Apogee Semiconductor, Inc.

STANDARD TERMS AND CONDITIONS OF SALE

By placing this and any future order(s) for Products or Services (“Orders”), you accept the Apogee Semiconductor, Inc. (“APOGEE SEMI”) limited warranty for business customers below, and acknowledge that these Terms and Conditions (“Terms”) and no other terms or conditions apply to such order(s). All other terms or conditions are expressly excluded. Orders are subject to approval by APOGEE SEMI. Orders accepted by APOGEE SEMI (“Orders”) are final and may not be changed. APOGEE SEMI may fill your Order(s) directly or through its designated sales entity for your region.

Limited Warranty for Business Customers

The following Terms and Conditions (“Terms”) give you specific legal rights. You may also have other rights that vary depending on local law.

These Terms set forth the only obligations and agreements by APOGEE SEMI concerning the Products and Services. These Terms supersede and replace any prior or inconsistent statements, terms, or warranties. APOGEE SEMI rejects any additional or inconsistent terms regardless of whether such terms were proposed by the Buyer in any bid request, quotation request, purchase order, or related document. If Buyer purchased a Product or Service through an authorized distributor or reseller who offered additional incentives or terms, Buyer shall look solely to that authorized distributor or reseller for the performance of such additional incentives or terms, and APOGEE SEMI shall have no liability therefore.

1. Definitions:
   “you“, “your”, or Buyer” means the original purchaser from APOGEE SEMI of a Product or Services pursuant to an Order covered by these Terms. “Hardware” means semiconductors provided by APOGEE SEMI. “Software” means any software, library, utility, tool, or other computer or program code provided by APOGEE SEMI. “Documentation” means the Hardware and Software related media, printed materials, online and electronic documentation provided by APOGEE SEMI. “Product” or “Products” means Hardware, Software, and Documentation collectively. The Products are offered and sold or licensed by APOGEE SEMI exclusively for Buyer’s own internal professional, business, or commercial use (including government agencies) and are not promoted or marketed for the purpose of resale to third parties, unless through an executed authorized distributor agreement, reseller agreement, or for any consumer, non-professional, or leisure use. “Services” means the services APOGEE SEMI has agreed to perform.
2. Offer and Acceptance:
   APOGEE SEMI offers to sell or license and deliver Products and/or provide Services in accordance with the Terms. A Buyer of APOGEE SEMI’s Products and/or Services is assumed to have accepted these Terms in their entirety. APOGEE SEMI hereby rejects any different terms, including those that may appear in or be implied by a Buyer’s purchase order or any means of communication, unless APOGEE SEMI explicitly agrees to such different terms in writing. The Software and Documentation are licensed as provided in Section 15 and not sold, and are provided “AS IS”, without any warranty.
3. Prices:
   APOGEE SEMI’s quoted price of Products at the time APOGEE SEMI receives Buyer’s purchase order are based on economic and financial conditions as of the date the quote was provided. For Products not yet shipped, APOGEE SEMI may adjust prices prior to delivery, to reflect increases in manufacturing costs (including increased cost of raw materials) or for any additional duty, tariff, tax, or other charge imposed as a result of any action by the U.S. Government, any state or local government, or any agent or agency thereof or to compensate for exchange rate variations. Services may be provided on a time and materials or milestone basis at Apogee Semi’s then current hourly rates or at rates mutually agreed to in writing.
4. Title and Delivery:
   Shipments of Hardware to locations inside the U.S. shall be delivered EXW (Ex Works) (Incoterms 2020) APOGEE SEMI’s facility in Texas, and shipments to locations outside the U.S. shall be delivered FCA (Incoterms 2020) Buyer’s designated carrier at APOGEE SEMI’s facility in Texas, in each case unless explicitly stated otherwise on the quote from APOGEE SEMI.  Title and liability for loss or damage shall pass to Buyer (a) for shipments upon APOGEE SEMI’s making the Hardware available for pickup at its facility in Texas and (b) for shipments outside the United States, upon APOGEE SEMI’s delivery to Buyer’s designated carrier at Company’s facility in Texas. APOGEE SEMI will not be responsible for any subsequent loss or damage. Buyer shall be responsible for insurance and transportation costs on shipments and for all import duties, taxes and any other expenses incurred, or licenses or clearances required, and shall reimburse APOGEE SEMI for any such costs or expenses incurred by APOGEE SEMI. APOGEE SEMI may deliver Products in installments. Delivery dates that are communicated ahead of actual delivery are only estimates. APOGEE SEMI shall not be liable for any damage, losses or expenses resulting from the actual delivery dates deviating from the estimated dates. Apogee Semi will use commercially reasonable efforts to provide any agreed deliverables in accordance with the delivery schedule as agreed by Apogee Semi.
5. Payment Terms:
   If APOGEE SEMI extends credit to Buyer, payment terms shall be net thirty (30) days after APOGEE SEMI’s invoice. Otherwise payment terms shall be immediately upon invoice.  Payment shall be in U.S. dollars unless otherwise explicitly agreed in writing and without retention or set-off by Buyer.  APOGEE SEMI may change or withdraw credit amounts or payment terms at any time for any reason. If the Products are delivered in installments, APOGEE may invoice for each installment and Buyer shall pay in accordance with the above payment terms. If Buyer fails to make any payment when due, APOGEE SEMI may suspend or cancel performance under any Orders in which APOGEE SEMI has extended credit to Buyer. APOGEE SEMI’s suspension of performance may result in rescheduling delays. If, in APOGEE SEMI’s judgment, Buyer’s financial condition does not justify the payment terms specified herein, then APOGEE SEMI may terminate the order unless Buyer immediately pays for all Products that have been delivered and pays in advance for all Products to be delivered. Termination in accordance with this clause shall not affect APOGEE SEMI’s right to pursue any other available remedies.
6. Taxes:
   Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. APOGEE SEMI will add sales and similar taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides APOGEE SEMI with a valid and duly executed exemption certificate with respect to such taxes. If Buyer is required by law to withhold any amount of tax from its payment to APOGEE SEMI, Buyer will take all reasonable steps to minimize such withholding tax, provide APOGEE SEMI with a receipt or certificate as evidence the tax has been paid, and reimburse APOGEE SEMI for the amount of withholding so that APOGEE SEMI receives payment for the full value of the invoice.
7. Contingencies:
   APOGEE SEMI shall not be in breach and shall 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 APOGEE SEMI’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, epidemic or pandemic, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, explosion, or terrorist act. In the event of a shortage of Products, APOGEE SEMI may allocate, at its sole discretion, Product production and deliveries.
8. Warranties and Related Remedies:
• 8.1   Subject to clause 8.5 below, APOGEE SEMI warrants that all Hardware will conform either to APOGEE SEMI’s published specifications for such Hardware or other mutually agreed upon written specifications signed by an authorized APOGEE SEMI representative. For finished Hardware, this warranty lasts for twelve (12) months after the date APOGEE SEMI delivers such Products to Buyer, provided, however, that Hardware sold in dry pack is installed within one year after shipment. APOGEE SEMI shall not be liable for any defects that occur in dry packed Hardware that is installed more than one year after having been delivered. For Hardware sold in wafer or die form, the warranty period is thirty (30) days. APOGEE SEMI warrants that Services will be performed in a good and workmanlike manner. Notwithstanding the foregoing, APOGEE SEMI SHALL NOT BE LIABLE FOR ANY DEFECTS THAT ARE CAUSED BY NEGLECT, MISUSE OR MISTREATMENT BY AN ENTITY OTHER THAN APOGEE SEMI, INCLUDING IMPROPER INSTALLATION OR TESTING, OR FOR ANY PRODUCTS THAT HAVE BEEN ALTERED OR MODIFIED IN ANY WAY BY AN ENTITY OTHER THAN APOGEE SEMI. MOREOVER, APOGEE SEMI SHALL NOT BE LIABLE FOR ANY DEFECTS THAT RESULT FROM BUYER’S DESIGN, SPECIFICATIONS, OR INSTRUCTIONS FOR SUCH PRODUCTS. Testing and other quality control techniques are used to the extent APOGEE SEMI deems necessary.
• 8.2   If any Hardware fails to conform to the warranty set forth above, Buyer’s sole and exclusive remedy and APOGEE SEMI’s sole liability shall be for APOGEE SEMI to, at its option, repair or replace such Products, or credit Buyer’s account for such Products. APOGEE SEMI’s liability under this warranty shall be limited to Products that are returned during the applicable warranty period to the address designated by APOGEE SEMI and that are determined by APOGEE SEMI not to conform to such warranty, and for which the nonconformity is notified to APOGEE SEMI by Buyer within ten (10) business days after it has been detected. If APOGEE SEMI elects to repair or replace such Products, APOGEE SEMI shall have a reasonable time to repair such Products or provide replacements. Repaired Products shall be warranted for the remainder of the original warranty period. Replaced Products shall be warranted for a new full warranty period. If any Service fails to conform to the warranty set forth above, Buyer’s sole and exclusive remedy and APOGEE SEMI’S entire liability shall be for APOGEE SEMI to, at its option, either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any non-conforming Services or (b) refund amounts paid by Buyer related to the portion of the Services that are non-conforming; provided, in each case, Buyer notifies Apogee Semi in writing within five (5) business days after the performance of the applicable Services.
• 8.3   Except as set forth above, Products, including without limitation all Software and experimental and development Products, are provided “AS IS” and “WITH ALL FAULTS.” APOGEE SEMI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, ACCURACY, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT. EXCEPT AS SET FORTH ABOVE, APOGEE SEMI EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED THE RESULTS TO BE OBTAINED FROM THE SERVICES.
• 8.4   Buyer is solely responsible for its systems, products and applications, which includes (1) selecting and using Products appropriate for its systems, products and applications, (2) designing, validating and testing its systems, products and applications, and (3) ensuring its products and applications meet applicable standards and any safety, security, regulatory or other requirements. Buyer agrees that prior to using or distributing any systems, products or applications that include APOGEE SEMI Products, Buyer will thoroughly test such systems, products or applications and the functionality of such APOGEE SEMI Products as used in such systems, products or applications. APOGEE SEMI may provide technical, applications or design advice, quality characterization, reliability data or other services Buyer agrees that providing these services shall not expand or otherwise alter APOGEE SEMI’s warranties, as set forth above, and no additional obligations or liabilities shall arise from APOGEE SEMI providing such services. Buyer acknowledges and agrees that any such use of Products is solely at the Buyer’s risk, even if APOGEE SEMI is aware or has been informed of its intended use. APOGEE SEMI shall not be liable for any use of Products in Buyer’s systems, products and applications, including, but not limited to, instances where malfunction of a Product could cause severe property damage, severe environmental harm, personal injury or death, such as in safety critical, aeronautical or aerospace or automotive applications as described below.  Buyer represents that it will use appropriate safeguards that anticipate and minimize dangerous consequences of Product failures in its systems, products and applications.
• 8.5   Safety-Critical, Aerospace and Automotive Applications.
  Unless officers of the parties have executed an agreement specifically governing such use, or as otherwise provided for herein, the Products are not authorized for use in: (a) safety critical applications such as life supporting devices or systems; (b) aeronautic or aerospace applications; (c) automotive applications or environments; or (d) any other application where a failure of the Product would reasonably be expected to cause personal injury, death, or catastrophic property damage. Products are neither designed nor intended for use in automotive applications or environments unless the specific Products are designated by APOGEE SEMI as compliant with ISO/TS 16949 requirements. In any case of such use of non-designated Products, APOGEE SEMI will not be responsible for any failure to meet ISO/TS16949 requirements.  Buyer shall fully indemnify APOGEE SEMI and its representatives, including its officers, directors, employees, agents, affiliates, successors and permitted assigns, against any damages arising directly or indirectly from the use of Products in safety-critical, aerospace or aeronautical or automotive applications or environments.
  Buyer represents that it has all necessary expertise in the legal, safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and applications and any use of Products in Buyer’s products and applications, notwithstanding any applications-related information or support that may be provided by APOGEE SEMI.
9. Limitations and Damages Disclaimer:
• 9.1   General Limitations: IN NO EVENT SHALL APOGEE SEMI BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS ORDER OR THE PRODUCTS OR SERVICES PROVIDED HEREUNDER OR THEIR USE, REGARDLESS OF WHETHER APOGEE SEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOST BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, LOST PROFITS, LOST SAVINGS, LOSS OF USE, LOST DATA, OR BUSINESS INTERRUPTION. APOGEE SEMI DISCLAIMS ANY LIABILITY CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT OR PRODUCT SELECTION, IMPROPER PRODUCT INSTALLATION, OR PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.  NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST APOGEE SEMI MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
• 9.2   Specific Limitations: In no event shall APOGEE SEMI’s aggregate liability from any warranty, indemnity, or other obligation arising out of this Order or any Product and/or Services provided hereunder or their use, exceed the total amount paid to APOGEE SEMI for the particular units sold under this Order with respect to which losses or damages are claimed. The existence of more than one claim against the particular units sold to Buyer under this Order shall not enlarge or extend this limit.
• 9.3   Buyer understands and agrees that the foregoing liability limitations are essential elements of this agreement and that in the absence of such limitations the material and economic terms of this agreement would be substantially different.
10. Cancellations and Rescheduling:
    No cancellation or rescheduling of Hardware by Buyer within thirty (30) days of APOGEE SEMI’s estimated shipping date for such Hardware will be accepted. Any cancellation or rescheduling of Hardware by Buyer more than thirty (30), but less than ninety (90), days before APOGEE SEMI’s estimated shipping date for such Hardware may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by APOGEE SEMI based on factors such as whether the Hardware was manufactured specifically for Buyer, APOGEE SEMI’s ability to change its production schedule within the period of notice provided by Buyer, whether APOGEE SEMI acquired or allocated particular supplies or equipment to meet Buyer’s order and such other factors as reasonably determined by APOGEE SEMI. Orders may be cancelled or rescheduled by Buyer more than ninety (90) days before APOGEE SEMI’s estimated shipping date for such Hardware at Buyer’s discretion and without charge.
11. Non-waiver of Default:
    In the event of any default by Buyer hereunder, APOGEE SEMI may decline to make further shipments. If APOGEE SEMI elects to continue to make shipments, APOGEE SEMI’s action shall not constitute a waiver of any such default or affect APOGEE SEMI’s legal remedies for any such default.
12. Governing Law:
    These Terms shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of these Terms to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Terms will continue in full force and effect. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that exclusive jurisdiction for any dispute arising out of or relating to these Terms lies within courts located in the State of Texas and consents to venue in Collin County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and APOGEE SEMI may seek injunctive relief in any United States or foreign court. All proceedings will be conducted solely on an individual basis. No claims will be combined with another without the prior written consent of all parties to all affected claims or proceedings. You will not seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which you act or propose to act in a representative capacity.
13. Export Control:
• 13.1  Buyer acknowledges and agrees that the technology, software, software source code, and Products (collectively “Controlled Information”) provided by APOGEE SEMI are subject to laws and regulations restricting their transfer, export, or re-export, including, but not limited to U.S. export control laws and regulations such as, the International Traffic in Arms Regulations (ITAR, 22 C.F.R. §§120-130) (“ITAR”) and the Export Administration Regulations (EAR, 15 C.F.R. §§730-774) (“EAR”) and laws and regulations concerning the disclosure of classified information (such laws and regulations collectively “Control Laws”). Accordingly, Buyer agrees to (a) comply with all such Control Laws, and (b) not, directly or indirectly, export, re-export, release, disclose, transfer, disseminate, discuss or otherwise provide access to, Controlled Information to (i) any location outside the United States or (ii) any foreign person as that term is used in ITAR and EAR, including but not limited to any natural person who is not a U.S. citizen, U.S. green card holder, been granted asylum under 8 USC §1158 or granted protected refugee status under 8 USC §1157 (including foreign national employees of U.S. companies), any company  or other entity not incorporated or otherwise organized to do business in the United States, or any international organization or foreign government, in each case without first obtaining the appropriate governmental license or other approval and the express written consent of APOGEE SEMI. Without limiting the foregoing, if any Controlled Information is provided by or on behalf of APOGEE SEMI to Buyer pursuant to a governmental license or approval under Control Laws, Buyer will not use or transfer, export or re-export such Controlled Information except as expressly permitted under such license or approval.
• 13.2  Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of Controlled Information acquired from APOGEE SEMI under these Terms. Further, Buyer shall 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, technical data, software, or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to comply with the Control Laws and fulfill its obligations under these Terms. If government approvals cannot be obtained, APOGEE SEMI may terminate, cancel, or otherwise be excused from performing any obligations it may have under these Terms.
• 13.3  Any product export classification made by APOGEE SEMI shall be for APOGEE SEMI’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This section shall survive termination of these Terms.
14. Confidentiality:
    Each party (“Recipient”) agrees to maintain in confidence and not disclose to any third party any non-public information, technical data, or know-how (“Confidential Information”) received from the other party (“Discloser”) in connection with the sale of Products under these Terms, whether disclosed orally, visually, or in writing, and to use such Confidential Information solely for the purpose of fulfilling its obligations under these Terms. Recipient will take reasonable precautions to protect such Confidential Information, which will be no less than those used to protect its own confidential information of like importance. The foregoing obligations will not apply to information that: (a) is or becomes publicly available through no fault of Recipient; (b) is lawfully obtained by Recipient from a third party without breach of confidentiality; (c) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information; or (d) is required to be disclosed by law or court order, provided that Recipient gives Discloser prompt notice (where legally permitted) and reasonable opportunity to seek protective treatment.  The foregoing obligations will apply for a period of five (5) years from the date any Confidential Information is disclosed hereunder (and with respect to Confidential Information that constitutes a trade secret under applicable law, for such longer period as such Information continues to constitute a trade secret under applicable law, and with respect to any Controlled Information, in perpetuity).  If the parties have entered into a separate written non-disclosure agreement (“NDA”) covering the subject matter of the disclosure, then such NDA will govern and supersede this provision with respect to any conflicting terms.
15. Software and Documentation:
    Software and Documentation are licensed and not sold.  For standalone Software provided in connection with the purchase of Hardware from APOGEE SEMI, APOGEE SEMI grants to Buyer a limited, non-transferable, non-exclusive license, without the right to sublicense, to use the standalone Software for its own internal use in a single computer system to evaluate, demonstrate, test and/or configure Hardware only for APOGEE SEMI authorized applications or to design Hardware for manufacture by APOGEE SEMI. Buyer agrees not to disclose, in any form, the standalone Software or any portion thereof to any person other than employees of Buyer without the express written permission of APOGEE SEMI.  For SOFTWARE embedded in Hardware Product(s), APOGEE SEMI grants to Buyer a limited, non-transferable, non-exclusive license to use such embedded Software in the APOGEE SEMI authorized operation of Hardware Product(s) on which such Software are embedded and subject to the terms and conditions herein. Buyer may transfer its license to use the embedded Software to a third party only in conjunction with Buyer’s sale of any Hardware Product(s) or Buyer product on which the Hardware Product(s) with embedded Software is installed. Buyer’s transfer of the embedded Software as authorized herein must be under terms consistent with and no less stringent than the terms set forth in these Terms. Except as specifically permitted in these Terms, embedded Software may not be sublicensed, transferred or loaned to any other party without APOGEE SEMI’S prior express written consent. Buyer shall not directly or indirectly cause the Software to be subject to any open source software license terms.  For Documentation, APOGEE SEMI grants to Buyer a limited, non-transferable, non-exclusive license, without the right to sublicense, to use the Documentation solely to support its permitted use of the Product(s) to which the Documentation relates. The licenses granted to Buyer by these Terms will automatically terminate if Buyer violates or authorizes others to violate any of the Terms.
16. Intellectual Property:
    The design, development or manufacture by APOGEE SEMI of Product(s) and/or services shall not be deemed to produce a work made for hire. Except as expressly set forth herein, all intellectual property rights arising out of Product(s) or services sold or provided to Buyer belong to APOGEE SEMI. Except for Buyer’s implied license to use and sell a unit of Hardware incident to its purchase, the sale or provision of Product(s) and/or services do not convey any license by implication, estoppel or otherwise in respect of Product(s) and/or services alone or in combination with other products. Unless otherwise agreed in writing, APOGEE SEMI shall retain all rights in mask works.
17. No Reverse Engineering:
    Customer will not, nor allow any third party to, alter, modify or adapt any Product, including without limitation any Software or integrated circuits, processes, or other technology embedded therein, including but not limited to translating, reverse engineering, decompiling, disassembling, or creating derivative works, and may not take any other steps intended to reproduce any Product or any part thereof without APOGEE SEMI’s express written consent, which can be withheld for any reason.
18. Assignment:
    Buyer shall not assign any rights or obligations under these Terms without APOGEE SEMI’s prior written consent. Any unauthorized assignment shall be null and void.
19. Entire Agreement:
    These Terms constitute the entire agreement between the parties relating to the sale or license of the Products and performance of Services and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale or license of the Products or performance of Services made by any APOGEE SEMI representative, which are not stated herein, shall be binding on APOGEE SEMI. No addition to or modification of any provision of these Terms shall be binding upon APOGEE SEMI unless made in writing and signed by a duly authorized APOGEE SEMI representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any Terms. These Terms shall prevail notwithstanding any different, conflicting, or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
20. Product and Production Changes:
    APOGEE SEMI reserves the right to make Product and/or production changes at any time. In such event, APOGEE SEMI represents that said changes will not negatively affect form, fit or function of the Products and their performance characteristics.

21. Modifications and Changes:
    APOGEE SEMI reserves the right to modify these Terms at any time. The Terms posted at the time Buyer places an Order will govern the Order in question unless otherwise agreed in writing by APOGEE SEMI and Buyer.