NXP TERMS OF SALE (Development Tools Direct)
 
1. PRODUCTS AND SALE TERMS.
Buyer agrees to purchase and NXP Semiconductors ('NXP') agrees to sell products, which may include hardware, software, or a combination of hardware and software ("Products") under the terms of this document. NXP does not consent to any terms or conditions asserted by Buyer as applicable to this transaction, in a purchase order, on a web site, or otherwise. Additional terms, which may be found in click or shrink wrap licenses for particular software Products ('Click Wrap Terms'), may apply to the use of such Products, and consist of an additional agreement between the manufacturer of such software and the Buyer. If the manufacturer of software including Click Wrap Terms is NXP®, the Click Wrap Terms will control and exclude any conflicting terms in this Agreement. If the manufacturer of the software including Click Wrap terms is not NXP, the Buyer must contact that manufacturer for enforcement of any rights, including but not limited to warranty and indemnity rights, found in such Click Wrap Terms that are different from or in excess of the rights provided herein.

2. DELIVERY AND PAYMENT; TITLE & RISK OF LOSS; TAXES.
Delivery will be FOB Our point of shipment, with title and risk of loss passing to Buyer at that point. Payment is due thirty (30) days from the date of invoice. NXP will use commercially reasonable efforts to deliver Products pursuant to a mutually agreeable schedule; however, delivery dates are approximate and NXP is not liable for delivery delays for any reason. In the event of any Product shortages, NXP reserves the right to adopt an equitable plan of allocation and to adjust delivery schedules accordingly. Buyer agrees to pay all applicable taxes. Taxes and duties on international orders are the responsibility of the buyer. They may be collected at delivery.

3. WARRANTY.
Except as provided in subsection (b) below, NXP warrants that its Products sold hereunder will, at the time of shipment, conform substantially to the manufacturer's approved specifications. If Products are not as warranted, NXP will, at its option, and as Buyer's exclusive remedy, either refund the purchase price, repair, or replace with the same or equivalent Products that meet this warranty. Buyer must submit a warranty claim online at http://www.nxp.com/devtoolreturns and, if requested by NXP, return nonconforming Products FOB Our designated facility. If Products are nonconforming, NXP will reimburse Buyer's reasonable transportation charges for return of Products. This warranty does not apply to Products that have been subjected to improper testing, assembly, mishandling or misuse, whether by Buyer or others. This warranty may not be expanded, and no obligation or liability will arise, due to technical advice or assistance, qualification or testing data, computerized data, facilities or service NXP may provide in connection with Buyer's purchase.

THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED ONLY BY BUYER FOR ITS CUSTOMERS. NXP WILL NOT ACCEPT WARRANTY RETURNS FROM BUYER'S CUSTOMERS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS, AND THE WARRANTY AGAINST INFRINGEMENT SPECIFIED IN THE UNIFORM COMMERCIAL CODE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.

(a) Time Period. Products are warranted by NXP for a period of one year from the date NXP first ships Products to Buyer.

(b) Products Provided 'AS IS'. Development products, including without limitation prototypes, beta and evaluation software, and any pre-production samples (whether or not paid for by Buyer) are provided 'AS IS' without warranty of any kind.

4. CONFIDENTIAL INFORMATION.
All materials and Products furnished by NXP or Buyer and identified as containing confidential information must be held in confidence by the recipient using at least the degree of care the recipient uses for its own confidential information, but no less than reasonable care. Recipient may not disclose such materials or confidential information except to employees or agents who require use of the materials in the performance of their duties. Confidential information does not include information in the public domain, information known to the recipient prior to any disclosure hereunder, information developed independently of any disclosure hereunder, information later communicated to the recipient by another without obligation of confidence, or information communicated by the owner to a third party free of any obligation of confidence. The recipient must hold all confidential information and materials containing confidential information in confidence for five (5) years after receipt. If the terms of this section conflict with any confidentiality or nondisclosure terms agreed to by the parties in a separate written agreement governing this transaction, the terms of such separate agreement controls.


5. LICENSED PROGRAMS
In the absence of separate Click Wrap Terms between Buyer and NXP, the following terms and conditions apply to any software or firmware (software embedded in Products) in all forms, including any documentation ('Licensed Programs') provided by NXP:

(a) Title to Licensed Programs delivered to Buyer remains vested in NXP or Our licensor and cannot be assigned or transferred. Buyer agrees not to reverse engineer, disassemble, decompile, or modify any Licensed Program or any portion thereof, provided that if Buyer violates this restriction, Buyer irrevocably assigns to NXP all right, title and interest to any modifications to a Licensed Program.

(b) At NXP's discretion, NXP may provide a single copy of the Licensed Program, or portions thereof, to Buyer (a 'Master Copy') or may provide individual copies of the Licensed Program, or portions thereof to Buyer in a number equal to the number of copies purchased by Buyer.

    (1) Use and Reproduction Rights. If NXP provides a Master Copy to Buyer, then NXP grants to Buyer a non-exclusive license to reproduce up to the number of copies purchased by Buyer and to use such copies of the Licensed Program, or portions thereof. If NXP provides individual copies of the Licensed Program to Buyer, then NXP grants to Buyer a non-exclusive license to use such individual copies of the Licensed Program and to make one archival copy of such Licensed Program.

    (2) Distribution Rights. NXP grants to Buyer a non-exclusive license to distribute the number of copies of the Licensed Programs, or portions thereof designated as redistributable code or libraries, that are purchased, solely in conjunction with Buyer's subsequent sale of Buyer's products, and for execution only on NXP processors. Unless specifically authorized by NXP in writing, the number of copies distributed must correspond on a one to one basis with the number of NXP processors in Buyer's products. Buyer may grant end user licenses to end customers of Buyer's products as necessary for end customers to use such products.

    (3) Legends. Buyer agrees to reproduce all of Our copyright notices and other proprietary legends on copies of Licensed Programs.
(c) Use of Licensed Programs is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraphs (c)(l) and (2) of the Commercial Computer Software--Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is NXP Semiconductors, 6501 William Cannon Drive West, Austin, TX, 78735.

(d) If Buyer is in default of any of the terms and conditions of this document, the rights granted herein by NXP may be terminated on
thirty (30) days prior written notice. Within thirty (30) days after termination, Buyer will furnish to NXP a certificate certifying that the original and all copies of the Licensed Programs and derivative versions thereof, in whole or in part and in any form, have been destroyed.

6. ORDER CANCELLATION; RESCHEDULED SHIPMENT
(a) All orders are firm and not cancelable by Buyer.

(b) Buyer may reschedule the shipment date for Products only if written notice is provided to NXP no less than thirty (30) days prior to NXP 's existing planned dock date.

(c) NXP reserves the right to cancel all or any part of an order, without any liability to Buyer, if inaccurate information is supplied by Buyer in connection with this Order, or if Buyer is in default under any of the terms and conditions of this document, or if Buyer is in arrears for previous orders from NXP or Buyer's credit card information supplied in connection with payment is found to be invalid.

7. GOVERNMENT CONTRACT COMPLIANCE.
If Buyer sells Products to the U.S. Government, NXP makes no representations, certifications, or warranties whatsoever about compliance with acquisition statutes or regulations, except NXP will comply with the following clauses applicable to subcontracts for commercial items: FAR 52.222-26, Equal Opportunity; FAR 52.222-35, Affirmative Action for Special Disabled and Vietnam Era Veterans; and FAR 52.222-36, Affirmative Action for Handicapped Workers. Notwithstanding, if Buyer sells Products to any other public entity, state, or local or international, or to a prime contractor or subcontractor of such entities, Buyer remains solely and exclusively liable for compliance with all acquisition statutes and regulations. Except as expressly provided in this section, NXP makes no representations, certifications, or warranties whatsoever about compliance with acquisition statutes and regulations, including, without limitation, those that may relate to pricing, quality, origin or content.

8. EXPORT CONDITIONS.
If, at the time or times of Our performance hereunder, an export license is required for NXP to lawfully export Products, materials or technical data, then the issuance of the appropriate licenses to NXP or its subcontractor constitutes a condition precedent to Our obligations hereunder. Buyer agrees to comply with all applicable export laws, regulations and orders. Specifically, but without limitation, Buyer agrees that it will not resell, re-export or ship, directly or indirectly, any Products or technical data in any form without obtaining appropriate export or re-export licenses. Buyer acknowledges that the applicable export laws, regulations and orders may differ from item to item and/or from time to time.

9. ANTI-PERSONNEL LANDMINES.
Products are not intended or authorized for use in anti-personnel landmines, and Buyer agrees they will not be used for such purpose. Upon request from NXP, Buyer will furnish a written certification that neither Buyer nor Buyer's customers use or permit the use of Products in anti-personnel landmines.

10. RESALE PROHIBITED.
Buyer must not resell Products, through brokers, exporters, or otherwise, except as integrated into a product sold by Buyer that contains substantial value added circuitry or software. If Buyer breaches the terms of this section, in addition to NXP's cancellation rights, Buyer agrees to fully indemnify NXP, its officers, employees and distributors, from any and all liability related to such resale, including attorneys' fees and costs.

11. DISCLAIMER FOR CRITICAL APPLICATIONS.
Products are not intended or authorized for use in products surgically implanted into the body, for life support products or for other products for which a Product failure could cause personal injury or death. If Buyer or Buyer's customers use or permit the use of Products for such unintended or unauthorized uses, Buyer agrees to fully indemnify NXP and its affiliates, and the officers, employees and distributors of each, from all liability related to such use, including attorneys' fees and costs.


12. LIMITATION OF LIABILITY.
EXCEPT FOR PERSONAL INJURY, AND EXCEPT FOR THE LIMITED LIABILITIES OTHERWISE PROVIDED IN SECTION 3, NXP'S AND ITS LICENSORS' TOTAL LIABILITY, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO EVENT WILL NXP OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.

13. GENERAL.
(a) Entire Agreement; Amendment. This document constitutes the entire and final agreement and supersedes all other communications. No modifications will be binding unless made in a written amendment signed by both parties. (b) Severability. If any provision is held invalid, all other provisions remain valid. (c) No Assignment. Neither party may assign its rights and obligations without the prior written consent of the other. (d) Excusable Delay. NXP will not be liable for any delay or failure to perform due to any cause beyond its control. (e) Dispute Resolution. NXP and Buyer will attempt to settle all claims (other than claims relating to intellectual property issues) through negotiation or non-binding mediation prior to commencement of court proceedings. Any dispute that is not resolved within two (2) months of the date of the initial demand may then be submitted to a court of competent jurisdiction. (f) Governing Law. This document will be enforced and construed in accordance with the laws of the State of Texas. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this document.