Terms and Conditions of Sale

1. General

1.1 The following terms and conditions govern the sale of Products (henceforth "Products") and the provision of services (henceforth "Services") by Advanced Devices Limited and its subsidiaries and affiliates (henceforth "Seller") to customers (henceforth “Buyer”). These terms and conditions (henceforth "Agreement") take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Seller’s commencement of performance or delivery shall not be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein. These terms and conditions may only be modified in a written agreement signed by an authorized representative of Seller.

1.2 Seller's obligations under these terms and conditions may be performed by subsidiaries or affiliates of Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.

2. Orders

2.1 All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of Products being purchased. Seller may in its sole discretion allocate Product among its Customers.

2.2 Seller may designate certain Products as non-cancellable and non-returnable (henceforth “NCNR”) or customer specific (henceforth “CS”). The sale of such Products shall be subject to special terms and conditions defined by Seller, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.

3. Prices

3.1 Prices of Products are those specified on Seller’s invoice. Pricing for undelivered Products may be increased in the event of any increase in Seller’s cost or change in market conditions. Price quotations, unless otherwise stated, shall automatically expire thirty (30) calendar days from the date of issue.

3.2 Unless otherwise specified by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and taxes. Buyer agrees to pay all taxes and to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation, insurance, duties and taxes shall appear as separate items on Seller’s invoice.

4. Payment

4.1 Full payment is due immediately upon placing an order on Seller’s website. Standard terms of payment for all other orders, upon approval of credit, are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. Seller reserves the right to change credit and payment terms extended to Buyer anytime and at Seller’s sole discretion. Buyer will be deemed to have accepted an invoice upon the fifteenth (15th) day from the date of invoice and no further objections to the invoice will be permitted or accepted. Seller may invoice each shipment separately and each shipment shall be considered a separate and individual agreement. Buyer agrees to pay such invoice pursuant to its terms.

4.2 All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of five percent (5%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including attorneys’ fees and court costs, in any action to collect past due amounts.

4.3 Buyer shall pay all transportation costs from Seller’s facility to Buyer’s facility. Seller will select the carrier in the absence of specific instructions by Buyer.

4.4 If Seller believes that Buyer's ability to make payments may be impaired or if Buyer fails to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and all NCNR and CS Products ordered by Buyer.

4.5 Buyer’s failure to pay in full all amounts when and as due shall constitute a default hereof and shall give Seller all rights of a secured party. Any payment received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing on or referring to such payment, without discharging Buyer's liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such payment shall not constitute a waiver of Seller's right to pursue the collection of any remaining balance.

5. Deliveries and Title

5.1 All deliveries will be made EXW (Ex Works as defined in Incoterms 2000) Seller’s facility or FOB place of origin. Subject to Seller's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Seller shall make selection of the carrier and delivery route unless specified by Buyer.

5.2 Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for any delays in delivery or for failure to perform. If the Products perished while in custody of the carrier, the Seller shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.

6. Acceptance and Returns

6.1 Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to Buyer unless rejected upon receipt. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to return the Products to Seller at Seller’s expense or alternatively, Buyer may elect to retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items).

6.2 Any Product returns shall be subject to compliance with Seller’s Return Merchandise Authorization ("RMA") policies and procedures as well as a restocking charge equivalent to 20% of the value of such Product as specified in Seller’s invoice to Buyer. Returned Products must be in the original manufacturer’s sealed packaging and conform to minimum package quantity ("MPQ") requirements. Products not eligible for return shall be returned to Buyer freight collect.

7. Limited Warranty and Limitation of Liability

7.1 Seller will transfer to Buyer, provided it is reasonably able to perform such transfer, any transferable warranties or indemnities that the manufacturer of the Product or the third party vendor/service provider provides to Seller. Seller shall have no liability toward buyer beyond the express terms of such manufacturer product warranties. It is Buyer’s obligation to request copies of any applicable manufacturer warranties and Buyer shall be deemed to have accepted such warranties upon acceptance of the Products and/or Services.

7.2 Seller’s exclusive obligation with respect to a non-conforming Product or Service shall be, at Seller’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund to Buyer the purchase price paid for the Product or Service. The liability of Seller for all claims shall not exceed the sum of Buyer’s payments for the Products or Services, which are the subject of the dispute. The foregoing warranties are the sole warranties given by Seller in connection with Products and Services.

7.3 Seller’s exclusive obligations with respect to any non-conforming, Products and/or Services or breach of warranty or condition in relation to quality or suitability of Products and/or Services shall be, at Seller’s option, to repair or replace the Products, if it is determined to be defective, or to re-perform the Services, or to refund or credit the Buyer the price paid for the relevant Products/Services. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS/SERVICES, AND SELLER DISCLAIMS AND EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER WARRANTIES AND CONDITIONS (WHETHER EXPRESS OR IMPLIED UNDER THE LAWS AND REGULATIONS OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD PARTY RIGHTS AND LATENT DEFECTS.

7.4 No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.

7.5 Seller shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Buyer. Buyer’s only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement shall be against the manufacturer of the Products which is explicitly subject to the limited warranty and/or indemnification provided by the manufacturer of the Product.

7.6 BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.

7.7 Seller shall have no liability for any alleged defect if Buyer fails to notify Seller in writing within fifteen (15) days of discovery of any defect and in any event no later than twelve (12) months of the delivery of the relevant Products.

8. Intellectual Property

8.1 If any Product includes software or other intellectual property of the manufacturer or other third party (third party IP), such software or other intellectual property is provided by Seller to Buyer subject to the intellectual property and software user license for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement and Buyer agrees not to challenge and not to assert its own intellectual property rights (including intellectual property right of its affiliates) against the third party IP.

9. Export Control

9.1 Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security, any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department.

10. Use of Products

10.1 Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning the use of Seller’s Products in its applications, notwithstanding any application related information or support that may be provided by Seller.

10.2 Products sold by Seller are expressly not authorized for use in military and nuclear applications. Use of Seller’s Products in military and nuclear applications is strictly prohibited.

10.3 Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, or other applications in which the failure of such Products could be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer's sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

11. Government Contracts

11.1 In the event that Buyer’s order was placed under a contract with any governmental body, agency or instrumentality (henceforth “Government”), Seller shall not be bound by, nor be obligated to comply with, any contract provisions, statutes or regulations applicable to such contract and the Products or Services to be provided hereunder. No provisions of Buyer’s order placed under a contract with the Government will be binding on Seller. 

12. Technical Assistance

12.1 Any technical assistance offered by Seller in regard to the use and sale of Products or otherwise provided to Buyer is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content and use of such technical assistance, nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.

13. Limitation Period

13.1 Subject to any of the limitations expressed in the applicable manufacturer’s warranty, no action by Buyer may be brought at any time for any reason against Seller or the manufacturer more than twelve (12) months after the facts occurred upon which the cause of action arose.

14. Dispute Resolution

14.1 The validity, interpretation and performance of this Agreement shall be governed by, and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People's Republic of China, without giving effect to conflict of laws principles.

14.2 Both parties agree that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to any claimed breach, shall be commenced in a court of competent jurisdiction in the Hong Kong Special Administrative Region of the People's Republic of China. With respect to all disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (as amended, replaced or codified from time to time) shall not apply.

15. Force Majeure

15.1 Seller shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.

16. Confidentiality

16.1 Each party shall use its best efforts to protect from disclosure the Confidential Information of the other party. Buyer may not during the term of the Purchase Order and these Terms and Conditions as well as thereafter disclose to any third party the terms of the parties’ contract and any Confidential Information pertaining to Seller and shall not use such information other than for the agreed purpose.

This Security Policy was last updated on December 3, 2014.