1. Formation of Contract
Any order sent to the Seller by the Buyer shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these conditions (‘Conditions’) and by means of the Seller’s standard order acknowledgement form. Each order which is so accepted shall constitute an individual legally binding contract (‘Order’) between the Seller and the Buyer ( ‘ Parties’). These Conditions shall override any contrary different or additional terms or conditions contained on or referred to in an order form or other documents or correspondence from the Buyer, and no addition alteration or substitution of these Conditions will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf.
2. Delivery, Acceptance
2.1 The products are delivered ‘FCA Seller’s Warehouse’ according to Incoterms 2000 (unless expressly agreed otherwise in writing between the Parties). If the delivery date is defined:
(i) by day, Seller shall not deliver more than –3 / +2 days earlier or later as the delivery day;
(ii) by week, Seller shall deliver within the delivery week.
2.2 In case Seller cannot adhere to the delivery date, it shall without delay inform Buyer and indicate the prospective duration of the delay. The Parties shall immediately endeavour to find reasonable remedial measures. Buyer shall grant Seller a reasonable grace period to effect delivery. After expiration of that grace period Buyer may either (i) cancel delivery of the delayed products by notice in writing, or (ii) if Buyer can substantiate that it has suffered damages due to the delay, claim per full calendar week of delay liquidated damages of 0.5% of the price of the delayed products up to a maximum amount of 5% of such price. Save as aforesaid, all other remedy or liability caused by delays in delivery is hereby excluded.
2.3 Buyer shall have inspected the product within twenty-four (24) hours from receipt with the aim to ascertain correct quantities and to check whether there is any visible damage to the product or other deviation. In case Buyer detects any such damage, incorrect quantities or deviations, Buyer shall forthwith inform Seller in writing within the twenty-four (24) hours period, and if such damage, incorrect quantities or deviations are attributed to Seller, Seller agrees to resolve such product inconsistencies within a reasonable period of time. Upon Seller’s request, Buyer shall provide its inspection report to Seller without delay. Buyer shall keep any rejected product available for inspection by Seller and any return of such products shall required prior written consent of Seller.
2.4 Buyer’s rights to make claims relating to incorrect quantities and any visible damage or deviation from the Order in the products delivered shall be excluded, if an incoming inspection has been made by Buyer and Buyer has not given written notice of rejection to Seller after inspection without delay or if Buyer has not made an incoming inspection at all.
2.5 For the purpose of customs clearance, Buyer or its appointed agent shall be the importer of record for the products.
3. Rescheduling, No Cancellation
If subsequent to the confirmation of an Order, Buyer or Seller requires an earlier or later delivery date than as initially scheduled, both Parties shall use reasonable efforts to find a mutually acceptable solution. However, Buyer shall not be entitled to cancel any Order nor assign an Order without the Seller’s prior written consent.
4. Prices, Taxes
The prices shall be “FCA Seller’s Warehouse” according to Incoterms 2000 (or such Incoterms expressly agreed in writing between the Parties) and include standard packaging. All taxes accruing in connection with the delivery of products, except tax on Seller’s income, shall be borne by Buyer.
Unless otherwise expressly agreed in writing between the Parties, payment shall be made without deduction (including any bank or transaction charges) or set-off within 30 days from the invoice date or such other payment terms as determined by the Seller. Interest at a rate of 1.0% per month shall accrue on any overdue amount until full payment is received. In addition, Seller may withhold any and all outstanding deliveries of products if there is any outstanding invoice or part thereof due to Seller for any Order. Invoice amount shall be treated as conclusive in the absence of manifest error. If payment is delayed, Seller reserves the right to amend the payment terms by written notice including including for any pending delivery and any outstanding invoice without prejudice to other remedies.
6. Risk, Title
Risk of loss or damages shall pass upon delivery to Buyer in accordance with “FCA Seller’s Warehouse” (or such other Incoterms expressly agreed otherwise in writing between the Parties). Seller retains title to the products until all payments due to Seller have been finally effected by Buyer and, notwithstanding the foregoing, Seller shall be entitled to commence proceedings for any overdue payment.
Seller warrants that the products materially comply with the specifications provided by Seller and are free from defects in material and workmanship, provided that Seller shall not be responsible for defects arising out of parts, software, design, materials or instructions provided by Buyer. Seller shall at its sole discretion repair or replace the non-compliant products. In case these corrective actions fail to take place within a reasonable period of time, Buyer is entitled to request price reduction or to cancel this Order and request Seller to take back the products delivered and to refund the purchase price paid. The warranties stated in Section 7 are exclusive and in lieu of all other warranties, whether express or implied by law or equity insofar as the same can be excluded, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose. Further, Seller does not warrant that any product is designed or suitable for use in life-support or other critical applications unless expressly stated otherwise. The warranty period shall be 12 months starting on the date the risk of loss or damage has passed to Buyer according to Section 6. Whilst Seller may provide technical, applications, design or other services, Buyer agrees that no additional obligations arise from such services provided. Without prejudice to the generality of the foregoing, if software or firmware is provided, Buyer shall have non-exclusive license to use the software or firmware in accordance with the Seller specifications and only on the specified products from Seller.
8. Intellectual Property Rights
8.1. In case any product or any part thereof is held by a court of competent jurisdiction to constitute an infringement of any third party’s patent, copyright, trademark, trade name, or unauthorised trade secret use ("IP Rights"), which is in existence at the time of delivery of the product, the Seller shall, at its own expense and at its option, either procure for Buyer, the right to continue to use the product, or, if applicable, replace the product with a non-infringing product of equivalent function and performance, or modify the product so that it become non-infringing without detracting from function or performance. The obligations of Seller apply under the precondition that (a) if none of the foregoing is economically feasible, Seller may take back the products delivered and to refund the purchase price paid without incurring any other liability to Buyer, and (b) Buyer shall inform Seller without delay in writing of any claims for infringement of IP Rights, does not accept on its own any such claims and conducts any disputes, including settlements out of court, only in agreement with Seller. For the avoidance of doubt, in such event, the Seller shall be given full conduct of the matter and shall take such action as may be necessary or expedient in the name of the Buyer.
8.2. Notwithstanding the foregoing, any liability of Seller shall be excluded:
(i) if the infringement of IP Rights is not caused by the product itself, for example if such infringement results from the application of the product (including any application-specific circuitry implemented in the products), regardless of whether Seller was aware of or had been notified of such use; or
(ii) if the infringement of IP Rights results from specifications or instructions given by Buyer or the fact that the products have been changed by Buyer or are being used in conjunction with products not delivered by Seller, which convert otherwise non-infringing products to infringing products; or
(iii) if the IP Rights are essential for the compliance with industry standards. For the purposes of this Order, essential as applied to IP Rights shall mean that it is not possible on technical grounds (where no commercially reasonable alternative exists), taking into account normal technical practice and the state of the art generally available at the time of standardization, that the products and the technology incorporated therein comply with the relevant industry standards without infringing such IP Right; or
(iii) if infringement of IP Rights claim is made after 24 months starting on the date the risk of loss or damage has passed to Buyer according to Section 6; or
(iv) if infringement pertains to or based on the Moore Microprocessor Patent Portfolio (including without limitation the US Patent US 5,440,749 or European Patent EP 0 870 226 or any patents claiming priority of one of these patents).
9. Force Majeure
Neither Party shall be liable to the other for failure or delay in the performance of any of its obligations under this Order for the time and to the extent such failure or delay is caused by force majeure such as, but not limited to, riots, civil unrest, acts of terrorism, wars, strikes, freight embargo, shortage of supply, lock-outs, hostilities between nations, governmental laws, orders or regulations, actions by the government or any agency thereof, storms, fires, sabotages, explosions or any other contingencies beyond the reasonable control of the respective Party and of its sub-contractors. In such events, the affected Party shall immediately inform the other Party of such circumstances together with documents of proof and the performance of obligations hereunder shall be suspended during, but not longer than, the period of existence of such cause and the period reasonably required to perform the obligations in such cases.
10. Export Control Regulations
This Order shall be subject to the proviso that the applicable export licenses have been duly granted. Notwithstanding that Seller does not warrant the accuracy of the ALNR/ECCN classifications, Buyer shall comply with all applicable export control and anti-terrorism laws and regulations, including those of US, EU, German, and Singapore, in particular but not limited to the obligation to furnish the respective End-Use Certificate and the International Import Certificate, to abide by prohibitions against re-export and end-use control as per applicable blacklists, failing which the affected transaction is void.
Regardless of the legal theory, Seller shall not be liable for business interruption, loss of revenue, profits or sales, loss of information or data, costs of removal or reinstallation or retesting, or for any special, incidental, punitive, indirect or consequential damages. Except the foregoing, Seller's liability under this Agreement shall in no event exceed a maximum amount of USD 50,000 (or equivalent) under this Order, or up to the value of this Order, whichever is lower, and the existence of more than 1 claim does not enlarge this limit. No claim shall be brought against Seller more than 12 months after the cause of action has occurred. Unless required by applicable mandatory laws, any and all other liabilities or remedies are hereby excluded.
Buyer shall keep in confidence the purchase price under this Order and all confidential information of Seller with the same degree of care as they use with respect to their own confidential information.
Any claim, or dispute arising out of or in connection with this Order, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force which SIAC Rules are deemed to be incorporated by reference to this Order. Where any claim, difference of dispute exceeds USD One million (or equivalent), the arbitral tribunal shall consist of 3 arbitrators, otherwise by 1 arbitrator, to be appointed in accordance with SIAC Rules. The arbitration shall be held in Singapore and shall be in the English language.
14. Applicable Law
This Order shall be governed by and construed in accordance with the laws in force in Singapore without reference to its conflicts of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 and the Contracts (Rights of Third Parties) Act shall be excluded.
If any provision herein is found to be invalid or unenforceable, the effectiveness of the remaining Conditions shall not be impaired. In this case, the Parties shall agree on a substitute provision that meets the original commercial intention of the parties in relation to that invalid or unenforceable provision. The language of this Order shall be English. Correspondence, technical and commercial documents as well as any information relating to this Order shall be in English.
Version: May 2008