1. ACCEPTANCE. These Standard Terms and Conditions of Sale (the "Agreement") are entered into between Buyer and Gallium Semiconductor and govern the sale of all Gallium Semiconductor products (the “Products”) to Buyer. Any terms proposed by Buyer, unless otherwise mutually agreed upon in writing, which adds to, vary from, or conflict with the terms of this Agreement shall be void, and the terms of this Agreement shall prevail. If a quote or invoice has been issued by Gallium Semiconductor in response to an offer the terms of which are additional to or different from any of the provisions hereof, then the issuance of such quote or invoice by Gallium Semiconductor shall constitute an acceptance of such offer subject to the express condition that Buyer assent that the Agreement constitutes the entire agreement between Buyer and Gallium Semiconductor with respect to the subject matter hereof and the subject of such offer.

 

2. PRICES. All prices exclude sales, use, license excise, and other taxes in respect of manufacture, sale or delivery, export or import duties, all of which shall be paid by Buyer unless a proper exemption certificate is furnished. Prices exclude shipping and handling, which shall be paid by Buyer. All prices are subject to adjustment necessitated by shortages of raw materials or Gallium Semiconductor's compliance with any government action.

 

3. TERMS. Unless otherwise specified, the terms of payment are “Payment/TT-in-Advance”. In cases where payment term was extended to Buyers, invoices not paid shall be subject to a service charge of 2.75% per month on the past due amount. Without limiting the above provisions, in the event Buyer does not pay all amounts due and owing within allowed payment terms, Gallium Semiconductor may withhold further shipments until acceptable payment is made. Shipment holds shall not constitute Gallium Semiconductor’s breach and Gallium Semiconductor, in its sole discretion, may continue to perform in accordance to Buyer's purchase orders.

 

4. ORDER AND ACCEPTANCE. All Buyer’s orders must be indicated on a written order submitted by Buyer and accepted in writing by Gallium Semiconductor. No order is binding on Gallium Semiconductor unless accepted in writing by Gallium Semiconductor. Gallium Semiconductor will provide written acknowledgements of all accepted orders. Gallium Semiconductor may at any time, without notice, change or suspend credit terms, stop shipment or cancel unfilled purchase orders when, in Gallium Semiconductor’s sole discretion, the financial condition of Buyer or its account so warrants, or when delivery is delayed through any fault of Buyer, or when Buyer is delinquent on any payment for invoiced Products or services.

 

5. DELIVERY AND DELAYS. Unless otherwise specified, delivery will be Ex-Works Gallium Semiconductor’s place of manufacture, and Buyer assumes all responsibility for risk of loss, or damage to, the Products furnished hereunder upon delivery of the Products to the common carrier. Gallium Semiconductor shall have the right to select the means of transportation. Delivery dates quoted by Gallium Semiconductor are approximate and subject to confirmation. Delay in delivery by Gallium Semiconductor for any shipment shall not relieve Buyer of its obligation to accept remaining installment deliveries. Buyer must make claims for shortages or other errors in delivery in writing to Gallium Semiconductor within thirty (30) days after Buyer’s receipt of shipment and failure to give such written notice shall constitute unqualified acceptance and a waiver of all such claims. Gallium Semiconductor Page 2 of 3 shall not be responsible for reasonable or excusable delays, and Buyer shall not refuse to accept delivery because of any such delays. "Excusable delays" include, without limitation, delays resulting from accidents or acts of terrorism, acts of God, strikes, fires, floods freight embargoes or transportation delays; shortages of labor, inability to secure fuel, goods, supplies or power at current prices or on account of shortages thereof, any existing or future laws, acts, regulations, orders or decrees of any government body or agency affecting the conduct of Gallium Semiconductor’s business and with which Gallium Semiconductor in its judgment and discretion deems it advisable to comply. "Reasonable delays" include, without limitation, delays to which Buyer, when notified, makes no objection. In the event of such delays, the date of delivery shall be extended for a period equal to the time lost by reason of such delays. In the event of Gallium Semiconductor’s inability, for any reason, to supply the total demand for the Products to be furnished hereunder, Gallium Semiconductor may allocate its available supply of such Products among any or all of its customers or buyers on such basis as Gallium Semiconductor may deem fair and practical without any liability for any failure of performance which may result there from. If shipping is delayed or interrupted by Buyer directly or indirectly, Buyer shall pay Gallium Semiconductor all additional charges resulting there from. Moreover, if as a result of such delay or interruption the Products are not shipped within five (5) days after notification has been made to Buyer that it is ready for shipping, Gallium Semiconductor may store the Products at Buyer’s risk in a warehouse or upon Gallium Semiconductor’s premises, and Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefore.

 

6. CANCELLATION. Unless otherwise specified and accepted by Gallium Semiconductor in writing, accepted purchase orders outside of thirty (30) days can be pushed out once to a maximum of sixty (60) days from the original committed delivery date. Inside of thirty (30) days, orders cannot be cancelled or rescheduled. After an order has been rescheduled once, Gallium Semiconductor shall use commercially reasonable efforts to accommodate subsequent requests for order changes; provided that such changes may be subject to a reasonable change fee as determined by Gallium Semiconductor.

 

7. PRODUCT INFORMATION. Buyer is solely responsible for ensuring that all Products purchased are fit for Buyer’s intended purpose, and that Product specifications meet Buyer’s requirements. Gallium Semiconductor Product specifications and other Product related information may be obtained by visiting the Gallium Semiconductor website located at www.galliumsemi.com. The sale of all Products is subject to this Agreement at the time of order acknowledgement.

 

8. EXPORT CONDITIONS. If an export license is required by Gallium Semiconductor in order for it to lawfully deliver any Products ordered by Buyer, then the issuance to Gallium Semiconductor of all necessary licenses shall constitute a condition precedent to Gallium Semiconductor’s obligations to sell such Products to Buyer. Buyer agrees to comply with all applicable export laws, regulations and orders. Buyer agrees that it will not resell, re-export, transfer or ship, directly or indirectly, any Products or information provided hereunder, in any form, without obtaining appropriate export or re-export licenses.

 

9. WARRANTIES. Gallium Semiconductor warrants that all Products shall conform to published specifications and be free in all material respects from defects in workmanship and materials for a period of one (1) year commencing on the date of receipt of the Products by Buyer. The obligation of Gallium Semiconductor and Buyer’s sole and exclusive remedy hereunder for a breach of the foregoing warranty shall be limited, and at Gallium Semiconductor’s option shall be: (i) the repair or replacement of any defective or damaged Products Ex-Works Buyer’s place of manufacture; or (ii) a refund of the purchase price paid for the defective or damaged Products. Buyer shall not return Products unless so authorized in writing by an officer of Gallium Semiconductor. Gallium Semiconductor shall have the right to inspect Products at Buyer’s location or request for the Products to be shipped to designated location(s) for failure analysis. Notwithstanding the foregoing warranties and remedies, Gallium Semiconductor shall have no obligation hereunder if Products become defective in whole or in part as a result of improper use, alteration, neglect or abuse after having been delivered to Buyer, or for damage resulting from fire, flood or acts of God. Buyer agrees to indemnify Gallium Semiconductor against all claims arising out of or Page 3 of 3 resulting from the operation or use of Buyer goods or products that include the Products. EXCEPT AS SET FORTH HEREIN, IT IS EXPRESSLY AGREED THAT THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, OR ANY AFFIRMATION OF FACT, OR PROMISES, BY GALLIUM SEMICONDUCTOR WITH REFERENCE TO THE PRODUCTS, WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON BY GALLIUM SEMICONDUCTOR AND BUYER.

 

10. LIMITATION OF LIABILITY. IN NO EVENT SHALL GALLIUM SEMICONDUCTOR BE LIABLE FOR ANTICIPATED OR ACTUAL LOST PROFITS, FOR DAMAGES ON ACCOUNT OF NEGLIGENCE, OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. GALLIUM SEMICONDUCTOR’S AGGREGATE LIABILITY FOR ANY CLAIM OF ANY KIND, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE SALE OF PRODUCTS TO BUYER, OR FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, INSPECTION, REPAIR, OPERATION OR USE OF ANY PRODUCTS COVERED BY OR FURNISHED UNDER THIS AGREEMENT, SHALL IN NO CASE EXCEED THE PRICE PAID FOR THE PRODUCTS THAT GIVE RISE TO THE CLAIM. BUYER MUST MAKE ALL CLAIMS WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED WITH RESPECT TO ANY PRODUCTS PROVIDED HEREUNDER.

 

11. TITLE AND REMEDIES. Shipments and deliveries on credit shall be subject to approval of Gallium Semiconductor. If Buyer fails to fulfill the terms of payment, Gallium Semiconductor may defer further shipments or may, at its option, cancel any unshipped order. Gallium Semiconductor reserves the right, previous to making any shipments, to require from Buyer satisfactory security for performance of Buyer’s obligations. Until such time as payment in full for all Products provided hereunder is received, Gallium Semiconductor reserves, and Buyer grants to Gallium Semiconductor, a security interest in any Products provided under the Agreement in order to secure Buyer's obligations of payment for such Products. In the event of default by Buyer on any of its obligations to Gallium Semiconductor, Gallium Semiconductor will have the right to repossess such Products without liability to Buyer. This Agreement may be filed in appropriate jurisdictions to evidence Gallium Semiconductor’s security interest in the Products. In addition, Buyer will execute any further documents as Gallium Semiconductor may request, and cooperate in filing such documents, in order to evidence Gallium Semiconductor's security interest in the Products.

 

12. DISPUTES. Buyer and Gallium Semiconductor shall attempt in good faith to resolve any dispute or disagreement (“Dispute”) arising under an Order promptly by negotiation between executive management of each party who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration of the Order. If any Dispute is not settled to the mutual satisfaction of Buyer and Gallium Semiconductor, then it shall be settled at the option of either Party by any court of competent jurisdiction in accordance with the applicable laws of the country in which the Gallium Semiconductor’s principal place of business is located.

 

13. GENERAL. The failure of Gallium Semiconductor to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this contract or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition or the future exercise of such rights. This Agreement and any acknowledgement or acceptance of a purchase order by Gallium Semiconductor constitute the complete and exclusive statement of the agreement between the parties regarding the subject matter hereof and supersede all proposals, oral or written, and all other communications between the parties relating to the subject matter herein