Conditions of Sale
1. PURCHASE ORDERS: All purchases from Conexant Systems, LLC (“Conexant”) shall be governed exclusively by these terms and conditions of sale (“T&Cs”). No agreement for the supply of products will exist until Conexant provides its quote, order acknowledgement and these T&Cs. Conexant objects to any purchase orders, order forms, acknowledgment forms or other documents issued by buyer which may contain terms in addition to or at variance with these T&Cs, and it is expressly understood and agreed that such other documents shall not add to nor vary these T&Cs. Acceptance of buyer’s order is conditioned upon buyer’s acceptance of these T&Cs, irrespective of whether accepted by written acknowledgment, implication or by acceptance of or payment for products ordered. These T&Cs apply in lieu of any course of dealing between the parties or usage of trade in the industry.
2. PAYMENTS: Conexant’s standard terms of payment are net thirty (30) days from date of invoice, payable in U.S. Dollars. Invoices are to be paid in full without deductions for debits, short pays, set-offs, or other credit amounts. Credits may only be applied if the approved credit memo is on the account at the time of payment. No discounts are authorized and all sales are subject to prior approval of Conexant’s credit department. Pending credit approval and/or based on the financial evaluation of the buyer, Conexant may require payment in advance by wire transfer, certified or cashier check, or irrevocable Stand-by or Document Letter of Credit (collectively “L/C”). If an L/C is used, buyer shall comply with Conexant’s L/C policy. In addition, buyer shall be responsible for all fees and charges for such L/C including, but not limited to, fees for presentation of L/C to the bank for reimbursement. If a Stand-by L/C is used and one invoice becomes past due, then all open invoices will be considered past due and presented to the buyer’s bank for payment. The amount of credit or terms of payment may be changed by Conexant at any time for any reason. If buyer fails to make payment when due or defaults in any way, Conexant may, at its sole option, (1) withdraw credit and thereby suspend or cancel performance under any or all purchase orders, or (2) reschedule purchase orders in accordance with these T&Cs. If invoiced amounts are not paid when due, Conexant may charge buyer a late fee on any amounts past due at the rate of 1% per month (but not to exceed the maximum lawful rate). Each shipment shall be separately invoiced and paid for without regard to other shipments.
3. PRICES/TAXES: Product prices reflected in Conexant’s order acknowledgement include packaging in accordance with Conexant’s standard practice and may be adjusted to the prices in effect at the time of delivery. All prices are exclusive of all freight charges and taxes and government excises applicable to the sale or to the products sold, including, but not limited to, federal, state or local sales, use, excise, or similar taxes. Buyer is responsible for all (1) freight charges, and (2) sales and use taxes and any other taxes that are imposed or determined by reference to the selling price of the product.
4. DELIVERY: All deliveries will be made in accordance with the delivery terms designated on the front of Conexant’s order acknowledgment. Claims against Conexant must be made within 10 days after receipt of shipment. Conexant may make deliveries in installments with appropriate partial invoicing issued therefore. Delivery dates stated on Conexant’s order acknowledgement represent Conexant’s best estimate of when the products will be shipped. Conexant is not liable for losses or added costs due to delivery delays. Conexant reserves the right to allocate inventories and production when such allocation becomes necessary. IN NO EVENT WILL CONEXANT BE LIABLE FOR ANY PREMIUM TRANSPORTATION, RE-PROCUREMENT, OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS) DUE TO ANY FAILURE TO DELIVER OR DELAY IN DELIVERY HOWEVER CAUSED.
5. TITLE AND SECURITY INTEREST: Unless otherwise specified in writing by the parties or designated on the front of Conexant’s order acknowledgment, title and risk of loss to products sold hereunder shall pass to buyer upon the delivery of such products to a commercial carrier at Conexant’s point of shipping. However, notwithstanding passage of title, Conexant reserves a purchase money security interest in the products in the amount of the purchase price of such products to secure buyer’s obligations hereunder. Buyer will cooperate with Conexant to do all acts deemed necessary or advisable by Conexant to perfect and protect Conexant’s security interest in the products.
A. CANCELLATION FOR DEFAULT: Conexant reserves the right to cancel buyer’s purchase order upon written notice for default if buyer: (1) files a petition in bankruptcy or assignment for the benefit of creditor, is adjudicated bankrupt, or a receiver is appointed for buyer; (2) materially breaches these T&Cs, which breach has not been cured within sixty (60) days from written notice of said breach.
B. CANCELLATION: All orders with a ship date greater than ninety (90) days from the cancellation request date may be cancelled at no cost to buyer. All orders with ship date falling within a thirty (30) to ninety (90) day window from the cancellation request date may be cancelled, subject to payment of sixty-five percent (65%) of the value of the cancelled order (and one hundred percent (100%) for custom products). All orders with a ship date falling within a thirty (30) day window from the cancellation request date shall be cancelled upon payment of one hundred percent (100%) of the value of the cancelled order.
C. RESCHEDULING: Product scheduled for shipment within 30 days (or 60 days for custom product) of the current date is not subject to rescheduling. Product scheduled for shipment from 31 (or 61 for custom product) to 90 days of the current date may be rescheduled once, for a period not to exceed 30 days, provided that the rescheduled date is within the same Conexant fiscal quarter as the originally scheduled shipment date. If the rescheduled date is outside the quarter, Conexant may charge a rescheduling fee of: (1) 10% for standard products or (2) 100% of completed products and actual costs of WIP for custom products. All rescheduled products become non-cancelable. If buyer requests an earlier delivery date, Conexant will attempt to meet such delivery dates, however, buyer may be subject to an expedite fee. Except at Conexant’s option, in no event may any order be rescheduled earlier than Conexant’s then current lead-time. If any order previously rescheduled in accordance with the above, is rescheduled a second time, buyer acknowledges that the entire purchase order or line item is subject to cancellation by Conexant.
7. CHANGES/MINIMUM BUY/END OF LIFE: Conexant reserves the right at any time and without notice to buyer, to make changes in the product(s) which do not adversely affect the form, fit or function of the product(s). Buyer acknowledges that certain products offered by Conexant and contained in Conexant’s price list are subject to minimum buy quantities. Conexant also reserves the right to discontinue the manufacture of any product (“End of Life Product”). Any product designated as an End of Life Product will be identified to buyer in writing. Buyer acknowledges that orders placed for End of Life Products are non-cancelable and non-returnable, except with respect to nonconforming product in which case Section 8 will apply.
8. WARRANTY: Conexant warrants that the products furnished under these T&Cs will conform with Conexant’s published specifications and be free from defects in material and workmanship for a period of one (1) year from the date of shipment, or with respect to unassembled product in wafer or die form, thirty (30) days from the date of shipment. Conexant will, at Conexant’s option, (1) repair, (2) replace or (3) take back the nonconforming product and refund the monies paid by buyer for any product that does not conform to this warranty. In no event shall Conexant be responsible for de-installation or reinstallation of any product or for the costs thereof. These options are contingent upon buyer: (a) promptly notifying Conexant of the nonconforming product in writing no later than 30 days after buyer knows or reasonably should have known of the claimed defect, (b) providing a sample, if requested, and (c) obtaining Conexant’s return authorization approval pursuant to Section 9 below before returning any product. The warranty on repaired or replacement product shall be the greater of ninety (90) days from the date of shipment or the remaining term of the original warranty. The warranty provided herein shall not apply if the product: (1) fails, malfunctions or is damaged as a result of improper handling, installation, maintenance, removal, modification or repair, (2) is subjected to abuse (including, without limitation, electrostatic discharge) or improper use, (3) is altered or damaged such that Conexant is unable to verify the defect with its normal test equipment, or (4) is a sample, prototype or a product from a pre-production run. Conexant’s warranty shall not be enlarged, and no obligation or liability shall arise out of Conexant’s rendering of technical advice, facilities or services, in connection with buyer’s order or the products furnished. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE TO BUYER ONLY AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND CONEXANT EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9. PRODUCT RETURNS: Returns of any type, including warranty returns, extend to buyer only, and must have prior written approval from Conexant. The request for return must include serial number, part number, lot number and date code (when possible) and full identification of products to be returned. Products returned by buyer must be identified as to the nature of defect or problem and contain Conexant’s Returned Materials Authorization (“RMA”) number. Returned shipments not approved by Conexant, or not properly identified, will be refused by Conexant. Products must be returned in the same or equivalent container in which they were shipped with the RMA number clearly visible on the package and proper handling procedures must be used in the packing and shipping of all returned products. Buyer retains title to products returned for repair and any replaced products shall become Conexant’s property. Transportation charges on any product returned from buyer to Conexant shall be at buyer’s expense and on any product returned from Conexant to buyer shall be at Conexant’s expense. Returns are subject to a restocking fee, to be determined by Conexant.
10. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE HEREIN, CONEXANT SHALL NOT BE LIABLE TO BUYER, OR TO ANY THIRD PARTY CLAIMING UNDER THE BUYER, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, REMOTE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS) ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE USE OF PRODUCTS BY BUYER OR ITS CUSTOMERS, BY THE PERFORMANCE OR FAILURE OF CONEXANT TO PERFORM, BY ANY OTHER ACT OR OMISSION OF CONEXANT, OR BY ANY OTHER CAUSE. FURTHER, IN NO EVENT WILL CONEXANT’S TOTAL LIABILITY TO BUYER, OR TO ANY THIRD PARTY CLAIMING UNDER THE BUYER, FOR ANY CAUSE, EXCEED THE SUM PAID TO CONEXANT BY BUYER FOR THE PRODUCTS SOLD HEREUNDER WHICH GIVE RISE TO THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING A CLAIM OR DEMAND BY BUYER.
11. OBJECT CODE SOFTWARE OWNERSHIP AND LICENSE: With respect to all software in object code form and any derivatives thereof furnished to buyer hereunder in connection with the purchased products (collectively “Licensed Software”), Conexant shall retain ownership of all Licensed Software, and any copies thereof, in whole or in part, and all intellectual property rights pertaining to the Licensed Software. To the extent Conexant has the right to do so, Conexant grants to buyer and buyer acknowledges that it has been hereby granted a, nonexclusive, non-transferable license for the right to load, run, or store the Licensed Software in machine readable form only and solely for use with buyer’s equipment that incorporates Conexant products (“Intended Use”). Buyer will strictly adhere to the Intended Use of the Licensed Software and will not, in particular, create derivatives of the Licensed Software, nor translate, adapt, arrange, reverse compile, reverse engineer, modify or otherwise alter or perform error corrections, nor, disclose, sell, assign, rent, lend, sublicense, or otherwise transfer the Licensed Software, or any licenses granted hereunder. Nothing in these T&Cs shall be interpreted as conveying or granting a license to buyer of any Licensed Software in source code form. If the Licensed Software is provided for duplication by buyer, buyer may copy such Licensed Software and may, in addition to the above, merge the Licensed Software with other subject matter to form a derivative work for incorporation into a ROM, PROM or similar information storage device for its Intended Use. If the Licensed Software is embodied in an information storage medium furnished as part of a product purchased hereunder, or incorporated by buyer in an information storage medium as permitted hereunder, buyer may, in addition to the above, transfer the information storage medium as part of the transfer of the product and may convey to buyer’s transferee and to subsequent transferees the license set forth in this Section. Buyer agrees to maintain Conexant’s copyright notice on the Licensed Software and to include the same on all copies made as permitted hereunder. ALL SOFTWARE DELIVERED HEREUNDER IS FURNISHED “AS IS.” CONEXANT MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO SUCH SOFTWARE AND DOCUMENTATION DESCRIBING SUCH SOFTWARE, ITS QUALITY, ITS PERFORMANCE, MERCHANTABILITY, NON-INFRINGMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SOFTWARE AND DOCUMENTATION DESCRIBING SUCH SOFTWARE IS WITH BUYER.
12. PATENT INDEMNITY
A. BASIC INDEMNIFICATION: Conexant shall indemnify buyer from all costs, except incidental, indirect, special, remote, punitive or consequential damages (including, but not limited to, loss of revenue or profits), which may be incurred on account of a finding of direct infringement of any United States patent by the product furnished to buyer hereunder, and Conexant shall, at its own expense, defend all claims, suits or actions alleging such infringement of patents, against buyer. This patent indemnity is conditioned upon buyer promptly notifying Conexant of such claims, suits and actions, buyer providing to Conexant all relevant evidence in buyer’s possession or control, and buyer providing to Conexant reasonable assistance in, and sole control of, the defense thereof and all negotiations for its settlement or compromise. In the event of such a claim of infringement, Conexant’s obligation under this section shall be completely fulfilled and extinguished if Conexant: (i) obtains a license for buyer to continue the use or to sell the allegedly infringing product purchased from Conexant, (ii) replaces or modifies the allegedly infringing product rendering it commercially and substantially equivalent and non infringing, or (iii) refunds the purchase price paid to Conexant by buyer for such allegedly infringing product in the twelve months immediately preceding an indemnification claim or demand by buyer.
B. BUYER’S MITIGATION: Buyer agrees that the foregoing indemnification shall not apply, and moreover shall be reciprocally extended to Conexant, for any claim of U.S. patent infringement that may be brought against buyer or Conexant arising or caused in whole or part by Conexant’s compliance with buyer’s hardware or software requirements, specifications, instructions, or the incorporation of Conexant’s product (including software) into buyer’s product or design. Buyer grants to Conexant the benefit of any patent rights extended to or in possession of buyer that in Conexant’s reasonable estimation may offset or extinguish the alleged infringement allegation hereunder, to the extent permitted by such license. Conexant shall have no liability or obligation for any judgments, actions, costs, loss or damages resulting from: (i) modification of the products furnished hereunder; (ii) the use of any products furnished hereunder in combination with any hardware or software not supplied by Conexant; (iii) the willful acts of buyer; (iv) or any settlement or compromise incurred or made by buyer without Conexant’s prior written consent. Conexant shall not have any liability to buyer under any provision of this section if the patent infringement claim or finding is based upon the use of any software or hardware not furnished by Conexant, or if the products are used in a manner for which the products were not designed.
C. STANDARD EXCLUSIONS FROM INDEMNIFICATION: Excluded from the above indemnification are all patent claims that: (1) are allegedly essential or reasonably necessary for the use, manufacture, method or implementation of one or more standards such as, but not limited to (i) MPEG; (ii) H.264; (iii) MPEG Audio; (iv) 802.11; (v) DSL; (vi) G.723xx; (vii) G.729xx; and (2) are offered to the industry by an entity through means of a license; and (3) are not enforced against component or semiconductor manufacturers. With respect to such exclusion, MPEG LA Consortium and Via Licensing Corporation offer such licenses to the industry. Information about the MPEG LA patent portfolio is available from MPEG LA L.L.C., 250 Steele Street, Suite 300, Denver, Colorado 80206; mpegla.com. Information about the Via Licensing Corporation’s portfolio is available from Via Licensing Corporation, 1000 Brannan Street, Suite 200, San Francisco, CA 94103; www.vialicensing.com. Without any limitation of liability, buyer shall fully indemnify, defend and hold Conexant harmless from any and all damages and costs, as accrued, including attorneys’ fees, that result from any claims, demands or damages that are brought or adjudicated against Conexant, including without limitation such claims, demands and damages that arise out of or are related to the use, manufacture (by any party), duplication, importation, advertising, offer for sale or sale of buyer’s products or services, employing Conexant’s products, that give rise to infringement or alleged infringement of patent claims that are, or hereafter become part of such excluded claims.
D. THE ABOVE STATES THE ENTIRE LIABILITY OF CONEXANT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY ANY SOFTWARE OR BY THE HARDWARE OR PRODUCTS UTILIZING SUCH SOFTWARE, OR BY OPERATION OF SUCH HARDWARE OR PRODUCTS, AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
13. CONFIDENTIALITY: Buyer agrees that it will prevent the use or disclosure to any person or persons of all technical information and other material and data furnished by Conexant in connection with or related to the sale of products hereunder and identified to be of a proprietary or confid¬ential nature (collectively, “Confidential Information”). Buyer shall hold such Confidential Information in confidence using at least the same degree of care as it takes to preserve and safeguard its own proprietary information, but in no event, less than a reasonable degree of care. Confidential Information does not include information that: (A) was in the public domain at the time it was disclosed; (B) was known to buyer at the time of disclosure; (C) was independently developed by the buyer; (D) becomes known to buyer from a source other than Conexant without any obligation of confidence; or (E) is required by law to be released.
14. IDENTIFICATION: Neither Conexant nor buyer shall use any identification of, or reference to, any code, drawing, specification, trade name, trademark, trade device, insignia, service mark, symbol, or any abbreviation, contraction, or simulation thereof, of the other party in any advertising or promotional efforts without such other party’s prior written approval.
15. APPLICABLE LAWS: These T&Cs shall be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws provisions, but specifically excluding the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, and are subject to all other applicable governmental laws and regulations. These T&Cs shall become effective upon Conexant only if and when all necessary permits or licenses required for export of such products or other performance required hereunder shall have been obtained.
16. DISPUTE RESOLUTION: If any claim or controversy arises out of or is related to these T&Cs, the parties shall first make a good faith attempt to resolve the matter through their management. In the event such good faith negotiation fails to settle any dispute within sixty (60) days from notice of such dispute, the parties shall endeavor to resolve such dispute by mediation. Unless the parties agree otherwise, the mediator will be selected from the CPR Panels of Distinguished Neutrals and each party shall be responsible for its own costs associated with such mediation. If the matter has not been resolved pursuant to the aforementioned mediation procedure within sixty (60) days of the initiation of such procedure, the controversy shall be determined by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single arbitrator and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Each party shall bear its own expenses, and the parties will mutually share the AAA administrative fees and the arbitrator’s expenses. A single arbitrator shall be selected by the parties in accordance with the AAA selection rules. The arbitration shall be held in Orange County, California, U.S.A. The arbitration shall be in the English language. The arbitrator shall not be empowered to award damages in excess of, and/or in addition to, actual damages, such as punitive damages, and the arbitrator shall deliver a reasoned opinion in connection with his/her decision. All deadlines in this Section may be extended by mutual agreement. Conexant, in its sole discretion, can forego arbitration in those matters where buyer’s account is thirty (30) days past due and there is an outstanding balance of less than one hundred thousand dollars ($100,000). Notwithstanding anything to the contrary herein, each party shall be entitled to seek injunctive relief in any appropriate court of law to prevent or stop a violation of the terms and conditions contained herein.
17. SEVERABILITY/WAIVER: In the event any of the provisions of these T&Cs become subject to revision or nullification by ruling of an appropriate court of competent jurisdiction, the remaining terms and conditions contained herein shall continue in full force and effect. The failure of Conexant to enforce the provisions hereof or exercise an option herein shall not be construed as a waiver of such provision or option or affect Conexant’s ability to enforce or exercise such provision or option.
18. ASSIGNMENT: Buyer’s order may not be assigned in whole or in part, by buyer without the prior written consent of the Conexant.
19. NO RIGHT OF RESALE: Except as otherwise provided in writing, buyer shall have no right to resell to any third party any products provided by Conexant to buyer under these T&Cs, except pursuant to sales of buyer’s equipment incorporating such products.
20. GOVERNMENT CONTRACT PROVISIONS AND CLAUSES: In the event any products purchased hereunder are incorporated into a product sold under a United States Government contract, the Government clauses required to be passed on to Conexant are not accepted. Except as otherwise provided in writing, Conexant’s commercial terms in lieu of any government subcontract requirements shall apply.
21. LIFE SUPPORT POLICY: Conexant’s products are not designed, intended, authorized or warranted suitable for use in life support applications, devices or systems. Buyer agrees not use the purchased products for life support applications, and further agrees to defend, indemnify, and hold harmless Conexant and its agents from and against any and all actions, suits, proceedings, costs, expenses, damages, and liabilities including attorney’s fees arising out of or in connection with this Section.
22. EXPORT CONTROL: Buyer shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws, and restrictions and regulations of the Department of Commerce, and the United States Department of Treasury Office of Foreign Assets Control, and buyer agrees not to sell or deliver Conexant’s products for ultimate delivery to those areas to which delivery would be forbidden under U.S. law/regulations pertaining thereto.
23. FORCE MAJEURE: Except with respect to buyer’s obligation to make timely payments when due, neither party shall be held responsible for any delay or failure in performance of any part of these T&Cs to the extent such delay or failure is caused by fire, flood, unusually severe weather, epidemics, quarantine restrictions, explosion, war, terrorism, strike, embargo, government requirement, civil or military authority, act of God, nature or the public enemy, inability to secure material or transportation facilities, inadequate yield of products despite Conexant’s reasonable efforts, act or omission of carriers or any other causes beyond its reasonable control. Such other causes shall include, without limitation, shortage of labor or labor disputes, fuel, raw materials or machinery or technical failure where Conexant has exercised reasonable care in the prevention thereof. Conexant may, in the event of any such circumstance, allocate in a fair and reasonable manner, taking into account Conexant’s contractual commitments, its available production output among itself and its other customers, including, at Conexant’s option, those not under contract.
24. ENTIRE AGREEMENT: With the exception of licenses of software in source code and reference designs, which shall be covered under the terms of separate Conexant license agreements, these T&Cs and Conexant’s Order Acknowledgement embody the entire agreement between the parties hereto and supersede all other prior agreements, whether written or oral including buyer’s Purchase Order, between the parties in connection with the products sold hereunder. These T&Cs cannot be modified, supplemented or rescinded except in writing and signed by both parties.