"Confidential Information" shall mean any proprietary information, technical data, trade secrets or know-how, including research, product ideas, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, hardware configuration information, marketing, finances or other business information disclosed by Alpha and Omega Semiconductor (“AOS”), either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment.
"Proprietary Rights" shall mean all rights in Products and AOS’s confidential information, including, but not limited to, patents, copyrights, trademarks, trade names, know-how, show-how, and trade secrets, irrespective of whether such rights arise under U.S. or international intellectual property, unfair competition or trade secret laws.
"Products" shall mean the semiconductor products identified on the attached order acknowledgement or otherwise shipped pursuant to Purchaser’s purchase order.
"Purchaser" shall mean those purchasers of Products.
COUNTERFEIT PRODUCT NOTICE
There are counterfeit AOS products discovered that are being sold with counterfeit AOS exterior packaging, part numbers, and other auxiliary materials. These counterfeit products are of an inferior quality or performance. There is a high risk that the use of these counterfeit products can lead to a reduction of product life and reliability, or product failure. AOS will not be liable to any party for any claim, liability or damage resulting directly or indirectly from the use of any counterfeit product. To avoid the inadvertent purchase of counterfeit products, please be sure to purchase directly from our company or through our authorized distributors and sales representatives.
These Terms and Conditions of Sale (“Terms and Conditions”) govern the sale and subsequent use by Purchaser of Products. In the event of any conflict between Terms and Conditions and any other documents including but not limited to purchase order and like document submitted by Purchaser, Terms and Conditions shall prevail, and such conflicting terms in the said documents are hereby rejected by AOS.
TERMS OF PAYMENT
Payment Terms. Purchaser shall make payments to AOS according to terms set forth in the attached order acknowledgement. All sales are subject to prior credit approval by AOS. Purchaser agrees to submit its most current financial information and provide trade and bank references upon AOS’s request.
Right to Withhold Service and Support. If Purchaser fails to meet its obligation to satisfy the foregoing payment terms, AOS may, at its sole discretion, without forfeiting all other applicable remedies, withhold all warranty service, training, and technical service and support.
Taxes. All AOS Prices are exclusive of any export, withholding, federal, state and local taxes, duties or excises other than taxes based on AOS’s net income. If AOS pays any taxes, duties or excises which are not included in the fees charged for Products, AOS shall itemize such taxes, duties or excises as a separate item on its invoices to Purchaser, and Purchaser shall reimburse AOS for such taxes, duties or excises; provided, that Purchaser shall not be required to make any such reimbursement if it provides a valid tax exemption certificate to AOS prior to shipment.
AOS may at any time, at its sole discretion:
alter the foregoing payment terms, including requiring full or partial payment in advance of delivery,
delay shipment, and/or
pursue any remedies available at law, or in equity (including, but not limited to, all rights and remedies of a secured creditor pursuant to the Uniform Commercial Code). AOS shall be entitled to reimbursement from Purchaser for its reasonable expenses, including attorney's fees. Purchaser shall pay 1.5% per month, or the maximum allowed by applicable laws, on delinquent account balances. In the event that any payment due hereunder is overdue, AOS reserves the right to suspend performance until such delinquency is corrected.
SHIPMENT AND DELIVERY TERMS
Shipping. AOS shall use reasonable efforts to deliver by scheduled delivery dates, but does not guarantee delivery by such dates. AOS shall not be liable for damages or otherwise, nor shall Purchaser be relieved of its performance hereunder, on the grounds of AOS’s inability to deliver by scheduled delivery dates.
Freight and Insurance Charges. All prices are CFR AOS’s designated port of destination (INCOTERMS 2020). Purchaser is responsible for all freight and insurance charges. Title to the Products shall pass to Purchaser upon delivery to the carrier. Purchaser agrees to satisfy all import formalities applicable to shipment of the Products to destinations.
No cancelation or Return of Orders. Subject to AOS’s prior written approval, all orders for Products are non-cancelable and Products are non-returnable.
Acknowledgement. Purchaser acknowledges and agrees that AOS owns all of the Proprietary Rights. The use by Purchaser of the Proprietary Rights is authorized only for the purposes herein set forth and upon termination of Terms and Conditions for any reason, such authorization will cease.
No Other Rights. Purchaser may not, directly or through any person or entity, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to Products or modify, prepare derivative works of, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code or object code from Products, except as explicitly permitted under Terms and Conditions or otherwise agreed in writing.
Nondisclosure and Non-Use. Purchaser recognizes and acknowledges that in the course of performing obligations under Terms and Conditions, Purchaser may have access to Confidential Information. Purchaser agrees that it shall use Confidential Information for the sole purpose of performance of its obligations arising hereunder. Confidential Information shall remain the sole property of AOS. Purchaser further agrees to take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information. Without AOS’s prior written approval, Purchaser will not disclose Confidential Information to anyone except for its employees on a need-to-know basis. In the event of such disclosure, Purchaser shall carefully restrict access to Confidential Information and require the said employees to sign written nondisclosure agreements at least as protective as terms in section 7.
Exception. Notwithstanding the foregoing, Purchaser shall have no liability arising from section 7 if it can prove the disclosed information:
has been in Purchaser’s rightful possession prior to AOS’s disclosure to Purchaser, as demonstrated by written documentation.
was independently developed by Purchaser without reference to any Confidential Information, as demonstrated by files created at the time of such independent development.
has become publicly known and made generally available through no wrongful act or non-act of Purchaser,
has been rightfully received by Purchaser from a third party who is authorized to make such disclosure, or
is disclosed pursuant to order or requirement of a court, administrative agency, or other governmental body; provided, however, that Purchaser shall provide prompt notice thereof to AOS to enable AOS to seek a protective order or otherwise prevent or restrict such disclosure.
Return of Confidential Information. Upon the termination of Terms and Conditions, or upon AOS’s earlier request, Purchaser will promptly deliver to AOS all of the AOS’s property and Confidential Information in tangible form that are in Purchaser’s possession or control.
Products are sold to Purchaser hereunder on the condition that:
Purchaser shall incorporate and embed Products with and in Purchaser’s own products for resale to Purchaser’s customers;
Purchaser shall not resell Products on a stand-alone basis, whether in the original packaging or as re-packaged.
Purchaser shall indemnify, defend and hold AOS and its affiliated companies and their directors, officers, employees, and agents harmless from and against any and all claims (including those for personal injury or death) and damages or liabilities (including attorney’s and other professional fees and other costs of litigation) by any other party arising out of a breach of sections 8.1 or 8.2 above, and from damages or liabilities arising out of the marketing, sale, or distribution of Products.
SECURITY INTEREST GRANTED
Purchaser hereby grants AOS a purchase money security interest in all Products sold hereunder and all proceeds therefrom, additions, and accessions thereto, until all charges together with all costs and expenses of AOS incurred in the collection of such indebtedness or the enforcement of this security interest have been paid in full.
Limited Warranty. AOS warrants to the original Purchaser that for a period of one (1) year from the date of shipment (“Warranty Period”), Products will be free from defects in material and workmanship under normal use. In the event that Purchaser notifies AOS discovery of any defect during Warranty Period, AOS’s sole obligations and Purchaser’s exclusive remedy shall be for AOS, at its sole discretion, to replace or repair the warranted Products or part(s) thereof. Products shall be returned to AOS only with prior written authorization from AOS and shipping prepaid by Purchaser. Defective part(s) may be replaced with new, factory refurbished, or remanufactured part(s). The replacement part(s) shall meet the specifications of the replaced part(s).
THE FOREGOING WARRANTY SHALL NOT APPLY TO PRODUCTS THAT:
have been repaired or altered by any party other than AOS-approved employees or designees,
have been subject to misuses, misapplication, improper maintenance, negligence, accident (including failure of or excessive electric power, failure caused during shipment, or failure of environment-control equipment), or
have been used with equipment or parts not approved by AOS.
No repair or replacement shall extend Warranty Period.
EXCEPT AS EXPRESSLY WARRANTED IN SECTION 10 ABOVE, THE PRODUCTS ARE PROVIDED “AS IS”, AND PURCHASER’S USE THEREOF IS AT ITS OWN RISK. AOS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AOS DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT THE PRODUCTS WILL MEET PURCHASER’S REQUIREMENTS.
LIMITATION OF LIABILITY
LIMITATION OF LIABILITIES. IN NO EVENT SHALL AOS’S CUMULATIVE LIABILITY ARISING HEREUNDER EXCEED THE PURCHASE PRICE RECEIVED BY AOS FROM PURCHASER FOR THE PRODUCTS DIRECTLY GIVE RISE TO THE CLAIM. IN NO EVENT SHALL AOS BE LIABLE TO PURCHASER, OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA OR OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF AOS HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. PURCHASER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE HEREUNDER BY AOS ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMIATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
LIMITATION OF ACTIONS. NO ACTIONS, REGARDLESS OF FORM, ARISING OUT OF TERMS AND CONDITIONS, MAY BE BROUGHT BY PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
AOS shall not be liable for any delay in delivery, suspension or cancelation of performance, or other failure of performance hereunder due to any causes beyond its control, including but not limited to acts of God or government, labor disputes, pandemic, and inability to secure materials, labor or transportation. In the event of such delay, AOS’s time for delivery and other performance shall be extended for a period equal to the duration of such delay.
AOS reserves the right to modify or change Products to include any improvements it deems appropriate. In the event that AOS modifies some Products, Purchaser understands and agrees that AOS has no obligation to modify or change any other Products previously delivered or to supply new Products without such modifications. AOS retains all patent, copyright and other proprietary and intellectual property rights in Products and all modifications thereto except as granted herein or by operation of law.
Compliance with Laws. Purchaser shall comply at its own expense with all applicable laws and regulations relating to the sale, distribution and promotion of Products. Purchaser shall not export, directly or indirectly, any Products or related information without first obtaining all required licenses and approvals from the appropriate government agencies.
Export Control. This Terms and Conditions is made subject to restrictions concerning the export of products or technical information from the United States or other countries that may be applicable to or imposed on the Purchaser from time to time. Purchaser agrees that it will comply in all respects with applicable export control laws and regulations and will not directly or indirectly transfer, divert, export, re-export, or import any technical information or product provided by AOS or its affiliates under this Terms and Conditions to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining such license or approval to do so from the appropriate agency or other governmental entity. Purchaser warrants that it will take all actions which may be reasonably necessary to assure that no end-user or end use contravenes applicable United States or other countries’ laws or regulations.
Successors and Assigns. Purchaser may not assign any of its rights, obligations, privileges arising from Terms and Conditions, whether by merger, sale of assets, reorganization or by operation of law, without the prior written consent of AOS. Any attempted assignment in violation of this section will be null and void. AOS shall have the right to assign its rights, obligations, and privileges hereunder to an assignee that agrees in writing to be bound by Terms and Conditions. Subject to the foregoing, Terms and Conditions shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Nothing in Terms and Conditions, express or implied, is intended to confer upon any party other than the parties hereto or their respective successor and assigns any rights, remedies, obligations, or liabilities under or by reason of Terms and Conditions, except as expressly provided hereunder.
Governing Law and Arbitration. Terms and Conditions shall be governed by and construed pursuant to the laws of State of California, without reference to its principals of conflicts of laws. Any dispute, controversy or claim arising hereunder, including but not limited to the validity, invalidity, or breach thereof, shall be settled by binding arbitration to be held in the Santa Clara County and administered by the American Arbitration Association, in accordance with its Commercial or other applicable Arbitration Rules, and judgment on the award rendered by arbitrator(s) may be entered in any court having jurisdiction thereof. Purchaser agrees to submit to the jurisdiction of such court. The arbitrator may grant injunctions or other equitable relief in such dispute or controversy. In the event that AOS seeks to obtain equitable relief, Purchaser agrees that no bond or other security shall be required.
Entire Agreement. Terms and Conditions and the applicable order forms constitute the entire agreement between the parties with respect to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled. No course of dealing in prior transactions between the parties and no usage of trade shall be relevant to supplement or explain any term or provision of Terms and Conditions of Sale. Purchaser acknowledges that it has not relied on or been induced to purchase Products by any representation or warranty not expressly set forth herein.
Severability. If one or more provisions of Terms and Conditions are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from Terms and Conditions, (b) the balance of Terms and Conditions shall be interpreted as if such provision were so excluded, and (c) the balance of Terms and Conditions shall be enforceable in accordance with its terms.
No Conflict. To the extent of any conflict, Terms and Conditions take precedence over any term stated on Purchaser’s purchase order form.
Amendments and Waivers. No agreement altering, modifying, or extending the terms of Terms and Conditions shall be valid unless in writing and duly signed by the authorized representatives of both parties.