Terms and Conditions of Purchase

Terms and Conditions of Purchase
MAXIM INTEGRATED PRODUCTS, INC.
TERMS AND CONDITIONS OF PURCHASE
(also available at www.maximintegrated.com/legal/terms/)
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.
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 goods (“Goods”) 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 shall not be deemed a waiver of any of the
provisions contained herein. All orders or contracts must be approved and
accepted by Buyer at its headquarters at 160 Rio Robles, San Jose, California
95134. 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. PAYMENT. Payment will be made net 60 calendar days from Buyer’s
receipt of Seller’s correct and valid invoice for Goods delivered and accepted or
services rendered and accepted. Payment may be withheld or setoffs made
against Seller if Seller is not performing work pursuant to an 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. Payment of any item will not be deemed an
acceptance of the Goods or a waiver of any right to test or inspect the Goods.
3. PRICES. Unless otherwise specified on the face of an Order, prices include
all applicable federal, state and local taxes and cost of delivery of Goods F.O.B.
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 Goods provided under any Order. Prices will remain firm and
will not be subject to renegotiation and shall not be higher than last quoted or
charged to Buyer unless otherwise agreed in writing.
4. DELIVERY. Time is of the essence for the Order. Failure by Seller to meet
delivery dates specified in the Order will constitute a material breach of the
Order and Purchaser 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 Goods by prepaid air freight at Seller’s
expense until Seller’s deliveries are in accordance with the requirements 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 Goods on the
specified delivery dates. Title and risk of loss shall pass to Buyer upon receipt of
the Goods by Buyer.
5. CANCELLATION/RESCHEDULE. Buyer may cancel, reschedule or modify
all or any part of an Order at any time for convenience upon written notice to
Seller. Upon receipt of Buyer’s notice, Seller shall cease all work under the
Order. Buyer shall only be liable to Seller for services satisfactorily performed to
the date of termination and Goods delivered and accepted by Buyer. Any claim
by Seller for reimbursement, if any, shall be presented to Buyer in writing within
thirty (30) days of Seller’s receipt of Buyer’s written notice. Seller shall
mitigate its claim to the maximum extent, and Buyer shall have the right to audit
Seller’s books and records related to such reimbursement claim. 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.
6. QUANTITIES. Seller will furnish the specific quantity of Goods 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,
Buyer may return excess shipments at Seller’s expense.
7. PACKAGING AND SHIPPING INSTRUCTIONS. All Goods are to be suitably
packed for safe transportation and handling, or otherwise prepared for shipment
in accordance with Buyer’s instructions or specifications. 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. 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. All materials to be shipped on a
Form Rev. 08 dated 02082016
given day via the same mode of transportation from a common shipping point to
a common address are to be consolidated into one shipment. Seller shall ship
only the quantity specified in the Order and at the lowest freight charges, unless
otherwise agreed in writing by Buyer.
8. INSPECTION. Prior to shipment of Goods, Seller shall carefully inspect and
test all Goods 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 Goods shall be made after delivery to the final destination, however
Buyer’s failure to accept or reject Goods or detect defects during inspection does
not relieve Seller from its responsibility to provide Goods in accordance with
Order requirements.
9. WARRANTY. Seller warrants and certifies that: (a) the Goods will conform
to the specifications, drawings, sample or other descriptions furnished or
specified by Buyer or furnished by Seller and accepted by Buyer; (b) all items
will be merchantable, of good workmanship, and free from defects; (c) unless
otherwise specified herein, all Goods and its components are new and have not
been previously used; (d) the Goods are fit for use for their ordinary intended
purposes as well as any special purpose specified by Buyer; (e) 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; (f) Seller has good title to the items
free from all encumbrances; (g) the price or prices to be paid do not exceed
applicable ceiling prices established by law, regulation or order of any
governmental authority; and (h) the Goods, if produced in the United States,
were or will be produced in compliance with the Fair Labor Standards Act of
1938, as amended or supplemented. These warranties will survive any
inspection, delivery, acceptance or payment by Buyer for the Goods 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.
In addition to the warranties above, Seller shall extend all warranties that it
receives from its vendors to Buyer and Buyer customers.
If any of the Goods and/or services furnished under the Order are found at any
time to be defective in design, material or workmanship, including latent defects,
or otherwise not in conformance with Seller’s warranty or the requirements of
the Order, Buyer, in addition to other remedies under all applicable warranties or
otherwise, may at Buyer’s option (i) require Seller to promptly correct any
defective or nonconforming Goods by repair or replacement at the location
specified by Buyer or (ii) return such defective or nonconforming Goods to
Seller at Seller’s expense and recover from Seller the Order price. Seller will pay
or reimburse Buyer promptly for all costs incurred by Buyer with regard to any
defective or nonconforming Goods and/or services.
10. INFRINGEMENT. Seller agrees to indemnify, hold harmless and defend
Buyer, its subsidiaries and affiliates and their respective officers, directors,
agents and employees from any and all loss, expenses, damage, liability, claims
or demands for actual or alleged infringement of any patent, trademark,
copyright or trade secret arising from the purchase, use or sale of Goods or
services furnished under the Order, except where such infringement or alleged
infringement arises by reason of a design originally furnished to Seller by
Purchaser. If the Goods or services or any part thereof or any use thereof be held
to constitute infringement and the use enjoined, Seller shall promptly and at its
own expense either: (1) procure for Buyer the right to continue using the Goods
or services; or (2) replace same with noninfringing Goods or services
satisfactory to Buyer or (3) modify the Goods or services in a way satisfactory to
Buyer so they become noninfringing.
11. INDEMNITY. SELLER AGREES TO INDEMNIFY AND HOLD HARMLESS
BUYER, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OFFICERS,
AGENTS, AND EMPLOYEES, AND BUYER CUSTOMERS FROM ANY AND ALL
LOSSES, EXPENSES, DAMAGES, LIABILITY, CLAIMS OR DEMANDS ARISING OUT
OF OR INCIDENTAL TO THE PERFORMANCE, MANUFACTURE, DELIVERY OR
INSTALLATION OF GOODS OR THE FURNISHING OF SERVICES UNDER BUYER’S
ORDER, INCLUDING WITHOUT LIMITATION ANY RECALL, LATENT DEFECTS,
REPLACEMENT OR CORRECTION OF THE GOODS, DEATH OR INJURY TO ANY
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MAXIM INTEGRATED PRODUCTS, INC.
TERMS AND CONDITIONS OF PURCHASE
(also available at www.maximintegrated.com/legal/terms/)
PERSON, PROPERTY DAMAGE OR LOSS OR ANY ACT OR OMISSION OF SELLER,
ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS.
12. ASSIGNMENT. Seller will not delegate any duties, nor assign any rights or
claims under the Order, or for breach thereof, without the prior written consent
of Buyer. Any attempted delegation or assignment will be void.
13. NOTICE OF LABOR DISPUTES. Whenever any actual or potential labor
dispute delays or threatens to delay the timely performance of the 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. .
14. CONFIDENTIAL INFORMATION. Any knowledge or information that Buyer
discloses to Seller under Buyer’s Order, including, without limitation,
specifications, technical or business information, forecasts, or schedules, shall be
deemed Buyer confidential, proprietary information; 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 tools, equipment,
dies, drawings or other materials paid for or furnished by Buyer under the Order
shall be and remain the sole property of Buyer.
15. PROOF OF PAYMENT. If requested by Buyer, Seller will furnish affidavits
and instruments certifying that payment has been made for all labor, materials
and services furnished in the performance or filing of the Order, as well as all
releases and indemnities required at the time for payment and written guarantees
with respect to the labor, materials and services supplied by Seller. These
documents will be in such form and substance as may be required by or from
Buyer.
16. MODIFICATIONS. No modification, amendment or rescission of the Order
may be made without the prior written agreement of Buyer. Any changes to
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
reasonable changes to the Order, including, without limitation, changes to
quantities, packing, testing, destinations, specifications, designs and delivery
schedules, but these changes will be authorized only by Buyer’s written Order.
If an Order affects delivery or price, Seller will notify Buyer immediately and an
equitable adjustment in prices or other terms hereof will be agreed upon in a
written amendment to the Order.
17. 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’s Purchasing Department.
18. GOVERNING LAW. The Order and the transactions contemplated thereby
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 exclusive jurisdiction and exclusive
venue over all controversies arising out of or related to the Order and the
transactions contemplated thereby. The applicability of the UN Convention on
Contracts for the International Sale of Goods is hereby expressly waived by the
parties and does not apply to these Terms and Conditions of Purchase.
19. REMEDIES. The remedies reserved in the 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 the 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.
laws, relating in any way to the production, manufacture, sale and delivery of the
Goods, including without limitation those affecting limiting prices, production,
purchase, sale and use of materials.
22. EQUAL EMPLOYMENT OPPORTUNITY. The provisions of Section 202 of
Executive Order 11246 and the Rules and Regulations issued pursuant to Section
201 therein are hereby incorporated by reference, and Seller represents by
acceptance of the Order that Seller will comply with such Executive Order and
rules, regulations and amendments thereto to the extent the same are applicable
to the manufacture and sale of Goods provided under the Order or the
contracting or subcontracting of services or work hereunder.
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. TERMINATION. In the event that Seller becomes insolvent or bankruptcy
proceedings are instituted against it or on its behalf, or if Seller makes an
unauthorized assignment for the benefit of creditors, such events shall be
deemed a material breach hereunder, entitling Buyer to immediately terminate
any agreement hereunder, to cease performance hereunder, and to avail itself of
any and all legal or equitable remedies it may have against Seller. Seller agrees
to give written notice to Buyer of such insolvency or bankruptcy proceedings at
least 30 days prior to such proceedings.
25. DISCONTINUED GOODS. In the event that Seller permanently discontinues
any Goods covered under Buyer’s Order, Seller will give at least six (6) months
prior written notice of such discontinuance for standard Goods and nine (9)
months prior written notice for sole source or custom Goods. Seller shall accept
Orders from Buyer for quantities of discontinued Goods required by Buyer
during the notice period(s). The unit price for ordered quantities of the
discontinued Goods shall be at the unit price(s) listed in Buyer’s Order.
Discontinued Goods are not subject to termination or cancellation by Buyer and
will be considered Buyer’s firm, final orders for such Goods. In the event that
Buyer purchases Goods hereunder with a purchase price exceeding
$2,500.00/unit or an annual purchase price total of at least $25,000.00, Seller
will give Buyer at least three (3) years prior written notice of such
discontinuance.
In the event that continuous improvements of the Goods cease or are made
obsolete by Seller hereunder, Buyer may, at its sole discretion, pursue any means
necessary to perpetuate the life cycle and continued improvement of the Goods.
Seller and Seller’s agents will provide Buyer with the necessary hardware and
software details required, including, but not limited to artwork, schematics,
vendor names, bills of material and software source code(s).
26. ISO 9000. In accordance with ISO 9000 quality control systems and related
certification, a physical inspection of Seller’s facility may be required for
Buyer’s customer to satisfy certification requirements. Upon written notice from
Buyer’s 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.
27. EXPORT CONTROL CLASSIFICATION NUMBER. If applicable, Seller shall
provide Buyer at time of sale with the appropriate U.S. Export Control
Classification Number for your product, as determined on the Commerce
Control List of the Export Administration Regulations of the U.S. Bureau of
Industry and Security of the Department of Commerce. Seller agrees to assist
Buyer if it is necessary to obtain an export/reexport license.
20. 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.
21. COMPLIANCE WITH LAWS. Seller shall comply fully with all applicable
federal, state, municipal and local laws, orders and regulations, including
without limitation applicable employment, tax, export control and environmental
Form Rev. 08 dated 02082016
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