Standard Terms & Conditions of Sale
TallannQuest LLC, dba Apogee Semiconductor
STANDARD TERMS AND CONDITIONS OF SALE
For Semiconductor Products
- Offer and Acceptance:
TallannQuest LLC, dba Apogee Semiconductor (“APOGEE SEMI”) offers to sell and deliver semiconductor and related products in accordance with the terms and conditions set forth herein (“Standard Terms”). A recipient (“Buyer”) of APOGEE SEMI’s products is assumed to have accepted these Standards 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.
- Prices and Releases:
APOGEE SEMI’s quoted price at the time APOGEE SEMI receives Buyer’s purchase order, unless expired, shall continue to apply if the quantity ordered is released by APOGEE SEMI within twelve months. If more than twelve months have elapsed since the quote was provided, APOGEE SEMI’s price in effect on the actual release date shall apply for the quantity shipped at that time.
- Title and Delivery:
Shipments inside the U.S. shall be delivered F.O.B. APOGEE SEMI’s facility in Texas, unless explicitly stated otherwise on quote from APOGEE SEMI. Shipments to outside the U.S. shall be delivered FCA (Incoterms 2010) Buyer’s designated carrier. Title and liability for loss or damage shall pass to Buyer upon APOGEE SEMI’s delivery to Buyer’s designated carrier. APOGEE SEMI will not be responsible for any subsequent loss or damage. Buyer shall reimburse APOGEE SEMI for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. 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.
- Payment Terms:
If APOGEE SEMI extends credit to Buyer, payment terms shall be net thirty (30) days after APOGEE SEMI’s invoice. Payment shall be in U.S. dollars unless otherwise explicitly agreed in writing. APOGEE SEMI may change or withdraw credit amounts or payment terms at any time for any reason. If the products are delivered in installments, Buyer shall pay for each installment 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 agreements 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 contract 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.
Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. APOGEE SEMI will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides APOGEE SEMI with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to APOGEE SEMI, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
APOGEE SEMI shall not be in breach of this contract 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, 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.
- Warranties and Related Remedies:
- 7.1 Subject to clauses 7.5 and 7.6 below, APOGEE SEMI warrants that all company products will conform either to APOGEE SEMI’s published specifications for such product or other mutually agreed upon written specifications signed by an authorized APOGEE SEMI representative. For finished products, this warranty lasts for three (3) years after the date APOGEE SEMI delivers such products to Buyer, provided, however, that products sold in dry pack are installed within one year after shipment. APOGEE SEMI shall not be liable for any defects that occur in dry packed products that are installed more than one year after having been delivered. For products sold in wafer or die form, the warranty period is thirty (30) days. 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.
- 7.2 If any APOGEE SEMI products fail to conform to the warranty set forth above, APOGEE SEMI’s sole liability shall be at its option to 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 warranty period to the address designated by APOGEE SEMI and that are determined by APOGEE SEMI not to conform to such warranty. 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.
- 7.3 Except as set forth above, semiconductor 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 implied warranties of merchantability or fitness for a particular purpose.
- 7.4 Buyer agrees that prior to using or distributing any systems that include APOGEE SEMI products, Buyer will thoroughly test such systems and the functionality of such APOGEE SEMI products as used in such systems. 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.
- 7.5 Safety-Critical, Aerospace and Automotive Applications.
APOGEE SEMI products are not authorized for use in safety-critical applications (such as life support) where a failure of the APOGEE SEMI product would reasonably be expected to cause severe personal injury or death, unless officers of the parties have executed an agreement specifically governing such use. Buyer shall fully indemnify APOGEE SEMI and its representatives against any damages arising out of the unauthorized use of APOGEE SEMI products in such safety-critical applications.
Buyer acknowledges and agrees that any such use of APOGEE SEMI products is solely at the Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
APOGEE SEMI products are neither designed nor intended for use in automotive applications or environments unless the specific APOGEE SEMI 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 represents that it has all necessary expertise in the 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 any use of APOGEE SEMI products in Buyer’s applications, notwithstanding any applications-related information or support that may be provided by APOGEE SEMI.
- 7.6 Notwithstanding anything to the contrary, software products and experimental and development products are provided “as is” and “with all faults.” APOGEE SEMI disclaims all warranties, express or implied, regarding such software products and experimental and development products, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose
- Limitations and Damages Disclaimer:
- 8.1 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 the use of the goods provided hereunder, 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, loss of goodwill, loss of profits, loss of savings, loss of use, loss of data, or business interruption. No claim, suit or action shall be brought against APOGEE SEMI more than one year after the related cause of action has occurred.
- 8.2 Specific Limitations: In no event shall APOGEE SEMI’s aggregate liability from any warranty, indemnity, or other obligation arising out of any use of any APOGEE SEMI product provided hereunder, exceed the total amount paid to APOGEE SEMI for the particular units sold under the contract 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 contract shall not enlarge or extend this limit.
- 8.3 Buyer understands and agrees that the foregoing liability limitations are essential elements of this contract and that in the absence of such limitations the material and economic terms of this contract would be substantially different.
- Cancellations and Rescheduling:
No cancellation or rescheduling of product by Buyer within thirty (30) days of APOGEE SEMI’s estimated shipping date for such product will be accepted. Any cancellation or rescheduling of product by Buyer more than thirty (30), but less than ninety (90), days before APOGEE SEMI’s estimated shipping date for such product 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 product 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 product at Buyer’s discretion and without charge.
- Non-waiver of Default:
In the event of any default by Buyer, 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.
- Governing Law:
This contract 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 this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract 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 non-exclusive jurisdiction for any dispute arising out of or relating to this contract 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.
- Export Control:
- 12.1 Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), received from APOGEE SEMI, or export, re-export, or release, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Buyer furnishes the assurances provided herein to APOGEE SEMI in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
- 12.2 Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from APOGEE SEMI under this contract or any direct product of such technical data, software or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. 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 fulfill its obligations under this contract. If government approvals cannot be obtained, APOGEE SEMI may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.
- 12.3 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 this contract.
- No Reverse Engineering:
Customer will not, nor allow any third party to, alter, modify or adapt any integrated circuits, processes, intellectual property or software, including but not limited to translating, reverse engineering, decompiling, disassembling, or creating derivative works, and may not take any other steps intended to reproduce APOGEE SEMI’s hardware and software products, or any part thereof without APOGEE SEMI’s express written consent, which can be withheld for any reason.
This contract shall not be assignable by Buyer without APOGEE SEMI’s prior written consent. Any unauthorized assignment shall be null and void.
- Entire Agreement:
This contract constitutes the entire agreement between the parties relating to the sale of the products 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 of the products 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 this contract 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 term in this contract. These terms and conditions 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 this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.
TallannQuest LLC, dba Apogee Semiconductor, Rev. 603-000-299-A01 (4/21)