STANDARD TERMS AND CONDITIONS FOR CACTUS SEMICONDUCTOR SUPPLIERS
1. REVOCATION AND EFFECT OF ORDER. This purchase order (“Order”) may be revoked at any time prior to Cactus Semiconductor’s receipt of written acceptance by Seller. This Order expressly limits acceptance to the terms of this Order and Cactus Semiconductor hereby objects to any different or additional terms contained in any response to this Order. To the extent that this Order might be treated as an acceptance of Seller’s prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof, and the shipment of the products or services covered by this Order (“Goods and/or Services”) by Seller shall constitute such assent. In addition to the other terms in this Order, this Order expressly includes all implied warranties and all of Cactus Semiconductor’s remedies set forth in the Uniform Commercial Code or similar law. The terms of this Order are the sole and exclusive terms on which Cactus Semiconductor agrees to be bound.
2. DELIVERY. Time is of the essence in this Order. Delivery of Goods and/or Services shall be made pursuant to the schedule unless changed by written instructions from Cactus Semiconductor prior to delivery. Seller shall promptly inform Cactus Semiconductor of any anticipated delay in delivery. If this Order calls for delivery in installments and Seller fails to deliver an installment on the designated delivery date, Cactus Semiconductor may decline to accept subsequent installments and terminate the balance of this Order.
3. SHIPPING INSTRUCTIONS. Unless otherwise specified on the purchase order, all Goods shall be packaged by Seller in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening, and all boxes and packages must contain packing sheets listing contents. Unless otherwise specified on this Order, Cactus Semiconductor’s purchase order number, as well as Cactus Semiconductor’s part number(s), must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading. All Goods shall be shipped on carriers certified compliant with C‐TPAT (Customs‐Trade Partnership Against Terrorism).
4. TITLE AND RISK OF LOSS. Unless otherwise specified on this Order, Goods shall be delivered DDP Cactus Semiconductor’s location designated on the purchase order (Incoterms 2010), at which time title and risk of loss on the Goods and/or Services shall pass to Cactus Semiconductor. If any of the ordered Goods are destroyed or materially damaged prior to the time risk of loss passes to Cactus Semiconductor, Cactus Semiconductor may cancel this Order as to the destroyed or materially damaged Goods or require the prompt delivery of substitute Goods of equal quantity and quality.
5. PRICE AND PAYMENT. The price to be paid by Cactus Semiconductor for the Goods and/or Services shall be that stated on the purchase order. Payment terms shall be net thirty (30) days from Cactus Semiconductor’s receipt of Goods and/or Services unless otherwise specified. Unless otherwise specified on the purchase order, the price of the Goods and/or Services includes all shipping charges, taxes, VAT, duties and packaging. Personal property taxes assessable upon the Goods and/or Services prior to the receipt by Cactus Semiconductor shall be borne by Seller.
6. INSPECTION. Cactus Semiconductor shall have fourteen (14) days from the date of receipt of the Goods for inspection and acceptance testing. Any Goods and/or Services not rejected during that initial 14‐day period shall be deemed accepted.
7. WARRANTIES. Seller warrants to Cactus Semiconductor and its customers that the Goods shall be free of liens, new and unused, perform in accordance with all applicable specifications including Seller’s published specifications and be free from defects in materials, workmanship and design for a period of two (2) years from Cactus Semiconductor’s receipt of such Goods and/or Services. Without limiting Cactus Semiconductor’ right to pursue any applicable remedies, Goods not meeting this warranty may in particular be returned to Seller for credit or replacement at Seller’s expense, and at Cactus Semiconductor’ option.
8. ITEMS FURNISHED BY CACTUS SEMICONDUCTOR. Unless otherwise specified by Cactus Semiconductor in writing, all designs, tools, patterns, drawings, data, materials, and equipment supplied to Seller or paid for by Cactus Semiconductor shall remain the property of Cactus Semiconductor, shall be used only for providing Goods and/or Services for Cactus Semiconductor, shall be insured by Seller at replacement value, and shall be returned to Cactus Semiconductor in good condition upon completion of this Order. Seller assumes all responsibility for the accuracy of tooling used in the production of the Goods and/or Services, whether such tooling is fabricated by
Seller or furnished by Cactus Semiconductor.
9. INDEMNITY. Seller agrees to indemnify, defend and hold Cactus Semiconductor and its customers harmless from and against any and all claims, actions, losses, expenses, damages, penalties, fines, liabilities and settlements arising from any actual, alleged or threatened third‐party claims relating to (a) any infringement, misappropriation or violation on the part of Seller’s Goods and/or Services of any third party’s patent, copyright, trade secret, mask work, trademark, trademark rights or any other intellectual property right, (b) personal injury or property damage caused by the Goods and/or Services, (c) defects in the Goods and/or Services which amount to a breach of Seller’s warranties in Section 7 or 15; (d) breach of Section 16, or (e) as a result of any negligent or reckless act or willful misconduct of the Seller.
10. CHANGES. Cactus Semiconductor may, by purchase order amendment issued to Seller, change (a) the method of shipment or packing, (b) the drawings, designs, or specifications, (c) the place of delivery, or (d) the shipment date. Seller shall promptly inform Cactus Semiconductor of any modifications to the delivery schedule necessitated by the changes. If any Goods and/or Services are designated non‐cancelable/non‐returnable (“NCNR”), Cactus Semiconductor may reschedule the delivery of any NCNR Goods and/or Services at any time up to the time of shipment for a period of up to ninety (90) days beyond the delivery date, and Cactus Semiconductor shall not have any liability for any costs associated with such rescheduling.
11. TERMINATION AND REMEDIES. Cactus Semiconductor may terminate this Order in whole or in part at any time by written notice to Seller, even Orders in which Goods and/or Services are designated as non‐cancelable/nonreturnable. Seller will thereupon immediately (a) stop work on the cancelled Goods and/or Services; (b) notify its subcontractors to do likewise; (c) cancel orders for components for the cancelled Goods and/or Services; (d) return unneeded components for cancelled Goods and/or Services to their suppliers or divert such components to jobs for other customers; and (e) broker non‐returnable, unneeded components for cancelled Goods and/or Services. Seller shall not be entitled to compensation for cancelled non‐custom Goods and/or Services. Except for termination due to default or delay of Seller, Seller shall be entitled to commercially reasonable compensation for NCNR Goods and/or Services and custom components thereof on hand at the termination date as follows: Cactus Semiconductor will purchase (a) finished Goods and/or Services at the Order price, (b) work‐in‐process items at a reasonable pro‐rata percentage of the finished Goods and/or Services Order price based on the percentage of completion, and (c) custom components for the cancelled Goods and/or Services, which Seller properly ordered and was not able to cancel, return, or broker using diligent efforts within 90 days after cancellation, at Seller’s cost for such custom components. The total compensation paid by Cactus Semiconductor for such cancellation shall not exceed the price on the Order for the cancelled Goods and/or Services. In the event that Cactus Semiconductor breaches its obligations under this Order, and fails to cure within a commercially reasonable time after receiving written notice of such default, Seller’s exclusive remedy shall be to receive direct damages for the Goods and/or Services in question as if such Goods and/or Services were cancelled, computed in the manner set forth in the fourth sentence of this section. In no event shall Seller be entitled to indirect, incidental, consequential, special, or punitive damages or loss of profit, for Cactus Semiconductor’s breach of the terms and conditions of this Order, or for any other act or omission occurring as a result of Cactus Semiconductor’ performance obligations under this Order.
12. WAIVER. No claim or right arising out of the breach of this Order by Seller can be discharged by a waiver of the claim or right by Cactus Semiconductor unless the waiver is supported by consideration and is in writing signed by Cactus Semiconductor.
13. ASSIGNMENT. Seller shall not assign its rights or obligations under this Order without the advance written consent of Cactus Semiconductor. Cactus Semiconductor may assign its rights under this Order to a subsidiary or affiliate upon written notice to Seller.
14. CONFIDENTIALITY. Neither party shall , without first obtaining the other’s written permission, advertise, publish, or disclose the terms, details, pricing or specifications of this Order, the amount of revenue generated or to be generated from this Order, nor will either party communicate the fact that Seller has furnished or has contracted to furnish Cactus Semiconductor with the Goods and/or Services. Both parties agree to maintain in confidence those materials and information either has designated as being confidential or proprietary information.
15. QUALITY REQUIREMENTS. Seller shall comply, and shall cause all Goods and/or Services to comply, with all applicable quality requirements set forth ISO 9001:2008 (“Quality Requirements”), which are incorporated into these Standard Terms and Conditions of Purchase by reference.
16. COMPLIANCE WITH LAWS. Seller shall comply with all applicable laws concerning the materials content and the manufacture and distribution of Goods and/or Services, and shall ensure that its activities in performance of this Order in connection with the Standard Terms and Conditions of Purchase shall not cause Cactus Semiconductor to be in violation of any laws, including without limitation applicable import or export laws, packaging regulations including the ISPM 15 “Requirements of Wood Packaging Materials”, Social Responsibility code of conduct requirements (including, upon request, submission of compliance proof to the EICC requirement through submission of a Self Assessment Questionnaire administered by either a 3rd party affiliated with the EICC organization or Cactus Semiconductor), and any applicable Supply Chain security guidelines of the countries in which Cactus Semiconductor conducts business.
Social Responsibility: Seller agrees to comply with the Electronic Industry Code of Conduct (“EICC”) found at http://www.eicc.info/.
Anti‐Terrorism Security Measures: Seller warrants it is in compliance with and will cause each of its subcontractors and suppliers to comply with (1) all applicable laws relating to anti‐terrorism security measures and (2) all Supply Chain Security guidelines as defined by the importing country, including but not limited to: C‐TPAT (Customs‐Trade Partnership Against Terrorism) as published by the United States, the STP (Secure Trade Program) as published by Singapore, and the AEO (Authorized Economic Operator) as published by the European Union. Supplier warrants that all eligible locations shipping to Cactus Semiconductor are registered to all applicable Known Shipper programs. Anti‐Corruption Measures: Seller warrants that in performing its work pursuant to the Order under these Standard Terms and Conditions of Purchase, Seller, its affiliates and agents have not and will not pay, offer or promise to pay, or authorize the payment, directly or indirectly, of any money or anything of value to any government official, government employee, political party or candidate for political office for the purpose of influencing any act or decision of such person or of the government to obtain or retain business, or direct business to any person or business. Seller further warrants it, its affiliates and its agents have not and will not pay, offer or promise to pay, or authorize the payment directly or indirectly, of any money or anything of value to any employee of Cactus Semiconductor to obtain or retain business.
17. DISPUTE RESOLUTION. Any dispute arising out of or relating to this Order shall be settled by binding arbitration under the applicable rules and procedures of the arbitration bodies listed as follows. This clause shall not preclude parties from seeking provisional remedies from a court of appropriate jurisdiction. For any Cactus Semiconductor buying entity incorporated in the Americas, Arizona laws apply, excluding those portions relating to conflicts of laws.