TriQuint Semiconductor, Inc.
Standard Terms and Conditions of Sale
1. APPLICABILITY. THIS DOCUMENT (THE “AGREEMENT”) IS INCORPORATED BY THIS
REFERENCE INTO, AND IS SUBJECT ONLY TO THE EXPRESS PROVISIONS OF, ANY
ORDER ACKNOWLEDGEMENT PROVIDED BY TRIQUINT SEMICONDUCTOR, INC.
(“SELLER”). ANY ADDITIONAL OR DIFFERENT TERMS(S) OR CONDITION(S) SHALL
BE DEEMED A MATERIAL ALTERATION OF, AND BE INAPPLICABLE TO, THIS
TRANSACTION UNLESS SPECIFICALLY AGREED TO IN WRITING BY AN OFFICER
(OR DESIGNEE) OF SELLER. SUBJECT TO THE FOREGOING, THIS AGREEMENT
EXCLUSIVELY GOVERNS ALL QUOTATIONS AND SALES ENTERED INTO BY
SELLER. ACCEPTANCE OF A BUYER'S ORDER AND SELLER'S AGREEMENT TO
FURNISH PRODUCTS OR SERVICES ARE EXPRESSLY CONDITIONED ON BUYER'S
ASSENT TO THIS AGREEMENT. An order or acceptance by a buyer (“Buyer”) of the
products and services which are subject of the order shall constitute Buyer’s
acknowledgement and agreement that this Agreement is intended to be the parties' final
expression and exclusive statement of the terms of their agreement and supersede and
prevail over all terms and conditions otherwise discussed or proposed by Buyer or Seller,
except as otherwise provided above. No course of dealing, no usage of trade and no
acceptance of or acquiescence to any course of performance shall modify, alter or be
relevant to explain or modify this Agreement.
2. PRICES AND TAXES. Prices are specified by Seller in U.S. dollars (unless another
denomination is expressly identified). Prices do not include any taxes, now or hereafter
enacted, applicable to the products sold or this transaction, and such taxes are to be paid
by Buyer. Any tax-exemption certificate or other document related to Buyer’s tax liability
hereunder shall be the sole responsibility of Buyer.
3. DELIVERY. Delivery of the products is EX Works (Incoterms 2010) Seller's factory or EX
Works facility of Seller's agent, as designated by Seller (“Delivery”). Seller reserves the
right to make partial deliveries or partial performance, which may be separately invoiced.
Delay in Delivery shall not relieve Buyer of its obligation to pay for products or to accept
subsequent deliveries. Seller shall not be liable for any costs, losses, damages, claims or
expense (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified
Delivery schedule because of production or other delays. Seller is not liable, either wholly
or in part, for nonperformance or a delay in performance caused by acts of Buyer or Buyer's
customer. If such a delay or a Force Majeure event under Paragraph 19 below occurs,
Seller may, at its option, (1) extend the Delivery date for a time equal to the period of the
delay and/or (2) allocate its available supply among its customers when it is unable to
supply its total demands and/or commitments. In no event shall Seller be obligated to
compensate Buyer for the re-procurement of products, services or other items from others.
4. TRANSFER OF TITLE. Title and risk of loss or damage thereto shall pass to Buyer upon
Seller's Delivery of the products as described in Paragraph 3 above, whether made
available to Buyer or a carrier on Buyer’s behalf for shipment to Buyer. Any loss or damage
after Delivery shall not relieve Buyer from any obligations hereunder. Buyer shall be
responsible for all duties, taxes, and any other expenses incurred after Delivery.
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TriQuint Semiconductor, Inc.
Standard Terms and Conditions of Sale
5. TERMS AND METHOD OF PAYMENT. Payment for all sales is due in advance unless
credit terms have been approved by Seller. When Seller has extended credit to Buyer,
terms of payment shall be net thirty (30) days from date of invoice, unless otherwise stated
on an applicable order acknowledgement from Seller. The amount of credit or terms of
payment may be changed or credit withdrawn by Seller at any time for any reason. If Seller
makes partial deliveries, Buyer shall pay for each partial delivery in accordance with the
terms of payment hereof. When Buyer fails to make each payment when it is due, Seller
reserves the right to withdraw credit and thereby suspend or cancel performance under any
or all purchase orders or agreements in which Seller has extended credit to Buyer. Seller's
suspension of performance may result in a rescheduling delay contingent on current
product availability. In the event of default by Buyer, Seller shall be entitled to costs, fees
and expenses, including but not limited to: recovery of attorneys’ fees, court costs and fees,
and collection costs.
6. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS. Seller may at any time, without
notice to Buyer, make changes to a product that do not adversely affect the form, fit or
function of such product. Seller will notify Buyer of any major changes that affect form, fit or
function of any product for which Buyer has placed an order and has an order still
outstanding.
7.
PATENT INDEMNITY. Seller shall defend any suit or proceeding brought against Buyer
insofar as such suit or proceeding is based on a claim that any products designed and
manufactured for Buyer by Seller and supplied hereunder constitute direct infringement of
any duly issued United States patent of a third party, and Seller shall pay all damages and
costs finally awarded therein against Buyer, provided that Seller is promptly informed and
furnished a copy of each communication, notice or other action relating to the alleged
infringement and is given authority, information and assistance (at Seller's expense)
necessary to defend or settle such suit or proceeding. Seller shall not be obligated to
defend or be liable for costs and damages if the infringement arises out of compliance with
Buyer's specifications, or from a combination with, an addition to, or a modification of the
products after delivery by Seller, or from use of the products in a manner inconsistent with
Seller's recommendation or its intended purpose, or from the use of the products, or any
part thereof, in the practice of a process. Seller's obligations hereunder shall not apply to
any infringement occurring after Buyer has received notice of such suit or proceeding or
other communication alleging the infringement unless Seller has given written permission
for such continuing infringement. If any products manufactured and supplied by Seller to
Buyer shall be held to infringe any United States patent and Buyer shall be enjoined from
using same, Seller's sole obligation shall be to exert all reasonable efforts, at its sole option
and at its expense, to (a) procure for Buyer the right to use such products free of any
liability for patent infringement, or (b) replace such products with a non-infringing substitute
otherwise complying substantially with all requirements of this Agreement, or (c) refund the
purchase price and the transportation costs of such products. The extent of Seller's entire
liability for any such infringement will be the purchase price of such products. If the
infringement by Buyer is alleged prior to completion of delivery of the products under this
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TriQuint Semiconductor, Inc.
Standard Terms and Conditions of Sale
Agreement, Seller may decline to make further deliveries without being in breach of this
Agreement. If any suit or proceeding is brought against Seller based on a claim that the
products manufactured by Seller in compliance with Buyer's specifications and supplied to
Buyer directly infringe any duly issued United States patent, then the patent indemnity
obligations herein stated with respect to Seller shall reciprocally apply with respect to
Buyer. The sale by Seller of the products ordered hereunder does not grant to, convey, or
confer upon Buyer or Buyer's customers, or upon anyone claiming under Buyer, a license,
express or implied, under any patent rights of Seller covering or relating to any combination,
machine or process in which such products might be or are used. The foregoing states the
sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all
warranties, express, implied, or statutory, in regard thereto.
8. EXCLUSIVE WARRANTIES. Except as otherwise provided herein, Seller warrants that the
products are free from faulty workmanship or defective materials and conform to Seller's
applicable specifications or data sheets or other mutually agreed upon written
specifications, for the applicable period set forth below. Seller warrants that at the time of
Delivery, Seller has title to the products free and clear of any and all liens and
encumbrances. Seller's warranties shall be for the following period from date of Delivery:
For (a) Unassembled Semiconductor Devices (Die or Wafer form) - thirty (30) days; (b) all
Buyer designed products (foundry services) – thirty (30) days; (c) all Seller Designed and
Assembled Products – one (1) year. Seller makes NO WARRANTY as to software
products, experimental or developmental products, pre-production qualified products,
products used as described in Paragraph 17 below, or products not manufactured by Seller,
provided that as to products not manufactured by Seller, Seller, to the extent permitted by
Seller's agreement with the relevant supplier, shall assign to Buyer any rights Seller may
have under any warranty of that supplier. All such unwarranted products as sold to Buyer
“AS IS”. Seller's warranties as hereinabove set forth shall not be enlarged, diminished or
affected by, and no obligation or liability shall arise or grow out of, Seller's rendering of
technical advice or service in connection with Buyer's order of the products furnished
hereunder. If Seller breaches its warranties as contained herein, Seller's sole and
exclusive maximum liability shall be (at Seller's option) to replace, repair, or credit Buyer's
account for any such products which are returned by Buyer during the applicable warranty
period set forth above, and the extent of Seller's entire liability will be the purchase price of
such products, provided that Seller shall have no liability unless (a) Seller is promptly
notified in writing upon discovery by Buyer that such products failed to conform to this
Agreement with a detailed explanation of any alleged deficiencies, (b) Buyer receives a
Return Material Authorization (“RMA”) number from Seller, (c) Seller is notified of the
intended shipment date to allow Seller to arrange for shipment should Seller so desire, and
(d) Seller's examination of such products shall disclose that such alleged deficiencies
actually exist and were not caused by accident, misuse, abuse, mishandling, neglect,
alteration, negligence, improper installation, improper testing, or unauthorized repair or
alteration by anyone other than Seller. Transportation charges in connection with returned
products shall be at Seller's expense only if Seller is responsible under the terms of this
warranty. If Seller elects to repair or replace such products, Seller shall have a reasonable
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TriQuint Semiconductor, Inc.
Standard Terms and Conditions of Sale
time to make such repair or replacement. Such repair, replacement or credit shall
constitute fulfillment of all liability of Seller to Buyer under any legal theory, including, but
not limited to, contract, tort, indemnity, statutory provision or otherwise.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS
OR WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED OR
STATUTORY AND CAN BE AMENDED ONLY BY WRITTEN INSTRUMENT SIGNED BY
AN OFFICER OF SELLER. SELLER DISCLAIMS ALL OTHER WARRANTIES TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, AND ANY OTHER REPRESENTATION OR WARRANTY OBLIGATION
ON THE PART OF SELLER.
9. LEGAL COMPLIANCE. Seller and Buyer shall comply at all times with all applicable
federal, state, and local laws and regulations. The products covered by this Agreement are
subject to export license control by the U.S. government including, but not limited to, the
U.S. Export Administrations Regulations (EARs). Buyer warrants that it will comply with all
applicable export, re-export and foreign policy controls imposed by the U.S. and the country
in which each is located. Buyer will take the necessary actions and precautions to ensure
that its customers do not contravene such laws or regulations. Buyer agrees not to export,
re-export or transship directly or indirectly, any product or Seller's technical data to any
country restricted by the U.S. Government, except as authorized by the appropriate U.S.
governmental agencies. Delivery of products under this Agreement shall be subject to the
ability of Seller to make such Delivery under the laws, rules and regulations of the U.S.
government that are in any way related to export controls, at any time such laws, rules and
regulations are in effect. Any order that has been accepted by Seller, but which cannot be
fulfilled due to such laws, rules or regulations, shall be considered to have been rejected
when submitted to Seller, and Seller shall have no obligations in connection therewith. The
parties acknowledge that they may each be subject to penalties for transacting business
involving product, or Seller's technical information, with any customers that it knows or has
reason to know are subject to denial of U.S. Export privileges, or engages, directly or
indirectly in prohibited nuclear, chemical, biological or missile technologies. Buyer shall
indemnify and defend Seller and Seller’s officers, directors, shareholders, employees and
agents, and its successors and assigns (collectively and severally, “Indemnified Seller”)
against, and hold Indemnified Seller harmless from, any loss, claim, damage, suits, costs,
expenses (including without limitation attorneys, accountants and other professional fees),
that arise out of or result from any breach of this Paragraph 9 by Buyer.
10. LIMITATION OF LIABILITY. Seller's sole and exclusive maximum liability to Buyer or any
other third-party for all types of losses or damage, whether on account of negligence, strict
liability in tort, breach of contract, breach of warranty or otherwise, at law or in equity, shall
in no event exceed the total contract price for any products with respect to which losses or
damage occur and shall be limited as set forth in Paragraph 8 above.
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TriQuint Semiconductor, Inc.
Standard Terms and Conditions of Sale
THE FOREGOING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDY FOR
SELLER FURNISHING DEFECTIVE OR NONCONFORMING PRODUCTS, MATERIALS,
SPARE PARTS, OR SERVICE. IN NO EVENT, INCLUDING LATE DELIVERY OR
FAILURE TO DELIVER, SHALL SELLER BE LIABLE TO ANYONE FOR SPECIAL,
COLLATERAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, FOR BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, PROVISIONS REGARDING WARRANTIES,
GUARANTEES, INDEMNITIES, AND PATENT INFRINGEMENT (SUCH EXCLUDED
DAMAGES TO INCLUDE BUT NOT BE LIMITED TO, COSTS OF REMOVAL AND
REINSTALLATION OF PRODUCTS OR ITEMS, LOSS OF GOODWILL, LOSS OF
PROFITS, OR LOSS OF USE).
THESE LIMITATIONS AND EXCLUSIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
11. TERMINATION/CANCELLATION, RESCHEDULE AND DEFAULT. Buyer may terminate
this Agreement in whole or, from time to time, in part upon a 30 days advance written notice
to Seller. In such event, Buyer is subject to termination charges which shall include a price
adjustment based on the quantity of products actually delivered, and all costs, direct or
indirect, incurred and committed for this Agreement together with a reasonable allowance
for prorated expenses and anticipated profits. Orders may be rescheduled once with 30
days advance written notice prior to the confirmed Delivery date. In no event shall the
newly requested Delivery date extend beyond 30 days from the originally confirmed
Delivery date, except as otherwise permitted by Seller in its sole discretion, provided that if
Seller permits such action, Seller shall have the right to require that Buyer cancel and resubmit such order. Rescheduled orders may not be later canceled, except as otherwise
permitted by Seller in its sole discretion. In the event of any default by Buyer, Seller may
decline to make further shipments. If Seller elects to continue to make shipments, Seller's
action shall not constitute a waiver of any default by Buyer or in any way affect Seller's legal
remedies for any such default.
12. U.S. GOVERNMENT CONTRACTS. If the products to be furnished under this Agreement
are to be used in the performance of a U.S. Government contract or subcontract, then
Buyer represents and warrants that Buyer has fully advised Seller of any related
requirements under applicable U.S. Government procurement regulations or other federal
law.
13. NO RIGHTS IN TECHNICAL DATA. Inasmuch as manufacturing is accomplished using
Seller’s proprietary software and existing Seller technology, no rights are implied or granted
to any of Seller's proprietary technical data, computer software or unique
design/manufacturing processes.
14. ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the
parties and the successors and assigns of the entire business and goodwill of either Seller
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Standard Terms and Conditions of Sale
or Buyer, or of that part of the business of either used in the performance of this
Agreement, but shall not be otherwise assignable or delegated. Unauthorized assignment
or delegation shall be void.
15. WAIVER. Failure by a party to take affirmative action with respect to any breach of these
terms and conditions by the other party shall not be construed as a waiver of, or estoppel
with respect to, that breach or any future breach. To be effective, waivers must be in
writing and signed by the party waiving such breach and then, shall only be effective as to
the specified breach and not to any future breach.
16. PROPRIETARY INFORMATION/RELEASE OF INFORMATION. Except as required by
law, neither Seller nor Buyer shall publicly announce or disclose the existence of this
Agreement or its terms and conditions, or advertise or release any publicity regarding this
Agreement, without the prior written consent of the other party. This provision shall survive
the expiration, termination or cancellation of this Agreement. The protection of any
confidential or proprietary information of either shall be governed by the terms and
conditions of any applicable Mutual Non-Disclosure Agreement executed between the
parties.
17. LIFE SUPPORT POLICY. SELLER'S PRODUCTS ARE NOT AUTHORIZED FOR USE AS
CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS WITHOUT THE
EXPRESS PRIOR WRITTEN APPROVAL OF SELLER. As used herein: (1) life support
devices or systems are devices or systems which (a) are intended for surgical implant in the
body, or (b) support or sustain life and whose failure to perform when properly used in
accordance with instructions for use provided in the labeling can be reasonably expected to
result in a significant injury to the user; and (2) a critical component is any component in a
life support device or system whose failure to perform can be reasonably expected to cause
failure of the life support device or system or to affect its safety or effectiveness. Buyer
shall indemnify and defend Indemnified Seller against, and hold Indemnified Seller
harmless from, any loss, claim, damage, suits, costs, expenses (including without limitation
attorneys, accountants and other professional fees), that arise out of or result from any
breach of this Paragraph 17 by Buyer.
18. INJURY LIABILITY. In the event of any claim by a third party against Seller for personal
injury or property damage arising out of or connected with Buyer’s product or Buyer’s
design of products furnished under this Agreement, Buyer shall, at its own expense,
indemnify Seller for and, defend and hold harmless Seller against, any and all losses, costs,
expenses (including, without limitation, attorneys', accountants and other professional fees),
or liability arising out of such claim.
19. FORCE MAJEURE. Neither party shall be liable for any failure of or delay in performance
of its obligations under this Agreement to the extent such failure or delay is due to
circumstances beyond its reasonable control, including, without limitation (whether similar
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or dissimilar), acts of God, acts of a public enemy, terrorist acts, fires, floods, wars, civil
disturbances, accidents, insurrections, blockades, embargos, storms, explosions, damage
to its plants, labor disputes (whether or not the employees' demands are reasonable and
within the party's power to satisfy), acts of any governmental body (whether civil or military,
foreign or domestic), all perils of the seas and other waters, failure of or delay of third
parties or governmental bodies from whom a party is obtaining or must obtain rights of way,
easements, franchises, permits, machinery, materials, equipment, transportation,
independent contracting, or supplies to grant or deliver the same, or inability to obtain labor,
materials, equipment, or transportation (collectively and severally referred to herein as a
“Force Majeure” event), nor shall any such failure or delay give the other party the right to
terminate this Agreement. Each party shall use its reasonable efforts to minimize the
duration and consequences of any failure or delay in performance resulting from a Force
Majeure event.
20. SEVERABILITY. If any provision of this Agreement, or the application thereof to any
circumstance, person or place, shall be held by a court or other tribunal of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such
provisions as applied to other circumstances, persons or places shall remain in full force
and effect.
21. GOVERNING LAW. The validity, performance, interpretation and construction of this
Agreement shall be governed by the laws of the state of Oregon (excluding its choice of law
rules and excluding the 1980 United Nations Convention on Contracts for International Sale
of Goods). Subject to Paragraph 22 below, any suit or action arising out of or in
connection with this Agreement, or any breach hereof, may be brought and maintained in
the federal or state courts in Portland, Oregon. The parties hereby irrevocably submit to
the jurisdiction of such courts for the purpose of such suit or action and hereby expressly
and irrevocably waive, to the fullest extent permitted by law, any objection it may now or
hereafter have to the venue of any such suit or action in any such court.
22. DISPUTE RESOLUTION. If there is a dispute between Seller and Buyer arising from this
Agreement (a “Dispute”), and the parties cannot promptly resolve it through negotiation,
then either party may submit the Dispute to binding arbitration by one arbitrator in Portland,
Oregon, in accordance with the rules of the Arbitration Service of Portland, Inc., and
judgment upon the arbitral award may be entered in any court having jurisdiction over
Buyer or Seller or their respective assets. Buyer and Seller shall select a mutually
acceptable arbitrator. If, within twenty (20) days of the notice of intent to arbitrate from one
party, Buyer and Seller have failed to select an arbitrator, then the arbitrator shall be
selected by the Arbitration Service of Portland, Inc. Buyer and Seller shall be allowed
reasonable depositions and discovery with the advance leave granted by the Arbitrator.
Either party may, without inconsistency with this Agreement to arbitrate, seek from a court
any provisional remedy that may be necessary to protect either party's rights under this
Agreement pending the establishment of the arbitral tribunal or its determination of the
merits of the Dispute.
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Standard Terms and Conditions of Sale
23. NOTICE. All notices and other communications required or permitted under this Agreement
shall be in writing and shall be sent by overnight air courier service (in which case notice shall
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be deemed given when received by addressee or on the second (2 ) day after the date of
delivery to the courier, whichever is earlier), or by registered or certified mail, return receipt
requested, postage prepaid and properly addressed (in which case notice shall be deemed
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given when received by the addressee or on the fifth (5 ) day after the date of mailing,
whichever is earlier), to the addresses set forth in this Agreement or such other address or
person as a party may hereafter provide notice of to the other
24. AUTHORITY. Seller is hereby authorized to rely on the due authority of any representative of
Buyer communicating with Seller regarding a product order, unless Buyer identifies certain
individuals having such authority within two (2) days of receipt of this Agreement.
Domestic Standard terms of Sale 11/2011