Standard Terms and Conditions of Sale
July 2009
1. SCOPE
The Terms and Conditions (“Terms”) contained herein shall apply to all quotations and offers made by and purchase orders accepted by Dialog. These Terms apply to all sales made by Dialog except to the extent the Terms conflict with an existing individual customer contract where special terms and conditions (signed by Dialog and Buyer) may take precedence over this document. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. Dialog’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of Dialog before becoming binding on either party.
2. PRICE, TAXES AND QUOTATIONS
Prices are subject to change on thirty days notice to Buyer. Any order that can be cancelled and rescheduled pursuant to paragraph 6(a) is subject to a price change immediately. All prices are exclusive of any present or future sales, revenue or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax applicable to the manufacture or sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate. Unless otherwise agreed to in writing by the parties, prices quoted by Dialog are those current at the date of quotation and shall be subject to variation by Dialog.
3. DELIVERY
Unless otherwise agreed in writing, sales are EXW. Dialog’s facility (delivery is ex works). Dialog may deliver products in one or more consignment and invoice each consignment separately. Unless otherwise agreed in writing, delivery time is not of the essence. Except as specified in 6(b), Dialog does not accept liability for any loss arising from delay in delivery of products.
4. PAYMENT TERMS
Unless otherwise agreed in writing, Payment terms shall be net thirty (30) days from the date of invoice. Buyer agrees to pay interest on any unpaid balance at a rate of five percentage points above the official LIBOR rate on the day the balance becomes due. Unless otherwise agreed in writing, all payments are to be in United States dollars. For Asian contracts, Dialog may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to Dialog. Where payment is made by letter of credit, all costs of collection shall be for Buyer’s account. In the event that Dialog is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys fees and costs of suit.
5. NON-CONFORMING DELIVERY AND RISK OF LOSS
Buyer shall notify Dialog of any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment. Failure to notify Dialog in writing of any visible defects in the products or of quantity shortages or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return products on the basis of visible defects, shortages or incorrect shipments, subject to Buyer’s rights under Section 7. Seller shall retain a security interest in the products until Buyer’s final payment to Dialog for the products. Risk in the products shall pass to Buyer as soon as the products have been placed with a transport agent.
6. ORDER CANCELLATION
Buyers Cancellation for Convenience: Buyer may cancel any order for convenience on the following terms: (i) For standard products, Buyer may cancel or reschedule a product without penalty if the cancellation is more than thirty (30) days from the Confirmed Shipping Date (as specified in Dialog’s Order Acknowledgement or other document); cancellations within 30 days of a Confirmed Shipping Date must be approved in writing by a Dialog sales manager and may be subject to special charges (ii) For nonstandard parts, custom products, or standard parts with minimum usage Buyer may cancel or reschedule more than ninety (90) days from the Confirmed Shipping Date, except that Buyer shall accept delivery of all such products which are completed at the time of cancellation or rescheduling. Those nonstandard products which are in the work-in-process inventory at the time of cancellation or rescheduling, shall be paid for by Buyer at a price equal to the completed percentage of the product multiplied by the price of the finished product. Buyer also shall pay promptly to Dialog the costs of settling and paying claims arising out of the termination of work under Dialog’s subcontracts or vendors and any accounting, legal, and clerical costs arising out of the cancellation.
Buyers Cancellation for Default: Upon written notice to Dialog, any order may be canceled in whole or in part in accordance with the terms hereof, because of Dialog’s failure to deliver products by the Confirmed Shipping Date (this failure hereinafter called “Default”). Cancellation by Buyer for Dialog’s Default, which may entitle Buyer to procurement costs, shall be effective only upon Dialog’s failure to correct such Default within a reasonable period of time, but not less than thirty (30) days for standard products or ninety (90) days for non standard products, after receipt by Dialog of written notice of such Default. Upon cancellation, Buyer, as its sole remedy, may recover from Dialog as damages the difference between cost of procurement from another source (cover) and the contract price, less expenses saved as a consequence of Dialog’s breach. In no event shall these damages exceed ten percent (10%) of Dialog’s product price multiplied by the number of products unconditionally (not subject to cancellation under 6(a)) ordered by Buyer which remain unshipped at the time of cancellation.
Dialog’s Cancellation: Dialog shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. Any order that can be cancelled or rescheduled by Buyer pursuant to paragraph 6(a) may be cancelled or rescheduled by Dialog if notice is given to Buyer.
7. CONTINGENCIES
(a) Dialog shall not be in breach of its obligations and shall not be liable in any way for any loss, damage or expense arising directly or indirectly from any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond Dialog’s reasonable control, including but not limited to, shortages of labour, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labour dispute, natural disaster, fire, flood, earthquake, explosion or terrorist act.
(b) In the event of a shortage of products, Dialog may allocate at its sole discretion product production and deliveries.
8. LIMITED WARRANTY
Except as specified below, products sold hereunder shall be free from defects in materials and workmanship and shall conform to Dialog’s published specifications or other specifications accepted in writing by Dialog for a period of one (1) year from the date of shipment of the products. The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or which have been soldered or altered such that they are not capable of being tested under normal test conditions. Dialog shall make the final determination as to whether its products are defective. Dialog’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair, replace or issue credit for the nonconforming product where, within fourteen (14) days of the expiration of the warranty period, (i) Dialog has received written notice of any nonconformity; (ii) after Dialog’s written authorization, Buyer has returned the nonconforming product to Dialog; and (iii) Dialog has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DIALOG DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. Buyer shall pass this warranty to any third-party purchaser of Dialog products.
9. LIMITED LIABILITY
Neither Dialog nor Buyer shall be liable for incidental or consequential damages, including but not limited to, the cost of labor, re-qualifications, rework charges, delay, lost profits, or loss of goodwill arising out of the sale, installation or use of any Dialog product. If Dialog has any liability for breach of contract, breach of any implied condition, warranty or representation, the aggregate liability of Dialog to Buyer shall be limited in respect of any occurrence or series of occurrences to the contractual value of the products or services that are the subject of the contract.
10. PATENTS
Indemnification: Subject to the limitations herein, Dialog will defend any suit or proceeding brought against Buyer if it is based on a claim that any product furnished hereunder constitutes an infringement of any U.S., Canadian, Japanese, EU or EFTA member country intellectual property rights. Dialog must be notified promptly in writing and given full and complete authority, information and assistance (at Dialog’s expense) for defense of the suit. Dialog will pay damages and costs therein awarded against Buyer but shall not be responsible for any compromise made without its consent. In no event shall Dialog’s liability for such damages and costs (including legal costs) exceed the contractual value of the products or services that are the subject of the lawsuit. In providing such defense, or in the event that such product is held to constitute infringement and the use of the product is enjoined, Dialog, in its discretion, shall procure the right to continue using such product, or modify it so that it becomes non-infringing, or remove it and grant Buyer a credit for the depreciated value thereof. Dialog’s indemnity does not extend to claims of infringement arising from Dialog’s compliance with Buyer’s design, specifications and/or instructions, or use of any product in combination with other products or in connection with a manufacturing or other process. The foregoing remedy is exclusive and constitutes Dialog’s sole obligation for any claim of intellectual property infringement and Dialog makes no warranty that products sold hereunder will not infringe any intellectual property rights.
Dialog Retains its Intellectual Property: The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. The company retains the copyright in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the contract. Unless otherwise agreed in writing, Buyer shall obtain no interest in any mask or other tooling used in the production of any Dialog product.
11. LIFE SUPPORT
Dialog’s products are not authorized for use as critical components in life support devices or systems without the express written approval of an officer of Dialog Semiconductor Corporation. As used herein: (a) Life support devices or systems are devices which (i) are intended for surgical implant into the body, or (ii) directly support or sustain life and whose failure to perform when properly used can be reasonably expected to result in significant injury to the user; (b) a critical component is any component in a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.
12. CONFIDENTIAL INFORMATION
Except as required by law, neither party shall use (except for purposes connected with the performance of its obligations hereunder), divulge or communicate to any third party any information of the other it reasonably knows to be confidential.
13. FORCE MAJEURE
Dialog shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of god, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of Dialog. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
14. EXPORT REGULATIONS
Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. In particular, Buyer agrees to comply with the Export Administration Regulations of the United States and the European Union in so far as they apply to the sale of products. The products are licensed by the United States and the European Union for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.
15. ASSIGNMENT AND SUBCONTRACTING
Dialog shall be entitled at all times to assign its rights under the contract (in whole or in part) or to subcontract any part of the work or services to be provided under the contract as it deems necessary or desirable.
16. NOTICES
Any notice hereunder shall be deemed to have been given if sent by prepaid first class mail to the party concerned at its last known address. Notice to Dialog shall be to; Dialog Semiconductor, Attn. Chief Financial Officer, Neue Strasse 95, D-73230 Kirchheim/Teck-Nabern
Germany.
17. WAIVER
Failure by Dialog to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
18. APPLICABLE LAW
Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of England.