TERMS AND CONDITIONS OF SALE
Unless otherwise agreed in writing, these terms and conditions of sale shall apply to all quotations and offers made by and purchase orders accepted by SemiLEDs Optoelectronics Co., Ltd. (“SemiLEDs”) and its affiliates and subsidiaries. In these terms and conditions of sale, SemiLEDs or its affiliate or subsidiary making the quotation or offer or accepting the purchase order is referred to as the “Seller”, and the party to whom the quotation, offer or order confirmation is addressed is referred to as “Buyer”. The obligations under this agreement run between the Seller and the Buyer, and not between Buyer and any other affiliate or subsidiary of SemiLEDs (or SemiLEDs if an affiliate or subsidiary is the Seller). While Seller may confirm acceptance or acknowledge receipt of a purchase order issued by Buyer, any terms and conditions in any Buyer documentation, preprinted or otherwise, that are in addition to or different from these terms and conditions of sale or the applicable Seller quotation, offer or order confirmation are hereby objected to and rejected by Seller. If a contract is not earlier formed by mutual agreement in writing, Buyer shall be deemed to have accepted these terms and conditions of sale by acceptance of products or services furnished by Seller pursuant hereto.
Except as otherwise agreed in writing, the applicable prices shall be those prices on the applicable Seller quotation, offer or order confirmation. Seller’s prices exclude, and Buyer shall be responsible for, all present or future taxes, duties or levies of whatever nature arising out of or in connection with this agreement, including the sale, delivery, ownership, or use of the products, but excluding taxes based on Seller’s net income. If Buyer asserts that any transaction under this agreement is tax exempt, Buyer shall provide to Seller a tax or levy exemption certificate acceptable to the taxing or levying authority. All prices and other terms are subject to correction for typographical or clerical errors.
3. Delivery, Title and Risk of Loss
Unless otherwise agreed in writing, sales are EXW Seller’s manufacturing facilities or inventory hub (Incoterms 2000). Title shall pass at the same time that risk of loss shifts. Seller may deliver products in one or more shipments and invoice each shipment separately. For accepted orders not subject to cancellation or modification, Seller reserves the right to ship product in advance of the agreed shipping date. Seller will use reasonable efforts to meet mutually agreed shipment or delivery schedules. However, shipment and delivery dates are estimates, and Seller will not be liable for failure to meet the estimated shipment or delivery dates.
All payments shall be in U.S. dollars unless otherwise set forth in the applicable quotation or purchase order confirmation issued by Seller. In the event of conflict between a quotation and a purchase order confirmation, the purchase order confirmation shall prevail..Unless another time or method for payment is agreed by the parties in writing, payment for products is due prior to shipment by telegraphic transfer. If Seller has agreed to extend credit to Buyer, unless another time or method for payment is agreed by the parties, Seller will invoice upon shipment and Buyer shall pay Seller thirty (30) days net from the date of invoice. Seller may charge interest for past due balances at a rate of the lesser of one percent and one-half (1.5%) per month or the maximum amount permitted by applicable law. Seller may revoke any credit extended to Buyer or cancel or delay delivery of products when Buyer’s payments are late under any orders with Seller. Seller shall retain a purchase money security interest in all Products and the proceeds thereof until Buyer has made payment in full to Seller of all sums due, including late fees. Buyer agrees to execute any financing statements or other documents requested by Seller, which may be reasonably necessary to perfect such security interest. Buyer shall be liable for and obligated to pay Seller for all expenses, including reasonable attorneys’ fees, collection fees and court costs, incurred in collection of any past due balances hereunder.
5. Cancellations and Modifications
After acceptance by Seller, Buyer may not cancel an order for convenience, in whole or in part, change the quantity ordered and/or the delivery dates, or otherwise modify the order unless otherwise agreed in writing by Seller. Seller may require advance payment of a deposit or down payment for products ordered by Buyer. Such deposits or down payments are non-refundable, and shall be subject to forfeit where Buyer breaches this Section. This Section shall not limit, and Seller shall be entitled to pursue, any other remedies that Seller may have under the law or in equity.
6. Intellectual Property Rights and Use Restrictions.
The furnishing of products hereunder does not convey, expressly or by implication, estoppel or otherwise, any license under any patent, copyright, trademark or other intellectual property rights, whether relating to a product alone or in combination with other products, a manufacturing process or another matter. All rights under any such intellectual property rights are expressly reserved by Seller. Buyer shall not reverse engineer any part of a product except to the extent such prohibition is void under applicable law. Buyer shall not remove, alter, or obscure any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are applied to the products, their packaging, labels, or any other materials provided under this agreement. All trademarks, logos, and trade names displayed on the products, their packaging, labels or any related documentation are the property of Seller or third parties, and Buyer shall not use them without the prior written consent of Seller or the third party that owns them.
7. Confidential Information
Each party (“Recipient”) may be exposed to certain information of the other party (“Discloser”) which is confidential to the Discloser and is valuable to Discloser and not generally known to the public (“Confidential Information”). Recipient will hold Discloser’s Confidential Information in confidence and protect it with the same degree of care taken to protect its own similar confidential information but in no event with less than reasonable care and will limit disclosure of such information to those of its directors, employees, contractors, and agents who have a need for such information to effect the use permitted under this agreement and are bound by a similar obligation to keep such information confidential. Recipient will not be required to protect or hold in confidence any information which: (1) becomes publicly known through no wrongful act or omission of Recipient; (2) is already known to Recipient at the time of disclosure; (3) becomes known to Recipient from a third party without breach of a confidentiality obligation; or (4) is independently developed by Recipient without use of Discloser’s Confidential Information. Disclosure of Confidential Information will not be precluded by this Section if such disclosure is: (a) necessary to establish rights under this agreement (subject to Recipient’s obligation at its expense to make a good faith attempt to obtain a protective order prior to such disclosure); or (b) required by law or regulation or in response to a valid order of a court or request of other governmental body or necessary for Seller or its parent corporation to comply with the rules and regulations of any government agencies and stock exchanges such as NASDAQ, provided that Recipient notifies Discloser of such disclosure on a timely basis. All Confidential Information, including copies made by Recipient, will remain the property of Discloser. The obligations of this Section shall survive any termination of this agreement.
Seller warrants that its products will be free from defects in material and workmanship and in substantial compliance with Seller’s published specifications for the applicable product at the time of sale for a period of twelve (12) months from the date of shipment from Seller to Buyer if the products are LED emitters and for a period of six (6) months from the date of shipment from Seller to Buyer if the products are LED chips. Buyer must advise Seller in writing of any claims within the warranty period and obtain Seller’s written authorization, and return the products to a facility or location directed by Seller. If the products are not in compliance with the foregoing warranty, Seller’s sole obligation shall be, at its option, to repair, replace or issue credit for the non-conforming product. In-warranty repair or replacement parts or products are warranted only for the unexpired portion of the original warranty period. Any warranty claim or liability is excluded where such claim or liability is not caused by Seller and arises out of (1) accident, theft, misuse, or neglect; (2) improper installation or use of the products; (3) improper handling or storage of products; (4) modification of any product other than by Seller; (5) defects, problems, or failures caused by the Buyer products into which the Seller product is incorporated or by third party products; or (6) acts of God or other causes external to the products. This warranty further does not apply to products that are manufactured by Seller to Buyer’s designs or specifications or pursuant to Buyer’s instructions, and no warranty is given as to such products except as otherwise expressly agreed by the parties in writing.
DEVELOPMENT PRODUCTS, PROTOTYPES OR OTHER NON-PRODUCTION PRODUCTS OR SAMPLES OF PRODUCTION PRODUCTS ARE NOT WARRANTED AND ARE PROVIDED ON AN “AS IS” BASIS ONLY.
THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED ONLY BY BUYER FOR ITS CUSTOMERS. SELLER WILL NOT ACCEPT WARRANTY RETURNS FROM BUYER’S CUSTOMERS OR END USERS OF BUYER PRODUCTS. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
9. Intellectual Property Infringement
Seller shall defend, at its expense, any third party claim brought against Buyer that the design or manufacture of any product manufactured by Seller and furnished by Seller to Buyer under this agreement infringes any patents issued as of the date of shipment in (1) the country where Buyer takes delivery of the product if such country is Taiwan and China, or (2) Taiwan where Buyer takes delivery of the product in a country not listed earlier in (1) (“Claim”), and shall pay any settlement and any damages, costs, and attorneys’ fees finally awarded against Buyer arising out of a Claim. The foregoing is conditioned upon Buyer (a) notifying Seller immediately in writing of the Claim; (b) giving Seller sole control of the defense, management, and settlement of the Claim, provided that Buyer may participate in such defense at its own cost with counsel of its choice if it gives Seller such control; and, (c) upon request, at Seller’s cost, reasonably cooperating with Seller in such defense. Seller shall not enter into any settlement imposing liability on Buyer for which Buyer is not indemnified without Buyer’s written consent. If (1) such product’s use is enjoined as a result of any Claim, or (2) in Seller's opinion, such product is likely to become subject to a Claim, Seller may, at its expense and sole option, (a) modify the product so that it becomes noninfringing; (b) procure for Buyer the right to continue to use the product; (c) substitute for the infringing product another product having a functionality equivalent to the product; or (d) require return of the product and refund its purchase price, less reasonable depreciation. Seller EXPRESSLY EXCLUDES from liability and Buyer shall indemnify and hold Seller harmless from: (1) settlements and their related costs and expenses where Buyer settles Claims without Seller’s prior written consent; and (2) any Claims arising out of (a) use of the product in a manner not authorized by Seller, as set forth in the applicable documentation for the product; (b) modification of the product except modifications performed by Seller or pursuant to Seller’s instructions; (c) combination of the product with any other equipment, apparatus, software, processes, or materials not furnished by Seller except as performed by Seller; or (d) compliance by Seller with Buyer’s designs, specifications, or instructions; where such infringement would not have occurred but for such use, modification, combination, or compliance. This Section states Seller’s entire liability for any claim based upon or related to any alleged infringement of any patent or other intellectual property rights.
10. Safety and Regulatory
Buyer represents that it has all necessary expertise in the legal and regulatory requirements applicable to its products incorporating the products furnished by Seller hereunder and in applicable industry safety standards, including but not limited to International Standard IEC 60825-1, as amended, published by the International Electrotechnical Commission, including all marking, labeling, and supplemental user and service information (if any) required by the Standard. Buyer acknowledges and agrees that it is solely responsible for compliance with all legal and regulatory requirements and industry safety standards concerning its products and any use of Seller products in Buyer's products, notwithstanding any information or support that may be provided by Seller. Buyer shall indemnify and hold Seller harmless against any claims, liabilities, losses, costs, expenses or damages relating to any actual or alleged failure by Buyer to comply with such requirements or standards or resulting from products manufactured by Buyer which incorporate the products supplied by Seller.
11. Limitations of Liability
IN NO EVENT SHALL SELLER OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, LOST PROFITS, LOSS OF USE, OR LOSS OF OR DAMAGE TO DATA, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL SELLER AND ITS SUPPLIERS AND LICENSORS’ TOTAL LIABILITY IN DAMAGES OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY USE OF ANY PRODUCT FURNISHED BY SELLER TO BUYER HEREUNDER, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO SELLER DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF SELLER’S RECEIPT OF BUYER’S WRITTEN NOTICE OF ANY CLAIM FOR LOSSES OR DAMAGES CAUSED BY THE PARTICULAR PRODUCT FURNISHED UNDER THIS AGREEMENT THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS FURNISHED BY SELLER TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
THE LIMITATIONS IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE MATERIAL PARTS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
12. Export Compliance
If at any time an export license or other governmental authorization is required for Seller to export, transfer or delivery any products or related technical data or information, then obtaining such governmental authorization Seller will constitute a condition precedent to Seller’s obligations hereunder. Buyer agrees to fully comply with all applicable laws and regulations controlling the export and re-export of the products or related technical date or information, including without limitation all such laws of the United State of America. Buyer acknowledges that the applicable laws and regulations may differ from product to product and from time to time, and that any export classification made by Seller for a product is for Seller’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether any governmental authorization is required for the exportation of such product.
13. Government Contract Provisions.
If products or services furnished by Seller hereunder are to be sold to a governmental entity or used in the performance of a government contract or subcontract, Seller makes no representations, warranties or certifications whatsoever about compliance with acquisition statements or regulations or other applicable government requirements, except as otherwise expressly agreed by Seller in writing.
14. Excusable Delay
Seller shall not be liable for any delay in performance or failure to perform which is due to causes beyond its control or the control of its suppliers or subcontracts, such as, for example, acts of God, strikes, lockout, riot, war, fire, accident, acts of Buyer, interruption of transportation or inability to obtain or substantial rises in the prices of the necessary labor, materials or facilities, failure or breakdown of necessary machinery or components, inability to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation or governmental or court order or direction, whether valid or invalid. Performance shall be deemed suspended during the event causing such delay plus a reasonable period of time after such event, and the other party shall accept such delayed performance.
15. Applicable Law
The terms of this agreement shall be interpreted, construed and governed in all respects in accordance with the laws of Taiwan, R.O.C., excluding its conflict of laws provisions, and the United Nations Convention for the International Sale of Goods shall not apply.
The parties submit to the exclusive jurisdiction of the Hsinchu District Court, being the place where the Buyer's order/offer has been received/accepted.
17. Limitation of Claims
No claims, regardless of form, arising out of, or in any way connected with this agreement or the Products or Services may be brought by Buyer more than one year after the cause of action has accrued or performance under this agreement has been completed or terminated, whichever is earlier.
Any notices required or permitted to be given pursuant to this agreement shall be in writing, delivered (1) in person, (2) by international courier or (3) by first class certified mail, return receipt requested, or its international equivalent,. All such notices shall be addressed to Seller at 3F, No.11 Ke Jung Rd., Chu-Nan Site, Hsinchu Science Park, Chu- Nan 350, Miao-Li County, Taiwan, R. O. C., and to Buyer at the address set forth in the applicable quotation, offer or order confirmation or to such other address as may be specified from time to time by notice in writing to the other party. Notice shall be deemed to have been given when received.
Headings used in this agreement are for ease of reference only and will not be used to interpret any part of this agreement.
20. Entire agreement
This agreement contains the complete and exclusive statement of the terms of agreement of the parties with respect to this subject matter, and supersedes all prior and contemporaneous understandings, representations, and warranties, written and oral. This agreement may be amended or modified only in a writing signed by both parties. If a court or arbitrator holds any part of this agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity or enforceability of the remaining provisions, or portions of them, will not be affected, and such provisions will be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law or court decisions. .
No term or provision of this agreement shall be deemed waived by either party, and no breach excused by either party, unless the waiver or consent shall be in writing signed by an authorized representative of the party granting such waiver or consent.
Neither party may assign its rights nor delegate its duties under this agreement without the written consent of the other, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Seller may assign or otherwise transfer its rights or delegate its duties under this agreement, in whole or in part and subject to the terms of this agreement, to a subsidiary or affiliate, or a purchaser or transferee of substantially all of the assets used by such party in its business to which this agreement relates or in the event of a merger, acquisition, corporate restructuring, or change in control.
23. Relationship of the Parties.
This agreement does not create a relationship such as a partnership, franchise, joint venture, agency, master/servant, or employment relationship. Neither party may act in a manner, which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
24. Restriction on Non-US Products
The products listed below and any device that incorporates any of such products are referred to as "Non-US Products". Non-US Products are not for use, sale, or importation into the United States ("Disclaimer").All documentations, customer service or technical support (including without limitation, product order and sales or advertisement related documentations, terms of sales, any related agreement or documents, any documentation regarding the operation, use or intended use of Non-US Products) concerning Non-US Products are provided by Company subject to the Disclaimer. Any documentation produced by Buyer concerning Non-US Products shall also include such written Disclaimer. Starting on October 1, 2012, Seller does not provide (and hereby expressly disclaim) any indemnification, in any form and to any entity, against infringement of intellectual property rights in the United States relating to Non-US Products. Buyer hereby covenants that it shall not directly or indirectly violate the limitations and restrictions per the Disclaimer and under this Section and shall defend and hold Company harmless against any expense, loss, costs or damages arising out of such violation.SL-M-B40AC SL-V-B40AK2 SL-V-G15AA SL-M-B45AC SL-V-B40EC SL-V-G24AD SL-V-B09AA SL-V-B40EK SL-V-G40AB SL-V-B13AA SL-V-B40GC SL-V-G40AC SL-V-B15AA SL-V-B40SA SL-V-G45AC SL-V-B15AK SL-V-B45AC SL-V-G45EK SL-V-B19BA SL-V-B45AC2 SL-V-G60AC SL-V-B24AA SL-V-B45AK(I-Do) SL-V-U15AA SL-V-B24AB SL-V-B45AK(I-core) SL-V-U15AK SL-V-B24AC SL-V-B45AK2 SL-V-U15AKD SL-V-B24AD SL-V-B45AS SL-V-U15AKD SL-V-B28AD SL-V-B45EC SL-V-U24ADD SL-V-B32AS SL-V-B45EK SL-V-U40AB SL-V-B35AD SL-V-B50AH SL-V-U40AC SL-V-B35AK SL-V-B50BQ SL-V-U40ACD SL-V-B35AZ SL-V-B60AC SL-V-U40AK SL-V-B40AA SL-V-B60AK SL-V-U40EC SL-V-B40AB SL-V-B80AC SL-V-U40EK SL-V-B40AC SL-V-B80BQ SL-V-U45ACD SL-V-B40AC2 SL-V-U60ACD SL-V-B40AK SL-V-U80ACD SL-V-U80BC SL-V-W45AK