Our Terms And Conditions Of Commercial Sale

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欧洲、中东和非洲

 

NXP USA, Inc.

In these Terms and Conditions of Commercial Sale (the “Terms and Conditions”), “Seller” shall mean: NXP USA, Inc., a Delaware corporation.

1. OFFER, CONFIRMATION OR AGREEMENT

These Terms and Conditions apply to and form an integral part of:

a. all quotations and offers (hereinafter both referred to as “Offer”) of Seller to Buyer,

b. all acceptances, acknowledgements or confirmations by Seller (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing or other framework agreement between any Buyer and Seller, unless explicitly agreed otherwise in writing between Seller and Buyer,

c. any agreement resulting from such Offer or Confirmation, and

d. any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under Sections 1(c) and 1(d) shall hereinafter be referred to as an “Agreement”),

regarding the sale by Seller and purchase by Buyer of goods (“Products”), unless Seller explicitly agrees in writing to the exclusion hereof.

These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Seller setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Seller, and any such document shall be wholly inapplicable to any sale made by Seller and shall not be binding in any way on Seller. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions, and Seller does not intend to enter into an agreement other than under these Terms and Conditions.

Any Offer is expressly made conditional on Buyer's assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer's written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer's acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.

In the event that any Offer or Confirmation is sent in response to Buyer's blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Seller, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Seller provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.

Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer's acceptance related thereto.

If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller's Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.

An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Seller shall constitute an Agreement between Seller and Buyer upon explicit Confirmation by Seller itself.

In these Terms and Conditions, the term “Affiliate(s)” shall mean: (a) with respect to Seller, NXP B.V. and any entity that is Controlled by NXP B.V., and (b) with respect to Buyer, any entity that Controls, is Controlled by or is under common Control with Buyer; where “Control” means the direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting stock, or decision-making authority in the event that there is no voting stock, in another entity. An entity may be considered an Affiliate only when such Control exists. Seller and its Affiliates are individually and/or collectively referred to herein as “NXP”.

2. PRODUCTS, QUANTITIES AND PRICING

Prices in any Offer, Confirmation or Agreement are in United States Dollars and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price.

With regard to Custom Products (as defined in Section 6 below) Seller may deliver a quantity that is a maximum amount of ten percent (10%) more or less than the ordered quantity of any order line item. Such delivered quantity will be accepted and paid for (against an amount being the actual delivered quantity times the unit price) in full satisfaction of each party's obligation under the Agreement for the quantity ordered.

3. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY

Unless provided otherwise in a separate agreement between Seller and Buyer, the following terms apply to software (including firmware in all references to “software”, unless stated otherwise) and documentation provided or made available to Buyer in connection with Products:

Seller grants Buyer a nonexclusive license to use and distribute software in machine-readable form, only in combination with or as part of the Product for which the software has been provided and only one copy for each such Product. No rights or licenses with respect to any software source code are granted to Buyer. Seller grants Buyer a nonexclusive license to use and distribute non-confidential documentation with the Product for which the documentation has been provided and only one copy for each such Product. Buyer will reproduce all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the software and on copies thereof.

With respect to Products, software, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by statutory law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate software into any other software. Should Buyer create any modifications or derivative works of Products, software, documentation or a portion thererof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer's rights under these Terms and Conditions are conditional upon Buyer not performing any actions that may require any software, Products and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.

If Buyer is in default of any of the terms herein, Buyer’s license to software and documentation will automatically terminate. Buyer shall indemnify NXP against and hold NXP harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by NXP in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.

To the extent that software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation, and all references to “sale” or “sold” of any software or documentation shall be deemed to mean a license. Except for those rights specifically granted in this Section 3 in connection with software and documentation: (i) NXP and its suppliers reserve all right, title and interest, together with all intellectual property rights thereto, in all software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or any other intellectual property right is granted hereunder.

Any open source software included in the software is not licensed or warranted under the terms of these Terms and Conditions, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. In no event will Buyer subject the software to an Excluded License. An Excluded License means any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Buyer is solely responsible for obtaining any necessary third party approvals and any licenses for any necessary essential patents for their use in connection with technology that Buyer incorporates into Buyer’s system or software (whether as part of the software or not).

Neither the sale of any of the Products, nor these Terms and Conditions, shall be construed as conferring any right, license or immunity:

a. under any intellectual property rights to any combination, machine, or process in which Products might be used, or to any modifications of Products, software, or documentation;

b. with respect to any trademark, trade or brand name, corporate name, or any other name or mark, or contraction, abbreviation or simulation thereof;

c. under any intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or

d. under any intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied.

4. PAYMENT

a. Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Seller and Buyer in writing. All payments shall be made to the designated Seller's address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Seller. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment in full.

b. All deliveries and performance of work agreed to by Seller shall at all times be subject to credit approval of Seller. If, in Seller's judgment, Buyer's financial condition at any time does not justify production, performance of work or delivery on the above payment terms, Seller may require full or partial payment in advance or other payment terms as condition for delivery, and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller.

c. Payment by Buyer of non-recurring charges (as may be made to Seller for special design, engineering work or production materials) shall not convey title to any design, engineering work or production materials, and title shall remain in Seller.

d. Buyer shall not offset, withhold or reduce any payment(s) due by it to Seller. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.

e. If Seller incurs exchange rate losses due to Buyer's failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses.

f. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms and Conditions or at law or in equity.

5. DELIVERY AND QUANTITIES

a. Products shall be delivered Free Carrier (FCA) Incoterms® 2010 at the airport in the country of dispatch or other facility designated by Seller, unless otherwise agreed in writing between Seller and Buyer. Delivery dates communicated or acknowledged by Seller are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Seller agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.

b. In the event Buyer contests delivery, Buyer must request a proof of delivery from Seller within ninety (90) days of the date of Seller's invoice, otherwise delivery shall be deemed completed.

c. Buyer will give Seller written notice of failure to deliver and thirty (30) days within which to cure. If Seller does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.

d. Title in the Products shall pass to Buyer at Seller’s point of shipment. Risk of loss in the Products shall pass to Buyer upon Seller's delivery in accordance with the applicable Incoterm.

e. If Buyer fails to take delivery, then Seller may deliver the Products in consignment at Buyer's costs and expenses.

f. In the event of shortages Seller may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

6. CUSTOM PRODUCT

Seller shall have exclusive rights to goods designed and manufactured for the unique needs of Buyer, to Buyer's specifications or requirements, such as an ASIC or ASSP (“Custom Product”). Seller shall retain title to and possession of designs, masks, database tapes and source code. Individual segments or parts of Custom Product designs, including but not limited to standard cells, megacells, base arrays or software libraries, are the property of Seller and may be used by Seller in other designs and may not be used by Buyer except as a part of Custom Product designed and manufactured by Seller. Prices and/or schedules for Custom Products are subject to change by Seller if any specifications are revised or supplemented or there are unforeseen difficulties with the design.

7. RESCHEDULING AND CANCELLATION

No order, Agreement or any part thereof may be rescheduled or cancelled without Seller’s prior written consent.

8. FORCE MAJEURE

Seller shall not be liable for any failure or delay in performance if:

a. such failure or delay results from the fact that Seller’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or

b. such failure or delay does not result from its fault; or

c. such failure or delay is caused by Force Majeure as defined below or by law.

In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to Buyer for any damage resulting therefrom.

The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller shall be entitled to cancel all or any part of the Agreement without any liability of Seller towards Buyer. In the event Seller’s production is curtailed, for any reason, Seller shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

9. LIMITED WARRANTY AND DISCLAIMER

a. Seller warrants that under normal use the Products (excluding any Excluded Products (as defined below) and die and wafers as described in Section 9(b) below) shall, at the time of delivery to Buyer and for a period of twelve (12) months thereafter (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Seller’s specifications for such Products, or such other specifications as Seller has agreed to in writing, as applicable.

b. Die and wafers have received electrical probe/test and visual inspection and are warranted for a period of ninety (90) days from date of shipment by Seller. This warranty will not apply to die or wafers improperly removed from their original shipping container, not stored per Seller's recommended procedures, or subjected to testing or operational procedures not accepted by Seller in writing.

c. Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Seller’s property as soon as they have been replaced or credited for.

d. As used in these Terms and Conditions, “Excluded Products” mean: (i) software that is (a) licensed under open source software license terms, (b) provided by Buyer or any of its designees to Seller, (c) modified by Buyer or any third party, other than at Seller’s request, and/or (d) not embedded in a Product by Seller; (ii) prototypes; (iii) Custom Products manufactured and/or delivered prior to both parties' written acceptance of the prototypes thereof; (iv) experimental Products; (v) beta testing Products; and/or (vi) samples of newly developed Products. All Excluded Products shall be AS IS WITHOUT WARRANTY OF ANY KIND.

e. Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.

f. Buyer may ship Products returned under warranty claims to Seller’s designated facility only so long as the returns are in conformance with Seller’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Seller. Where warranty adjustment is made, Seller will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.

g. THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER'S CUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER.

h. Subject to the exclusions and limitations set forth in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.

10. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

a. Seller, at its expense, shall: (i) defend against a claim in a legal proceeding brought by a third party against Buyer that any hardware Product as furnished by Seller hereunder directly infringes the claimant's patent or copyright; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding (or agreed upon in a settlement to which Seller consents) to the extent directly and solely attributable to infringement by the Product.

b. Seller shall have no obligation or liability to Buyer under Section 10(a): (1) if Seller is not: (i) promptly notified in writing of the claim, (ii) given the sole right to control the defense and settlement of such claim, including the selection of counsel, and (iii) given full reasonable assistance and cooperation by Buyer in such defense and settlement; (2) if the claim is made more than three (3) years after the date of delivery of the Product; (3) to the extent that any such claim arises from: (i) modification of the Product, (ii) design, specifications or instructions furnished by Buyer, or (iii) the combination or use of the Product with any product, software, service or technology; (4) for unauthorized use or distribution of the Product or use beyond the specifications of the Product; (5) to the extent that any such claim arises from Buyer's use, sale, offer for sale or importation of the Product after Seller’s notice to Buyer that Buyer should cease any such activity because the Product is, or is reasonably likely to become, the subject of a claim of infringement; (6) for any costs or expenses incurred by Buyer without Seller’s prior written consent; (7) to the extent that the claim is based on any Excluded Products; (8) to the extent that any such claim arises from any infringement or alleged infringement of third party's intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or (9) for infringement of any third party's intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied. If any claim of infringement is brought against Seller as a result of Buyer’s actions in connection with items (3), (4), or (5) of this Section 10(b), Buyer shall indemnify Seller against and hold Seller harmless from any damages or costs arising from or connected with such claim of infringement and shall reimburse all costs incurred by Seller in defending any claim, demand, suit or proceeding for such infringement, provided Seller gives Buyer prompt notice in writing of any such suit or proceeding for infringement.

c. If any Product is, or in Seller’s opinion is likely to become, the subject of a claim of infringement, Seller shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell such Product, (ii) replace or modify such Product in such a way as to make the modified Product non-infringing, or (iii) terminate any Agreement to the extent related to such Product. In the event of any such termination, Buyer may return to Seller all such Products in Buyer’s possession at the time of such termination, which are then subject to the claimant’s continuing claim of infringement; and upon such return Seller shall credit Buyer the sum paid to Seller by Buyer for such Products, less appropriate depreciation.

d. The foregoing indemnity is personal to Buyer and is not assignable, transferable or subject to pass-through to any third party including Buyer’s customers.

e. Seller’s liability for damages under this Section 10 will not exceed a reasonable royalty rate as applied solely to the Product that is the subject of the indemnified claim.

f. SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 11 OF THESE TERMS AND CONDITIONS, THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION TO BUYER OR ITS MEDIATE OR IMMEDIATE CUSTOMERS AND BUYER'S SOLE REMEDY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11. LIMITATION OF LIABILITY

a. EXCEPT FOR BUYER'S LIABILITY UNDER SECTIONS 3, 11(C) OR 13 HEREOF, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGE, COSTS OR EXPENSES ASSOCIATED WITH WARRANTY OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, WHETHER FOR THE REPLACEMENT OR REPAIR OF PRODUCTS, INCLUDING LABOR, INSTALLATION OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATED TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCTS SOLDERED OR OTHERWISE PERMANENTLY AFFIXED TO ANY PRINTED CIRCUIT BOARD, EXCESS PROCUREMENT COSTS, OR REWORK CHARGES.

b. The aggregate liability of NXP, for all Buyer claims arising out of or in connection with the sale or use of any Product, shall not exceed the amount that Buyer has paid NXP for such Product during the twelve (12) months immediately preceding Buyer’s notification to NXP of the applicable Buyer claim. Notwithstanding the above (a) the liability of NXP, for Buyer claims regarding delay or non-delivery of Products, shall not exceed fifty percent (50%) of the purchase price of the delayed or non-delivered Products concerned, and (b) the liability of NXP for all Buyer claims for all Products shall not exceed One Million Dollars ($1,000,000.00) in the aggregate. The existence of more than one Buyer claim, or Buyer claims involving more than one Product, shall not enlarge or extend the above specified limits.

c. In some cases, Seller may promote certain Products for use in safety-related applications. Seller’s goal is to educate customers so that they can design their own end-product solutions to meet applicable functional safety standards and requirements. Buyer makes the ultimate design decisions regarding its products and is solely responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any information or support that may be provided by Seller. Accordingly, Buyer will indemnify and hold Seller harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys’ fees) that Seller may incur related to Buyer’s incorporation of any Product in a safety-critical application or system.

Only those Products that Seller has specifically designated as “Automotive Qualified” are designed and intended for use in automotive, military, or aerospace applications or environments. If Buyer uses any Product that has not been designated as “Automotive Qualified” in an automotive, military, or aerospace application or environment, Buyer does so at its own risk.

d. Buyer must provide notice to NXP of any claim that Buyer has under these Terms and Conditions within ninety (90) days of the date that the claim arises, and any lawsuit relative to any claim must be filed within one (1) year of the date of notice to NXP of the claim. Buyer agrees that any claim noticed or filed outside of the deadlines set forth in the preceding sentence are deemed waived.

e. The limitations and exclusions set forth above in this Section 11 shall only apply to the extent permitted by applicable mandatory law.

12. GOVERNMENT CONTRACT COMPLIANCE

a. If Buyer sells Products directly to any government or public entity, including U.S., state, local, foreign or international governments or public entities, or indirectly via a prime contractor or subcontractor of such governments or entities, Seller makes no representations, certifications, or warranties whatsoever about compliance with government or public entity acquisition statutes or regulations, including, without limitation, statutes or regulations that may relate to pricing, quality, origin or content.

b. Products provided in furtherance of these Terms and Conditions have been developed at private expense and are “Commercial Items” as defined in 48 C.F.R. §2.101. Products include commercial “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” as such terms are used in 48 C.F.R. §§ 12.211 and 12.212 (or 48 C.F.R. §§ 227.7102 and 227.7202, as applicable) and may only be licensed to or shared with U.S. Government end users with the rights as are set forth in this Section. Buyer agrees that it will not share Products consisting of “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” with anyone not covered by these Terms and Conditions, including government customers.

c. Buyer further agrees that any agreement pursuant to which Buyer shares Products will include a provision that reiterates the limitations of these Terms and Conditions and requires all sub-agreements to similarly contain such limitations.

13. CONFIDENTIALITY

Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by NXP is the confidential information of NXP. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.

14. COMPLIANCE WITH LAWS

Each party hereto represents that it is duly authorized to enter into these Terms and Conditions and represents that with respect to its performance hereunder, it will comply with all applicable federal, state and local laws, including, but not limited to those pertaining to U.S. Export Administration or the export or import controls or restrictions of other applicable jurisdictions.

If the delivery of Products under these Terms and Conditions is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Buyer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any Agreement related to such Products, without incurring any liability towards Buyer.

Furthermore, if an end-user statement is required, Seller shall inform Buyer immediately thereof and Buyer shall provide Seller with such document upon Seller’s first written request; if an import license is required, Buyer shall inform Seller immediately thereof and Buyer shall provide Seller with such document as soon as it is available. By accepting Seller’s Offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.

15. ASSIGNMENT AND SETOFF

Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Seller. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under these Terms and Conditions or under any other agreement that Buyer and Seller may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Seller is allowed to assign any rights or obligations under these Terms and Conditions and any Agreement to its Affiliates or to any third party in connection with a merger or a change of control.

16. GOVERNING LAW AND FORUM

These Terms and Conditions, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of the State of Texas exclusive of its conflict-of-law rules. The parties agree that the exclusive jurisdiction and venue of any action between the parties arising out of these Terms and Conditions, or any Offer, Confirmation or Agreement, shall be the State and Federal Courts located within Travis County, Texas, USA, and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of such action, it being understood that Seller shall always be permitted to bring any such action against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions, or any Offer, Confirmation or Agreement. Nothing is this Section 16 shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.

17. BREACH AND TERMINATION

Without prejudice to any rights or remedies Seller may have under these Terms and Conditions or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:

a. Buyer fails to make payment for any Products to Seller when due;

b. Buyer fails to accept conforming Products supplied hereunder;

c. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or

d. Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.

Upon occurrence of any of the events referred to under Sections 17(a) through 17(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.

In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration (which shall include without limitation all defined terms and Sections 4, 8 through 17 and 20 through 25 of these Terms and Conditions) shall survive.

18. PRODUCT AND PRODUCTION CHANGES

Seller reserves the right to make at any time Product and/or production changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.

19. DISCONTINUATION OF PRODUCT

Seller reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.

20. SEVERABILITY

In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.

21. WAIVER

The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions or by law.

22. NOTICES

All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.

23. ATTORNEYS’ FEES

Should a dispute arise from the subject matter of any Offer, Confirmation or Agreement, or these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys' fees and expenses incurred.

24. RELATIONSHIP OF PARTIES

The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.

25. MODIFICATIONS AND CHANGES

Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have effect: (1) on all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.

Terms and Conditions of Commercial Sale, version U.S._TX
Revised November 7, 2016

 

NXP (China) Management Ltd. (需要以人民币结算的客户请选择此项)

本商业销售条款(本“条款”)中,“卖方”指恩智浦(中国)管理有限公司,一家在中国成立的有限责任公司。

1. 要约、确认或协议

除卖方明确以书面形式同意排除之外,有关卖方出售并由买方购买货物(“产品”)的本条款适用于以下所列各项,且作为以下所列各项的一部分:

(1) 卖方向买方作出的所有报价和要约(以下均称为“要约”),

(2) 除卖方和买方以书面形式另外明确达成,卖方对买方任何订购所作出的所有认可、承认或确认(以下均称为“确认”),包括但不限于任一买方同卖方因定价或其它框架协议而达成的订购,

(3) 因该要约或确认而达成的任何协议,及

(4) 通过引述纳入本条款的任何协议(此(3)、(4)项下所指两类协议以下称为“协议”)。

本条款应构成卖方和买方之间就卖方出售及买方购买产品的任何要约、确认和协议的所有条款。由买方签发的任何文件(包括以下定义的“拉货文件”)中规定的任何条款,不论是在卖方签发任何规定或涉及本条款的文件之前或之后,卖方在此明确拒绝且不予考虑。任何此类文件均不适用于卖方的任何销售,不对卖方产生任何约束力。任何要约、确认或协议不应构成卖方接受任何其它条款,且卖方不会签署并非依据本条款签署的任何协议。

任何要约均明确以买方完全同意要约中包含的所有条款为前提条件。买方对一项要约的承诺可由以下证明(i)买方或买方的任何代表的书面或口头同意,(ii)买方接受交付的产品或支付第一批产品的采购价(如适用),或买方的任何代表作出如是承诺,或(iii)买方或买方的任何代表采取与要约承诺相一致的其它行为。

若为回应买方一揽子采购订单而作出任何要约或确认,该要约或确认的条款(包括本条款)应适用于买方的任何“拉货”或卖方的交付,不考虑买方是否提交额外采购订单(以电子方式或其他方式)(“拉货文件”)及卖方是否对该额外采购订单作出确认。拉货文件的所有条款均不接受。

对于卖方要约,可在卖方于要约中所设定的期限内作出承诺,未表明期限时,则在要约发出之日起三十(30)日内作出承诺,但在卖方收到买方的相关承诺之前,卖方可在任何时候收回或撤销任何要约。

若卖方收到买方对卖方出售和买方购买产品的订单,且该订单不是对卖方要约的回应,或卖方收到买方的与卖方要约有所出入的订单或承诺,该订单或承诺仅视为一种要约邀请。

买方对任何由卖方的订单收集人、联络员、代理人或代表发出的要约的承诺在卖方明确确认后,即构成卖方和买方之间的一份协议。

在本条款中,“关联公司”系指(a)针对卖方而言,恩智浦有限公司以及受其控制的任何实体;以及(b)针对买方而言,控制买方的、受买方控制的或与之共同受控的任何实体。其中“控制”系指直接或间接拥有持有投票权百分之五十(50%)以上股份的实际权益,或在另一个实体中没有投票权股份但拥有决策权。仅在存在该控制关系的情况下,一家实体方可视为一家关联公司。卖方及其关联公司以下单独和/或共同称为“恩智浦”。

2. 产品、数量和定价

任何要约、确认或协议的价格均以人民币计算,且不包括任何目前或以后颁布的适用于产品的税金、关税或类似的税额。在法律要求缴纳或征收时,卖方将在销售价格中加上税金、关税和类似的税额,且由买方一并支付。

对于定制产品(定义见以下第6条),卖方可交付的数量最多为每一类别产品订购量的百分之十(10%)左右。在完全满足各方在协议项下有关订购数量的义务时,买方应接受该交付的数量并为其付款,付款数额为实际交付数量乘以单价。

3. 软件、文件及知识产权的权利

除非在卖方与买方之间达成的单独协议中另有规定,以下条款应适用于就产品提供给买方的软件(除非另有说明,凡提及“软件”之处均包括固件)和文档:

卖方向买方授予一项以机读形式使用和分发软件的非独家许可,该使用和分发范围仅限于与该软件所相关的产品一并使用或作为该软件所相关的产品一部分而使用,并且就每一产品仅可使用一份软件。卖方不会授予买方关于软件源代码的任何权利或许可。卖方向买方授予一项使用和分发非保密文档的非独家许可,该使用和分发范围仅限于与该文档所相关的产品一并使用,并且就每一产品仅可使用一份文档。买方应在软件及其复本中复制卖方(或其许可人)的所有版权声明和其他专有说明。

对于产品、软件、文档和其部分而言,买方未被授权、并同意其不会:(i)对其进行反向工程、反编译、解密、反汇编或以其它方式试图获取源代码、理念、技术或算法,但成文法律明确授权的除外;(ii)对其进行修改或创建衍生作品;(iii)移除或更改任何私有标记或提醒;(iv)将软件并入、链接到或纳入任何其它软件。如买方创建了产品、软件、文档或其一部分的任何修改或衍生作品,买方不可撤销地向卖方转让、并同意向卖方转让任何该等修改或衍生作品的全部权利、所有权和权益。买方在本条款项下之权利的前提条件是,买方不采取任何行动,从而可能导致根据开源软件许可条款的要求许可任何软件、产品和/或其任何衍生作品,该等开源软件许可条款可能(比如)要求披露源代码、授予知识产权许可(比如授予开发衍生作品的准许)或授予通常与开源软件有关的其它权利或承担与之相关的责任。

如买方违反本条款中的任何规定,买方的软件和文档许可将自动终止。买方应赔偿恩智浦并使恩智浦免于承担因买方违反或违背本第3条而引起的任何损害或费用,且买方应赔偿恩智浦就该违反或违约而引起的任何权利主张、赔偿要求、诉讼或法律程序作出应诉而产生的费用和开支。

产品中如含有软件和/或文档,出售该产品不应构成向买方转让该软件和/或文档的所有权或权利,且凡提及“出售”任何软件或文档均不视为构成许可。除本第3条中就软件和文档明确授予的权利以外:(1)恩智浦及其供应商保留对提供给买方的所有软件和文档的全部权利、所有权和权益以及知识产权,且(2)本条款项下不授予对任何专利、专利申请、版权、商业秘密、商标、商号、服务标记或任何其它知识产权的其它明示或暗示许可、权利或权益。

软件中所含任何开源软件均不根据本条款的规定授予许可或得到保证,而是根据相关开源许可如BSD许可证、阿帕奇许可证或GNU较宽松公共许可证的条款授予许可。买方在任何情况下均不得使软件接受任何除外许可。除外许可指下列任何一种许可,该等许可要求,作为使用、修改和/或分发受除外许可约束的软件的一项条件,该等软件或与该等软件组合在一起或一同分发的其他软件:(a)按照源代码的形式披露或分发;(b)为做出衍生产品而受到许可;或者(c)可免费再次分发。对于买方在其系统或软件中所引入技术(无论是否作为软件的一部分)所需使用的任何必要核心专利,买方须自行获得第三方的必要批准和许可。

无论是任何产品的销售或是本条款均不能被解释为授予对于以下各项的任何权利、许可或豁免:

1) 对于产品可能被用于其中的任何组合、机械或工艺的知识产权,或对于产品、软件或文档的任何修改的知识产权;

2) 有关任何商标、商号或品牌、公司名称或任何其它名称或标识或其缩写词或类似的名称或标识;

3) 任何知识产权,该知识产权含有标准制定组织所制定的行业标准或至少两家公司之间同意的行业标准;

4) 任何知识产权,为此恩智浦已通知买方或已声明必须另外获得许可或不授予或暗示任何许可。

4. 付款

(1) 除非卖方和买方另有书面协议,卖方可依据适用的国际贸易术语解释通则在产品交付时向买方开具已交付产品价格的发票。除非卖方和买方另有书面协议,买方应在开票之日起三十日(30)内付清款项。所有的款项应付到卖方指定的地址。若分期交货,每一批货物应分别开票并按期付款。除非卖方书面同意,提前付款不享有折扣。所有延迟付款均计息,自应付之日起至款项付清止,以百分之十八(18%)的年利率或以适用法律所允许的最高利率(以较低者为准)计息。

(2) 所有卖方同意的交付和执行工作在任何时候均应受限于卖方的信用批准。若依据卖方的判断,买方在任何时间的经济状况不能满足按照上述付款条件进行生产、执行工作或交付,作为交付的条件,卖方可要求提前全部或部份付款或提出其它付款条件,且卖方可暂停、延期或取消信用发放、交付或卖方的其它履约行为。

(3) 买方对非重复费用的付款 (如支付卖方的特别设计、工程或生产物资的费用)不应视为转让任何设计、工程或生产物资的所有权,该所有权应仍为卖方所有。

(4) 买方不能对应付卖方的任何款项作抵销、代扣或扣减。支付费用是买方的一项承诺,独立于双方根据本条款订立的其它承诺。

(5) 若卖方因买方未支付到期款项而遭受汇率波动引起的损失,则卖方有权从买方处得到损失的相应补偿。

(6) 若买方拖欠任何到期费用或收费,或构成其它违约,卖方有权拒绝执行工作及交付产品直至款项结清,且卖方可暂停、延期或取消信用发放、交付或卖方的任何其它履约行为。该权利为本条款下或法律规定或衡平法上的任何其它权利和救济之外的权利,且不取代本条款下或法律规定或衡平法上的任何其它权利和救济。

5. 交付及数量

(1) 除非买方和卖方之间以书面形式另有约定,产品应在发运国家的机场或卖方指定的其它场所按“货交承运人(FCA)”条款(国际贸易术语解释通则2000版)交付。由卖方沟通或确认的交付日期仅为大致日期,卖方不因在确定的交付日期之前或之后的合理时间交付而被认为违反对买方的义务,也不因此而承担法律责任。卖方同意尽商业上合理的努力满足其所沟通或确认的交付日期,条件是买方在约定的交付日期之前充分提供所有必需的订单和交付信息。

(2) 若买方就交付事宜提出争议,买方必需在卖方开票之日起九十(90)天内向卖方索求一份交付证明,否则视为交付完毕。

(3) 买方应向卖方提供交付失败的书面通知,卖方在三十(30)内作出补救。若卖方未能在三十(30)日内作出补救,买方唯一和独有的补救措施是取消协议中受影响和未交付的部分。

(4) 产品的所有权在卖方的装运地点转移给买方。产品灭失的风险在卖方依据适用的国际贸易术语交付时转移给买方。

(5) 若买方未能提货,卖方可以托运产品并由买方承担一切费用。

(6) 若货品短缺,卖方可自行决定在其客户中分配现有的产量和产品,并因此向买方出售、交付少于卖方要约、确认或协议(视情形而定)中规定的产品。

6. 定制产品

对于为买方的专门需求按照买方的规格和要求而设计并生产的货品,如ASIC或ASSP(“定制产品”),卖方享有专有权。卖方对设计、掩码、数据库磁带和源代码拥有所有权和占有权。定制产品设计的单独环节或部分(包括但不限于标准单元、兆单元、基本阵列或软件库)均为卖方的财产,卖方可将其用于其它设计,且买方除作为卖方设计并生产的定制产品的一部分外不得使用。如要修改或增加任何规格或设计中发生不可预见的困难,卖方可变更定制产品的价格和/或时间表。

7. 重新安排和取消

非经卖方事先书面同意,不得重新安排或取消订单、协议或其中的任何部分。

8. 不可抗力

卖方不对下述情况下未能履约或延迟履约而承担责任:

(1) 因生产过程中的干扰使卖方相关产品的生产数量低于预期而造成的不履约或延迟履约;或

(2) 非卖方之过错而造成的不履约或延迟履约;或

(3) 因下文或法律所定义的不可抗力而造成的不履约或延迟履约。

一旦上述不予承担责任的不履约发生,协议中相关部分的履行在该不履约持续时暂停,因此而造成的任何损失,卖方不对买方负责或承担法律责任。

“不可抗力”指及包括超出卖方合理控制的任何情况或事件(不论在要约、确认或协议之时是否预见)而使卖方不能合理地履行其义务。该情况或事件包括但不限于:天灾、战争、内战、恐怖主义、暴动、罢工、火灾、洪灾、地震、劳工争议、流行病、政府规定和/或类似事件、货物禁运、缺少所需的任何允许、许可和/或授权、供应商或分包商的过错或延误和/或无法或不可能保证运输、设备、燃料、能源、劳力、物资或元件。若不可抗力接连持续三(3)个月(或卖方合理预计延误将会接连持续三(3)个月),卖方有权不向买方承担任何责任而取消协议全部或任何部分。若卖方的生产因任何可能的原因而削减,卖方有权依其决定在各客户中分配其现有产量和产品,并可向买方出售并交付少于卖方要约、确认或协议(视情形而定)中确定的产品。

9. 有限的保证和免责声明

(1) 卖方保证在正常使用产品(不包括任何排除产品(定义见下文)以及下文第(2)条所述的晶圆和晶片)的情况下,应在交付买方时且交付之日起十二个月(12)内(或双方书面约定的其它期限)不存在材料或做工上的缺陷,并应实质上符合该等产品的卖方技术规范、或卖方书面同意的其它技术规范(如适用)。

(2) 晶圆和晶片已得到电子探测/检测和外观检验,自卖方发货之日起在九十(90)天的期限内保用。该等保证不适用于在卸载原发运集装箱时被不当装卸的晶圆或晶片,未按卖方推荐程序存放的晶圆或晶片,或受到未被卖方书面接受的测试或操作程序的晶圆或晶片。

(3) 对于本保证下的权利主张,卖方唯一和排他性的义务及买方唯一和排他性的权利仅限于由卖方决定是(a)更换或修理有缺陷或不合格的产品,或(b)适当抵扣其购买价。卖方应有合理的时间修理、更换或抵扣。不合格或有缺陷的产品一经更换或抵扣即成为卖方的财产。

(4) 在本条款中,“排除产品”是指:(i)符合以下描述的软件:(a)根据开源软件许可条款许可的,(b)由买方或其指派者提供给卖方的,(c)非经卖方要求而由买方或任何第三方修改的,和/或(d)并非由卖方嵌入任一产品的软件;(ii)原型;(iii)双方书面接受其原型之前生产和/或交付的定制产品;(iv)试验产品;(v)beta测试产品;和/或(vi)新开发产品的样品。所有排除产品应按原状提供且不带有任何形式的保证

(5) 尽管有上述规定,若所称的缺陷或不合格被证实是在产品的灭失风险已经转移给买方之后,由于环境或压力测试、不当使用、疏忽、不当安装、事故或由于不当修理、不当修改、不当更改、不当存储、不当运输或不当处理产品所致,卖方对此不承担违反保证的义务。

(6) 买方可将根据保证下的权利主张退回的产品运至卖方指定场所,但应按照卖方当时的退回物料授权政策退回,且附有由卖方出具的填写完整的退回物料授权表。一旦根据保证作出调整,卖方将支付运费。买方应对未发现有缺陷或不合格的退回产品付款,并支付相关的运费、测试费和受理费。

(7) 上述明确保证应直接授予买方,而非买方的客户、代理或代表。上述明确保证取代所有其它明示或暗示保证,包括但不限于就适合于某一特定目的、适销性或不侵犯知识产权而作的暗示保证。卖方在此明确拒绝所有其它保证。

(8) 受制于本条款第11条所述之排除和限制,以上表明了卖方对所出售的有缺陷或不合格产品承担的全部责任。

10. 知识产权赔偿

(1) 卖方将自担费用:(i)对第三方向买方提起的、声称本条款下卖方提供的任何硬件产品直接侵犯请求人的专利或版权的权利主张进行抗辩;和(ii)使买方免于承担直接、完全由产品侵权引起的法律程序中的终局判决所裁定的(或卖方同意的和解中所约定的)损害赔偿和费用。

(2) 在以下情况下,卖方不对买方承担本第10条第(1)款下的义务或责任:若1、(i)该权利主张未及时书面通知卖方;(ii)未给予卖方单独主导该权利主张的抗辩和解决的权利,包括选择律师的权利;及(iii)买方未就该抗辩和解决给予卖方完全合理的帮助和配合;2、权利主张是在产品交付日之后满三(3)年之后作出的;3、权利主张是由于以下原因而引起:(i)对产品的更改;(ii)由买方提供的设计、技术规范或指示;或(iii)将产品与任何产品、软件、服务或技术结合或一起使用;或4、未授权使用或分发产品或未按产品的技术规范使用产品;5、引起权利主张的原因是,在卖方基于产品作为、或有合理的可能性成为侵权主张标的之理由已经通知买方停止相关行为时,买方仍使用、出售、要约出售或进口产品;6、未经卖方事先书面同意而由买方发生的费用;7、权利主张是基于任何排除产品;8、该权利主张是由于任何侵犯或宣称侵犯第三方知识产权(该知识产权含有标准制定组织所制定的或至少两家公司之间同意的行业标准)的行为所引起;或者9、侵犯任何第三方的知识产权,为此恩智浦已通知买方或发表声明需获得另外许可,且不授予或暗示许可。

如由于买方与本第10条第(2)款第3、4或5项有关的行动而导致针对卖方提出任何侵权主张,买方应赔偿卖方或使卖方不因侵权主张而承担损害赔偿或费用,并补偿卖方因对侵权主张、要求、诉讼或程序进行抗辩而发生的费用,但卖方应及时书面通知买方该侵权诉讼或程序。

(3) 若任何产品作为、或依卖方的观点可能成为侵权主张的标的,卖方有权、并无义务自行选择(i)为买方获得继续使用或出售该产品的权利;(ii)更换或修改该产品,使修改后的产品不再侵权;或(iii)终止与该产品有关的任何协议。一旦终止,买方可向卖方返还在终止时买方占有的、届时作为请求人的侵权主张标的的所有产品,且在返还后,卖方应向买方退还买方就该等产品支付的款项减去适当折旧后的余额。

(4) 上述赔偿专属于买方,不得转让、出让或转移给任何第三方(包括买方的客户)。

(5) 卖方在本第10条项下的损害赔偿责任不得超过合理的特许费(即仅对做出赔偿的被索赔产品收取的特许费)。

(6) 受制于本条款第11条所述之排除和限制,以上表明了卖方就任何实际的或声称的任何种类的知识产权侵权而对买方或其直接或间接客户承担的全部责任和义务、以及买方就此获得的唯一救济。

11. 责任限制

(1) 除第3条、第11条(3)款或13条中的买方责任之外,一方不应就利润损失或储蓄损失、间接的、偶然的、惩罚性的、特别或间接损害赔偿而对另一方承担责任,不论该损害赔偿是基于侵权、保证、合同或其它法律理论,甚至另一方已被告知或知晓该损害赔偿的可能性。卖方不承担与保证或侵犯知识产权的权利主张相关的任何损害赔偿、费用或开支,不论是因更换或维修产品产生,包括买方的人工、安装或其它费用,特别是与拆除或更换焊接或永久地固定在任何印制电路板上的任何产品相关的任何费用、超额采购费用或返工费用。

(2) 对于因任何产品的销售或使用而产生的、或与之相关的所有买方权利主张,恩智浦所承担的责任总额不得超过买方在其通知恩智浦相关的买方权利主张之前十二(12)个月期间内就该产品支付给恩智浦的款项金额。尽管有前述规定,(a)恩智浦对于有关延迟交付或不交付产品的买方权利主张承担的责任,不得超过延迟或不交付产品的采购价的百分之五十(50%),且(b)恩智浦对于有关所有产品的所有买方权利主张承担的责任总额不得超过一百万美元($1,000,000.00)。同时存在多项买方权利主张或涉及多个产品的买方权利主张均不得扩大或扩展上述限额。

(3) 在某些情况下,卖方可能会推广某些产品在安全性的应用中的使用。卖方的目的在于教导客户,使其能够设计自己的终端产品方案,以满足相关的性能安全标准和要求。不论卖方可能提供何等信息或支持,买方均须对其产品做出最终的设计决策,并须自行负责其设计符合与其产品相关的一切法律、监管、安全和安保要求。因此,如果由于买方在关键性安全应用或系统中装入任何产品而使卖方招致任何索赔、责任、损害赔偿和相关开支和费用(包括律师费),买方须赔偿卖方并使其免受损害。

只有被卖方明确指定为“汽车合格”的产品是为汽车、军事或航天的应用或环境而设计使用的。如果买方将没有被指定为“汽车合格”的任何产品用于任何汽车、军事或航天应用或环境,风险须由买方自行承担。

(4) 买方必须在权利主张发生之日起九十(90)日内向恩智浦发出买方根据本条款提出的任何权利主张的通知,且任何同该权利主张有关的诉讼必须在向恩智浦发出权利主张通知之日起一(1)年内提起。买方同意,在上述最终期限之后通知或提交的任何权利主张均视为已被放弃。

(5) 本11条所规定的限制和排除仅在适用法律允许的范围内适用。

12. 政府合同合规

(1) 如果买方向任何政府或公共机构(包括美国、美国各州、地方、外国或国际政府或公共机构直接销售产品,或通过该等政府或机构的主承包商或分包商间接销售产品,则卖方不就产品的销售是否符合政府或公共机构的采购法律法规(包括但不限于可能与定价、质量、原产地或内容有关的法律或法规),做出任何陈述、证明或保证。

(2) 根据本条款提供的产品是使用私人经费开发的,属于美国联邦法规汇编第48篇第2.101条所定义的“商品”。产品包含美国联邦法规汇编第48篇第12.211和12.212条(或美国联邦法规汇编第48篇第227.7102和227.7202条)中所述的商业性“技术数据”、“计算机软件”和/或“计算机软件资料”,只能向美国政府终端用户许可或分享本条规定的权利。买方同意不向本条款规定以外的任何人(包括政府客户)分享包含“技术数据”、“计算机软件”和/或“计算机软件资料”的产品。

(3) 买方进一步同意,买方分享产品所签的任何协议均须包含一条重申本条款所述限制的规定并要求所有副协议同样包含该等限制。

13. 保密

除提供给买方以供与相应产品一并分发的非保密文档以外,买方承认,所有由恩智浦批露给买方的技术、商业和财务数据(包括但不限于任何源代码)均为恩智浦的保密信息。买方不得将该等保密信息批露给任何第三方,且不得将保密信息用于双方同意之外的并且与本条款中所述的购买交易不相符的其它用途。

14. 遵守法律

各方在此声明其已经获得正式授权以签署本条款,并保证在执行本条款时,其将遵守所有适用的联邦、州和地方法律,包括但不限于与美国出口管理局有关的法律或其它适用管辖区的进出口管制相关法律。

若在本条款下交付产品在适用的法律或法规下须由政府和/或任何政府机关授予进出口许可证,或受进出口管制法律或法规所限制或禁止,卖方可暂停其就该交货承担的义务及买方对该交货拥有的权利直至授予该许可证,或在该限制和/或禁止持续的期间内暂停,且卖方甚至可在不对买方承担任何责任的情况下终止与该等产品有关的任何协议。

此外,若需要最终用户声明,卖方将立即通知买方,且买方应在收到卖方的第一份书面要求时向卖方提供该文件;若需要进口许可证,买方应立即通知卖方,且买方一获得该文件即应提供给卖方。

通过接受卖方的要约、签署协议和/或接受任何产品,买方同意在处理相关的产品和/或文档时,不会违背适用的进出口管制法律或法规。

15. 转让和抵销

未经卖方的书面同意,买方不得转让本条款下的权利或义务。买方在此放弃以现有和将来拥有的权利主张抵销因本条款或买方和卖方已有的其它协议项下所出售的产品而应付的任何款项的权利,且无论买方或其代表坚持抵销,买方仍同意支付本条款下的款项。卖方可在与并购或控制权变更有关的情况下,将本条款和任何协议项下的任何权利或义务转让给其关联公司或任何第三方。

16. 管辖法律和法院

本条款、所有要约、确认和协议均依据中华人民共和国的法律管辖和解释。所有因本条款、任何要约、确认或协议引起的或与之相关的争议应首先由买方和卖方通过友好协商并本着互相合作的精神解决。若相关争议首次发生之日起三十(30)日内未能通过协商解决,该争议应提交中国国际经济贸易仲裁委员会(“贸仲委”)依据贸仲委的仲裁规则(“规则”)在中华人民共和国北京通过仲裁(“仲裁”)最终解决。按规则应任命一名国籍与卖方和买方均不相同的仲裁员,仲裁程序中使用的语言为英文和中文。仲裁裁决为最终裁决,对双方均有约束力,在任何有管辖权的法院均可执行。因此,双方在此确认,应将履行该裁决作为本条款下的一项义务,并明确同意立即执行该仲裁裁决。仲裁员将决定由哪一方承担该仲裁费用。《联合国国际货物销售合同公约》不适用于本条款或任何要约、确认或协议。本第16条的任何内容不得解释为限制卖方或买方根据适用法律享有的禁令或其它衡平救济权利,或采取行动维护对另一方寻求追索权的可能性。

17. 违约和终止

在不影响卖方在本条款或协议项下或根据法律享有的任何权利或救济的前提下,如发生以下情况,卖方可以书面形式通知买方立即终止任何协议或其中任何部分,且无需承担任何因此而产生的法律责任:

(1) 买方不支付卖方任何产品的到期款项;

(2) 买方不接受根据本条款所提供的合格产品;

(3) 对买方提起无力偿债或破产清算(包括重组)或解散的程序(不论是否由买方提出或提起,且不论是否自愿),已为买方任命受托管理人或清算人,或买方已经为债权人之利益进行任何转让;或

(4) 买方违反或违背本条款和/或协议之规定。

若出现上述(1)至(4)项的任一情况,本条款下买方应付款项将立即到期即付。

若任何协议取消、终止或到期,协议中规定在取消、终止或到期后继续有效的条款(包括但不限于所有定义词语、本条款第4条、第8至17条和第20至26条)将继续有效。

18. 产品和生产变更

卖方保留在任何时候对产品和/或生产进行变更的权利。在此情况下,卖方声明,该变更不会对产品的结构、装配、作用及其性能产生负面影响。

19. 产品停产

卖方保留在任何时候停止产品的生产和销售的权利。但在卖方经常出售且买方经常购买产品的协议期限内的任何时候,若要永久停产该经常出售和购买的产品(“停产产品”),卖方应尽其商业上合理的努力对该停产给予买方事先书面通知,并尽其商业上合理的努力依据卖方产品停产程序及在卖方网站上公布的一般相关信息,接受该停产产品的最后购买订单。

20. 可分割性

若有司法管辖权的法院或将来的立法或行政行为认定协议或本条款中的任何规定无效或不可执行,该认定或行为不应否定其余规定的有效性或可执行性。

21. 弃权

任何一方未履行或延迟履行由任何要约、确认、协议或本条款产生的权利或救济,不应视为放弃该权利或救济;单独或部分行使由此产生的权利或补偿不妨碍以任何其它方式或将来行使该权利或救济,也不妨碍行使由任何要约、确认、协议或本条款或法律产生的任何其它权利或补偿。

22. 通知

所有根据本条款提供的通知或通讯应以书面形式作出,并在按要约、确认和/或协议中指明的收件方地址通过亲手交付时、通过经确认的传真传输时、或通过预付邮资的认证信件、挂号信件、头等信件或同等信件方式在发送方本国付邮后满三(3)天时,才能视为已经送达。

23. 律师费

若因任何要约、确认或协议或本条款的主题事项而引起争议,另一方应补偿由此引起的诉讼的胜诉方发生的所有合理的律师费用。

24. 各方关系

各方在此有意建立买方和卖方的关系,因而是独立的订约人,一方无权作为另一方的代理或法定代表,而代表另一方产生任何明示或暗示的义务。

25. 修改和变更

卖方保留随时对本条款进行修订或修改的权利。该等修订和修改:(1)对于提及修订或修改后的本条款的所有要约、确认和协议而言,从该要约、确认或协议签订之日起有效,且(2)对于任何现有的协议而言,在卖方通知买方该等修订或修改之日后满三十(30)天起生效,但买方在该三十(30)天期间内告知卖方其反对该等修订或修改的情况除外。

26. 语言

本条款以中文和英文书写,两种语言的文本不一致时,以英文文本为准。

商业销售条款和条件,中国版本
2016年11月7日修改

NXP Semiconductors Netherlands B.V.

TERMS AND CONDITIONS OF COMMERCIAL SALE

In these Terms and Conditions of Commercial Sale (the “Terms and Conditions”), “Seller” shall mean:

NXP Semiconductors Netherlands B.V., a Dutch Corporation, incorporated under the laws of the Netherlands.

1. OFFER, CONFIRMATION OR AGREEMENT

These Terms and Conditions apply to and form an integral part of:

a. all quotations and offers (hereinafter both referred to as “Offer”) of Seller to Buyer,

b. all acceptances, acknowledgements or confirmations by Seller (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing or other framework agreement between any Buyer and Seller, unless explicitly agreed otherwise in writing between Seller and Buyer,

c. any agreement resulting from such Offer or Confirmation, and

d. any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under Sections 1(c) and 1(d) shall hereinafter be referred to as an “Agreement”),

regarding the sale by Seller and purchase by Buyer of goods (“Products”), unless Seller explicitly agrees in writing to the exclusion hereof.

These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Seller setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Seller, and any such document shall be wholly inapplicable to any sale made by Seller and shall not be binding in any way on Seller. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions, and Seller does not intend to enter into an agreement other than under these Terms and Conditions.

Any Offer is expressly made conditional on Buyer's assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer's written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer's acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.

In the event that any Offer or Confirmation is sent in response to Buyer's blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Seller, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Seller provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.

Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer's acceptance related thereto.

If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller's Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.

An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Seller shall constitute an Agreement between Seller and Buyer upon explicit Confirmation by Seller itself.

In these Terms and Conditions, the term “Affiliate(s)” shall mean: (a) with respect to Seller, NXP B.V. and any entity that is Controlled by NXP B.V., and (b) with respect to Buyer, any entity that Controls, is Controlled by or is under common Control with Buyer; where “Control” means the direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting stock, or decision-making authority in the event that there is no voting stock, in another entity. An entity may be considered an Affiliate only when such Control exists. Seller and its Affiliates are individually and/or collectively referred to herein as “NXP”.

2. PRODUCTS, QUANTITIES AND PRICING

Prices in any Offer, Confirmation or Agreement are in United States Dollars and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price.

With regard to Custom Products (as defined in Section 6 below) Seller may deliver a quantity that is a maximum amount of ten percent (10%) more or less than the ordered quantity of any order line item. Such delivered quantity will be accepted and paid for (against an amount being the actual delivered quantity times the unit price) in full satisfaction of each party's obligation under the Agreement for the quantity ordered.

3. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY

Unless provided otherwise in a separate agreement between Seller and Buyer, the following terms apply to software (including firmware in all references to “software”, unless stated otherwise) and documentation provided or made available to Buyer in connection with Products:

Seller grants Buyer a nonexclusive license to use and distribute software in machine-readable form, only in combination with or as part of the Product for which the software has been provided and only one copy for each such Product. No rights or licenses with respect to any software source code are granted to Buyer. Seller grants Buyer a nonexclusive license to use and distribute non-confidential documentation with the Product for which the documentation has been provided and only one copy for each such Product. Buyer will reproduce all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the software and on copies thereof.

With respect to Products, software, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by statutory law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate software into any other software. Should Buyer create any modifications or derivative works of Products, software, documentation or a portion thererof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer's rights under these Terms and Conditions are conditional upon Buyer not performing any actions that may require any software, Products and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.

If Buyer is in default of any of the terms herein, Buyer’s license to software and documentation will automatically terminate. Buyer shall indemnify NXP against and hold NXP harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by NXP in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.

To the extent that software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation, and all references to “sale” or “sold” of any software or documentation shall be deemed to mean a license. Except for those rights specifically granted in this Section 3 in connection with software and documentation: (i) NXP and its suppliers reserve all right, title and interest, together with all intellectual property rights thereto, in all software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or any other intellectual property right is granted hereunder.

Any open source software included in the software is not licensed or warranted under the terms of these Terms and Conditions, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. In no event will Buyer subject the software to an Excluded License. An Excluded License means any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Buyer is solely responsible for obtaining any necessary third party approvals and any licenses for any necessary essential patents for their use in connection with technology that Buyer incorporates into Buyer’s system or software (whether as part of the software or not).

Neither the sale of any of the Products, nor these Terms and Conditions, shall be construed as conferring any right, license or immunity:

a. under any intellectual property rights to any combination, machine, or process in which Products might be used, or to any modifications of Products, software, or documentation;

b. with respect to any trademark, trade or brand name, corporate name, or any other name or mark, or contraction, abbreviation or simulation thereof;

c. under any intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or

d. under any intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied.

4. PAYMENT

a. Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Seller and Buyer in writing. All payments shall be made to the designated Seller's address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Seller. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment in full.

b. All deliveries and performance of work agreed to by Seller shall at all times be subject to credit approval of Seller. If, in Seller's judgment, Buyer's financial condition at any time does not justify production, performance of work or delivery on the above payment terms, Seller may require full or partial payment in advance or other payment terms as condition for delivery, and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller.

c. Payment by Buyer of non-recurring charges (as may be made to Seller for special design, engineering work or production materials) shall not convey title to any design, engineering work or production materials, and title shall remain in Seller.

d. Buyer shall not offset, withhold or reduce any payment(s) due by it to Seller. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.

e. If Seller incurs exchange rate losses due to Buyer's failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses.

f. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms and Conditions or at law or in equity.

5. DELIVERY AND QUANTITIES

a. Products shall be delivered Free Carrier (FCA) Incoterms® 2010 at the airport in the country of dispatch or other facility designated by Seller, unless otherwise agreed in writing between Seller and Buyer. Delivery dates communicated or acknowledged by Seller are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Seller agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.

b. In the event Buyer contests delivery, Buyer must request a proof of delivery from Seller within ninety (90) days of the date of Seller's invoice, otherwise delivery shall be deemed completed.

c. Buyer will give Seller written notice of failure to deliver and thirty (30) days within which to cure. If Seller does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.

d. Title in the Products shall pass to Buyer at Seller’s point of shipment. Risk of loss in the Products shall pass to Buyer upon Seller's delivery in accordance with the applicable Incoterm.

e. If Buyer fails to take delivery, then Seller may deliver the Products in consignment at Buyer's costs and expenses.

f. In the event of shortages Seller may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

6. CUSTOM PRODUCT

Seller shall have exclusive rights to goods designed and manufactured for the unique needs of Buyer, to Buyer's specifications or requirements, such as an ASIC or ASSP (“Custom Product”). Seller shall retain title to and possession of designs, masks, database tapes and source code. Individual segments or parts of Custom Product designs, including but not limited to standard cells, megacells, base arrays or software libraries, are the property of Seller and may be used by Seller in other designs and may not be used by Buyer except as a part of Custom Product designed and manufactured by Seller. Prices and/or schedules for Custom Products are subject to change by Seller if any specifications are revised or supplemented or there are unforeseen difficulties with the design.

7. RESCHEDULING AND CANCELLATION

No order, Agreement or any part thereof may be rescheduled or cancelled without Seller’s prior written consent.

8. FORCE MAJEURE

Seller shall not be liable for any failure or delay in performance if:

a. such failure or delay results from the fact that Seller’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or

b. such failure or delay does not result from its fault; or

c. such failure or delay is caused by Force Majeure as defined below or by law.

In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to Buyer for any damage resulting therefrom.

The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller shall be entitled to cancel all or any part of the Agreement without any liability of Seller towards Buyer. In the event Seller’s production is curtailed, for any reason, Seller shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

9. LIMITED WARRANTY AND DISCLAIMER

a. Seller warrants that under normal use the Products (excluding any Excluded Products (as defined below) and die and wafers as described in Section 9(b) below) shall, at the time of delivery to Buyer and for a period of twelve (12) months thereafter (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Seller’s specifications for such Products, or such other specifications as Seller has agreed to in writing, as applicable.

b. Die and wafers have received electrical probe/test and visual inspection and are warranted for a period of ninety (90) days from date of shipment by Seller. This warranty will not apply to die or wafers improperly removed from their original shipping container, not stored per Seller's recommended procedures, or subjected to testing or operational procedures not accepted by Seller in writing.

c. Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Seller’s property as soon as they have been replaced or credited for.

d. As used in these Terms and Conditions, “Excluded Products” mean: (i) software that is (a) licensed under open source software license terms, (b) provided by Buyer or any of its designees to Seller, (c) modified by Buyer or any third party, other than at Seller’s request, and/or (d) not embedded in a Product by Seller; (ii) prototypes; (iii) Custom Products manufactured and/or delivered prior to both parties' written acceptance of the prototypes thereof; (iv) experimental Products; (v) beta testing Products; and/or (vi) samples of newly developed Products. All Excluded Products shall be AS IS WITHOUT WARRANTY OF ANY KIND.

e. Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.

f. Buyer may ship Products returned under warranty claims to Seller’s designated facility only so long as the returns are in conformance with Seller’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Seller. Where warranty adjustment is made, Seller will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.

g. THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER'S CUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER.

h. Subject to the exclusions and limitations set forth in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.

10. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

a. Seller, at its expense, shall: (i) defend against a claim in a legal proceeding brought by a third party against Buyer that any hardware Product as furnished by Seller hereunder directly infringes the claimant's patent or copyright; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding (or agreed upon in a settlement to which Seller consents) to the extent directly and solely attributable to infringement by the Product.

b. Seller shall have no obligation or liability to Buyer under Section 10(a): (1) if Seller is not: (i) promptly notified in writing of the claim, (ii) given the sole right to control the defense and settlement of such claim, including the selection of counsel, and (iii) given full reasonable assistance and cooperation by Buyer in such defense and settlement; (2) if the claim is made more than three (3) years after the date of delivery of the Product; (3) to the extent that any such claim arises from: (i) modification of the Product, (ii) design, specifications or instructions furnished by Buyer, or (iii) the combination or use of the Product with any product, software, service or technology; (4) for unauthorized use or distribution of the Product or use beyond the specifications of the Product; (5) to the extent that any such claim arises from Buyer's use, sale, offer for sale or importation of the Product after Seller’s notice to Buyer that Buyer should cease any such activity because the Product is, or is reasonably likely to become, the subject of a claim of infringement; (6) for any costs or expenses incurred by Buyer without Seller’s prior written consent; (7) to the extent that the claim is based on any Excluded Products; (8) to the extent that any such claim arises from any infringement or alleged infringement of third party's intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or (9) for infringement of any third party's intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied. If any claim of infringement is brought against Seller as a result of Buyer’s actions in connection with items (3), (4), or (5) of this Section 10(b), Buyer shall indemnify Seller against and hold Seller harmless from any damages or costs arising from or connected with such claim of infringement and shall reimburse all costs incurred by Seller in defending any claim, demand, suit or proceeding for such infringement, provided Seller gives Buyer prompt notice in writing of any such suit or proceeding for infringement.

c. If any Product is, or in Seller’s opinion is likely to become, the subject of a claim of infringement, Seller shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell such Product, (ii) replace or modify such Product in such a way as to make the modified Product non-infringing, or (iii) terminate any Agreement to the extent related to such Product. In the event of any such termination, Buyer may return to Seller all such Products in Buyer’s possession at the time of such termination, which are then subject to the claimant’s continuing claim of infringement; and upon such return Seller shall credit Buyer the sum paid to Seller by Buyer for such Products, less appropriate depreciation.

d. The foregoing indemnity is personal to Buyer and is not assignable, transferable or subject to pass-through to any third party including Buyer’s customers.

e. Seller’s liability for damages under this Section 10 will not exceed a reasonable royalty rate as applied solely to the Product that is the subject of the indemnified claim.

f. SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 11 OF THESE TERMS AND CONDITIONS, THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION TO BUYER OR ITS MEDIATE OR IMMEDIATE CUSTOMERS AND BUYER'S SOLE REMEDY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11. LIMITATION OF LIABILITY

a. EXCEPT FOR BUYER'S LIABILITY UNDER SECTIONS 3, 11(C) OR 13 HEREOF, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGE, COSTS OR EXPENSES ASSOCIATED WITH WARRANTY OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, WHETHER FOR THE REPLACEMENT OR REPAIR OF PRODUCTS, INCLUDING LABOR, INSTALLATION OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATED TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCTS SOLDERED OR OTHERWISE PERMANENTLY AFFIXED TO ANY PRINTED CIRCUIT BOARD, EXCESS PROCUREMENT COSTS, OR REWORK CHARGES.

b. The aggregate liability of NXP, for all Buyer claims arising out of or in connection with the sale or use of any Product, shall not exceed the amount that Buyer has paid NXP for such Product during the twelve (12) months immediately preceding Buyer’s notification to NXP of the applicable Buyer claim. Notwithstanding the above (a) the liability of NXP, for Buyer claims regarding delay or non-delivery of Products, shall not exceed fifty percent (50%) of the purchase price of the delayed or non-delivered Products concerned, and (b) the liability of NXP for all Buyer claims for all Products shall not exceed One Million Dollars ($1,000,000.00) in the aggregate. The existence of more than one Buyer claim, or Buyer claims involving more than one Product, shall not enlarge or extend the above specified limits.

c. In some cases, Seller may promote certain Products for use in safety-related applications. Seller’s goal is to educate customers so that they can design their own end-product solutions to meet applicable functional safety standards and requirements. Buyer makes the ultimate design decisions regarding its products and is solely responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any information or support that may be provided by Seller. Accordingly, Buyer will indemnify and hold Seller harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys’ fees) that Seller may incur related to Buyer’s incorporation of any Product in a safety-critical application or system.

Only those Products that Seller has specifically designated as “Automotive Qualified” are designed and intended for use in automotive, military, or aerospace applications or environments. If Buyer uses any Product that has not been designated as “Automotive Qualified” in an automotive, military, or aerospace application or environment, Buyer does so at its own risk.

d. Buyer must provide notice to NXP of any claim that Buyer has under these Terms and Conditions within ninety (90) days of the date that the claim arises, and any lawsuit relative to any claim must be filed within one (1) year of the date of notice to NXP of the claim. Buyer agrees that any claim noticed or filed outside of the deadlines set forth in the preceding sentence are deemed waived.

e. The limitations and exclusions set forth above in this Section 11 shall only apply to the extent permitted by applicable mandatory law.

12. GOVERNMENT CONTRACT COMPLIANCE

a. If Buyer sells Products directly to any government or public entity, including U.S., state, local, foreign or international governments or public entities, or indirectly via a prime contractor or subcontractor of such governments or entities, Seller makes no representations, certifications, or warranties whatsoever about compliance with government or public entity acquisition statutes or regulations, including, without limitation, statutes or regulations that may relate to pricing, quality, origin or content.

b. Products provided in furtherance of these Terms and Conditions have been developed at private expense and are “Commercial Items” as defined in 48 C.F.R. §2.101. Products include commercial “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” as such terms are used in 48 C.F.R. §§ 12.211 and 12.212 (or 48 C.F.R. §§ 227.7102 and 227.7202, as applicable) and may only be licensed to or shared with U.S. Government end users with the rights as are set forth in this Section. Buyer agrees that it will not share Products consisting of “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” with anyone not covered by these Terms and Conditions, including government customers.

c. Buyer further agrees that any agreement pursuant to which Buyer shares Products will include a provision that reiterates the limitations of these Terms and Conditions and requires all sub-agreements to similarly contain such limitations.

13. CONFIDENTIALITY

Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by NXP is the confidential information of NXP. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.

14. COMPLIANCE WITH LAWS

Each party hereto represents that it is duly authorized to enter into these Terms and Conditions and represents that with respect to its performance hereunder, it will comply with all applicable federal, state and local laws, including, but not limited to those pertaining to U.S. Export Administration or the export or import controls or restrictions of other applicable jurisdictions.

If the delivery of Products under these Terms and Conditions is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Buyer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any Agreement related to such Products, without incurring any liability towards Buyer.

Furthermore, if an end-user statement is required, Seller shall inform Buyer immediately thereof and Buyer shall provide Seller with such document upon Seller’s first written request; if an import license is required, Buyer shall inform Seller immediately thereof and Buyer shall provide Seller with such document as soon as it is available. By accepting Seller’s Offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.

15. ASSIGNMENT AND SETOFF

Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Seller. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under these Terms and Conditions or under any other agreement that Buyer and Seller may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Seller is allowed to assign any rights or obligations under these Terms and Conditions and any Agreement to its Affiliates or to any third party in connection with a merger or a change of control.

16. GOVERNING LAW AND FORUM

These Terms and Conditions, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of Singapore. All disputes arising out of or in connection with these Terms and Conditions, or any Offer, Confirmation or Agreement, shall first be attempted by Buyer and Seller to be settled through consultation and negotiation in good faith and a spirit of mutual understanding. All disputes that are not so settled within a period of thirty (30) days from the date the relevant party notified the other party to that effect, shall be submitted to the courts of Singapore, provided that Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions, or any Offer, Confirmation or Agreement. Nothing is this Section 16 shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.

17. BREACH AND TERMINATION

Without prejudice to any rights or remedies Seller may have under these Terms and Conditions or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:

a. Buyer fails to make payment for any Products to Seller when due;

b. Buyer fails to accept conforming Products supplied hereunder;

c. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or

d. Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.

Upon occurrence of any of the events referred to under Sections 17(a) through 17(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.

In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration (which shall include without limitation all defined terms and Sections 4, 8 through 17 and 20 through 25 of these Terms and Conditions) shall survive.

18. PRODUCT AND PRODUCTION CHANGES

Seller reserves the right to make at any time Product and/or production changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.

19. DISCONTINUATION OF PRODUCT

Seller reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.

20. SEVERABILITY

In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.

21. WAIVER

The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions or by law.

22. NOTICES

All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.

23. ATTORNEYS’ FEES

Should a dispute arise from the subject matter of any Offer, Confirmation or Agreement, or these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys' fees and expenses incurred.

24. RELATIONSHIP OF PARTIES

The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.

25. MODIFICATIONS AND CHANGES

Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have effect: (1) on all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.

Terms and Conditions of Commercial Sale, version APAC-NL
Revised November 7, 2016

 

NXP Semiconductors Netherlands B.V.”或“Freescale Semiconductor EME&A SA

TERMS AND CONDITIONS OF COMMERCIAL SALE

In these Terms and Conditions of Commercial Sale (the “Terms and Conditions”), “Seller” shall mean either:

  • (a) NXP Semiconductors Netherlands B.V., a Dutch Corporation, incorporated under the laws of the Netherlands (“NXP Netherlands”), if the Products are purchased or otherwise acquired from NXP Netherlands; or
  • (b) Freescale Semiconductor EME&A SA, a Switzerland corporation, incorporated under the laws of Switzerland (“Freescale”), if the Products are purchased or otherwise acquired from Freescale.

1. OFFER, CONFIRMATION OR AGREEMENT

These Terms and Conditions apply to and form an integral part of:

a. all quotations and offers (hereinafter both referred to as “Offer”) of Seller to Buyer,

b. all acceptances, acknowledgements or confirmations by Seller (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing or other framework agreement between any Buyer and Seller, unless explicitly agreed otherwise in writing between Seller and Buyer,

c. any agreement resulting from such Offer or Confirmation, and

d. any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under Sections 1(c) and 1(d) shall hereinafter be referred to as an “Agreement”),

regarding the sale by Seller and purchase by Buyer of goods (“Products”), unless Seller explicitly agrees in writing to the exclusion hereof.

These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Seller setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Seller, and any such document shall be wholly inapplicable to any sale made by Seller and shall not be binding in any way on Seller. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions, and Seller does not intend to enter into an agreement other than under these Terms and Conditions.

Any Offer is expressly made conditional on Buyer's assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer's written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer's acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.

In the event that any Offer or Confirmation is sent in response to Buyer's blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Seller, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Seller provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.

Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer's acceptance related thereto.

If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller's Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.

An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Seller shall constitute an Agreement between Seller and Buyer upon explicit Confirmation by Seller itself.

In these Terms and Conditions, the term “Affiliate(s)” shall mean: (a) with respect to Seller, NXP B.V. and any entity that is Controlled by NXP B.V., and (b) with respect to Buyer, any entity that Controls, is Controlled by or is under common Control with Buyer; where “Control” means the direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting stock, or decision-making authority in the event that there is no voting stock, in another entity. An entity may be considered an Affiliate only when such Control exists. Seller and its Affiliates are individually and/or collectively referred to herein as “NXP”.

2. PRODUCTS, QUANTITIES AND PRICING

Prices in any Offer, Confirmation or Agreement are in United States Dollars and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price.

With regard to Custom Products (as defined in Section 6 below) Seller may deliver a quantity that is a maximum amount of ten percent (10%) more or less than the ordered quantity of any order line item. Such delivered quantity will be accepted and paid for (against an amount being the actual delivered quantity times the unit price) in full satisfaction of each party's obligation under the Agreement for the quantity ordered.

3. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY

Unless provided otherwise in a separate agreement between Seller and Buyer, the following terms apply to software (including firmware in all references to “software”, unless stated otherwise) and documentation provided or made available to Buyer in connection with Products:

Seller grants Buyer a nonexclusive license to use and distribute software in machine-readable form, only in combination with or as part of the Product for which the software has been provided and only one copy for each such Product. No rights or licenses with respect to any software source code are granted to Buyer. Seller grants Buyer a nonexclusive license to use and distribute non-confidential documentation with the Product for which the documentation has been provided and only one copy for each such Product. Buyer will reproduce all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the software and on copies thereof.

With respect to Products, software, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by statutory law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate software into any other software. Should Buyer create any modifications or derivative works of Products, software, documentation or a portion thererof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer's rights under these Terms and Conditions are conditional upon Buyer not performing any actions that may require any software, Products and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.

If Buyer is in default of any of the terms herein, Buyer’s license to software and documentation will automatically terminate. Buyer shall indemnify NXP against and hold NXP harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by NXP in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.

To the extent that software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation, and all references to “sale” or “sold” of any software or documentation shall be deemed to mean a license. Except for those rights specifically granted in this Section 3 in connection with software and documentation: (i) NXP and its suppliers reserve all right, title and interest, together with all intellectual property rights thereto, in all software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or any other intellectual property right is granted hereunder.

Any open source software included in the software is not licensed or warranted under the terms of these Terms and Conditions, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. In no event will Buyer subject the software to an Excluded License. An Excluded License means any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Buyer is solely responsible for obtaining any necessary third party approvals and any licenses for any necessary essential patents for their use in connection with technology that Buyer incorporates into Buyer’s system or software (whether as part of the software or not).

Neither the sale of any of the Products, nor these Terms and Conditions, shall be construed as conferring any right, license or immunity:

a. under any intellectual property rights to any combination, machine, or process in which Products might be used, or to any modifications of Products, software, or documentation;

b. with respect to any trademark, trade or brand name, corporate name, or any other name or mark, or contraction, abbreviation or simulation thereof;

c. under any intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or

d. under any intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied.

4. PAYMENT

a. Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Seller and Buyer in writing. All payments shall be made to the designated Seller's address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Seller. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment in full.

b. All deliveries and performance of work agreed to by Seller shall at all times be subject to credit approval of Seller. If, in Seller's judgment, Buyer's financial condition at any time does not justify production, performance of work or delivery on the above payment terms, Seller may require full or partial payment in advance or other payment terms as condition for delivery, and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller.

c. Payment by Buyer of non-recurring charges (as may be made to Seller for special design, engineering work or production materials) shall not convey title to any design, engineering work or production materials, and title shall remain in Seller.

d. Buyer shall not offset, withhold or reduce any payment(s) due by it to Seller. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.

e. If Seller incurs exchange rate losses due to Buyer's failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses.

f. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms and Conditions or at law or in equity.

5. DELIVERY AND QUANTITIES

a. Products shall be delivered Free Carrier (FCA) Incoterms® 2010 at the airport in the country of dispatch or other facility designated by Seller, unless otherwise agreed in writing between Seller and Buyer. Delivery dates communicated or acknowledged by Seller are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Seller agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.

b. In the event Buyer contests delivery, Buyer must request a proof of delivery from Seller within ninety (90) days of the date of Seller's invoice, otherwise delivery shall be deemed completed.

c. Buyer will give Seller written notice of failure to deliver and thirty (30) days within which to cure. If Seller does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.

d. Title in the Products shall pass to Buyer at Seller’s point of shipment. Risk of loss in the Products shall pass to Buyer upon Seller's delivery in accordance with the applicable Incoterm.

e. If Buyer fails to take delivery, then Seller may deliver the Products in consignment at Buyer's costs and expenses.

f. In the event of shortages Seller may allocate its available production and Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

6. CUSTOM PRODUCT

Seller shall have exclusive rights to goods designed and manufactured for the unique needs of Buyer, to Buyer's specifications or requirements, such as an ASIC or ASSP (“Custom Product”). Seller shall retain title to and possession of designs, masks, database tapes and source code. Individual segments or parts of Custom Product designs, including but not limited to standard cells, megacells, base arrays or software libraries, are the property of Seller and may be used by Seller in other designs and may not be used by Buyer except as a part of Custom Product designed and manufactured by Seller. Prices and/or schedules for Custom Products are subject to change by Seller if any specifications are revised or supplemented or there are unforeseen difficulties with the design.

7. RESCHEDULING AND CANCELLATION

No order, Agreement or any part thereof may be rescheduled or cancelled without Seller’s prior written consent.

8. FORCE MAJEURE

Seller shall not be liable for any failure or delay in performance if:

a. such failure or delay results from the fact that Seller’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or

b. such failure or delay does not result from its fault; or

c. such failure or delay is caused by Force Majeure as defined below or by law.

In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to Buyer for any damage resulting therefrom.

The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller shall be entitled to cancel all or any part of the Agreement without any liability of Seller towards Buyer. In the event Seller’s production is curtailed, for any reason, Seller shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.

9. LIMITED WARRANTY AND DISCLAIMER

a. Seller warrants that under normal use the Products (excluding any Excluded Products (as defined below) and die and wafers as described in Section 9(b) below) shall, at the time of delivery to Buyer and for a period of twelve (12) months thereafter (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Seller’s specifications for such Products, or such other specifications as Seller has agreed to in writing, as applicable.

b. Die and wafers have received electrical probe/test and visual inspection and are warranted for a period of ninety (90) days from date of shipment by Seller. This warranty will not apply to die or wafers improperly removed from their original shipping container, not stored per Seller's recommended procedures, or subjected to testing or operational procedures not accepted by Seller in writing.

c. Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Seller’s property as soon as they have been replaced or credited for.

d. As used in these Terms and Conditions, “Excluded Products” mean: (i) software that is (a) licensed under open source software license terms, (b) provided by Buyer or any of its designees to Seller, (c) modified by Buyer or any third party, other than at Seller’s request, and/or (d) not embedded in a Product by Seller; (ii) prototypes; (iii) Custom Products manufactured and/or delivered prior to both parties' written acceptance of the prototypes thereof; (iv) experimental Products; (v) beta testing Products; and/or (vi) samples of newly developed Products. All Excluded Products shall be AS IS WITHOUT WARRANTY OF ANY KIND.

e. Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.

f. Buyer may ship Products returned under warranty claims to Seller’s designated facility only so long as the returns are in conformance with Seller’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Seller. Where warranty adjustment is made, Seller will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.

g. THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER'S CUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER.

h. Subject to the exclusions and limitations set forth in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.

10. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

a. Seller, at its expense, shall: (i) defend against a claim in a legal proceeding brought by a third party against Buyer that any hardware Product as furnished by Seller hereunder directly infringes the claimant's patent or copyright; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding (or agreed upon in a settlement to which Seller consents) to the extent directly and solely attributable to infringement by the Product.

b. Seller shall have no obligation or liability to Buyer under Section 10(a): (1) if Seller is not: (i) promptly notified in writing of the claim, (ii) given the sole right to control the defense and settlement of such claim, including the selection of counsel, and (iii) given full reasonable assistance and cooperation by Buyer in such defense and settlement; (2) if the claim is made more than three (3) years after the date of delivery of the Product; (3) to the extent that any such claim arises from: (i) modification of the Product, (ii) design, specifications or instructions furnished by Buyer, or (iii) the combination or use of the Product with any product, software, service or technology; (4) for unauthorized use or distribution of the Product or use beyond the specifications of the Product; (5) to the extent that any such claim arises from Buyer's use, sale, offer for sale or importation of the Product after Seller’s notice to Buyer that Buyer should cease any such activity because the Product is, or is reasonably likely to become, the subject of a claim of infringement; (6) for any costs or expenses incurred by Buyer without Seller’s prior written consent; (7) to the extent that the claim is based on any Excluded Products; (8) to the extent that any such claim arises from any infringement or alleged infringement of third party's intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or (9) for infringement of any third party's intellectual property rights with respect to which NXP has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied. If any claim of infringement is brought against Seller as a result of Buyer’s actions in connection with items (3), (4), or (5) of this Section 10(b), Buyer shall indemnify Seller against and hold Seller harmless from any damages or costs arising from or connected with such claim of infringement and shall reimburse all costs incurred by Seller in defending any claim, demand, suit or proceeding for such infringement, provided Seller gives Buyer prompt notice in writing of any such suit or proceeding for infringement.

c. If any Product is, or in Seller’s opinion is likely to become, the subject of a claim of infringement, Seller shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell such Product, (ii) replace or modify such Product in such a way as to make the modified Product non-infringing, or (iii) terminate any Agreement to the extent related to such Product. In the event of any such termination, Buyer may return to Seller all such Products in Buyer’s possession at the time of such termination, which are then subject to the claimant’s continuing claim of infringement; and upon such return Seller shall credit Buyer the sum paid to Seller by Buyer for such Products, less appropriate depreciation.

d. The foregoing indemnity is personal to Buyer and is not assignable, transferable or subject to pass-through to any third party including Buyer’s customers.

e. Seller’s liability for damages under this Section 10 will not exceed a reasonable royalty rate as applied solely to the Product that is the subject of the indemnified claim.

f. SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 11 OF THESE TERMS AND CONDITIONS, THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION TO BUYER OR ITS MEDIATE OR IMMEDIATE CUSTOMERS AND BUYER'S SOLE REMEDY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11. LIMITATION OF LIABILITY

a. EXCEPT FOR BUYER'S LIABILITY UNDER SECTIONS 3, 11(C) OR 13 HEREOF, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGE, COSTS OR EXPENSES ASSOCIATED WITH WARRANTY OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, WHETHER FOR THE REPLACEMENT OR REPAIR OF PRODUCTS, INCLUDING LABOR, INSTALLATION OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATED TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCTS SOLDERED OR OTHERWISE PERMANENTLY AFFIXED TO ANY PRINTED CIRCUIT BOARD, EXCESS PROCUREMENT COSTS, OR REWORK CHARGES.

b. The aggregate liability of NXP, for all Buyer claims arising out of or in connection with the sale or use of any Product, shall not exceed the amount that Buyer has paid NXP for such Product during the twelve (12) months immediately preceding Buyer’s notification to NXP of the applicable Buyer claim. Notwithstanding the above (a) the liability of NXP, for Buyer claims regarding delay or non-delivery of Products, shall not exceed fifty percent (50%) of the purchase price of the delayed or non-delivered Products concerned, and (b) the liability of NXP for all Buyer claims for all Products shall not exceed One Million Dollars ($1,000,000.00) in the aggregate. The existence of more than one Buyer claim, or Buyer claims involving more than one Product, shall not enlarge or extend the above specified limits.

c. In some cases, Seller may promote certain Products for use in safety-related applications. Seller’s goal is to educate customers so that they can design their own end-product solutions to meet applicable functional safety standards and requirements. Buyer makes the ultimate design decisions regarding its products and is solely responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any information or support that may be provided by Seller. Accordingly, Buyer will indemnify and hold Seller harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys’ fees) that Seller may incur related to Buyer’s incorporation of any Product in a safety-critical application or system.

Only those Products that Seller has specifically designated as “Automotive Qualified” are designed and intended for use in automotive, military, or aerospace applications or environments. If Buyer uses any Product that has not been designated as “Automotive Qualified” in an automotive, military, or aerospace application or environment, Buyer does so at its own risk.

d. Buyer must provide notice to NXP of any claim that Buyer has under these Terms and Conditions within ninety (90) days of the date that the claim arises, and any lawsuit relative to any claim must be filed within one (1) year of the date of notice to NXP of the claim. Buyer agrees that any claim noticed or filed outside of the deadlines set forth in the preceding sentence are deemed waived.

e. The limitations and exclusions set forth above in this Section 11 shall only apply to the extent permitted by applicable mandatory law.

12. GOVERNMENT CONTRACT COMPLIANCE

a. If Buyer sells Products directly to any government or public entity, including U.S., state, local, foreign or international governments or public entities, or indirectly via a prime contractor or subcontractor of such governments or entities, Seller makes no representations, certifications, or warranties whatsoever about compliance with government or public entity acquisition statutes or regulations, including, without limitation, statutes or regulations that may relate to pricing, quality, origin or content.

b. Products provided in furtherance of these Terms and Conditions have been developed at private expense and are “Commercial Items” as defined in 48 C.F.R. §2.101. Products include commercial “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” as such terms are used in 48 C.F.R. §§ 12.211 and 12.212 (or 48 C.F.R. §§ 227.7102 and 227.7202, as applicable) and may only be licensed to or shared with U.S. Government end users with the rights as are set forth in this Section. Buyer agrees that it will not share Products consisting of “Technical Data,” “Computer Software,” and/or “Computer Software Documentation,” with anyone not covered by these Terms and Conditions, including government customers.

c. Buyer further agrees that any agreement pursuant to which Buyer shares Products will include a provision that reiterates the limitations of these Terms and Conditions and requires all sub-agreements to similarly contain such limitations.

13. CONFIDENTIALITY

Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by NXP is the confidential information of NXP. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.

14. COMPLIANCE WITH LAWS

Each party hereto represents that it is duly authorized to enter into these Terms and Conditions and represents that with respect to its performance hereunder, it will comply with all applicable federal, state and local laws, including, but not limited to those pertaining to U.S. Export Administration or the export or import controls or restrictions of other applicable jurisdictions.

If the delivery of Products under these Terms and Conditions is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Buyer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any Agreement related to such Products, without incurring any liability towards Buyer.

Furthermore, if an end-user statement is required, Seller shall inform Buyer immediately thereof and Buyer shall provide Seller with such document upon Seller’s first written request; if an import license is required, Buyer shall inform Seller immediately thereof and Buyer shall provide Seller with such document as soon as it is available. By accepting Seller’s Offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.

15. ASSIGNMENT AND SETOFF

Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Seller. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under these Terms and Conditions or under any other agreement that Buyer and Seller may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Seller is allowed to assign any rights or obligations under these Terms and Conditions and any Agreement to its Affiliates or to any third party in connection with a merger or a change of control.

16. GOVERNING LAW AND FORUM

These Terms and Conditions, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of the Netherlands. All disputes arising out of or in connection with these Terms and Conditions, or any Offer, Confirmation or Agreement, shall first be attempted by Buyer and Seller to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to the courts of Amsterdam, The Netherlands, provided that Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions, or any Offer, Confirmation or Agreement. Nothing is this Section 16 shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.

17. BREACH AND TERMINATION

Without prejudice to any rights or remedies Seller may have under these Terms and Conditions or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:

a. Buyer fails to make payment for any Products to Seller when due;

b. Buyer fails to accept conforming Products supplied hereunder;

c. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or

d. Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.

Upon occurrence of any of the events referred to under Sections 17(a) through 17(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.

In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration (which shall include without limitation all defined terms and Sections 4, 8 through 17 and 20 through 25 of these Terms and Conditions) shall survive.

18. PRODUCT AND PRODUCTION CHANGES

Seller reserves the right to make at any time Product and/or production changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.

19. DISCONTINUATION OF PRODUCT

Seller reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.

20. SEVERABILITY

In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.

21. WAIVER

The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions or by law.

22. NOTICES

All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.

23. ATTORNEYS’ FEES

Should a dispute arise from the subject matter of any Offer, Confirmation or Agreement, or these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys' fees and expenses incurred.

24. RELATIONSHIP OF PARTIES

The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.

25. MODIFICATIONS AND CHANGES

Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have effect: (1) on all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.

Terms and Conditions of Commercial Sale, version EMEA-NL
Revised November 7, 2016