1. ORDERS: ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY CONFIRMATION IN WRITING BY INVENSENSE’S AUTHORIZED OFFICERS. These terms and conditions apply to all quotations made and purchase orders accepted by InvenSense; they are an integral part of the agreement between InvenSense and Purchaser. Any additional or different terms or conditions provided by Purchaser on Purchaser’s acknowledgement form or any other material provided by Purchaser (“Purchaser Terms”) are deemed to be a material alteration of this agreement and are hereby objected to by InvenSense and shall be deemed inapplicable to this agreement, unless otherwise specifically agreed to in a writing signed by an authorized representative of InvenSense. Notwithstanding any requirement by Purchaser that Purchaser Terms apply, Purchaser’s acceptance of Products will constitute Purchaser’s rejection of the Purchaser Terms and acceptance by Purchaser of this agreement. In the event that for this agreement Purchaser’s terms shall be deemed to be an offer, InvenSense hereby rejects such offer and proposes that an agreement be formed on the terms hereof. InvenSense’s failure to object to provisions contained in any communication from Purchaser shall not be deemed a waiver of these terms and conditions
2. QUOTATIONS: Subject to the provisions hereof, all quotations submitted are firm for thirty (30) days from the date of the quotation unless indicated differently on the face of the quotation, and thereafter InvenSense may change the quotation without notice. Price quotations, including any applicable quantity break prices, apply only to quantities shipped within eight (8) months from date of quotation.
3. PRICES: Applicable prices are those specified in InvenSense’s quotation or, if the quotation has expired, those specified in InvenSense’s confirmation and do not include applicable destination charges or taxes. InvenSense reserves the right to quote and/or adjust prices involving precious metal content of products to reflect fluctuations in precious metal prices. Prices are subject to revision when interruptions, delays, engineering changes or changes in the quality are caused or requested by Purchaser. Prices are also subject to revision based on changes in economic and financial conditions after the date of quotation or confirmation over which InvenSense has no control. All prices quoted and confirmed are subject to correction for clerical errors.
4. TAXES: In addition to the applicable prices, Purchaser agrees to pay an amount equal to any and all applicable federal, state, and local taxes, duties and other levies, which amounts shall be an additional charge to Purchaser hereunder.
5. LEADTIME AND FORECAST: The initial delivery for the first order shall be fourteen (14) weeks from acceptance of the purchase order unless otherwise specified in writing. Thereafter, orders will be shipped per Purchaser’s specified shipment schedule. Purchaser shall provide InvenSense with a twelve (12) month rolling forecast beginning with the issuance of the initial purchase order. Said purchase order shall contain expected monthly volumes for the 12 months ahead which shall be updated each month and provided to InvenSense no later than the 5th day of each month.
6. PACKAGING: Standard packaging for domestic commercial shipment is included in the quoted price. When special packaging is specified or required involving expense exceeding that for standard domestic commercial shipment, Purchaser will reimburse InvenSense for the additional expense. Reasonable care is exercised in packaging goods for shipment and InvenSense assumes no responsibility for delay, breakage or damage after delivery to the carrier. Purchaser will file any claims for breakage or damage with the carrier and InvenSense will render reasonable assistance in securing satisfactory adjustment of such claims.
7. TITLE AND DELIVERY: All sales are F.O.B. point of shipment. Title and risk of loss pass to Purchaser upon delivery items to carrier at shipping point, which delivery shall constitute delivery to Purchaser for all purposes. Unless otherwise specified by InvenSense, the point of shipment shall be InvenSense’s designated facility. Unless specific instructions from Purchaser specify which method of shipment is to be used, InvenSense will exercise its own discretion. Shipping dates are approximate and are based upon prompt receipt by InvenSense from Purchaser of all necessary information.
8. PAYMENT: (a) Unless credit is extended, payment will be required in full prior to shipment. In the event Purchaser becomes the subject of a bankruptcy or other insolvency proceeding, or fails to pay InvenSense’s invoices as they become due, InvenSense may cancel any order then outstanding and receive reimbursement for the cancellation damages.
(b) Each shipment shall be considered a separate independent transaction, and payment thereof shall be made accordingly. If shipments are delayed by Purchaser, InvenSense may invoice on the date when InvenSense would have made shipment but for the delay.
(c) In case of a partial return of goods by Purchaser owing to defects covered by warranty, the relevant invoice shall be paid within the term stated, for the amount corresponding to the products accepted. Purchaser is in no event entitled to make reductions on the invoice unit prices or quantities without prior written approval of InvenSense. If invoiced amounts are not paid when due, Purchaser will pay, in addition to all amounts otherwise due InvenSense and without limiting any remedies available to InvenSense at law or in equity, a delinquency charge in the amount of one and one-half percent per month (eighteen percent per annum) on such overdue amounts.
(d) Purchaser grants to InvenSense a security interest in all items purchased by Purchaser from InvenSense to secure payment in full of all amounts due from Purchaser to InvenSense. Purchaser will cooperate with InvenSense to do all acts deemed necessary or advisable by InvenSense to perfect said security interest.
9. CANCELLATION AND RESCHEDULE: (a) No cancellation for InvenSense’s default shall be effective unless InvenSense shall have failed to correct such alleged default within forty five (45) days after receipt by InvenSense from Purchaser or written notice of default.
(b) Orders accepted by InvenSense are firm and non-cancelable. InvenSense will not accept cancellations or reschedule of orders, other than for default of InvenSense or upon payment of all InvenSense’s costs incurred for and reasonably allocated to the portion of the work already terminated and/or work in process, in accordance with generally accepted accounting principles, and together with cancellation charges shown in
(f) below. Deliveries scheduled within ninety (90) days from time of shipment cannot be changed unless authorized in writing by InvenSense.
(c) If the termination involves custom products, such as but not limited to, Special Marked products and/or Special Screened products, cancellation charges for such products shall equal the order price for the total number of units representing work in process. Unless otherwise agreed and confirmed in writing by InvenSense, items scheduled for shipment are not subject to revision, reschedule or termination within ninety
(90) days prior to date quoted by InvenSense.
(d) InvenSense reserves the right to cancel the remaining quantity of an item or an order when the value of the remaining quantity is below minimum item or order value accepted by InvenSense.
(e) InvenSense reserves the right to cancel all or part of any order accepted if inaccurate or incorrect information is supplied by Purchaser, which in InvenSense’s judgment, affects InvenSense’s financial risk or ability to perform its obligations under the order, or otherwise materially changes the rights or responsibilities of Purchaser and/or InvenSense under the order.
(f) InvenSense reserves the right to invoice the Purchaser a cancellation charge which may include, but not be limited to, bill back to the unit price of the quantity delivered to the Purchaser, times that quantity, less a credit for any amount previously paid by the Purchaser and a cancellation charge based on the value of the unshippable value of the order.
10. CHANGES TO SPECIFICATIONS: InvenSense reserves the right to change the specifications of any product (including all statements and data appearing in InvenSense’s catalogs, data sheets and advertisements) without notice. If specifications are changed, InvenSense assumes no obligation to provide the change on products previously purchased or to continue to supply discontinued products or versions. InvenSense may substitute products manufactured to such modified specifications for those specified herein provided such products substantially conform to the products described in the sale contract.
11. INSPECTION & ACCEPTANCE:
Within thirty (30) days after delivery to Purchaser of products sold by InvenSense, Purchaser will inspect them and give written notice to InvenSense of any products rejected, describing the product or products rejected and specifying in detail the reason or reasons why the rejected products do not conform to the sale contract. Upon receiving authorization and shipping instructions from authorized personnel of InvenSense, Purchaser may return rejected products, transportation charges prepaid, for replacement. Purchaser will be deemed to have irrevocably accepted any and all products with respect to which Purchaser has failed to give InvenSense written notice of rejection by registered or certified mail within the 30-day period. Purchaser’s inspection and/or acceptance tests shall not exceed the inspection and/or test procedures customary in the industry for the products delivered by InvenSense and shall be at Purchaser’s expense. InvenSense may charge to Purchaser any costs resulting from the testing, handling, and disposition of any products returned by Purchaser which are not found by InvenSense to be nonconforming.
12. INVENSENSE’S WARRANTY: (a) LIMITED WARRANTY: IT IS EXPRESSLY AGREED THAT NO WARRANTY, OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTY (EXPRESS, IMPLIED OR STATUTORY) IS MADE BY INVENSENSE, EXCEPT THAT INVENSENSE WARRANTS THE GOODS TO BE FREE FROM DEFECTS IN MATERIALS AND NORMAL WORKMANSHIP AS GOVERNED AND DEFINED BY INVENSENSE, INC.
(1) InvenSense will replace or credit, at their option, any product they deem defective. InvenSense will not be under any obligation to replace any device but will issue credit, at their option, upon verification of the Purchaser’s complaint. If, after InvenSense’s evaluation of, it is found the defect was caused by the Purchaser or the device is acceptable, the InvenSense will return said device to the Purchaser and rebill or deny the debit. (2) All transportation charges will be the obligation of the Purchaser. (3) This warranty period is limited to thirty (30) days from date of shipment unless stated otherwise in writing by InvenSense. In no event shall the InvenSense be liable for loss of profit, loss of use, incidental damages, consequential damages or any loss, cost, or damages of any kind based upon a claim for defective products or breach of warranty.
(b) DEVELOPMENTAL ITEMS: DEVELOPMENTAL, EXPERIMENTAL OR PROTOTYPE ITEMS DELIVERED HEREUNDER SHALL BE SUBJECT TO ALL OF THE PROVISIONS OF THE FOREGOING WARRANTY EXCEPT THAT SUCH ITEMS ARE WARRANTED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND TO MEET THE APPLICABLE PRELIMINARY SPECIFICATIONS ONLY AT THE TIME OF RECEIPT BY PURCHASER AND FOR NO LONGER PERIOD OF TIME.
(c) NONSTANDARD ITEMS: INVENSENSE MAKES NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO SALES OR ORDERS FOR NONSTANDARD OR SUB-GRADE ITEMS. ITEMS SOLD UNDER SUCH SALES OR ORDERS ARE FURNISHED “AS IS”.
(d) LIFE SUPPORT DEVICES: INVENSENSE’S PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS OF LIFE SUPPORT DEVICES OR SYSTEMS. INVENSENSE DISCLAIMS ANY WARRANTY OR RESPONSIBILITY FOR SUCH USAGE, WHICH SHALL BE AT PURCHASER’S SOLE RISK, EVEN IF INVENSENSE HAS BEEN PREVIOUSLY NOTIFIED OF SUCH USAGE. AS USED HEREIN, “LIFE SUPPORT DEVICES OR SYSTEMS” ARE DEVICES OR SYSTEMS WHICH ARE INTENDED FOR IMPLANT INTO THE BODY TO SUPPORT OR SUSTAIN LIFE, OR TO ASSIST THEREIN, AND WHOSE FAILURE TO PERFORM CAN BE REASONABLY EXPECTED TO RESULT IN SIGNIFICANT INJURY TO THE USER. A “CRITICAL COMPONENT” IS ANY COMPONENT OF A LIFE SUPPORT DEVICE OR SYSTEM WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO
CAUSE OR RESULT IN THE FAILURE OF PERFORMANCE OF A LIFE SUPPORT DEVICE OR SYSTEM OR TO ADVERSELY AFFECT ITS SAFETY OR EFFECTIVENESS.
(e) MILITARY APPLICATIONS OR GOVERNMENT FUNDED CONTRACTS: INVENSENSE’S PRODUCTS SHOULD NOT BE USED OR SOLD FOR USE IN THE DEVELOPMENT, PRODUCTION, STOCKPILING OR UTILIZATION OF ANY AND ALL MILITARY WEAPONS OR FOR OTHER PRODUCTS FUNDED BY THE GOVERNMENT THAT ARE CONTROLLED OR RESTRICTED BY FOREIGN TRADE LAWS OF THE UNITED STATES THAT REQUIRE EXPORT LICENSES.
(f) TECHNICAL ADVICE: INVENSENSE’S WARRANTIES AS HEREIN ABOVE SET FORTH SHALL NOT BE ENLARGED, DIMINISHED, OR OTHERWISE AFFECTED BY, NOR SHALL ANY OBLIGATION OR LIABILITY OF INVENSENSE ARISE OUT OF INVENSENSE’S RENDERING OF TECHNICAL ADVICE OR SERVICE IN CONNECTION WITH PURCHASER’S ORDER OR THE PRODUCTS FURNISHED HEREUNDER.
13. PATENTS: (a) Purchaser shall indemnify, defend and hold InvenSense harmless against any expenses, damages, cost or losses including attorneys fees, resulting from any suit or proceeding instituted or claim asserted (including settlement of any of the foregoing), for infringement of patents, copyrights, trademarks or other intellectual property rights or for unfair competition arising from compliance with Purchaser’s designs or specifications or arising from use of products furnished hereunder in any manufacturing or other process or the combination of such products with items not supplied by InvenSense. (b) The sale of products or any parts thereof hereunder confers upon Purchaser no license, express or implied, under any patent rights of InvenSense. (c) The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties or other obligations, express, implied or statutory, with respect thereto.
14. LIMITATION OF LIABILITY:
LIABILITY OF INVENSENSE TO PURCHASER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ANY ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE SHALL BE LIMITED TO THE PRICE SPECIFIED IN THE SALE CONTRACT FOR THE SPECIFIC PRODUCT OR PRODUCTS THAT CAUSED THE DAMAGES OR THAT ARE THE SUBJECT MATTER OF, OR ARE DIRECTLY OR INDIRECTLY RELATED TO THE CAUSE OF ACTION. IN NO EVENT SHALL INVENSENSE BE LIABLE TO PURCHASER OR OTHERS FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OR OTHER SPECIAL COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION THEREOF, WHETHER IN CONTRACT OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, EVEN IF INVENSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST PURCHASER BY ANY THIRD PARTY. PURCHASER ASSUMES ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH, THE USE OR MISUSE OF THE PRODUCTS BY PURCHASER, ITS EMPLOYEES, OR OTHERS.
15. FORCE MAJEURE: InvenSense will not be responsible or liable for any delay or failure in performance arising as a result of fire, accident, acts of God, acts of public enemy, war, labor disputes, failure or delays, transportation, inability to secure product, raw materials or machinery for the manufacturing process, requirements or acts of any government or agency thereof, judicial action or other causes beyond InvenSense’s control. In such event, InvenSense may defer performance for a period equal to the time lost by reason of the delay. If such time exceeds forty- five (45) days, InvenSense may by written notice to Purchaser cancel the affected order(s) as to any products then undelivered without liability to Purchaser.
16. CONFIDENTIAL INFORMATION: All drawings, diagrams, specifications, technical information, and other material and information furnished by InvenSense and identified as confidential (hereinafter collectively called “Confidential Information”) are proprietary to InvenSense and contain trade secrets.
Purchaser shall not use, reproduce, distribute or disclose such Confidential Information, except that Confidential Information may be disclosed, with appropriate safeguards against re-dissemination, to employees of Purchaser with respect to whom such information is necessary to the performance of their duties hereunder. Purchaser recognizes that such proprietary information is unique and consents to the remedy of injunction in addition to damages for a violation of this provision.
17. GOVERNING LAWS: This contract will be governed by and construed in accordance with the laws of the State of California, and in the case of international sale of goods with respect to which the Convention or Contracts for the International Sale of Goods (“CISG”) or any other law would otherwise apply, the Uniform Commercial Code as adopted in the State of California, and not CISG or any such other law, shall apply. Purchaser agrees that it will submit to the personal jurisdiction of the competent courts of the State of California and of the United States sitting in Santa Clara County, California, in any controversy or claim arising out of the sale contract, and that service of process mailed to it at 1745 Technology Dr., San Jose, CA 95110, by registered mail, return receipt requested, shall be effective service of process in any such court.
18. EXPORT CONTROL: (a) With respect to the resale, export or any other disposition of products or technical information furnished hereunder, Purchaser will comply fully with all export control laws and regulations of the United States Government and with any applicable laws and regulations of any other country.
(b) Purchaser agrees not to export or re-export either directly or indirectly any technical data furnished hereunder or the direct product of such technical data to any country which, as set forth in the Export Administration Regulations of the United Sates Department of Commerce, is prohibited.
19. U.S. GOVERNMENT CONTRACTS: If this sale contract is entered into in connection with or under a U.S. Government contract or subcontract, the mandatory subcontract clauses required by applicable U.S. Government procurement regulations to be included in subcontracts of the same type, amount and tier as this sale contract shall be incorporated herein by reference, unless InvenSense takes exception thereto or receives a waiver therefrom. Unless InvenSense specifically agrees otherwise in writing, InvenSense takes exception to any and all requirements for certification in writing of cost and pricing data, and compliance with Cost Accounting Standards.
20. SEVERABILITY OF PROVISIONS: In the event of any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
21. COMPLETE AGREEMENT: The quotation, confirmation (acknowledgment) or invoice including these terms and conditions and all attachments and documents incorporated by reference herein, constitute the complete and exclusive statement of the terms and conditions of the sale contract between InvenSense and Purchaser and supersede all prior or contemporaneous agreements, representations and/or communications, either oral or written, between the parties hereto or any representative of such parties with respect to the subject matter hereof. No change to this contract or waiver of any provision hereof will be binding on InvenSense unless made in writing and signed by a duly authorized officer of InvenSense. No field representative of InvenSense has the authority to sign such documents.