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TEXAS INSTRUMENTS INCORPORATED
STANDARD TERMS AND CONDITIONS OF SALE
For Semiconductor Products
1. Offer and Acceptance: TI offers to sell and deliver semiconductor products (also referred to herein as “components”) in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. TI hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless TI expressly agrees to such terms in writing.
2. Prices and Releases: TI’s price in effect at the time TI receives Buyer’s purchase order shall continue to apply if the quantity ordered is released by TI within twelve (12) months and shipments are scheduled within eighteen (18) months. Otherwise, TI’s price in effect on the actual release date for the quantity actually shipped shall apply.
If the price of fuels, metals, raw materials, equipment or other production costs increases significantly, TI shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, TI shall have the right to terminate this contract without liability.
3. Title and Delivery: Shipments inside the U.S. shall be delivered F.O.B. TI’s shipping dock. Shipments outside the U.S. shall be delivered FCA (Incoterms 2000) Buyer’s designated carrier. Title and liability for loss or damage shall pass to Buyer upon TI’s delivery to Buyer’s designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse TI for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. TI may deliver products in installments. Delivery dates are estimates. TI shall not be liable for any damage, losses or expenses incurred by Buyer if TI fails to meet the estimated delivery dates.
4. Payment Terms: If TI extends credit to Buyer, payment terms shall be net thirty (30) days after TI’s invoice. TI may change or withdraw credit amounts or payment terms at any time for any reason. If the products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, TI may suspend or cancel performance under any agreements in which TI has extended credit to Buyer. TI’s suspension of performance may result in rescheduling delays. If, in TI’s judgment, Buyer’s financial condition does not justify the payment terms specified herein, then TI may terminate this contract unless Buyer immediately pays for all components that have been delivered and pays in advance for all components to be delivered. Termination in accordance with this clause shall not affect TI’s right to pursue any other available remedies.
5. Taxes: Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. TI will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides TI with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to TI, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
6. Contingencies: TI shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond TI’s reasonable control, including but not limited to shortages of labor, 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, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of components, TI may, at its sole discretion, allocate component production and deliveries.
7. Warranties and Related Remedies:
7.1 Subject to clauses 7.5 and 7.6 below, TI warrants that TI semiconductor products will conform either to TI’s published specifications for such product or other mutually agreed upon written specifications signed by an authorized TI representative. For finished components, this warranty lasts for three (3) years after the date TI ships such components to Buyer, provided, however, that with respect to components sold in dry pack, Buyer must install those components within one (1) year after shipment. TI shall not be liable for any defects that occur in dry packed components that are installed more than one (1) year after shipment. For components sold in wafer or die form, the warranty period is thirty (30) days. Notwithstanding the foregoing, TI shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than TI, including improper installation or testing, or for any components that have been altered or modified in any way by an entity other than TI. Moreover, TI shall not be liable for any defects that result from Buyer’s design, specifications or instructions for such components. Testing and other quality control techniques are used to the extent TI deems necessary. Unless mandated by government requirements, TI does not necessarily test all parameters of each component.
7.2 If any TI components fail to conform to the warranty set forth above, TI’s sole liability shall be at its option to repair or replace such components, or credit Buyer’s account for such components. TI’s liability under this warranty shall be limited to components that are returned during the warranty period to the address designated by TI and that are determined by TI not to conform to such warranty. If TI elects to repair or replace such components, TI shall have a reasonable time to repair such components or provide replacements. Repaired components shall be warranted for the remainder of the original warranty period. Replaced components shall be warranted for a new full warranty period.
7.3 EXCEPT AS SET FORTH ABOVE, SEMICONDUCTOR PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.4 Buyer agrees that prior to using or distributing any systems that include TI components, Buyer will thoroughly test such systems and the functionality of such TI components as used in such systems. TI may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter TI’s warranties, as set forth above, and no additional obligations or liabilities shall arise from TI providing such services.
7.5 Safety-Critical, Medical, Military and Automotive Applications.
Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products, and any use of TI components in its applications, notwithstanding any applications-related information or support that may be provided by TI. Buyer represents and agrees that it has all the necessary expertise to create and implement safeguards which anticipate dangerous consequences of failures, monitor failures and their consequences, lessen the likelihood of failures that might cause harm and take appropriate remedial actions. Buyer will fully indemnify TI and its representatives against any damages arising out of the use of any TI components in safety-critical applications
In some cases, TI components may be promoted specifically to facilitate safety-related applications. With such components, TI’s goal is to help enable customers to design and create their own end-product solutions that meet applicable functional safety standards and requirements. Nonetheless, such components are subject to these terms.
No TI components are authorized for use in FDA Class III (or similar life-critical medical equipment) unless authorized officers of the parties have executed a special agreement specifically governing such use.
Only those TI components which TI has specifically designated as military grade or “enhanced plastic” are designed and intended for use in military/aerospace applications or environments. Buyer acknowledges and agrees that any military or aerospace use of TI components which have not been so designated is solely at the Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
TI has specifically designated certain components as meeting ISO/TS16949 requirements, mainly for automotive use. In any case of use of non-designated products, TI will not be responsible for any failure to meet ISO/TS16949 requirements.
7.6 Notwithstanding anything to the contrary, SOFTWARE PRODUCTS AND EXPERIMENTAL AND DEVELOPMENT PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SOFTWARE PRODUCTS AND EXPERIMENTAL AND DEVELOPMENT PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
8. Intellectual Property Indemnification:
8.1 Subject to clauses 8.2, 8.3, 9.1 and 9.2, TI will pay any damages, liabilities or costs (excluding consequential and exemplary damages) finally awarded against Buyer, or agreed to by TI as settlement or compromise, and will defend Buyer against any claim, suit or proceeding brought against Buyer, insofar as such claim, suit or proceeding is based on an allegation that products manufactured and supplied by TI to Buyer directly infringe any United States, Canadian, Japanese or European Union member country patent, copyright, or trade secret; provided TI is (i) promptly informed and furnished a copy of such claim, suit, or proceeding, (ii) given all evidence in Buyer’s possession, custody or control, (iii) given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer hereby agrees to make available to TI the benefit of any defense available to Buyer to any infringement allegation hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such infringement allegation.
8.2 In the event of an allegation for which TI is obligated to defend Buyer pursuant to clause 8.1, TI may, but shall not be obligated to: (i) obtain a license that allows Buyer to continue the use of the products, (ii) replace or modify the products so as to be non-infringing, but in a manner that does not materially affect the functionality of the products, or (iii) if neither (i) nor (ii) is available to TI at a commercially reasonable expense, then TI may refund to Buyer the purchase price and the transportation costs of such products and prospectively cease to indemnify Buyer with regard to such products without being in breach of this contract. If TI elects to provide either of the options set forth in clauses (i) and (ii) above, TI’s indemnity obligation pursuant to clause 8.1 shall be entirely fulfilled as to that individual claim, except for any damages, liabilities, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to TI taking such action. If TI elects the option set forth in clause (iii) above, TI’s indemnity obligation under this contract shall be entirely fulfilled, regardless of any additional claims. Also, if TI elects the option set forth in clause (iii) above, Buyer shall return to TI any and all products remaining in Buyer’s possession, custody or control.
8.3 TI shall have no liability for any costs, losses or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without TI’s prior written consent. TI shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer’s use of the products in combination with any other product, software or equipment; (ii) Buyer’s use of the products in a manner or for an application other than for which they were designed or intended, regardless of whether TI was aware of or had been notified of such use; (iii) Buyer’s use of the products in a manufacturing or other process; (iv) Buyer’s modifications to the products; (v) TI’s compliance with Buyer’s particular design, instructions or specifications; or (vi) TI’s compliance with any industry or proprietary standard or Buyer’s use of the products to enable implementation of any industry or proprietary standard (such claims - i.e. those set forth in (i) through (vi) above - are individually and collectively referred to herein as “Other Claims”).
8.4 Buyer shall indemnify and hold TI harmless against any damages, liabilities or costs finally awarded against TI or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against TI insofar as such claim, suit or proceeding is based on an allegation arising from Other Claims.
8.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
9. Limitations and Damages Disclaimer:
9.1 General Limitations. IN NO EVENT SHALL TI BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE GOODS PROVIDED HEREUNDER, REGARDLESS OF WHETHER TI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST TI MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
9.2 Specific Limitations. IN NO EVENT SHALL TI’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY TI PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO TI FOR THE PARTICULAR UNITS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
9.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
10. Cancellations and Rescheduling. No cancellation or rescheduling of orders by Buyer within thirty days of TI’s estimated shipping date for the component will be accepted. Any cancellation or rescheduling by Buyer more than thirty, but less than ninety days before TI’s estimated shipping date for such components may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by TI based on factors such as whether the component was manufactured specifically for Buyer, TI’s ability to change its production schedule within the period of notice provided by Buyer, whether TI acquired or allocated particular supplies or equipment to meet Buyer’s order and such other factors as reasonably determined by TI. Orders may be cancelled or rescheduled by Buyer more than ninety (90) days before TI’s estimated shipping date for such component at Buyer’s discretion and without charge.
11. Non-waiver of Default: In the event of any default by Buyer, TI may decline to make further shipments. If TI elects to continue to make shipments, TI’s action shall not constitute a waiver of any such default or affect TI’s legal remedies for any such default.
12. Governing Law: This contract shall be governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Texas and consents to venue in Dallas County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and TI may seek injunctive relief in any United States or foreign court.
13. Export Control:
13.1 Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), received from TI, or export, re-export, or release, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Buyer furnishes the assurances provided herein to TI in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
13.2 Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from TI under this contract or any direct product of such technical data, software or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, TI may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.
13.3 Any product export classification made by TI shall be for TI’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This Section 13 shall survive termination of this contract.
14. U.S. Government Contracts: If the TI components are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
15. Assignment: This contract shall not be assignable by Buyer without TI’s prior written consent. Any unauthorized assignment shall be null and void.
16. Entire Agreement: This contract constitutes the entire agreement between the parties relating to the sale of the products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products made by any TI representative, which are not stated herein, shall be binding on TI. No addition to or modification of any provision of this contract shall be binding upon TI unless made in writing and signed by a duly authorized TI representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.