Wafer Terms and Conditions - Maxim Integrated International Ltd.

Wafer Terms and Conditions - Maxim Integrated International Ltd.
MAXIM INTEGRATED PRODUCTS INTERNATIONAL LIMITED
WAFER TERMS AND CONDITIONS OF PURCHASE
[Also available at http://www.maximintegrated.com/legal/terms/ ]
Any purchase by Maxim Integrated Products International Limited (Ireland) (hereinafter “Buyer”) is expressly made conditional on Seller’s acceptance of these
Terms and Conditions of Purchase.
1.
ACCEPTANCE. Seller shall be deemed to have assented to all terms and
conditions contained herein upon Seller’s acknowledgment of an order (“Order”)
placed by Buyer for Wafers or commencement of performance pursuant hereto.
Conditions stated in Seller’s acknowledgement or acceptance of an Order or in
any quotation or invoice shall not be binding unless expressly agreed to in writing
by an authorized representative of Buyer. Seller may not ship under reservation.
Buyer’s failure to object to provisions contained in any communication from
Seller, or Buyer’s acceptance of Wafers or services under an Order, shall not
constitute acceptance of Seller’s terms and conditions of sale nor be deemed a
waiver of any of the provisions contained herein. From time to time Buyer may
accept certain of Seller’s terms and conditions of sale by signing Seller’s
proposed sale agreement.
If such acceptance is preceded or accompanied by
Buyer’s interpretation of Seller’s terms and conditions, such interpretation shall
control the construction or interpretation of the meaning of Seller’s terms and
conditions.
2.
DEFINITIONS. As used in this Agreement, the following terms will have the
following respective meanings: “Order” means a written order placed by Buyer to
Seller for the purchase of Wafers specifying the quantity, diameter, grade,
delivery date and shipping instructions. “Processes” means Seller’s wafer
production processes used to produce silicon Wafers under any Order. “Wafer”
means a round slice of silicon manufactured by Seller to Buyer Specifications for
use by Buyer to produce integrated circuits. “Specifications” means Buyer
technical specifications [San Jose, Beaverton, San Antonio Fabs) and 37-100005
(Dallas)] {General} Wafer Composition Specification #62-3266 incorporated
herein by reference and any additional Buyer requirements or instructions set
forth in an Order. “Quality and Reliability Criteria” means Seller’s manufacturing
Process quality and reliability specifications, including, without limitation, wafer
geometry, surface perfection and cleanliness, as set forth in Seller’s specification
attached to Seller’s quote and which are to be followed by Seller in manufacturing
Wafers under any Order.
3.
ACCEPTANCE OF ORDERS. Seller will supply Buyer a schedule of first
commit exit-factory dates within five (5) business days of receipt of an Order.
Seller will ensure that the first commit lot exit-factory date will meet Buyer’s
requested delivery date, unless otherwise agreed upon in writing. Seller agrees to
produce Wafers that meet Seller’s Quality and Reliability Criteria and Buyer
Specifications. Specifications may only be changed by written mutual agreement
of Buyer and Seller.
acceptance of the Wafers or a waiver of any right of Buyer to test or inspect the
Wafers. Notwithstanding the foregoing, Buyer shall not be obligated to pay
invoices for Wafers on which a Return Material Authorization number has been
issued or for which a Return Material Authorization request is pending.
6.
DELIVERY. Time is of the essence for any Order. Failure by Seller to meet
delivery dates specified in Buyer’s Order may result in substantial damages to
Buyer due to commitments to its customers and will constitute a material breach
of this Order. Buyer may, at its option take one or more of the following actions:
(a) extend the time for delivery; (b) cancel the Order in whole or in part; (c)
require Seller to ship all or part of the Wafers by prepaid air freight at Seller’s
expense until Seller’s deliveries are in accordance with the requirements of the
Order. Buyer will not be liable to Seller for any cost, expenses or loss whatsoever
occasioned by a cancellation of the Order. Seller agrees to pay Buyer any penalty
and/or damages imposed upon or incurred by Buyer resulting from Seller’s failure
to deliver the Wafers on the specified delivery dates. Title and risk of loss shall
pass to Buyer upon Seller’s delivery of Wafers to Buyer. Seller shall not ship
Wafers earlier than the delivery date specified in Buyer’s Order, it being
understood that if Seller builds ahead Wafers pursuant to an Order submitted by
Buyer, delivery may be made pursuant to the requested delivery date stated in
such Order. Seller will promptly notify Buyer in writing of any delivery delays or
pull-ins in Wafer exit-factory dates, and supply to Buyer at least weekly or at any
time upon specific request, a Work in Progress (WIP) report. Any changes to
such report must be mutually agreed upon. The average cycle time shall be at
least as short as those Wafers supplied to other Seller customers in similar
volumes.
7.
QUANTITIES. Seller will furnish the specific quantity of Wafers called for in
the Order.
Except as otherwise specified in the Order or by prior written
agreement signed by Buyer, no variation in these quantities will be accepted, and
Buyer may return excess shipments at Seller’s expense.
8. PACKAGING AND SHIPPING INSTRUCTIONS.
A. Packaging. All Wafers are to be suitably packed or otherwise prepared for
shipment to secure lowest transportation rates and to meet carrier’s requirements.
Unless otherwise specified in the Order, Buyer is not responsible for any costs for
packing, crating or carriage. Any losses resulting from Seller’s failure to follow
Buyer routing instructions will be charged to Seller’s account.
B. Marking. Each shipping container and all intermediate containers must be
marked to show Buyer’s Order number, part number with revision letter and
quantity.
A packing list showing this information must be included in each
shipments, and the container having the packing list will be labeled on the
exterior “Packing List Enclosed.” Upon establishment of quantity per shipping
and/or intermediate container, future orders for that part will be packed in that
quantity.
C. Consolidation. All materials to be shipped on a given day via the same mode
of transportation from a common shipping point to a common address are to be
consolidated into one shipment.
D. Certificate of Analysis and Certificate of Compliance. A Certificate of
Analysis and Certificate of Compliance must be provided to Buyer with each
shipment.
4.
PRICES.
Buyer shall pay Seller for Wafers manufactured by Seller in
accordance with Buyer Specifications at the prices indicated on the Order. If the
price is omitted from the Order, Seller shall invoice Buyer at the last price quoted
by Seller to Buyer and mutually agreed upon. Unless otherwise specified on the
face of an Order, prices are inclusive of all taxes and other charges such as
shipping and delivery charges, duties, customs, tariffs, imposts and governmentimposed charges, other than Value Added Tax. Wafers will be delivered DDP
(Incoterms 2000), Buyer destination, freight and cartage prepaid, unless otherwise
agreed upon by the parties in writing. Seller shall credit Buyer for any tax refund
or credit adjustments received by Seller on taxes paid to Seller by Buyer with
respect to Wafers provided under an Order. Seller’s prices shall not be higher
than last quoted or charged to Buyer unless otherwise agreed in writing. If Buyer
and Seller mutually agree in writing to reduce the number of steps in the 9.
INSPECTION. Prior to shipment of Wafers, Seller shall carefully inspect and
manufacture of any Wafer, then the Purchase Price for such Wafer shall be test all Wafers for compliance to applicable Buyer Specifications and Seller
reduced accordingly.
Quality and Reliability Criteria.
Seller shall retain proper records of such
inspections and tests and provide copies to Buyer, if requested. Unless otherwise
5.
PAYMENT. Payment will be made within thirty (30) days from Buyer’s specified in the Order, final acceptance or rejection of the Wafers shall be made
receipt of Seller’s correct and valid invoice for Wafers delivered and accepted or after delivery to the final destination, however Buyer’s failure to accept or reject
services rendered and accepted. Payment may be withheld or setoffs made Wafers or detect defects during inspection does not relieve Seller from its
against Seller if Seller is not performing work pursuant to the Order. If Buyer responsibility to provide Wafers in accordance with Buyer Specifications and
returns an invoice to Seller for any reason not attributable to the fault of Buyer, Order requirements. Buyer reserves the right to inspect Seller’s facilities at any
any applicable discount period will commence on the date of receipt of a time during the term of the Order to confirm that Seller is satisfying its
corrected invoice by Buyer. Payment of any item will not be deemed an
obligations of testing, inspection and quality control. In accordance with ISO
Form Rev. 01 dated March 2010
Page 1 of 3
MAXIM INTEGRATED PRODUCTS INTERNATIONAL LIMITED
WAFER TERMS AND CONDITIONS OF PURCHASE
[Also available at http://www.maximintegrated.com/legal/terms/ ]
quality control systems and related certification, a physical inspection of Seller’s
facility may be required for Buyer and/or Buyer’s customer
to satisfy
certification requirements. Upon written notice from Buyer or Buyer customer,
Seller agrees to make its facilities and procedures reasonably available for a site
inspection for physical audit, if required for customer to meet ISO certification
requirements.
13. ASSIGNMENT. Seller will not delegate any duties, nor assign any rights or
claims under this Order, or for breach thereof, without the prior written consent of
Buyer. Any attempted delegation or assignment will be void. All claims for
monies due or to become due from Buyer will be subject to deduction by Buyer or
for any setoff or counterclaim arising out of this Order or any other Order with
Seller, whether the setoff or counterclaim arose before or after any attempted
10. REJECTIONS. If any of the Wafers and/or services furnished under an Order assignment by Seller.
are found at any time to be defective in design, material or workmanship or
otherwise not in conformance with the requirements of an Order, Buyer, in 14. NOTICE OF LABOR DISPUTES . Whenever any actual or potential labor
addition to remedies under all applicable warranties or otherwise, may at its dispute delays or threatens to delay the timely performance of an Order, Seller
option correct or have the nonconformity corrected or reject and return such will immediately give notice of that dispute to Buyer. Seller agrees to insert the
Wafers and/or discontinue such services. Seller will pay or reimburse Buyer substance of this clause in any lower tier subcontract and to require that in the
promptly for all costs for inspection of any rejected item. Such Wafers and/or event its lower tier subcontractors’ timely performance is delayed or threatened
services shall not be replaced or continued without the prior written authorization by delay by any actual or potential labor dispute, the lower tier subcontractor will
of Buyer. Buyer may accept, without prejudice, a portion of any shipment, and, at immediately notify its next higher tier contractor of all relevant information with
its option, have Seller repair or replace any nonportion of the shipment at Seller’s respect to those disputes.
expense. Seller shall remove rejected Wafers promptly at Seller’s own risk.
15. CONFIDENTIALITY. Any knowledge or information that Buyer discloses to
11. WARRANTY.
Seller warrants that: (a) Wafers will conform to the Seller under an Order, in tangible or intangible form, including, without
Specifications, drawings, requirements, samples or other descriptions furnished or limitation, specifications, reprints, equipment, prototypes, forecasts, technical or
specified by Buyer or adopted by Buyer and those furnished or specified by Seller business information, will be deemed confidential, proprietary information of
and accepted by Buyer, including Seller’s Quality and Reliability Criteria; (b) all Buyer; and Seller shall not disclose such information, including without
items will be of merchantable quality, of good workmanship, and free from limitation, denial or confirmation, relative to the Order without the prior written
defects; (c) unless otherwise specified herein, all Wafers are new and have not consent of Buyer. All such information shall remain the property of Buyer and
been previously used; (d) the Wafers are fit for use for their ordinary intended placement of an Order shall not be deemed a granting of any right, license, or
purposes as well as any special purpose specified by Buyer; (e) and all items and authorization, express or implied,
the sale thereof do not, and the use of the same for their ordinary intended in or to Buyer confidential, proprietary information. Seller will not divulge such
purpose as well as any special purpose specified will not constitute infringement information to any person other than its employees on a need to know basis and
or contributory infringement of any patent, or infringement of any copyright or will use such information solely in performing its obligations to Buyer under the
trademark, or violation of any trade secret; (f) Seller has good title to the items Order and not for the benefit of any third party. This obligation shall not extend
free from all encumbrances; (g) that the price or prices to be paid do not exceed where such information: (i) was in the public domain at the time it was disclosed
applicable ceiling prices established by law, regulation or order of any or later becomes public knowledge at a future date, other than as a result of
governmental authority; and (h) that the Wafers, if produced in the United States, Seller’s breach of its obligations set forth herein; (ii) was in Seller’s possession
were or will be produced in compliance with the Fair Labor Standards Act of or was known to Seller without restriction at the time of its disclosure as
1938, as amended or supplemented. These warranties will survive any inspection, evidenced by competent written proof of Seller; (iii) is shown to be developed
delivery, acceptance or payment by Buyer for the Wafers and are in addition to, independently by or for the Seller without use of or reference to Buyer’s
and shall not be construed as restricting or limiting any warranties of Seller, confidential, proprietary information, as evidenced by written documentation in
express or implied, that are provided by law or exist by operation of law. Buyer Seller’s possession; OR (iv) becomes known to Seller on a nonconfidential basis
at its option may (a) return defective or nonconforming Wafers to Seller, at from a source other than Buyer without breach of an obligation of confidentiality
Seller’s risk, for credit and Seller shall pay Buyer for all packing, handling and (contractual, legal, fiduciary or other).
Unless otherwise agreed in writing,
transportation expenses or (b) demand that Seller pay Buyer promptly for information in whatever form disclosed in any manner or at any time by Seller to
expenses incurred in remedying the defective or nonconforming Wafers; or (c) Buyer shall not be deemed confidential or proprietary.
demand that Seller, upon notification from Buyer, expeditiously replace any
defective or rejected Wafers, at Seller’s expense.
Buyer may offset against 16. MODIFICATIONS. There can be no modification, amendment or rescission
Seller’s account any expenses incurred to remedy any defective or rejected of an Order without the written agreement of Buyer and Seller. Any changes to
Wafers and all handling and transportation expenses incurred with respect to processes, manufacturing methods or qualified critical materials are subject to
those Wafers.
Buyer’s prior written approval, and substitutes will not be accepted unless
authorized in writing by Buyer’s duly authorized management.
Any overrun
12.
INDEMNITY. Seller agrees and will defend, protect, indemnify and hold quantities will be subject to Buyer’s prior written approval. Buyer reserves the
harmless Buyer and its officers, directors, employees, agents, customers, right to and Seller agrees to accept changes to the Order, including, without
successors and assigns from and against all claims, liabilities, losses, costs and limitation, changes to quantities, packing, testing, destinations, specifications,
expenses (including attorneys’ fees and costs of suit and testing and inspection), designs and delivery schedules. If an Order affects delivery or price, Seller will
damages, demands, judgments, causes of action, suits and liability in tort or notify Buyer immediately and an equitable adjustment in prices or other terms
contract arising out of or in any way connected with the Wafers or services hereof, based on reasonable and unavoidable costs incurred by Seller as a result of
provided to Buyer under any Order including, without limitation: (i) personal such change, will be agreed upon in a written amendment to the affected Order.
injury, death or property damages of any person if directly or indirectly Seller will notify Buyer immediately in writing if it changes its manufacturing
attributable to any act or omission of Seller, its employees, agents and locations and Seller shall pay for all related qualification costs associated with
subcontractors; (ii) the work, services, materials or supplies to be performed or Buyer’s qualification of a new foundry.
supplied by Seller for purchases made by Buyer under the Order; (iii) any claims
by third parties alleging that the services or any other Wafers or processes 17. FORECASTS. Any Buyer forecasts furnished under an Order are presented
provided under any Order or agreement between Buyer and Seller infringe upon in good faith and are nonbinding on Buyer. Buyer shall only be liable for actual
any patent, copyright, trademark, trade secret or other proprietary right whether Order releases made by Buyer. Seller commits to meet Buyer requirements in
such are provided along or in combination with other Wafers or processes; (iv) accordance with such forecast.
Seller guarantees capacity for Buyer to meet
any violation by Seller of any applicable governmental laws, rules, ordinances or Buyer’s requirements at all times.
regulations; or (v) breach by Seller of any of its obligations under the Order.
Seller shall not settle any suit or claim without Buyer’s prior written approval. 18. CANCELLATION/RESCHEDULE. Buyer may cancel or reschedule an Order
Seller agrees to pay or reimburse all costs, including attorney fees that may be in whole or in part, at any time without liability by giving written notice to Seller.
incurred by Buyer enforcing this indemnity.
Cancellation or termination by Buyer will not constitute a waiver or release of any
Form Rev. 01 dated March 2010
Page 2 of 3
MAXIM INTEGRATED PRODUCTS INTERNATIONAL LIMITED
WAFER TERMS AND CONDITIONS OF PURCHASE
[Also available at http://www.maximintegrated.com/legal/terms/ ]
rights and remedies of Buyer in contract or provided by law. In the event Seller
becomes insolvent or makes an assignment for the benefit of creditors, or a
trustee, receiver, or liquidator is appointed for all or a portion of Seller’s
property, or any voluntary or involuntary petition in bankruptcy is filed by or
against Seller, Buyer may terminate any Order without further obligation or
liability of whatsoever to Seller.
address or fax number of the other party set out in the Order or its registered
office (or such other address or number as may have bee notified). Such notice
shall be deemed to have been duly served upon and received by the addressee at
the time of delivery, (if sent by post) upon the expiration of 48 hours after
posting or (if sent by facsimile transmission) upon the expiration of 12 hours
after dispatch (receipt confirmed and with a confirmation copy sent by post)
during normal business hours of the recipient to the facsimile number of the
19. GOVERNING LAW. This Order shall be construed in accordance with and recipient.
disputes shall be governed by the laws of Ireland. The applicability of the UN
Convention on Contracts for the International Sale of Wafers is hereby expressly 28. SEVERABILITY. If any provision of these terms and conditions (or part of a
waived by the parties and shall not apply to the terms and conditions of this provision) is found by any court or administrative body of competent jurisdiction
Agreement.
to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20. REMEDIES. The remedies reserved in this Order are cumulative and
additional to any other further remedies at law or in equity; however, in no event
will Buyer be liable to Seller for incidental or consequential damages. All of the
terms of this Order are material terms and no waiver of or exception to any of the
terms, conditions or provisions contained in the Order shall be valid unless
specifically agreed to in writing by Buyer.
21. NON-WAIVER DEFAULT. Each shipment made under any Order shall be
treated as a separate sale and transaction, but in the event of any default by Seller,
if Buyer elects to continue to accept shipments, its action shall not constitute a
waiver of any default by Seller or in any way affect Buyer’s legal remedies for
any such default.
22. COMPLIANCE WITH LAWS. Seller represents and warrants that it will
comply fully with all applicable laws and regulations pertaining to its
performance of its obligations under this Order, including, without limitation,
applicable employment, tax, EU and US export control and environmental laws
relating in any way to the production, manufacture, sale and delivery of the
Goods. In particular, Seller shall not participate or encourage, directly or
indirectly, the offering, giving or promising to offer or give, directly or indirectly,
money or anything of value to any official of a government, political party or
instrumentality, to assist Seller or Buyer in obtaining or retaining business or in
carrying out the Services.
Seller’s failure to comply with the terms of this
paragraph shall constitute a material breach of an Order.
29. ENTIRE AGREEMENT. These terms and conditions are the entire agreement
between the parties and supersede and terminate any prior agreements,
understandings or representations, written or oral.
30. BUYER CODE OF CORPORATE SOCIAL RESPONSIBILITY. It is Buyer’s policy
to conduct its affairs in accordance with all applicable laws, rules and regulations
of the jurisdictions in which it does business. This Code of Corporate Social
Responsibility applies to Buyer’s employees, officers, directors, agents,
subcontractors
and
vendors
and
is
accessible
at
h t t p : / / w w w . m a x i m i n t e g r a t e d . c o m / c o m p a n y/ p d f s / c o d e _ o f _ c o r p o r
a t e _ s o c i a l _ r e s p o n s i b i l i t y. p d f Buyer
and/or Buyer customers may
conduct audits of Seller’s facilities and any or all sites where work is being
performed or materials are being delivered in performance of Seller’s work for
Buyer under an Order, including compliance with applicable laws, rules, and
regulations. Seller shall permit access to Buyer and/or Buyer customers to Seller
facilities to ensure Seller’s compliance with all laws, rules and regulations,
including Buyer’s Code of Corporate Social Responsibility.
23. FORCE MAJEURE. Neither party shall be liable for delay in performance or
failure to perform in whole or in part the terms of this Agreement due to strike,
labor dispute, war, riot or civil commotion, acts of the public enemy, fire, flood or
other acts of God, or causes beyond the reasonable control of such party. The
period for performance for the party affected by such a cause shall be extended by
the duration of the condition.
24. LIMITATION OF LIABILITY. BUYER’S TOTAL LIABILITY FOR
DAMAGES UNDER AN
ORDER SHALL NOT EXCEED THE PRICE
ALLOCABLE TO THE GOODS OR SERVICES OF THE AFFECTED
ORDER GIVING RISE TO THE CLAIM.
25. SEVERABILITY. In the event any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and an Order shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
26. INDEPENDENT CONTRACTOR. Seller and Buyer expressly understand and
agree that Seller is an independent contractor in the performance of each and
every part of an Order, is solely responsible for all of its employees, agents and
will indemnify Buyer, its officers, directors, employees, agents, customers,
successors and assigns,
from any and all claims, liabilities, damages, debts,
settlements, costs, attorneys' fees, expenses and liabilities of any type whatsoever
that may arise on account of Seller’s activities or those of its employees, agents,
successors and assigns.
27. NOTICE. Any notice, instruction or other document given pursuant to these
terms and conditions shall be in the English language, in writing and delivered
by courier or sent by first class post or facsimile transmission (such facsimile
transmission notice to be confirmed by letter posted within 12 hours) to the
Form Rev. 01 dated March 2010
Page 3 of 3
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