Terms and Conditions of Purchase - Capital Equipment for Maxim Integrated

Terms and Conditions of Purchase - Capital Equipment for Maxim Integrated
Any purchase by Maxim Integrated Products, Inc., and/or its subsidiaries (hereinafter “Buyer”) is expressly made conditional on Seller’s acceptance of these Terms
and Conditions of Purchase. These Capital Equipment Terms and Conditions of Purchase form a part of a contract, as hereinafter described more fully between
Buyer and the entity identified on the Order to which these Terms and Conditions are attached or referenced (hereinafter “Seller”). Buyer’s failure to object to
provisions contained in any communication from Seller, or Buyer’s acceptance of Equipment 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.
1. DEFINITIONS. As used in this Agreement, the following terms will
have the following respective meanings:
“Authorized Representative of Buyer” means its President, Vice President, the
buyer assigned to Seller’s account, or the written designee of any of the
“Capital Equipment Final Acceptance” means Buyer’s written confirmation in
Buyer’s format of acceptance or rejection of installed Equipment signed by an
Authorized Representative of Buyer and authorizing final payment for the
Equipment to Seller or reservation of payment pending Seller’s compliance
with Equipment Performance Specification to Buyer’s satisfaction.
“Equipment” means the machinery, equipment and/or computer hardware and
software purchased under an Order and all components and parts of such
equipment, machinery and/or computer hardware, and all services, additional
components and parts necessary or required for operation of the same in
accordance with Seller warranties and Equipment Performance Specifications.
“Equipment Performance Specifications” means any Buyer drawings,
specifications, performance metrics, standards or other requirements contained
herein and/or referenced in Buyer’s Order or provided to Seller by Buyer.
“MTBF” means the Mean Time Between Failure and is the total number of
hours the Equipment is in operation at Buyer’s facility during the Inspection
Period divided by the number of Equipment failures during the Inspection
“Order” means a written order placed by Buyer to Seller for the purchase of
Equipment described in the Order specifying the quantity, diameter, grade,
delivery date, Specifications and shipping instructions.
“Specifications” means Seller specifications, drawings, samples, quotations, or
other description or documentation furnished to Buyer or specified by Seller
and any additional Buyer requirements or instructions set forth in an Order
and/or referenced in the Equipment Performance Specifications.
“Uptime” means total Equipment availability, excluding preventive
maintenance, and is measured based on a 24 hour, 7 day per week work
schedule. Downtime does not include scheduled time for option installation or
upgrades, but does include preventive maintenance exceeding the number of
hours per week as specified in the Order and/or referenced in the Equipment
Performance Specifications.
2. ORDER ACCEPTANCE. Prior to the date that Buyer submits an Order
and Seller’s acceptance of the Order, Seller immediately shall provide Buyer all
published Specifications for the Equipment.
Conditions stated in Seller’s
acknowledgement or acceptance of an Order or in any quotation or invoice will
not be binding unless expressly agreed to in writing by a Buyer Authorized
Representative. Seller shall be deemed to have assented to all terms and
conditions contained herein upon Seller’s acknowledgment of an Order or
commencement of performance pursuant thereto. Seller acknowledges receipt
of all documents listed on the Order and expressly assumes the obligation to
obtain and review all such documents. To the extent of any inconsistency, the
order of preference shall be as follows: (1) the Order; (2) Buyer Capital
Equipment Terms and Conditions of Purchase; (3) Equipment Performance
Specifications and (4) Specifications. Equipment Performance Specifications
and Specifications may only be changed by written mutual agreement of Buyer
and Seller.
3. PRICES. Buyer shall pay Seller for Equipment manufactured by Seller
in accordance with Specifications and Equipment Performance 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 in writing. Unless otherwise specified on the face of an
Order or agreed upon by the parties in writing, prices include all applicable
federal, state and local taxes and cost of delivery of Equipment DDP
(Incoterms 2000), Buyer destination, freight and cartage prepaid. Seller shall
credit Buyer for any tax refund or credit adjustments received by Seller on
taxes paid to Seller by Buyer with respect to Equipment provided under an
Order. Seller’s prices shall not be higher than last quoted or charged to Buyer
unless otherwise agreed in writing.
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4. PAYMENT. Unless Buyer agrees otherwise in writing, Buyer shall not
be required to pay any sales, use or other taxes arising from Buyer’s purchase
of Equipment under an Order. Buyer shall not be required to pay any late
charge, interest, finance change, or similar charge. Buyer’s payment of the
purchase price does not indicate its acceptance of the Equipment or services or
a waiver of any right of Buyer to test or inspect the Equipment. Payment
terms, including discount periods, shall be specified in the Order. Payment
may be withheld or setoffs made against Seller if Seller is not performing work
pursuant to the Order. If Buyer returns an invoice to Seller for any reason not
attributable to the fault of Buyer, any applicable discount period will
commence on the date of receipt of a corrected invoice by Buyer.
Notwithstanding the foregoing, Buyer shall not be obligated to pay invoices for
Equipment on which a Return Material Authorization number has been issued
or for which a Return Material Authorization request is pending.
5. 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 Order 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 Equipment on the specified
delivery dates. Title and risk of loss shall pass to Buyer upon Seller’s delivery
of Equipment to Buyer. Seller shall not ship Equipment earlier than the
delivery date specified in Buyer’s Order, it being understood that if Seller
builds ahead 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
Equipment 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 supplied to other Seller customers for similar Equipment
and in similar volumes.
6. QUANTITIES. Seller will furnish the specific quantity of Equipment
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.
A. Packaging. All Equipment is 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
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
shipment, 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
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.
If applicable, Seller shall be responsible for
assembling, installing and calibrating the Equipment at Buyer’s facility and
placing the Equipment in operation at Buyer’s facility so that the Equipment is
fully assembled and fully functional prior to commencement of the Buyer
Inspection Period. Buyer will provide a location and grant Seller access thereto
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to facilitate installation of the Equipment and will cooperate with Seller during
installation of the Equipment.
EQUIPMENT TRAINING. Seller agrees to provide, at no additional
charge to Buyer:
(i) Buyer onsite training for general operations of the
Equipment during the Inspection Period as requested by Buyer; (ii) promptly
following acceptance of the Equipment, a specialized training class at Buyer’s
facility pursuant to Seller’s standard course outline with an emphasis on
Buyer’s requirements and (iii) promptly following acceptance of the
Equipment, maintenance training pursuant to Seller’s standard course outline.
10. INSPECTION. Unless expressly agreed otherwise, Buyer will have 90
days (“the Inspection Period”) from the complete installation and calibration of
the Equipment by Seller to examine, inspect and perform (or have performed)
the Equipment acceptance performance metrics described in Paragraph 11 and
to accept or reject any Equipment delivered under an Order. During the
Inspection Period, Buyer will attempt to notify Seller of any complaint which
Buyer may have concerning Equipment delivered, including but not limited to
any claimed shortages, defects, quality problems, delivery errors or
performance problems, and Seller will undertake all reasonable efforts to
correct such deficiencies in a timely manner. If Buyer is unable or prevented
from testing Equipment during the Inspection Period due to causes beyond its
control, the Inspection period shall be extended by the duration of the delay. If
Equipment related issues prevent Buyer from testing Equipment during the
Inspection period which are not immediately corrected by Seller after receipt of
notification from Buyer, this will result in failure of the Equipment
Performance Specifications. Prior to shipment of Equipment, Seller shall
carefully inspect and test all Equipment for compliance to applicable
Specifications. Seller shall retain proper records of such inspections and tests
and provide copies to Buyer, if requested. Unless otherwise specified in the
Order, final acceptance or rejection of the Equipment shall be made after
delivery to the final destination, however Buyer’s failure to accept or reject
Equipment or detect defects during inspection does not relieve Seller from its
responsibility to provide Equipment in accordance with Specifications.
Equipment Performance Specifications and Order requirements.
reserves the right to inspect Seller’s facilities at any time during the term of the
Order to confirm that Seller is satisfying its obligations of testing, inspection
and quality control.
In accordance with ISO quality control Equipment 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.
11. ACCEPTANCE. In order for Buyer to accept Equipment, an Authorized
Representative of Buyer must sign Buyer’s Capital Equipment Final
Acceptance and provide it to Seller. If Buyer does not accept the Equipment
delivered hereunder, Buyer will attempt to specify the grounds to support its
decision for not accepting it. In the case of a rejection, Seller will arrange for
the return of the rejected Equipment to its facility at Seller’s cost. Buyer’s
failure to detect defects during the Inspection Period or failure to note
exceptions to its acceptance on Buyer’s Capital Equipment Final Acceptance
does not relieve Seller from its responsibility to provide Equipment in
accordance with the Order.
A. Acceptance Procedures before Delivery to Buyer
In the event the Order requires Seller to perform and complete an acceptance
process before shipment of the Equipment to Buyer, it will consist of the
following performance metrics: (i) Equipment shall meet or exceed and
operate in accordance with all Specifications and meet all Order requirements;
(ii) Equipment shall conform to standard Seller calibration and verification
programs, which are ordinarily run prior to shipment in accordance with
industry standards; (iii) Equipment shall correlate with prior Equipment
purchased, if applicable; and (iv) Equipment software functionality shall be
verified by running Equipment diagnostics and applications programs. Upon
request, Seller shall provide to Buyer a written report evidencing compliance
with the aforementioned performance metrics.
Buyer’s Equipment Acceptance Procedures after Delivery and Installation
After complete assembly, installation and calibration (if applicable) of a
Equipment by Seller at Buyer’s site, each Equipment shall satisfy the following
performance metrics of Buyer during the Inspection Period: (i) Equipment
shall meet or exceed all Specifications and Equipment Performance
Specifications; (ii) all manuals, spare parts, if any, and any options ordered by
Buyer must be present and complete; (iii) Equipment shall exhibit a minimum
MTBF as set forth in the Order and/or the Equipment Performance
Specifications; and (iv) At Buyer’s facility, the Equipment shall operate and
maintain at or above the minimum levels as defined in the Order and/or the
Equipment Performance Specifications.
12. WARRANTY. The warranty period for the Equipment is as mutually
agreed upon by the parties in writing under the Order. The warranty period
commences on the day the applicable Equipment is formally accepted by Buyer
as signified by execution of Buyer’s Final Acceptance Document signed by an
Authorized Representative of Buyer. (“Warranty Period”). Seller warrants that
Equipment: (a) will meet or exceed, operate and continue to operate in
accordance with all Equipment Specifications and Equipment Performance
Specifications; (b) all items will be merchantable, of good workmanship, and
free from defects; (c) unless otherwise specified herein, all Equipment is new
and has not been previously used; (d) the Equipment is fit for use for their
ordinary intended purposes as well as any special purpose specified by Buyer;
(e) will continue to satisfy any and all items and the sale thereof do not, and the
use of the same for their ordinary intended purpose as well as any special
purpose specified will not constitute infringement or contributory infringement
of any patent, or infringement of any copyright or trademark, or violation of
any trade secret; and (f) Seller has good title to the items free from all
These warranties will survive any inspection, delivery,
acceptance or payment by Buyer for the Equipment and are in addition to, and
shall not be construed as restricting or limiting any warranties of Seller, express
or implied, that are provided by law or exist by operation of law.
Buyer shall notify Seller if Equipment does not meet the foregoing Warranty
during the agreed upon Warranty Period, and Seller shall promptly, and in no
event more than ten days from the date of such notice, correct any defective or
nonconforming Equipment by repairing or replacing it with Equipment with
the same functionality. Buyer may return such defective or nonconforming
Equipment to Seller at Seller’s expense and recover from Seller the price paid
for it in the event Seller does not repair or replace the defective or
nonconforming Equipment within the Warranty Period. In the event of
recurring problems during the Warranty period, at Buyer’s discretion, Buyer
shall either (i) request and receive an extension of the Warranty Period; (ii)
return such Equipment to Seller for new Equipment with the same
functionality, or (iii) promptly receive a full refund of the purchase price form
13. INDEMNITY. Seller agrees and will defend, protect, indemnify and hold
harmless Buyer and its officers, directors, employees, agents, customers,
successors and assigns from and against all claims, liabilities, losses, costs and
expenses (including attorneys’ fees and costs of suit and testing and
inspection), damages, demands, judgments, causes of action, suits and liability
in tort or contract arising out of or in any way connected with the Equipment or
services provided to Buyer under any Order including, without limitation: (i)
personal injury, death or property damages of any person if directly or
indirectly attributable to any act or omission of Seller, its employees, agents
and subcontractors; (ii) the work, services, materials or supplies to be
performed or supplied by Seller for purchases made by Buyer under the Order;
(iii) any claims by third parties alleging that the services or any other
Equipment or processes provided under any Order or agreement between Buyer
and Seller infringe upon any patent, copyright, trademark, trade secret or other
proprietary right whether such are provided along or in combination with other
Equipment or processes; (iv) any violation by Seller of any applicable
governmental laws, rules, ordinances or 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. Seller agrees to pay or reimburse all
costs, including attorney fees that may be incurred by Buyer enforcing this
14. 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
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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 assignment by Seller.
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.
15. NOTICE OF LABOR DISPUTES. Whenever any actual or potential
labor dispute delays or threatens to delay the timely performance of an Order,
Seller will immediately give notice of that dispute to Buyer. Seller agrees to
insert the substance of this clause in any lower tier subcontract and to require
that in the event its lower tier subcontractors’ timely performance is delayed or
threatened by delay by any actual or potential labor dispute, the lower tier
subcontractor will immediately notify its next higher tier contractor of all
relevant information with respect to those disputes.
20. GOVERNING LAW. This Order shall be construed in accordance with
and disputes shall be governed by the laws of the State of California, excluding
its conflict of law rules. The Superior Court of the County of Santa Clara or
the United States District Court for the Northern District of California shall
have jurisdiction and venue over all controversies arising out of or related to
this Order. The applicability of the UN Convention on Contracts for the
International Sale of Goods is hereby expressly waived by the parties and shall
not apply to the terms and conditions of this Agreement.
Any knowledge or information that Buyer
discloses to Seller under an Order, in tangible or intangible form, including,
without limitation, specifications, reprints, equipment, prototypes, forecasts,
technical or business information, will be deemed confidential, proprietary
information of Buyer; and Seller shall not disclose such information, including
without limitation, denial or confirmation, relative to the Order without the
prior written consent of Buyer. All such information shall remain the property
of Buyer and placement of an Order shall not be deemed a granting of any
right, license, or authorization, express or implied, in or to Buyer confidential,
proprietary information. Seller will not divulge such information to any person
other than its employees on a need to know basis and will use such information
solely in performing its obligations to Buyer under the Order and not for the
benefit of any third party.
This obligation shall not extend where such
a. was in the public domain at the time it was disclosed or later becomes
public knowledge at a future date, other than as a result of Seller’s breach
of its obligations set forth herein;
b. was in Seller’s possession or was known to Seller without restriction at
the time of its disclosure as evidenced by competent written proof of
c. is shown to be developed independently by or for the Seller without use of
or reference to Buyer’s confidential, proprietary information, as
evidenced by written documentation in Seller’s possession; or
d. becomes known to Seller on a nonconfidential basis from a source other
than Buyer without breach of an obligation of confidentiality
(contractual, legal, fiduciary or other).
Unless otherwise agreed in writing, information in whatever form disclosed in
any manner or at any time by Seller to Buyer shall not be deemed confidential
or proprietary.
21. 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.
There can be no modification, amendment or
rescission of an Order without the written agreement of Buyer and Seller. Any
changes to processes, manufacturing methods or qualified critical materials are
subject to Buyer’s prior written approval, and substitutes will not be accepted
unless authorized in writing by Buyer’s duly authorized management. Any
overrun quantities will be subject to Buyer’s prior written approval. Buyer
reserves the right to and Seller agrees to accept changes to the Order, including,
without limitation, changes to quantities, packing, testing, destinations,
specifications, designs and delivery schedules. If an Order affects delivery or
price, Seller will notify Buyer immediately and an equitable adjustment in
prices or other terms hereof, based on reasonable and unavoidable costs
incurred by Seller as a result of such change, will be agreed upon in a written
amendment to the affected Order. Seller will notify Buyer immediately in
writing if it changes its manufacturing locations and Seller shall pay for all
related qualification costs associated with Buyer’s qualification of a new
Any Buyer forecasts furnished under an Order are
presented in good faith and are nonbinding on Buyer. Buyer shall only be
liable for actual Order releases made by Buyer. Seller commits to meet Buyer
requirements in accordance with such forecast. Seller guarantees capacity for
Buyer to meet Buyer’s requirements at all times.
19. CANCELLATION/RESCHEDULE. Buyer may cancel or reschedule
an Order in whole or in part, at any time without liability by giving written
notice to Seller. Cancellation or termination by Buyer will not constitute a
waiver or release of any rights and remedies of Buyer in contract or provided
by law. In the event Seller becomes insolvent or makes an assignment for the
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22. 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.
23. COMPLIANCE WITH LAWS. Seller warrants that the Equipment and
services supplied pursuant to the Order shall comply fully with all applicable
federal, state, and local laws (including any foreign laws, where applicable),
orders, rules and regulations there under and amendments thereto, including
without limitation, Executive Orders relating to Equal Employment
Opportunity, the Federal Occupational Safety and Health Act, Public Law 91596, the Federal Hazardous Substances Act, the Transportation Safety Act, the
Clean Air Act, the Toxic Substances Control Act, the Fair Labor Standards
Act, and the Federal Water Pollution Control Act. Seller shall prepare, maintain
and, to the extent that applicable law, regulation or customs authority requires
it to do so, submit to the applicable customs authorities, all information and
documentation that is necessary to comply with the applicable customs and
export and import requirements of each country from which the Equipment will
be exported and each country into which the Equipment will be imported.
Seller is solely responsible for complying with all technical compliance and
country of origin requirements of each country into which the Equipment is to
be imported.
Upon Buyer’s request, Seller will provide a certificate of
compliance with respect to such laws, order and regulations. At time of Order
placement, Seller will provide to Buyer the Export Control Classification
Number for the Equipment to be purchased and, if applicable, obtain any
licenses required by U.S. export regulations to ship the Equipment to Seller’s
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.
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.
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.
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