STANDARD TERMS AND CONDITIONS
SiTime Corporation shall be referred to as “Seller,” “SiTime Corporation” or “SiTime”. The party placing purchase order shall be referred to as “Buyer”. The terms and conditions of sale contained herein shall apply to all quotations and offers made by and purchase orders accepted by Seller. Except for the quantities, delivery dates and delivery locations specified on the face of Buyer’s Purchase Orders, no provision contained in any quote form, order acknowledgment, invoice or similar form will be effective. The terms and conditions contained herein shall govern notwithstanding any contrary or different terms contained in Buyer’s purchase order or any other document or communication delivered to Seller, and Seller rejects and disclaims all such contrary or different terms. Acceptance of Buyer's purchase orders is expressly conditioned upon Buyer’s acceptance of the terms and conditions contained herein. Buyer shall be deemed to have accepted these terms and conditions by virtue of Buyer’s issuance of a purchase order and/or acceptance and payment of any goods or services ordered hereunder, even if Buyer has not provided Seller with a written acknowledgement of its acceptance of these terms and conditions. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. No alteration, changes, modification or amendment of any of the terms or conditions contained herein shall be effective or binding unless and until in writing and signed by a corporate officer of SiTime Corporation.
Prices are quoted in US$, and are subject to modification or withdrawal by SiTime without notice. All billings for products and services will be at the price indicated on the Seller’s official quote. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of International duties, foreign taxes, US Federal, US State, and local excise, sales and similar taxes; payment of which shall be the responsibility of Buyer.
3. TERMS OF PAYMENT
Term of payment shall be net thirty (30) days from the date of Seller invoice. Seller reserves the right to require payment in advance or C.O.D and otherwise to modify credit terms based on the financial condition of the Buyer. All past due payments, or any invoices or charges owing to Seller pursuant to this Agreement that are not paid by Buyer when due shall bear simple interest at the rate of one percent (1%) per month, or if less, the maximum amount permitted by law. The foregoing shall in no way limit any other remedy available to Seller.
4. PURCHASE ORDER
Buyer shall purchase goods by issuing a written or electronic purchase order signed (or sent in the case of an electronic order) by an authorized representative. All purchase orders are subject to approval and acceptance by Seller. Unless explicitly accepted by Seller in writing, all terms contained in Buyer’s purchase order that contradict the terms in these terms and conditions are rejected. Seller shall use reasonable commercial efforts to provide information regarding acceptance or rejection of such orders within five (5) business days from receipt thereof. In the event that Seller fails to provide an acknowledgement of such order within five (5) business days of receipt, Buyer may cancel such order.
5. DELIVERY DATE
Delivery dates will be established by Seller upon acceptance of purchase orders from Buyer. Delivery dates will be assigned by Seller as close as reasonably practicable to Buyer’s requested date based on Seller’s then-current lead times for the goods. Seller will use commercially reasonable efforts to notify Buyer of the actual scheduled delivery date with Seller’s acknowledgement of purchase order acceptance. If Seller’s assigned delivery date in the purchase order acknowledgement to Buyer is later than the date stated in Buyer’s purchase order, then Buyer may elect to either cancel the whole purchase order or cancel part of the purchase order, using Seller’s delivery date for any uncancelled portion of the purchase order, but in each case only if Buyer so notifies Seller within two (2) business days following the date of Seller’s purchase order acknowledgement.
Delivery dates are approximate and are not binding. Seller does not accept liability for any loss arising from delay in delivery of products.
6. SHIPPING, TITLE AND DELIVERY
Unless otherwise agreed upon by Seller, all sales are made EX Works Seller’s factory or its contract manufacturer facility in accordance with INCOTERMS 2000. Title to the products passes to Buyer and Seller's liability to deliver ceases when Seller places the goods at the disposal of Buyer at Seller’s factory or its contract manufacturer’s factory in good condition. Claims against Seller for shortages must be made within ten (10) days after arrival of shipment. Seller assumes no responsibility for delay, breakage or damage after having placed the goods at the disposal of Buyer at the premises of Seller or its contract manufacturer.
7. ACCEPTANCEThe Buyer shall accept or reject nonconforming products within fifteen (15) days of receipt of each shipment. Failure to notify Seller in writing of nonconforming products within such period shall be deemed an unqualified acceptance. To receive credit for the return of products, Buyer must complete a Return Material Authorization (RMA) form which documents the cause of rejection or non-acceptance of the product. Buyer may only reject products based upon failure to conform to SiTime’s product warranty as set forth below.
8. LIMITED LIFETIME WARRANTY
Seller warrants that the products covered hereby shall be free from defects in workmanship and materials, and shall conform to SiTime Corporation’s specifications as published at the time of order acceptance, for new production oscillators for the lifetime of the product in which such oscillator is initially used. The foregoing warranty (a) applies only to new production oscillators that have been purchased and fully paid for directly from SiTime Corporation or from an authorized SiTime Corporation distributor and (b) does not apply to any products and does not cover any damage or defect of a product which are caused in whole or in part by (i) misuse or abuse including static discharge, neglect, accident, modification or testing or handling by a third party not approved in writing in advance by SiTime Corporation (ii) unauthorized modification or repairs which have been soldered or altered during assembly and is unsuitable for testing by Seller under its normal test conditions and methods, (iii) improper installation, storage, handling, warehousing or transportation, (iv) being subjected to unusual physical, thermal, or electrical stress, or (v) being subjected to alteration, removal or remarking of any portion of the product part number, date code, logo or factory code. SiTime Corporation shall make the final determination as to the existence or cause of any alleged defect. Buyer acknowledges and agrees that this limited warranty shall not apply to SiTime products or units identified as “Pre-production” units, engineering samples, or to SiTime evaluation boards, programmer and software, all of which Buyer agrees are delivered “AS IS” and without any warranty, or right to recourse or credit of any kind whatsoever against SiTime. Notwithstanding any of the foregoing, the warranty provided in this Section 8 (including Section 8A and 8B) shall only apply to products purchased on or after October 1, 2013.
8A. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES. SITIME SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE OR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AS WELL AS ANY COMMON-LAW DUTIES RELATING TO ACCURACY OR LACK OF NEGLIGENCE, WITH RESPECT TO ANY SITIME PRODUCT AND ANY PRODUCT DOCUMENTATION. BUYER UNDERSTANDS AND ACKNOWLEDGES THAT PRODUCTS SOLD BY SITME ARE NOT SUITABLE OR INTENDED TO BE USED IN A LIFE SUPPORT APPLICATION OR COMPONENT, TO OPERATE NUCLEAR FACILITIES, OR IN OTHER MISSION CRITICAL APPLICATIONS WHERE HUMAN LIFE MAY BE INVOLVED OR AT STAKE. ALL SALES ARE MADE CONDITIONED UPON BUYER’S COMPLIANCE WITH THE CRITICAL USES POLICY SET FORTH BELOW.
8B. EXCLUSIVE REMEDY
SELLER’S SOLE OBLIGATION TO BUYER HEREUNDER FOR PRODUCTS FAILING TO MEET THE AFORESAID WARRANTY AND BUYER’S EXCLUSIVE REMEDY SHALL BE, AT SELLER'S DISCRETION, TO REPLACE THE NONCONFORMING PRODUCT (WITH SHIPPING COSTS BORNE BY SELLER) OR ISSUE BUYER CREDIT FOR THE PURCHASE PRICE PAID TO SITIME FOR THE NONCONFORMING PRODUCT. This remedy is available only where within the warranty period: 1) Seller has received written notice of the nonconformity, and 2) after Seller's written authorization to do so Buyer has returned the nonconforming product to Seller, freight prepaid and accompanied by a correctly completed RMA, and 3) Seller has determined that the product is nonconforming and that such nonconformity is not a result of improper installation, repair, test, other misuse or other circumstances or conditions (as provided in Section 8) by Buyer. In no case are products to be returned without first obtaining permission and a customer return order number from Seller. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION OR USE OF ITS PRODUCTS AND SELLER MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS NOT MANUFACTURED OR SERVICES NOT PROVIDED BY SITIME CORPORATION.
9. INTELLECTUAL PROPERTY
(a) Indemnification: Subject to the limitations herein, Seller will defend any suit or proceeding brought against Buyer to the extent it is based on a claim that any SiTime product furnished hereunder constitutes an infringement of any U.S, Canadian, Japanese, EU, or EFTA member country intellectual property right. Seller must be notified promptly in writing and given full and complete control, authority, information and assistance (at Seller’s expense) for defense of the suit. Seller will pay damages and costs therein awarded against Buyer but shall not be responsible for any compromise or settlement made without its consent. In no event shall Seller’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, Seller, 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. Seller’s indemnity does not extend to claims of infringement arising from Seller’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 Seller’s sole obligation for any claim of intellectual property infringement and Seller makes no warranty that products sold hereunder will not infringe any intellectual property rights.
(b) Seller retains its Intellectual Property: Seller owns all rights, title and interest to the intellectual property related to the products purchased by Buyer hereunder. The sale of such products does not convey any license by implication, estoppel or otherwise covering the products themselves or any combinations of the products with other equipment data or programs. Seller retains the copyright and trademark rights in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the sale of products or services by Seller. Unless otherwise agreed in writing, Buyer shall obtain no interest in any mask or other tooling used in the production of any of Seller’s products.
Seller shall not be responsible for any delays or failure to perform due to unforeseen circumstances or due to any cause beyond Seller’s reasonable control. Examples of such causes are acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, labor or materials or any other causes beyond Seller's reasonable control. In the event of any delay caused by such contingency, the date of delivery shall, at the discretion of Seller, be deferred for a period equal to the time of loss by reason of the delay.
No cancellations or reschedules will be accepted within sixty (60) days of the earliest requested ship date. Buyer may reschedule the delivery date on any single line item a maximum of two times for orders that are not within 60 days of the earliest original requested shipped date
12. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN SECTION 8B WITH RESPECT TO WARRANTY CLAIMS, SELLER'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE OF THE PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY,STRICT LIABILITY, BREACH OF CONTRACT, REPUDIATION OF CONTRACTS, NEGLIGENCE, PRODUCTS LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SELLER SHALL NOT BE LIABLE FOR DAMAGES DUE TO DELAYS IN DELIVERIES OR USE.
13. CONTROLLING LAW
The terms and conditions contained herein shall be governed by and construed under the laws of the State of California.
Buyer hereby grants SiTime a continuing first security interest and lien, or the equivalent in a non-U.S. jurisdiction (“Lien”), upon any product or other products SiTime ships to Buyer hereunder, and in the proceeds and products thereof (collectively the "Collateral"), until Buyer makes full payments required hereunder. Buyer agrees, as reasonably necessary, to execute further documents and to take all actions SiTime requests to protect and perfect this Lien. Buyer irrevocably appoints SiTime as Buyer’s limited attorney-in-fact to execute and file on behalf of Buyer a UCC-1 financing statement, or the equivalent in a non-U.S. jurisdiction, describing the Collateral. California law, without regards to conflict of laws provisions, governs the creation, perfection and enforcement of this Lien and rights thereunder. All SiTime’s rights and remedies shall be cumulative.
Any dispute or claim arising out of or in connection with any terms and conditions contained herein shall be finally settled by binding arbitration in Santa Clara County, California, in accordance with the rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. The arbitrator shall apply California law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision.
16. GENERAL LEGAL
a. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorneys' fees.
b. Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect Seller's legal remedies for such default.
c. The terms and conditions herein constitute the entire contract between the parties and supersede all previous communications, whether oral or written. Any changes to these Term and Conditions must be made only upon mutual agreement of the parties in writing.
d. In the event that any section of these terms and conditions are deemed unenforceable, the remaining sections shall remain in force.
17. IMPORT / EXPORT
Buyer agrees to comply with all applicable laws and regulations of the United States and of the destination country. Buyer shall not sell, transfer, export or re-export SiTime products or technical information without the applicable U.S. Government authorization, and Buyer will immediately notify SiTime if Buyer is listed on the Denied Persons List or its export privileges are otherwise denied, suspended or revoked in whole of in part by any U.S. Government entity or agency. Buyer warrants that it will not, in any form, export, re-export, resell, ship or divert or cause to be exported, re-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such technical data, to any country or to any foreign national or any country for which the United States Government requires an export license, or other approval, without first obtaining such license or approval at Buyer’s sole expense. Buyer assumes any risk or delay associated with compliance with the export controls or regulations and data transfers to and from the United States and any foreign destination. Buyer shall hold harmless and indemnify Seller for any damages resulting to Seller from a breach of this paragraph by Buyer.
18. CRITICAL USE EXCLUSION POLICY
BUYER AGREES NOT TO USE SITIME’S PRODUCTS FOR ANY APPLICATION OR AS OR IN ANY COMPONENTS USED IN LIFE SUPPORT DEVICES OR TO OPERATE NUCLEAR FACILITIES OR FOR USE IN OTHER MISSION-CRITICAL APPLICATIONS OR COMPONENTS WHERE HUMAN LIFE MAY BE INVOLVED OR AT STAKE.
These terms and conditions exclusively govern all quotations, ORDERS and sales entered into by Seller AND Buyer HEREUNDER. ACCEPTANCE OF Buyer'S ORDER and Seller’s agreement to furnish goods or services are EXPRESSLY CONDITIONED ON Buyer'S ASSENT TO THESE PROVISIONS.
Effective October 1, 2013