TERMS AND CONDITIONS OF COMMERCIAL SALE
In these Terms and Conditions of Commercial Sale (the "Terms and Conditions"), Seller shall mean WeEn Semiconductors (Hong Kong) Co., Limited, a corporation organized under the laws of Hong Kong.
1. OFFER, CONFIRMATION OR AGREEMENT
These Terms and Conditions apply to and form an integral part of:
- all quotations and offers (hereinafter both referred to as “Offer”) of Seller to Buyer,
- 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,
- any agreement resulting from such Offer or Confirmation, and
- 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 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.
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.
In these Terms and Conditions, the term “Affiliate” shall mean, with respect to a party hereto, any person, corporation or other legal entity that a party now or hereafter Controls, is Controlled by or is under common Control with such party; where “Control” means direct or indirect ownership of more than fifty percent (50%) of the shares of, equity interests in, or voting rights of a person, or the power to direct or appoint the management of such person.
2. PRODUCTS, QUANTITIES AND PRICING
Seller reserves the right to make Product and/or process changes at any time. In such event Seller represents that such changes shall not materially affect form, fitness or function of the Products and their performance characteristics in an adverse manner.
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, certain Products covered thereunder are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuation and Buyer will be granted a grace period of six (6) months from the notification for placing final orders of the Discontinued Products and a grace period of twelve (12) months from the notification for shipments in order to build up a final inventory of the Discontinued Products.
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.
No order, Agreement or any part thereof may be rescheduled or cancelled without Seller’s prior written consent.
Products prices are in United States Dollars or other currency mutually agreed by the Parties. Such Product prices are provided at the Incoterms set forth in Section 3, and are exclusive of any taxes, duties or similar levies, now or hereafter 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.
Unless otherwise agreed in writing between Seller and Buyer, the deliveries of Products purchased by, and sold to, Buyer under the Agreement shall be made FCA Hong Kong (Incoterms 2010).
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.
Upon receipt of Products, Buyer shall inspect the Products within five (5) business days thereafter and shall immediately notify Seller of any defects of Products and/or any discrepancy in quantity of Products, otherwise delivery shall be deemed completed.
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.
4. TITLE AND RISK OF LOSS
Title to the Products shall pass to Buyer upon payment in full of the purchase price in respect thereof. Risk of loss in the Products shall pass to Buyer upon Seller’s delivery in accordance with the applicable Incoterm.
5. TERMS OF PAYMENT
Seller may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Unless agreed otherwise between Seller and Buyer in writing, net payment is due within thirty (30) calendar days of date of invoice. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. Buyer shall not offset, withhold or reduce any payment due by it to Seller. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable laws, whichever is higher, from the due date until payment in full.
If, in Seller’s judgment, Buyer’s financial conditions at any time do not justify production, performance of work or delivery on the above payment terms, Seller shall have the right to accelerate partial or full payment in advance or other payment terms as condition for delivery, and Seller shall have the right to suspend, delay or cancel any credit, delivery or any other performance by Seller.
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.
6. FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance if:
- 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
- such failure or delay does not result from its fault; or
- such failure or delay is caused by Force Majeure as defined below or by change of applicable laws.
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 acceptance of the applicable Purchase Order) 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 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 affected 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.
7. LIMITED WARRANTY AND DISCLAIMER
- Seller warrants that under normal use the Products, excluding any software that is either (1) licensed under open source software license terms, (2) provided by Buyer or any of its designees to Seller, (3) modified by Buyer or any third party, other than at Seller’s request or (4) that is not embedded in a Product by Seller (hereinafter collectively referred to as “Excluded Software”), prototypes, Risk Production Units (as defined below), experimental Products, beta testing Products and samples of newly developed Products, 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 the Specifications. All custom Products manufactured and/or delivered prior to both parties’ written acceptance of the prototypes thereof (“Risk Production Units”), all Excluded Software, prototypes, experimental Products, beta testing Products and samples of newly developed Products, shall be AS IS WITHOUT WARRANTY OF ANY KIND. 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.
- 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.
- 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.
- 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.
- Subject to the exclusions and limitations set forth in Section 8 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.
8. LIMITATIONS ON LIABILITY
- SELLER SHALL NOT BE LIABLE TO BUYER 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 SELLER 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.
- The aggregate liability of Seller, 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 Seller for such Product during the twelve (12) months immediately preceding Buyer’s notification to Seller of the applicable Buyer claim or Fifty Thousand Dollars ($50,000.00), whichever is lesser. Notwithstanding the above, the liability of Seller, 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. 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.
- Buyer shall 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. Furthermore, if Buyer uses any Product that has not been designated by Seller as “Automotive Qualified” in an automotive, military, or aerospace application or environment, Buyer does so at its own risk.
- Buyer must provide notice to Seller of any claim that Buyer has under the Agreement 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 Seller of the claim. Buyer agrees that any claim noticed or filed outside of the deadlines set forth in the preceding sentence are deemed waived.
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 Seller is the confidential information of Seller. 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.
10. COMPLIANCE WITH LAWS
Each party hereto represents that it will comply with applicable 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.
11. 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:
- Buyer fails to make payment for any Products to Seller when due;
- Buyer fails to accept conforming Products supplied hereunder;
- 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
- 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 11(a) through 11(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 5 through 18 of these Terms and Conditions) shall survive.
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.
Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Seller. 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.
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.
15. 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.
In the event 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.
17. GOVERNING LAW AND DISPUTE RESOLUTION
These Terms and Conditions, and all Offers, Confirmations and Agreements, shall be governed by and construed in accordance with the laws of Hong Kong.
Any dispute, controversy or claim arising out of or relating to these Terms and Conditions, or any Offer, Confirmation or Agreement, including the existence, validity, interpretation, performance, breach or termination thereof shall first be attempted by the parties to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. Any dispute that cannot be so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to and finally be resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the UNCITRAL Arbitration Rules in force when the Notice of Arbitration is submitted, as modified by the HKIAC Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules. The place of arbitration shall be Hong Kong. One arbitrator, who shall not be of a nationality of either party, shall be appointed in accordance with the rules and the arbitration proceedings shall be conduct in the English language. The arbitration award shall be final and binding on the parties and be enforceable in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to t these Terms and Conditions, or any Offer, Confirmation or Agreement.
18. 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
Revised January 11, 2018