1. BINDING, EXCLUSIVE AGREEMENT.
These terms and conditions of sale (“Agreement”) apply to any sale or transfer of Product(s) by Aeonsemi to Buyer. Buyer accepts and agrees to be bound by this Agreement by: (i) ordering based on a Aeonsemi’ price quote or (ii) accepting or paying for Products. Aeonsemi objects to and rejects any additional or different terms or conditions in any form tendered by Buyer, including expressly rejecting any provisions that dictate that Buyer’s terms control or any additional or different provisions in a Buyer’s electronic business portal. Aeonsemi’ failure to object to any provision or terms from Buyer will not be a waiver or amendment of any of the provisions of this Agreement.
2. CUSTOM AND CUSTOMER-SPECIFIC PRODUCTS.
All drawings design or specifications for Custom Products must be mutually agreed upon in a written document signed by both parties and will be made a part of the Order Documents as a condition to any obligation of Aeonsemi. Orders for Custom Products are non-cancellable. Other than for Products rejected and returned under Section 6, if Buyer cancels, reschedules or rejects any Delivery of Custom Products, in whole or in part, Buyer will pay the full purchase price for the quantity of Custom Products stated in the Order.
At the point at which a Standard Product has been programmed, marked or labeled to Buyer’s specifications and can no longer be sold to a different customer, it becomes a Customer-Specific Product. Orders for Customer-Specific Products will be marked as NCNR in the Order Document, in which case Orders are non-cancellable. Other than for Products rejected and returned under Section 6, if Buyer cancels, reschedules or rejects any Delivery of Customer-Specific Products, in whole or in part, Buyer will pay the full purchase price for the quantity of Custom Products stated in the Order.
3. PAYMENT; SECURITY.
Prices are quoted in U.S. Dollars or in Chinese RMB for sales in China, and all invoices are due and payable in full by Buyer in the invoice specified currency the earlier of (i) net 30 days after the date of invoice or (ii) the due date in an Order Document. Aeonsemi’ pricing and cost structure are confidential and not subject to audit. Unless otherwise noted, quotes expire three months from their date of issuance. In the case of unforeseen increases in Aeonsemi’ costs, Aeonsemi may require renegotiation of pricing for Products not yet Delivered by giving notice to Buyer of such price renegotiation and Aeonsemi’ proposed new pricing. Interest will accrue on all past due amounts at the lesser of 1.5% per month or the maximum rate allowable by applicable law. Buyer will pay for all Products Delivered. For Products Delivered in installments, Buyer will pay separately for each installment. Aeonsemi may, without incurring any Aeonsemi liability, suspend or cease any Delivery and/or cancel any Orders if Buyer is in breach of this Agreement or an Order, or if Aeonsemi determines, in its sole judgment, that there is a risk that Buyer will not fulfill its obligations. Aeonsemi may require that Buyer make full or partial payment in advance, provide certain security or satisfy other conditions.
4. ORDER PLACEMENT.
All orders and requested changes to orders are subject to acceptance by Aeonsemi, which acceptance will be (i) through Aeonsemi’ written order acceptance sent to Buyer, (ii) by Delivery, or (iii) through electronic acceptance by Aeonsemi by mutually agreed upon methods. Notwithstanding anything to the contrary, however, no acceptance other than actual Delivery shall be valid for orders placed with less than Lead Time. Aeonsemi reserves the right in its sole discretion to reject any order given by Buyer regardless of whether Aeonsemi gave Buyer a price quote. The minimum Order amount will be in Aeonsemi’ suggested tube, tray, or tape and reel quantities for each separate Product ordered. As to each Order, Aeonsemi may deliver 5% more or less (+/-5%) than the quantity ordered, and such quantity will be accepted in compliance with and in full satisfaction of the Order, and Buyer will pay for the actual quantity Delivered.
5. ACCEPTANCE; REJECTION.
Conditioned upon providing prompt notice within 10 days after Delivery, Buyer may reject any Products that do not conform to the applicable Order Documents with respect to identity or marking. Any Product that is not properly rejected by Buyer in accordance with this Section is deemed irrevocably accepted. A Product may not be rejected and shall be deemed accepted: (i) if it is not in its original condition; (ii) if Aeonsemi determines it has been subjected to operating or environmental conditions in excess of limits established in the applicable specifications or has been subjected to static, failure to ground properly, accident, mishandling, damage, misuse, abuse, neglect, alteration, improper or unauthorized testing, installation or repair.
6. CANCELLATION, RESCHEDULING.
Buyer may only cancel an Order for Standard Products, in whole or in part, by delivery of written notice to Aeonsemi at least 60 days before the originally scheduled Delivery date. For a partial cancellation of an Order that satisfies the notice requirements, the price will be adjusted based on the remaining quantities. Aeonsemi has the right to cancel an Order at any time if Buyer becomes insolvent or if voluntary or involuntary proceedings are commenced as to Buyer under any bankruptcy or insolvency law, or upon default or breach by Buyer of the Agreement or applicable law. After receipt of a Claim relating to the Products, Aeonsemi may terminate without liability to Aeonsemi any Order as to any or all Products not Delivered. Buyer may request a one-time reschedule for up to 30 days after the Scheduled Date, by a written notice received at least 30 days before the original Scheduled Date. If Products are ordered under non-cancelable, non-returnable (“NCNR”) terms, as specified in the Order Documents, then no Orders may be cancelled by Buyer for any reason, no delivery dates may be rescheduled, and non-defective Products may not be returned for any reason.
All sales, use, value added, property, transfer, excise or other taxes, assessments, fees, and charges applied by any Government to the Products or their sale, delivery, shipment or use will be added to the purchase price of the Products and will be paid by Buyer, except to the extent that Buyer provides Aeonsemi with an acceptable tax exemption certificate. Where applicable, Buyer will provide Aeonsemi with an exemption certificate in accordance with applicable laws and regulations and in form and substance satisfactory to Aeonsemi. If there are withholding taxes payable with respect to the Buyer’s payments to Aeonsemi, Buyer shall nevertheless pay Aeonsemi the full amount due on the invoice, and also pay the amount of the withholding tax due to the proper taxing authority, providing to Aeonsemi evidence of any such payment upon request.
For Products returned under Sections 5, Buyer shall afford Aeonsemi a reasonable opportunity to inspect the Products and any return shall comply with Aeonsemi’ Return Materials Authorization (“RMA”) procedures. Remedies are conditioned upon Buyer giving prompt written notice to Aeonsemi within the applicable period, specifying the affected Product and the defect or nonconformance and returning all affected Products to Aeonsemi to the location specified by Aeonsemi promptly after such notice.
9. LIMITED WARRANTIES; EXCLUSIVE REMEDIES.
Aeonsemi warrants to Buyer that, during the Warranty Period, Standard Products and Customer-Specific Products (i) are free from material defects in materials and workmanship and (ii) materially conform to the Specifications. This warranty does not apply to Custom Products, Nonstandard Products or Software, or to Products that Aeonsemi determines: (i) have been modified or damaged in any way by Buyer or a third party (ii) have been packaged, stored or shipped contrary to Aeonsemi’ Specifications, (iii) have been subjected to Unauthorized Uses or (iv) Products for which an “end of life” notice has been given and which are purchased by Buyer in a “last time buy” opportunity, all of which Products are provided “AS IS”, without warranty of any kind, and cannot be returned to Aeonsemi for any reason. Aeonsemi does not warrant against interference with your use of the Products, that the operation of the Products will be uninterrupted or error-free, or that defects in the Products will be corrected. Aeonsemi’ sole and exclusive liability and Buyer’s sole and exclusive remedy will be for Aeonsemi (at Aeonsemi’ option and conditioned upon Buyer’s compliance with the requirements of this Section) as to the affected Products: (i) to refund the purchase price paid; (ii) to deliver to Buyer a replacement; or (iii) to repair such Product. This warranty and any remedy extend to Buyer only and Aeonsemi has no liability to any of Buyer’s Customers, users or any other third party. Except for this limited warranty, to the fullest extent permitted by law, Aeonsemi makes no other warranty and disclaims all other warranties or liabilities as to any Product, Software or IP, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular purpose, title, ownership, non-infringement, and non-misappropriation. Custom Products, Nonstandard Products labeling on Products and packaging that are intended solely for compliance with applicable law, and all Software are provided “AS IS” and without any warranty of any kind. Aeonsemi does not warrant and disclaims that Products or Software are free from defects that could cause vulnerability to cyber-attack, data breach, loss of data, or privacy violations. The warranty obligations of Aeonsemi and the remedies of Buyer set out in this Section 12 are the sole and exclusive obligations of Aeonsemi and the sole and exclusive remedies of Buyer for all Claims and other liabilities arising out of or in connection with any warranty, nonconformance, failure, defect or breach of warranty. No obligation or liability will arise out of Aeonsemi’ rendering of advice or service in connection with Buyer’s purchase of the Products or any repair or replacement of a Product. Aeonsemi is not responsible for damages and losses due to the operation of third -party products and services. Buyer accepts full responsibility for all risks that Buyer or Buyer’s property may be harmed by third-party products and services. No warranties will apply after the expiration of the Warranty Period. Aeonsemi does not offer any warranties of any kind, and expressly disclaims all implied warranties, on services provided by Aeonsemi which are ancillary to the purchase of Products by Buyer including, but not limited to, Software modifications, board-level designs, and reviews of Buyer’s products or designs. Buyer is solely responsible for complete and thorough testing of Buyer’s hardware and software and their interaction with the Products even if Aeonsemi has advised or assisted Buyer with such or testing. Aeonsemi is not liable for any defect in Buyer’s product, including but not limited to those that would have been detected if Buyer had adequately tested its product.
All of the preceding exclusions from Aeonsemi’ liability and limitations on Aeonsemi’ warranties are applicable even if Aeonsemi was aware, or should have been aware, of foreseeable damages or particular risks to Buyer.
Absent written permission from Aeonsemi, Buyer will keep in confidence, will not disclose to any person, and will not use (other than for purposes of performance under the Order) the Confidential Information. Buyer will not be liable for the unauthorized disclosure of Confidential Information if it: (i) is or becomes generally available to the public, except as the result of unauthorized disclosure by Buyer; (ii) was known, without confidentiality restriction, to Buyer and such knowledge has been documented in writing prior to its receipt; (iii) is independently developed by Buyer without use of Aeonsemi’ data; or (iv) is disclosed as required by law or a governmental or judicial order (provided that Buyer has given prompt written notice to Aeonsemi prior to disclosure and an opportunity to object). Immediately upon request by Aeonsemi, Buyer will return or destroy the Confidential Information and all copies, records, and documents incorporating or derived from such information. The terms of any applicable non-disclosure agreement are cumulative of the confidentiality provisions herein.
11. LIMITATIONS OF LIABILITY.
The aggregate cumulative liability of Aeonsemi, its affiliates, and their employees, directors, or agents (“Aeonsemi Parties”) for all Claims ever made by Buyer against Aeonsemi (inclusive) arising out of or in connection with any and all Orders, Order Documents, Products, Software or Claims shall not exceed, individually or collectively, and Buyer releases all such Claims against (and liability of) Aeonsemi Parties in excess of the net proceeds received by Aeonsemi for the affected Products or Software during the 12 months preceding the event giving rise to first claim, or $1,000,000, whichever is less. The existence of one or more Claims will not enlarge or extend this limit. These limitations apply notwithstanding any failure of essential purpose of any limited or exclusive remedy. In no event will Aeonsemi Parties be liable to Buyer or any third party for any special, collateral, indirect, incidental, consequential, exemplary, punitive, or enhanced damages (“Excluded Damages”). Excluded Damages include costs of inspection, removal, and reinstallation of products, data or other items, rework, re-procurement or recall costs (including administrative and personnel costs) of replacing or substituting items or data, loss of data, loss of goodwill, loss of revenue or profits, and loss of use, without regard to whether Aeonsemi has been notified in advance of the possibility of any such Claim or damage. Excluded Damages also includes damages caused solely or partially by actions of third parties including malicious hacking, data breach, unauthorized access, alteration of electronic data, privacy violations, and denial of service attacks. Except to the extent liability is not excludable by applicable law, these limitations apply to personal injuries (including death) caused by Aeonsemi’ negligence. The allocation of risk contained in this Agreement is reflected in the price of the Products and is reasonable in all circumstances having regard to all relevant factors, including the parties’ relative bargaining positions.