Wafer Terms and Conditions

Wafer Terms and Conditions
MAXIM INTEGRATED PRODUCTS, INC.
WAFER TERMS AND CONDITIONS OF PURCHASE
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. 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. 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 an authorized representative of Buyer.
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.
1.
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.
signed by Buyer, no variation in these quantities will be accepted, and Buyer may
return excess shipments at Seller’s expense.
7. 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 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 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.
2.
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.
INSPECTION. Prior to shipment of Wafers, Seller shall carefully inspect and test
Specifications may only be changed by written mutual agreement of Buyer and Seller. 8.
all Wafers for compliance to applicable Buyer Specifications and Seller Quality and
3. PRICES. Buyer shall pay Seller for Wafers manufactured by Seller in Reliability Criteria. Seller shall retain proper records of such inspections and tests and
accordance with Buyer Specifications at the prices indicated on the Order. If the provide copies to Buyer, if requested. Unless otherwise specified in the Order, final
price is omitted from the Order, Seller shall invoice Buyer at the last price quoted by acceptance or rejection of the Wafers shall be made after delivery to the final destination,
Seller to Buyer and mutually agreed upon. Unless otherwise specified on the face of however Buyer’s failure to accept or reject Wafers or detect defects during inspection does
an Order, prices include all applicable federal, state and local taxes and cost of not relieve Seller from its responsibility to provide Wafers in accordance with Buyer
delivery of Wafers DDP (Incoterms 2000), Buyer destination, freight and cartage Specifications and Order requirements. Buyer reserves the right to inspect Seller’s
prepaid, unless otherwise agreed upon by the parties in writing. Seller shall credit facilities at any time during the term of the Order to confirm that Seller is satisfying its
Buyer for any tax refund or credit adjustments received by Seller on taxes paid to obligations of testing, inspection and quality control.
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. In accordance with ISO quality control systems and related certification, a physical
If Buyer and Seller agree in writing to reduce the number of steps in the manufacture 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
of any Wafer, then the Purchase Price for such Wafer shall be reduced accordingly.
agrees to make its facilities and procedures reasonably available for a site inspection for
4. PAYMENT. Payment will be made within 30 days from Buyer’s receipt of physical audit, if required for customer to meet ISO certification requirements.
Seller’s correct and valid invoice for Wafers delivered and accepted or services
REJECTIONS. If any of the Wafers and/or services furnished under an Order are
rendered and accepted. Payment may be withheld or setoffs made against Seller if 9.
Seller is not performing work pursuant to the Order. If Buyer returns an invoice to found at any time to be defective in design, material or workmanship or otherwise not in
Seller for any reason not attributable to the fault of Buyer, any applicable discount conformance with the requirements of an Order, Buyer, in addition to remedies under all
period will commence on the date of receipt of a corrected invoice by Buyer. applicable warranties or otherwise, may at its option correct or have the nonconformity
Payment of any item will not be deemed an acceptance of the Wafers or a waiver of corrected or reject and return such Wafers and/or discontinue such services. Seller will pay
any right of Buyer to test or inspect the Wafers. Notwithstanding the foregoing, or reimburse Buyer promptly for all costs for inspection of any rejected item. Such Wafers
Buyer shall not be obligated to pay invoices for Wafers on which a Return Material and/or services shall not be replaced or continued without the prior written authorization
Authorization number has been issued or for which a Return Material Authorization of Buyer. Buyer may accept, without prejudice, a portion of any shipment, and, at its
option, have Seller repair or replace any nonportion of the shipment at Seller’s expense.
request is pending.
Seller shall remove rejected Wafers promptly at Seller’s own risk.
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 10. WARRANTY. Seller warrants that: (a) Wafers will conform to the Specifications,
due to commitments to its customers and will constitute a material breach of this drawings, requirements, samples or other descriptions furnished or specified by Buyer or
Order. Buyer may, at its option take one or more of the following actions: (a) extend adopted by Buyer and those furnished or specified by Seller and accepted by Buyer,
the time for delivery; (b) cancel the Order in whole or in part; (c) require Seller to including Seller’s Quality and Reliability Criteria; (b) all items will be of merchantable
ship all or part of the Wafers by prepaid air freight at Seller’s expense until Seller’s quality, of good workmanship, and free from defects; (c) unless otherwise specified herein,
deliveries are in accordance with the requirements of the Order. Buyer will not be all Wafers are new and have not been previously used; (d) the Wafers are fit for use for
liable to Seller for any cost, expenses or loss whatsoever occasioned by a cancellation their ordinary intended purposes as well as any special purpose specified by Buyer; (e) all
of the Order. Seller agrees to pay Buyer any penalty and/or damages imposed upon items and the sale thereof do not, and the use of the same for their ordinary intended
or incurred by Buyer resulting from Seller’s failure to deliver the Wafers on the purpose as well as any special purpose specified will not constitute infringement or
specified delivery dates. Title and risk of loss shall pass to Buyer upon Seller’s contributory infringement of any patent, or infringement of any copyright or trademark, or
delivery of Wafers to Buyer. Seller shall not ship Wafers earlier than the delivery violation of any trade secret; (f) Seller has good title to the items free from all
date specified in the Order unless otherwise agreed. Seller will promptly notify encumbrances; (g) that the price or prices to be paid do not exceed applicable ceiling
Buyer in writing of any delivery delays or pull-ins in Wafer exit-factory dates, and prices established by law, regulation or order of any governmental authority; and (h) that
supply to Buyer at least weekly or at any time upon specific request, a Work in the Wafers, if produced in the United States, were or will be produced in compliance with
Progress (WIP) report. Any changes to such report must be mutually agreed upon. the Fair Labor Standards Act of 1938, as amended or supplemented. These warranties will
The average cycle time shall be at least as short as those Wafers supplied to other survive any inspection, delivery, acceptance or payment by Buyer for the Wafers and are
in addition to, and shall not be construed as restricting or limiting any warranties of Seller,
Seller customers in similar volumes.
express or implied, that are provided by law or exist by operation of law.
6.
QUANTITIES. Seller will furnish the specific quantity of Wafers called for in
Buyer at its option may; (a) return defective or nonconforming Wafers to Seller, at
the Order. Except as otherwise specified in the Order or by prior written agreement
Rev. 03 dated 102108
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MAXIM INTEGRATED PRODUCTS, INC.
WAFER TERMS AND CONDITIONS OF PURCHASE
Seller’s risk, for credit and Seller shall pay Buyer for all packing, handling and
transportation expenses; (b) demand that Seller pay Buyer promptly for expenses
incurred in remedying the defective or nonconforming Wafers; or (c) demand that
Seller, upon notification from Buyer, expeditiously replace any defective or rejected
Wafers, at Seller’s expense. Buyer may offset against Seller’s account any expenses
incurred to remedy any defective or rejected Wafers and all handling and
transportation expenses incurred with respect to those Wafers.
schedules. If an Order change 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 foundry.
11. 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 Wafers 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 Wafers 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 Wafers 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 indemnity.
16. FORECASTS. 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 to meet Buyer’s requirements at all times.
17. 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 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.
18. 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
12. ASSIGNMENT. Seller will not delegate any duties, nor assign any rights or the parties and shall not apply to the terms and conditions of this Agreement.
claims under this Order, or for breach thereof, without the prior written consent of 19. REMEDIES. The remedies reserved in this Order are cumulative and additional to
Buyer. Any attempted delegation or assignment will be void. All claims for monies any other further remedies at law or in equity; however, in no event will Buyer be liable to
due or to become due from Buyer will be subject to deduction by Buyer or for any Seller for incidental or consequential damages. All of the terms of this Order are material
setoff or counterclaim arising out of this Order or any other Order with Seller, terms and no waiver of or exception to any of the terms, conditions or provisions contained
whether the setoff or counterclaim arose before or after any attempted assignment by in the Order shall be valid unless specifically agreed to in writing by Buyer.
Seller.
20. NON-WAIVER DEFAULT. Each shipment made under any Order shall be treated
13. NOTICE OF LABOR DISPUTES. Whenever any actual or potential labor as a separate sale and transaction, but in the event of any default by Seller, if Buyer elects
dispute delays or threatens to delay the timely performance of an Order, Seller will to continue to accept shipments, its action shall not constitute a waiver of any default by
immediately give notice of that dispute to Buyer. Seller agrees to insert the Seller or in any way affect Buyer’s legal remedies for any such default.
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 21. COMPLIANCE WITH LAWS. Seller warrants that the Wafers and services
any actual or potential labor dispute, the lower tier subcontractor will immediately supplied pursuant to the Order shall comply fully with all applicable federal, state, and
notify its next higher tier contractor of all relevant information with respect to those local laws, orders, rules and regulations, including without limitation applicable
disputes. See Armed Services Procurement Regulations 7-104.4 for reference.
employment, tax, export control, safety and health and environmental laws, relating in any
way to the production, manufacture, sale and delivery of Wafers, including without
14. CONFIDENTIALTY. Any knowledge or information that Buyer discloses to limitation those affecting limiting prices, production, purchase, sale and use of materials.
Seller under an Order, in tangible or intangible form, including, without limitation, Upon Buyer’s request, Seller will provide a certificate of compliance with respect to such
specifications, reprints, equipment, prototypes, forecasts, technical or business laws, order and regulations.
information, will be deemed confidential, proprietary information of Buyer; and
Seller shall not disclose such information, including without limitation, denial or 22. EQUAL EMPLOYMENT OPPORTUNITY. The provisions of Section 202 of
confirmation, relative to the Order without the prior written consent of Buyer. All Executive Order 11246 and the Rules and Regulations issued pursuant to Section 201
such information shall remain the property of Buyer and placement of an Order shall therein are hereby incorporated by reference, and Seller represents by acceptance of this
not be deemed a granting of any right, license, or authorization, express or implied, Order that Seller will comply with such Executive Order and rules, regulations and
in or to Buyer confidential, proprietary information. Seller will not divulge such amendments thereto to the extent the same are applicable to the manufacture and sale of
information to any person other than its employees on a need to know basis and will Wafers provided under the Order or the contracting or subcontracting of services or work
use such information solely in performing its obligations to Buyer under the Order hereunder.
and not for the benefit of any third party. This obligation shall not extend where such
23. FORCE MAJEURE. Neither party shall be liable for delay in performance or
information:
a. was in the public domain at the time it was disclosed or later becomes public failure to perform in whole or in part the terms of this Agreement due to strike, labor
knowledge at a future date, other than as a result of Seller’s breach of its obligations 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
set forth herein;
b. was in Seller’s possession or was known to Seller without restriction at the time of for the party affected by such a cause shall be extended by the duration of the condition.
its disclosure as evidenced by competent written proof of Seller;
24. LIMITATION OF LIABILITY. BUYER’S TOTAL LIABILITY FOR DAMAGES
c. is shown to be developed independently by or for the Seller without use of or
UNDER AN ORDER SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE
reference to Buyer’s confidential, proprietary information, as evidenced by written
GOODS OR SERVICES OF THE AFFECTED ORDER GIVING RISE TO THE
documentation in Seller’s possession; OR
CLAIM.
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 25. SEVERABILITY. In the event any one or more of the provisions contained herein
or other).
shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
Unless otherwise agreed in writing, information in whatever form disclosed in any invalidity, illegality or unenforceability shall not affect any other provision hereof, and an
manner or at any time by Seller to Buyer shall not be deemed confidential or Order shall be construed as if such invalid, illegal, or unenforceable provision had never
proprietary.
been contained herein.
15. MODIFICATIONS. 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. 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
Rev. 03 dated 102108
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.
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