Faraday Technical Corporation (“Faraday”), a company incorporated under China law and headquartered in China, and its affiliates ("Seller"), and any person places an order for products or services to Faraday or its affiliates (“Buyer”).
1. ACCEPTANCE OF TERMS
BUYER ACCEPTS THESE TERMS (i) BY WRITTEN ACCEPTANCE (BY PURCHASE ORDER OR OTHERWISE), OR (ii) BY FAILURE TO RETURN PRODUCTS DESCRIBED ON THE FACE OF THIS FORM WITHIN FIVE DAYS OF THEIR DELIVERY. THESE STANDARD TERMS AND CONDITIONS OF SALE MAY, IN SOME INSTANCES, CONFLICT WITH THE TERMS AND CONDITIONS AFFIXED TO PURCHASE ORDERS OR OTHER PROCUREMENT DOCUMENTS ISSUED BY BUYER. IN SUCH CASE, THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL PREVAIL.
- Delivery will be made FCA. (Free Carrier) Taipei, as defined under Incoterms 2010.
- Title to the products and the entire risk shall be passed to Buyer according to the Incoterms.
- Shipments are subject to availability. Seller shall make every reasonable effort to meet the date(s) quoted or acknowledged; and if Seller makes such effort, Seller will not be liable for any delay. Buyer and Seller shall cooperate to deliver the products within thirty (30) days after manufacture.
- Following Buyer’s issuance of a purchase order, at Buyer’s request, the production to that purchase order may be suspended for up to thirty (30) days without cost. Beyond this length of time, however, Buyer shall be required to pay the suspension charge in accordance with the following conditions:
For products delivered in form of IC:
If Buyer requests to defer the shipment schedule of finished products for one month, Buyer shall pay 70% of the total purchase price upon such request. If Buyer requests to defer the shipment schedule of finished products aggregately for more than three months (compared with the originally confirmed schedule), Buyer shall pay the rest 30% of the total purchase upon such request. If Buyer requests to suspend the production of the semi-finished products for aggregately more than three months (commencing from the first suspension date), Buyer shall pay 70% of the total purchase price upon such request. Buyer shall make payments within thirty (30) days upon receipt of Seller’s invoices.
For products delivered in form of wafer:
If Buyer requests to defer the shipment schedule of finished products for one month, Buyer shall pay 70% of the total purchase price upon such request. If Buyer requests to defer the shipment schedule of finished products aggregately for more than three months (compared with the originally confirmed schedule), Buyer shall pay the rest 30% of the total purchase upon such request. If Buyer requests to suspend the production of the semi-finished products, where the production phase is before contact layer, for aggregately more than three months (commencing from the first suspension date), Buyer shall pay 70% of the total purchase price upon such request. After contact layer phase, Buyer shall pay 100% of the total purchase price upon such request. Buyer shall make payments within thirty (30) days upon receipt of Seller’s invoices.
- The production will resume upon Buyer’s written notice to do so and payment to Seller of the appropriate fee. The suspension duration shall be no more than 180 days from the date of the initial notice of suspension. The suspension to production shall be no more than two times. If Buyer fails to provide such notice to Seller after the foregoing suspension duration, this Agreement shall automatically be deemed terminated, and Buyer shall pay Seller 100% of the total purchase price as indicated in applicable purchase order.
- Following the completion of product production, if Buyer requests Seller to temporarily store the products in Seller’s warehouse, Buyer agrees to pay the storage fees at USD1.0 per kg per day. Buyer also agrees to pay for any and all fees associated with any required re-burn-in and/or re-testing of the product, if the storage duration of the product at Seller’s warehouse is more than one (1) year.
- Seller makes no warranty for the product stored at Seller’s warehouse for more than one year. Buyer shall assume the responsibility over the quality and reliability of certain products and agrees to release FARADAY from any and all liabilities resulting therefrom.
3. TERMS OF PAYMENT
- Terms are as stated on Seller's quotation, or if none are stated, Letter of Credit at sight. Accounts past due will incur a monthly charge at the rate of one and one-half percent (1.5 %) per month (or, if less, the maximum allowed by applicable law) to cover servicing costs.
- Seller reserves the right to change credit terms at any time in its sole discretion.
- The prices for the products and/or services do not include any tax or customs duty. Buyer will pay, in addition to the prices stated, the amount of any present or future tax and customs duty applicable to the sale of products or performance of services, or, if appropriate, supply Seller with an effective tax exemption certificate for each jurisdiction in which taxes otherwise would be due.
4. LIMITED WARRANTY
- Unless otherwise agreed, Seller warrants that the products sold will be free from defects in material and workmanship and comply with Seller's applicable published specifications for a period of twelve (12) months from the date of Seller's shipment.
- Products or parts which have been subject to abuse (including repeated or extended exposure to conditions at or near the limits of applicable absolute ratings), misuse, accident, alteration, neglect, or unauthorized repair or improper application are not covered by any warranty. Except as provided in paragraph 9 below, no warranty is made with respect to custom products or products produced to Buyer's specifications (unless specifically stated in a writing signed by Seller).
- No warranty is made with respect to products used in devices intended for use in applications where failure to perform when properly used can reasonably be expected to result in significant injury (including, without limitation, navigation, aviation or nuclear equipment, or for surgical implant or to support or sustain life) and Buyer agrees to indemnify, defend, and hold harmless Seller from all claims, damages and liabilities arising out of any such uses.
- This Paragraph 4 is the only warranty by Seller with respect to products and may not be modified or amended except in writing signed by an authorised officer of Seller and by Buyer.
- Buyer may request the information of Seller’s standard test conditions from Seller. All NRE quotations from Seller are based on Seller's standard test conditions if such NRE covers Buyer's product test. Testing condition beyond Seller's standard should be discussed by Seller and Buyer. Extra charge to Buyer for product test may be generated accordingly.
- Buyer acknowledges and agrees that it is not relying on any application or circuit contained in Seller's literature, and to test all parts and applications under extended field and laboratory conditions. Notwithstanding any cross-reference or any statement of compatibility, functionality, interchangeability, and the like, Seller's products may differ from similar products from other vendors in performance, function or operation, and in areas not contained in Seller's written specifications, or as to ranges and conditions outside such specifications; and Buyer agrees that Seller makes no warranty and is not responsible for such things.
- Buyer agrees that a mass production will begin based on a signed Engineering Sample Approval Form. If Buyer fails to return to Seller a signed Engineering Sample Approval Form within thirty (30) days of its receipt of the sample, Buyer's request for mass production will be based on the production specifications and conditions approved at the sign-off stage. Seller will not be liable for any loss, damage or penalty resulting from causes generated from Buyer's problem in its own system.
- EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY, AND EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION.
5. INTELLECTUAL PROPERTY
Seller shall retain all right, title and interest to the photo masks, mask sets, generated metal mask interconnect data, GDSII database tapes, including pattern generation tapes and test tapes developed by Seller for Buyer ("Materials for Manufacturing"), which shall not be deemed to be "works made for hire" or "commissioned works." Except for Buyer's implied license to use and sell products and/or services, or otherwise dispose of the copyrighted works from Seller, the sale of products or services does not convey any license by implication, estoppel, or otherwise in respect of products or services alone or in combination with products provided by third party. Seller may destroy such Materials for Manufacturing upon Buyer's written request, or if no order of associated products is received from Buyer for a consecutive two-year period.
6. LIMITATION OF LIABILITY
- Seller will not be liable for any loss, damage or penalty resulting from causes beyond its reasonable control, including but not limited to delay by others, force majeure, act of God, or labour conditions. In any such event, the date(s) for Seller's performance will be deemed extended for a period equal to any delay resulting.
- SELLER'S LIABILITY ARISING OUT OF THIS CONTRACT OR ANY PRODUCTS SOLD WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE OR REPAIR (IF AUTHORIZED BY SELLER IN ADVANCE) OR REPLACEMENT OF PURCHASED PRODUCTS (RETURNED TO SELLER FREIGHT PRE-PAID).
- Buyer may not return any product without first obtaining a customer return order number.
- AS A SEPARATE LIMITATION, IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS; FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES; OR LOSS OF USE, OPPORTUNITY, MARKET POTENTIAL, AND/OR PROFIT ON ANY THEORY (CONTRACT, TORT, FROM THIRD PARTY CLAIMS OR OTHERWISE). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
- No action against Seller, whether for breach, indemnification, contribution or otherwise, shall be commenced more than one year after the cause of action has accrued, or more than one year after either the Buyer, user or other person knew or with reasonable diligence should have known of the matter or of any claim of dissatisfaction or defect involved; and no such claim may be brought unless Seller has first been given commercially reasonable notice, a full written explanation of all pertinent details, and a product faith opportunity to resolve the matter.
- MOREOVER, IN NO EVENT WILL SELLER'S AGGREGATE LIABILITY EXCEED PROVED DIRECT DAMAGES IN AN AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCTS OR SERVICES GIVING RISING TO THE CLAIM OVER THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
- BUYER EXPRESSLY AGREES TO THE LIMITATIONS OF THIS PARAGRAPH 5 AND TO THEIR REASONABLENESS AND THE REMEDIES HEREOF ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES.
7. SUBSTITUTIONS AND MODIFICATIONS
Seller may at any time make substitutions and modifications to products which do not materially and adversely affect overall performance with the then current Seller specifications in the typical and intended use; provided, however, that Seller shall not modify any design for product approved in writing by Buyer without Buyer's written consent. Seller reserves the right to halt production or alter specifications and prices without notice. Buyer shall verify that the literature and information is current before purchasing.
These terms and conditions may not be cancelled by Buyer except with written consent by Seller and Buyer's payment of reasonable cancellation charges (including but not limited to expenses already incurred for labour and material, overhead, commitments made by Seller, and a reasonable profit).In no event will Buyer have rights in partially completed products.
- Seller will, at its own expense, defend and/or settle all suits against Buyer to the extent based on any valid claim that any standard part from Seller's standard cell library and/or standard gate array configuration incorporated by Seller into products purchased by Buyer under these terms and conditions infringe any valid, enforceable, unexpired patent, copyright and/or trademark, and/or that any processing steps or methods by Seller in making parts under this Agreement infringe any valid, enforceable, unexpired method patent, copyright or trademark; provided, however, that Buyer (i) gives immediate written notice to Seller, (ii) permits Seller to defend, and (iii) gives Seller all needed information, assistance, and authority. Seller is not responsible for infringements resulting from anything not manufactured entirely by Seller, or from any combination with products, equipment or materials not furnished entirely by Seller. Seller shall have no liability under this Paragraph 8 for any infringements resulting from and/or arising out of Buyer's specifications, requirements, code or design nor under any claim arising out of or based upon strict and/or product liability. THIS PARAGRAPH STATES SELLER'S ENTIRE LIABILITY AND OBLIGATION WITH RESPECT TO PRODUCT LIABILITY, INTELLECTUAL OR INDUSTRIAL PROPERTY INFRINGEMENT OR CLAIMS THERETO.
- Except as to claims Seller agrees to defend, BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER FROM ALL CLAIMS, COSTS, LOSSES, AND DAMAGES (INCLUDING ATTORNEY'S FEES) AGAINST AND/OR ARISING OUT OF PRODUCTS SOLD AND/OR SHIPPED AND SERVICE RENDERED HEREUNDER. Without limiting this indemnification, Buyer guarantees that is has all necessary rights in and to the designs and products involved, and that the manufacture of products for Buyer will not infringe or violate the rights of any person or entity.
10. CONFIDENTIAL INFORMATION
- Seller shall have no obligation to hold any information in confidence except as provided in a separate non-disclosure agreement signed by both parties; provided, however, that Seller shall not disclose to others, without the consent of Buyer, any design, database tape or electronic file received from Buyer clearly stamped or marked as "CONFIDENTIAL."
- Unless Buyer agrees otherwise, Seller will not use to manufacture products for others, any document, electronic file or other thing which Buyer provides to Seller in a form clearly marked or stamped as "CONFIDENTIAL."
11. ENTIRE AGREEMENT
- These terms and conditions are the entire agreement between Seller and Buyer, and no addition, deletion or modification shall be binding on Seller unless expressly agreed to in a writing signed by an officer of Seller.
- Buyer is not relying upon any warranty or representation except for those specifically stated here.
12. APPLICABLE LAW
These terms and conditions and all performance and disputes arising out of or relating to products involved will be governed by the laws of People’s Republic of China. Buyer agrees at its sole expense to comply with all applicable laws in connection with the purchase, use or sale of the products provided hereunder.
13. JURISDICTION AND VENUE
Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) Shanghai branch for arbitration which shall be conducted in accordance with the CIETAC's arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties.
14. ATTORNEYS' FEES
Reasonable attorneys' fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this contract.