These terms and conditions apply to all quotations and offers made and all purchase orders accepted by GigOptix, notwithstanding any conflicting or additional terms in any purchase orders or other documents received from Customer, all of which are rejected by GigOptix. Customer's acceptance and payment for the Products or services confirms assent to these terms and conditions. Customer acknowledges that GigOptix will not be bound by any terms that vary, limit or add to the provisions of these terms unless agreed to in writing.
CONTRACT means these Purchase Order Standard Terms and Conditions and those portions of Customer's order documents identifying the model and quantity of Products or services ordered and the agreed upon price. CUSTOMER means the person or organization with whom GigOptix has contracted for the purchase or distribution of goods or services. CUSTOM PRODUCTS means any product, which is not considered one of GigOptix's Standard Products. STANDARD PRODUCTS means those products produced by GigOptix according to GigOptix's specifications, and collectively, PRODUCTS means the products sold or licensed by GigOptix to Customer pursuant to this Contract. PURCHASE PRICE means the price agreed to by both parties for the price of each Product.
PARTIES TO CONTRACT:
GigOptix is not a party to or bound by the terms of any purchase order between Customer and any other party. GigOptix's undertakings are limited to those defined in this Contract.
Customer is responsible for payment of all delivery charges, export taxes, other customs duties, all excise, sales, use, property, withholding, value-added and other taxes due on the Products sold. Taxes will be added to the Purchase Price by GigOptix when it has the legal obligation to collect the same and will be invoiced to and paid by Customer.
Quotes are valid for 30 days following date of quote. Payment terms are net 30 days from date of invoice, payable in U.S. dollars by check from a bank in the United States. International Customers may pay by wire-transfer including the wire transfer fee. Customer's obligation to GigOptix may not exceed any credit limit established by GigOptix. GigOptix reserves the right to require a letter of credit or other payment guarantees at any time. Credit limits specified by GigOptix may be revoked or changed upon written notice from GigOptix immediately if Customer does not pay any amount when due. Each shipment is an independent transaction. In any collection action, the prevailing party will be entitled to reimbursement for its expenses, including court costs and reasonable attorney's fees at trial.
If Customer defaults in any payment when due hereunder, GigOptix may, without incurring any liability therefore to Customer or Customer's customers, declare all payments immediately due and payable with late charges as specified herein payable from the due date of said payment, and at its option, stop all further work and shipments until all past due payments have been made, and/or require that any further deliveries be paid for prior to shipment.
GigOptix reserves a security interest in the Products delivered to Customer until the Purchase Price for such Products is paid. If Customer defaults, GigOptix has the right to repossess the Products sold to Customer without liability to GigOptix. The security interest will be satisfied by payment in full. Upon request, Customer will deliver executed UCC financing statements and other instruments to GigOptix to perfect its security interest.
Past due accounts are subject to a monthly late payment charge at the lesser of 1 1/2 % per month or the highest rate permitted by applicable law.
CANCELLATIONS AND CHARGES:
Subject to the limitations set forth herein, Customer may request that orders be cancelled or deliveries be rescheduled according to the following terms:
- Orders for Standard Products may be rescheduled or canceled at any time prior to GigOptix's current ship date, but such changes are subject to the following minimum change order fee: for shipments within 60 days of GigOptix's current ship date, 100% of the shipment's cumulative Purchase Price; for shipments within 61 to 120 days of GigOptix's current ship date, 70% of the shipment's cumulative Purchase Price; and for shipments outside 120 days of GigOptix's current ship date, 50% of the shipment's cumulative Purchase Price.
- Orders for Custom Products may be rescheduled or canceled at any time prior to GigOptix's current ship date, but such changes are subject to a minimum change order fee of 100% of the estimated total charges. For purposes of this paragraph, estimated total charges shall be determined in good faith by GigOptix and shall include the agreed upon Purchase Price of the Product order plus the amount of any materials, labor and non-recurring engineering and tooling charges, and any other fixed or custom costs, for which GigOptix is entitled to make as a separate charge.
Delivery or shipment dates will be 90 days after receipt of order unless Customer specifies a later shipment date or GigOptix agrees in writing to an earlier date. Any shipment or delivery dates recited represent GigOptix's best estimate, but no liability, direct or indirect, is assumed by GigOptix for failure to ship or deliver on such dates. GigOptix shall have the right to make partial shipments; invoices covering such shipments will be due and payable by Customer in accordance with the payment terms specified herein.
Customer agrees to indemnify, defend and hold GigOptix, its agents, officers, employees, shareholders, and directors harmless and defend all damages, losses and expenses including, but not limited to, attorney fees and to defend all claims, proceedings, lawsuits and judgments arising out of or resulting from the Customer's use of the Products or failure to perform this Agreement.
DELIVERY AND RISK OF LOSS:
All shipments are F.O.B. point of shipment by GigOptix. Title to Products and risk of loss pass to Customer on transfer to carrier at the shipping point.
METHOD OF SHIPMENT:
Shipping and packaging will be according to GigOptix's current standards. GigOptix will bill Customer for all shipment charges including taxes, tariffs, duties, and insurance plus handling fee. Alternatively, customers may request GigOptix to ship on a "freight collect" basis.
Products shall be deemed accepted by Customer unless GigOptix is notified within 30 days after shipment of Product defectiveness. Products claimed to be defective will be held by Customer without charge, destruction or disposition pending GigOptix's instructions.
NON-RECURRING ENGINEERING OR TOOLING CHARGES:
Charges listed for non-recurring engineering or tooling is based on the production of electronic subsystems, modules or components in the quantities quoted hereby. Non-recurring engineering or tooling charges shall be billed at the time of initial shipment of electronic subsystems, modules or components, unless otherwise specified on the quotation. Orders for greater or smaller quantities may necessitate additional non-recurring engineering or tooling charges. Although the tooling may be used solely for the manufacture of electronic subsystems, modules or components for Customer, GigOptix shall retain all rights and title in and to such tooling and all technology relating thereto. Tooling may become the property of the U.S. Government if negotiated as part of a U.S. Government contract or subcontract.
Products manufactured and sold by GigOptix and paid for in full by the Customer are backed by the following Limited Warranty:
Solely for the benefit of the original Customer, GigOptix warrants that Products manufactured by GigOptix, will be free from defects in material and workmanship and will conform to and function in accordance with GigOptix's written specifications under normal use for a period of one (1) year from the date shipped to the Customer ("Warranty Period"), with the exception of prototypes, developmental and certain Custom Products which may not be covered by this Limited Warranty.
If Customer believes any Products fail to conform to this Limited Warranty, and provided that: (a) Customer promptly notifies GigOptix in writing within the Warranty Period that such Product is believed to have failed to conform, furnishes GigOptix with a detailed explanation of any alleged deficiency, provides GigOptix full information and assistance during GigOptix's investigation of the alleged deficiency, prior to return of the Product, and obtains from GigOptix a return authorization number; (b) such defective Product, may then be returned to GigOptix at Customer's risk and expense at the address and by the method specified in GigOptix's return authorization; and (c) GigOptix is satisfied that claimed deficiencies actually exist and were not caused by any excluded cause as described below, GigOptix will (i) repair or replace the Products or credit Customer's account an amount equal to the Purchase Price of the Products, as determined by GigOptix in its sole discretion, and (ii) reimburse Customer for all transportation charges incurred in returning the Products in accordance with the instructions in GigOptix's return authorization. GigOptix will have a reasonable time to make repairs, to replace Products or to credit Customer's account.
The warranties set forth herein shall not apply to any Product which: (i) has been subjected to accident, misuse, neglect, tampering, alteration, abnormal physical or electrical stress, or improper installation, repair or testing, including without limitation use of replacement parts not supplied or approved by GigOptix, (ii) is used or operated in any manner or subjected to any condition not consistent with its intended purpose or accepted industry practice; (iii) is modified in any way other than as approved by GigOptix, including without limitation during installation or use in conjunction with any part or component manufactured or otherwise provided by Customer; (iv) is damaged in shipping; (v) is sold by Customer in a manner inconsistent with its rights under this Agreement, or (vi) has not been released to production, is developmental in-nature such as, but not limited to, pre-production units, prototypes, evaluation hardware and tools, and consumables, or is a Custom Product, which is to be produced under the terms of a separate agreement between customer and GigOptix.
GigOptix 's obligation under this Limited Warranty for Products purchased from an authorized GigOptix distributor is conditioned upon the authorized distributor, responsible for the original Product sale, receiving prompt notice of claimed defects prior to the date of expiration of the Limited Warranty and providing prompt notice to GigOptix in writing as detailed above. GigOptix will have reasonable time to make repairs, to replace Products or credit Distributor's account.
THIS LIMITED WARRANTY IS EXPRESSLY MADE BY GIGOPTIX IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. GIGOPTIX NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCTS. GIGOPTIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIGOPTIX DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
REMEDIES UNDER THE LIMITED WARRANTY SET FORTH HEREIN ARE LIMITED TO REPAIR OR REPLACEMENT OF PRODUCTS OR THE CREDITING OF CUSTOMERS ACCOUNT AS SET FORTH HEREIN, AS DETERMINED BY GIGOPTIX IN ITS SOLE DISCRETION, AND GIGOPTIX SHALL HAVE NO LIABILITY OF ANY NATURE INCLUDING BUT NOT LIMITED TO LIABILITY FOR DEFECTS OR DAMAGE, EITHER DIRECT OR INDIRECT, INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, ARISING FROM BREAKDOWN, MALFUNCTION OR OTHER FAILURE OF THE PRODUCTS, EXCEPT FOR THE OBLIGATION TO REPAIR OR REPLACE THE PRODUCTS OR CREDIT CUSTOMER'S ACCOUNT. GIGOPTIX FURTHER EXPRESSLY DISCLAIMS AND EXCLUDES ALL CONSEQUENTIAL, INCIDENTAL AND INDIRECT CLAIMS OF DAMAGES THAT ARISE AS A RESULT OF DEFECTS IN GIGOPTIX'S PRODUCTS.
GigOptix makes no warranty with respect to parts, accessories, or components manufactured by others. The warranty, which applies to such items, is that offered by their respective manufacturers.
Customer acknowledges and agrees that GigOptix owns all right, title and interest in all patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to design, manufacture, operation and service of the Products, including without limitation any software or firmware provided by GigOptix and all derivative works created relating to the Products. No title to any of the foregoing items or any part thereof is transferred to Customer through delivery of the Product.
Customer acknowledges GigOptix's intellectual property rights under this Agreement for the Products, regardless of whether a notice appears on the Products, its manuals, software, or quotation, or whether it has been filed with a patent, trademark or copyright office. Customer and its customers shall not copy, in whole or in part, the Products or any documentation provided by GigOptix in any form, nor shall Customer make any modifications to or derivations of the Products without the prior written consent of GigOptix. Customer shall not provide or make available to any other person the Products, any related documentation or any other information provided pursuant to this Agreement, other than in connection with an authorized resale of such Products. If Customer distributes the Products to any third party, the Product must retain any markings, logos or tradenames of GigOptix.
INTELLECTUAL PROPERTY INDEMNIFICATION:
GigOptix shall indemnify Customer against direct damages finally awarded with respect to any claim of infringement of any United States patent or copyright, and shall pay the amount of any settlement which has been approved in writing by GigOptix, resulting in each case from Customer's use of the Products in the United States in the manner permitted hereunder, provided that: (i) Customer gives GigOptix prompt written notice of any such claim, (ii) Customer gives GigOptix full and complete authority to defend Customer against or settle any such claim, and (iii) Customer gives GigOptix proper and full information and assistance, at GigOptix's expense (except for Customer's employees' time), to defend or settle any such claim. If a claim is made or threatened, GigOptix may, at its expense and option, either (i) procure the right for Customer to continue using the alleged infringing portion of the Products, or (ii) replace the Products with non-infringing items with comparable functionality, or (iii) modify the Products such that they are non-infringing, or (iv) take back the Products and refund the Purchase Price thereof, less amortization based upon a three year useful life. No undertaking of GigOptix under this Article shall extend to any such infringement to the extent that it: (1) arises from adherence to specifications, drawings, modifications, or written instructions which GigOptix is directed by Customer to follow or from Products specifically designed by GigOptix to meet Customer's requirements; or (2) arises from adherence to instructions to apply Customer's trademark, trade name, or other company identification; or (3) resides in a product which is not of GigOptix's origin; or (4) arises from use of a Product that has been modified by a party other than GigOptix, or (5) relates to the combination of the Products and other products furnished either by GigOptix or others, unless GigOptix sold or provided them all as a combination, or (6) arises from use of other than the then current, unaltered version of any software or firmware within the Products, unless the infringing portion is also in the then current, unaltered release of such software or firmware, or (7) arises from a use of the Products in a manner for which they were not reasonably intended, or (8) arises from the direct or contributory infringement of any process patent using any Product. In the foregoing cases numbered (1) through (8), Customer will defend, indemnify and save GigOptix harmless from any loss, cost or liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, GIGOPTIX SHALL NOT BE LIABLE IN THE AGGREGATE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID TO GIGOPTIX FOR THE INFRINGING PRODUCTS. The foregoing states the entire obligation of GigOptix and the exclusive remedy of Customer with respect to any alleged patent or copyright infringement by any Product or part.
GigOptix hereby grants to Customer a non-exclusive, irrevocable, worldwide, royalty-free, perpetual user license, under all of its applicable intellectual property, to use all software and firmware provided by GigOptix pursuant to this Agreement. Such license shall be limited to use of such software and firmware on the Products purchased under this Agreement. Except as permitted pursuant to this Agreement, Software licenses shall be non-transferable. Customer shall not, except and then only to the extent expressly authorized by applicable statutory law, attempt to (or permit others to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying idea or algorithms or file formats or programming of the Products or software or firmware by any means whatsoever. Software and firmware provided by GigOptix for use with the Products may be transferred or sublicensed to any subsequent third party purchaser of such Products, upon written request from Customer to be mutually agreed upon by GigOptix and Customer, provided such third party purchaser assumes the applicable obligations contained herein. GigOptix is and shall remain the exclusive owner of all intellectual property rights, including without limitation all rights in patents, trademarks, copyrights and trade secrets, relating to the software and firmware provided by GigOptix pursuant to this Agreement, including any modifications, revisions or enhancements to the software and firmware. Except as explicitly agreed by GigOptix in writing, Customer will have no rights in or access to the source codes of any software or firmware included in any of the Products.
LIMITATION OF LIABILITY:
IN NO EVENT WILL GIGOPTIX BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR PROCUREMENT COSTS, LOSS OF PROFITS, LOSS OF USE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR FOR CONTRIBUTION OR INDEMNITY CLAIMS (EXCEPT AS EXPLICITLY SET FORTH IN THE PARAGRAPH TITLED "INTELLECTUAL PROPERTY INDEMNIFICATION"), HOWEVER CAUSED,. GIGOPTIX'S LIABILITY SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES NOT IN EXCESS OF THE AMOUNTS PAID TO GIGOPTIX BY CUSTOMER FOR THE INDIVIDUAL COMPONENT OF THE PRODUCT OR SERVICES TO WHICH THE CLAIM IS RELATED. THESE LIMITATIONS WILL APPLY TO ALL CLAIMS, INCLUDING WITHOUT LIMITATION WARRANTY, CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
COMPLIANCE WITH LAWS:
Licensee acknowledges that the Products are subject to the export control laws and regulations of the United States and any amendments thereof. Licensee agrees that Licensee will not export or re-export the Products, directly or indirectly, to any countries that are subject to United States export restrictions, and Customer shall comply with all applicable laws and regulations, including without limitation all applicable export laws and regulations.
Any knowledge or information which Customer may disclose to GigOptix shall not be deemed to be confidential or proprietary information, and shall be acquired by GigOptix free from any restriction unless a valid Non-Disclosure Agreement is in place between Customer and GigOptix.
CONFIDENTIALITY REGARDING GIGOPTIX:
Customer agrees that it will not use in any way for its own account or the account of any third party, or disclose to any third party, any information and materials Customer obtains concerning GigOptix's business, plans, customers and products (including but not limited to information and materials contained in technical data provided by GigOptix). Customer will take every reasonable precaution to protect the confidentiality of such information, including but not limited to, the efforts exercised by it to protect its own confidential business information. Customer will not publish any technical description of GigOptix's Products beyond the description published by GigOptix.
NUCLEAR, AVIATION AND LIFE SUPPORT APPLICATIONS:
GigOptix's products are not designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance, operation or use of any nuclear facility, for the flight, navigation or communication of aircraft or ground support equipment including any space flight or navigation equipment, nor for use in life support equipment where malfunction of such product can reasonably be expected to result in personal injury. If Customer uses GigOptix's products for these applications, Customer agrees that (i) GigOptix is not liable, in whole or in part, for any claims or damages arising from such use, and (ii) Customer shall indemnify and hold GigOptix harmless from any claims for loss, damage, expense and liability arising out of or in connection with such use and performance of GigOptix's products in such applications.
US GOVERNMENT USERS:
ANY SOFTWARE PROVIDED WITHIN OR IN CONNECTION WITH THE PRODUCTS WAS DEVELOPED AT PRIVATE EXPENSE AND IS A COMMERCIAL ITEM, AS THAT TERM IS DEFINED IN 48 CFR 2.101, CONSISTING OF COMMERCIAL COMPUTER SOFTWARE AND COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION AS SUCH TERMS ARE USED IN 48 CFR 12.212 AND 48 CFR 227.7202-1 THROUGH 227.7202-4, AS APPLICABLE. THE SOFTWARE IS LICENSED TO U.S. GOVERNMENT END-USERS ONLY AS A COMMERCIAL ITEM AND WITH ONLY THOSE RIGHTS GRANTED TO ALL OTHER END-USERS PURSUANT TO THE TERMS AND CONDITIONS HEREIN. MANUFACTURER IS GIGOPTIX COMMUNICATIONS LLC, 2300 GENG ROAD, SUITE 250, PALO ALTO, CA 94303.
GigOptix will not be liable for any delay in shipment/delivery, suspension or cancellation of performance, or other failure of performance hereunder due to any causes beyond its reasonable control, including but not limited to acts of God or government, labor disputes or inability to secure materials, labor or transportation. GigOptix may defer shipment or performance for a period equal to the delay caused by such event.
In the event of default, the defaulting Party will reimburse the non-defaulting Party for all costs and expenses incurred by the non-defaulting Party in connection with the default, including, without limitation, collection costs, and reasonable attorneys' fees.
All purchases and sales of Products shall be governed in accordance with the laws of the State of California, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California. The parties acknowledge that the provisions of the United Nations Convention on the International Sale of Goods and the United Nations Convention on Statutory Limitations will not apply. Jurisdiction over any disputes will be vested exclusively in the state and federal courts of the State of California, and each party hereby consents to the exercise of personal jurisdiction over it by the state and federal courts of the State of California. All communications and notices relating to the purchases and sales of Products shall be in English.
Any and all disputes arising in connection with this Agreement shall be finally settled under the International Arbitration Rules of the American Arbitration Association ("AAA") in effect on the Effective Date ("Rules"), except as such Rules are modified pursuant to this Section VIII-G. Arbitration shall be in Palo Alto, California, United States and shall be in English. The arbitration shall be before a panel of three (3) arbitrators, each of whom shall be fluent in English. Each of GigOptix and Customer shall choose one arbitrator. The two (2) arbitrators so chosen shall select the third arbitrator, who shall chair the arbitral panel; provided, however, that if such two (2) arbitrators fail to select the third arbitrator, then such third arbitrator shall be selected by the AAA. Not less than thirty (30) days prior to the arbitration, each party shall submit to the other, in English, the documents and a list of witnesses it intends to use in the arbitration. In any arbitration proceedings, each party shall have the right to examine the documents and witnesses presented by the other party. The arbitrators shall issue a written opinion stating the findings of fact and the conclusions of law upon which the decision is based. The decision of the arbitrators shall be final and binding, and may be enforced in any court of competent jurisdiction, pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The arbitration award shall not include direct, indirect, special, consequential or punitive damages, and the arbitrators shall be so instructed. Each party to the arbitration shall bear its respective costs in the preparation and presentation of the dispute, and shall bear equally in the administrative costs of the arbitration.
This Agreement expresses the entire agreement between the parties hereto superseding any prior understandings, and is not subject to modification except by a writing signed by an authorized employee of each party.
(Effective Date: October 1, 2007)