is an environment requiring a robustness not documented in the applicable Specification such as, without limitation, space, military, and or nuclear environments; or (iv) to Products supplied at request of Customer which Supplier has indicated the Products may not conform to applicable technical specifications or constitute experimental, developmental, or otherwise non-qualified Products; or (v) if the non-conformance of Products results from misuse, neglect, improper testing, storage, installation, unauthorized repair, alteration, or excess usage at or beyond the maximum values (temperature limit, maximum voltage, and other Specification limits) defined by Supplier; or (vi) if the non-conformance of Products results from an incorrect choice by Customer of application or use other than in accordance with applicable Specifications; or (vii) to any other default not attributable to Supplier. This warranty does not extend to components purchased from entities other than Supplier or to third-party software or documentation that may be supplied with any Product. In the event no defect or breach of warranty is discovered by Supplier upon receipt of any returned Product, such Product will be returned to Customer at Customer’s expense and Customer will reimburse Supplier for the transportation charges, labor, and associated charges incurred in testing the allegedly defective Product.
(b) The above warranty is for Customer’s benefit only, and is non-transferable. OTHER THAN AS EXPRESSLY SET FORTH IN SECTION (a) ABOVE, SUPPLIER MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. SUPPLIER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) Customer shall indemnify, defend, and hold harmless Supplier for any costs, expenses, damages, or other losses arising out of (i) any Customer warranty of greater scope or duration than that set forth in this Supplier Product Limited Warranty; and (ii) any failure to disclaim implied warranties and limit remedies and liabilities, by and on behalf of Supplier.
INTELLECTUAL PROPERTY RIGHTS AND CLAIMS
(a) In all cases, intellectual property rights in and to, and all technology relating to Products supplied to Customer, including but not limited to, their design and all improvements thereto, whether or not such Product, design or improvement, is made per Customer’s specifications or at Customer’s expense, shall be and remain the exclusive property of Supplier unless otherwise stipulated in writing and duly signed by an authorized representative of the Supplier.
(b) All designs, data, drawings, Software, or other technical information supplied by Supplier to Customer in connection with this sale shall remain Supplier’s sole property.
(c) Because of the complexity of manufacturing techniques for integrated circuits and of the intellectual property rights pertaining thereto, Supplier is not able to declare that its Products do not infringe the intellectual property rights of third parties. In the event that a third party makes a claim alleging that Products delivered to Customer infringe such third party's intellectual property rights, Supplier undertakes at its option and charge to defend the claim or seek a compromise; if an unfavorable and final judgment is rendered against Supplier, then Supplier shall, at its option, take out a license from the above mentioned third party or shall modify the Products in such a way as to avoid infringement. If such a solution shall be impracticable for economic and/or technical reasons, Supplier shall accept the return of allocable Products supplied giving rise to the claim and shall reimburse the Customer up to a maximum equal to the amount paid by the Customer for allocable Products deemed to infringe. The indemnification in this paragraph shall only be due by the Supplier provided that Customer (i) promptly notifies Supplier in writing of the claim of infringement (ii) allows Supplier to control, and co-operates with Supplier in the defense and any related settlement action. Furthermore, such indemnification does not apply to any claims of infringement involving Products made, provided, or modified by Supplier in compliance with the requirements or specifications of Customer, from the combination or use of a product supplied with any other Product, even if such product has no substantial use other than as part of such combination or use, or from any modification to the programming of Products made other than by Supplier, and in such instances Customer agrees to indemnify Supplier against all damages and costs resulting from any such claims of infringement made against Supplier. The above provisions constitute the entire undertaking of Supplier towards Customer in the event of any intellectual property right claim of a third party with regard to Products supplied by Supplier.
LIMITATION OF LIABILITY
SUPPLIER SHALL HAVE NO LIABILITY UNDER THESE TERMS AND CONDITIONS OF SALE FOR LOSS ARISING FROM ANY CLAIM MADE AGAINST CUSTOMER, OR FOR SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, PROFITS, REVENUES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS BASED ON ANY BREACH OR DEFAULT OF SUPPLIER HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING ANY BREACH OR DEFAULT ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, MASK WORK RIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT. CUSTOMER'S SOLE REMEDY AND SUPPLIER'S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO SUPPLIER FOR ALLOCABLE PRODUCTS WHICH GIVE RISE TO CLAIMS. CUSTOMER SHALL ALWAYS INFORM SUPPLIER OF ANY BREACH AND AFFORD SUPPLIER REASONABLE OPPORTUNITY TO CORRECT ANY BREACH. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(a) Bankruptcy Proceedings. In the event of any insolvency or inability to pay debts as they become due by Customer, or voluntary or involuntary bankruptcy proceeding by or against Customer, or appointment of a receiver or assignee for the benefit of creditors of Customer, Supplier may elect to cancel any unfulfilled obligations.
(b) Export Control Laws. No Products or underlying information or technology may be exported or re-exported, directly or indirectly, contrary to US law or US Government export controls.
(c) Force Majeure. Supplier will be excused from any obligation to the extent performance thereof is caused by, or arises in connection with, acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, delay in delivery by Supplier’s supplies or any other reason beyond the reasonable control of Supplier. Supplier reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than thirty (30) calendar days by reason of any such cause. Supplier reserves the right to allocate Products in its sole discretion among customers or potential customers, or defer or delay the shipment of any Product, which is in short supply due to any such cause.
(d) Improper Use. Products will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where Product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold Supplier harmless from any loss, cost, or damage resulting from Customer's breach of the provisions of this paragraph.
(e) No Licenses. No license under any intellectual property right of Supplier is granted herein except the right to use or resell any Product patented by Supplier and sold by Supplier to Customer.
(f) Notice. Any notice required or permitted hereunder shall be given in writing and shall be deemed effective given upon personal delivery to Supplier or Customer, as applicable, or professional courier services or five (5) calendar days after deposit with the National Post Office, by registered or certified mail, postage pre-paid and addressed to Supplier or Customer, as applicable.
(g) Severance. In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and these Terms and Conditions of Sale shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
(h) Software. "Software" means computer programs, software, and firmware whether in printed or machine readable form, including software on a magnetic tape, disc, or in a ROM forming part of a Product. Title to Software including without limitation, copyright, is owned by Supplier or Supplier licensors and no title is transferred to Customer. Customer shall not copy, modify, translate, disassemble, or decompile the Software. Customer shall use the Software in connection with the Product and not otherwise. The Software may only be transferred when the Product to which it relates is transferred. The rights granted in this Clause may be terminated in the event of a breach by Customer of any of the terms of these Terms and Conditions of Sale.
(i) Waiver. A waiver of a breach or default under these Terms and Conditions of Sale shall not be a waiver of any subsequent default. Failure of Supplier to enforce compliance with any Term or Condition of Sale herein shall not constitute a waiver of such Term or Condition of Sale.
(j) Jurisdiction and Applicable Law. These Terms and Conditions of Sale are governed by the laws of the State of California without reference to conflict of law principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute arising out of these Terms and Conditions of Sale.