1. ACCEPTANCE OF ORDER. These Terms and Conditions of Sale (“Agreement” or “Terms”) shall apply to all quotations and offers made by SanDisk Corporation or its corporate affiliates (“Seller”), purchase orders accepted by Seller, products either provided as a service (“Services”) or sold or licensed as applicable (collectively, “Products”) hereunder by Seller. This Agreement shall supersede and prevail over terms and conditions contained in or referred to in any purchase order, confirmation or other writing submitted by the purchaser of Products (“Purchaser”). These Terms shall apply whether or not attached to or enclosed with the Products sold by Seller hereunder unless otherwise agreed to in a signed writing by Seller; provided, however, that if the Product in question is a stand-alone software Product, then the express terms of SanDisk’s applicable license agreement for such Product will govern if and where inconsistent with these Terms, including but not limited to license terms, the manner of delivery, and any warranties, support and payment terms. No course of dealing or usage of trade or course of performance will be relevant to explain or supplement any of these Terms. Seller’s acceptance and fulfillment of Purchaser’s order is expressly made conditional on agreement by Purchaser to the Terms hereof, and Purchaser agrees that, by receiving and/or using the Products, Seller’s actions do not constitute acceptance of any of Purchaser’s terms and conditions and do not serve to modify or amend this Agreement.
2. PRICES AND TAXES. Unless otherwise agreed by Seller in writing, the prices shown are stated and payable in U.S. dollars, and are based on Delivery terms set forth below. Seller may decrease Product prices at its discretion at any time without notice. Seller reserves the right by giving five (5) calendar days prior notice to Purchaser (“Price Increase Notice Period”), to increase prices on Products scheduled for shipment after the Price Increase Notice Period. Purchaser may, no later than the conclusion of the Price Increase Notice Period, cancel Purchaser’s order only with respect to such Products whose prices were so increased and scheduled for shipment after the conclusion of the Price Increase Notice Period. Purchaser will pay all additional costs incurred by Seller due to interruptions, engineering changes or modifications caused or requested by Purchaser. All prices are quoted, all orders accepted, and all billings rendered are exclusive of all federal, state, and local excise, sales, use, manufacturer's or state or local privilege, duties, value added or similar taxes applicable to the sale of the Product hereunder, or to this Agreement, which shall be paid by Purchaser. Such taxes, when applicable, will appear as separate additional items on the invoice/order acknowledgements unless Seller receives a valid tax exemption certificate from Purchaser prior to shipment. All personal property taxes assessable on the Products after Delivery to a carrier at any facility of Seller or its contractors or agents, as determined by Seller, shall be borne by Purchaser. Notwithstanding any price quotation provided to Purchaser, the minimum charge per order is U.S. $100.00 or equivalent amount in local currency as specified by Seller (net of tax).
3. PAYMENT. The terms of payment shall be net thirty (30) days from date of invoice. Each invoice will be dated the date of Delivery of the Products. Purchaser shall pay Seller, promptly on demand, interest on overdue accounts at the lesser of the maximum rate allowed under applicable law or 18% per annum. If manufacture or Delivery of Product is delayed by Purchaser, payment shall become due on the date when Seller is prepared to make Delivery or on the date which manufacture is delayed and such payment shall be made based on the contract price and the percentage of completion. Unless expressly agreed in writing by Seller, no inspection, testing or acceptance criteria of Purchaser shall relieve, delay or modify Purchaser’s payment obligations under this Agreement. Products held by Seller or Purchaser by reason of Purchaser's delay shall be held at the risk and expense of Purchaser. Seller may refuse to accept or deliver all or a portion of orders, and may require payment in advance and/or other terms of payment, if at any time Seller determines that Purchaser’s credit balance with Seller or Purchaser’s financial condition justifies such actions. In the event any proceeding is brought by or against Purchaser under any bankruptcy or insolvency laws, Seller shall be entitled to terminate or cancel any order of the Purchaser then outstanding, in whole or in part, and shall receive reimbursement from Purchaser for its cost to date of cancellation.
4. ORDER, DELIVERY, TITLE. Unless Seller agrees otherwise, the Products will be delivered to Purchaser, at Seller’s sole option, either: (1) Ex Works (EXW) (INCOTERMS 2010) at Seller’s (or its contractor’s or agent’s) named place as determined by Seller; or (2) FCA (INCOTERMS 2010) at SanDisk Semiconductor (Shanghai) Co., Ltd. located at 388 Jiang Chuan Dong Road, Minhang District, Shanghai (“SDSS Site”) the People’s Republic of China (“PRC”) (collectively, “Delivery”). Notwithstanding the subsection (2) hereof, Purchaser shall be responsible for loading the Products delivered by Seller at the SDSS Site. Title to the Products transfers to Purchaser upon Delivery at Seller’s named place. Risk of loss for the Products transfers to Purchaser upon Delivery at Seller’s named place. Products will be deemed accepted by Purchaser at Seller’s named place. Purchaser covenants to export from the PRC the Products delivered by the Seller at the SDSS Site within seven (7) days from the competent PRC governmental authority’s approval of the export declaration submitted by or on behalf of Seller for such Products. Written acceptance of Product terms by Seller or Purchaser shall not constitute a guaranty of delivery of Products, since such delivery remains subject to provisions in these Terms as well as available market supply and other market considerations. The quantity of any installment of Products as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary. Any liability for Seller’s non-delivery shall be limited to, at Seller’s option, delivery of the undelivered units or adjusting the invoice for the respective Products to reflect the actual quantity delivered. In the event of Seller's inability to supply the goods specified in Purchaser's orders, Seller may delay Delivery at Seller’s discretion without obligations or liability to Seller. Purchaser shall obtain and keep in force all-risk property and cargo insurance with limits at least equal to the value of Products purchased until payment is received in full by Seller. Seller’s Delivery dates are approximate and subject to the prompt receipt of accurate and necessary information from Purchaser. Purchaser may not change, cancel or reschedule an order previously accepted by Seller, and no such request provided by Purchaser shall be effective absent the express written permission of Seller’s authorized representative.
5. PERFORMANCE OF SERVICES. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. Purchaser shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Purchaser’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Purchaser provided that such changes do not materially affect the nature or scope of the Services or the fees agreed by Purchaser and Seller. Purchaser agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
6. PURCHASER’S ACTS OR OMISSIONS. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Purchaser or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Purchaser that arise directly or indirectly from such prevention or delay.
7. PRODUCT WARRANTIES. Except as otherwise required by law, Seller warrants to Purchaser that Products purchased hereunder will be free from material defects in Products and workmanship for a period of one (1) year from the date of Delivery of the Product by Seller. Seller's liability under this warranty, and Purchaser’s exclusive remedy, is solely limited (at Seller's discretion) to either replacing, or repairing, or issuing credit for the purchase price of such Product, if paid, for such Products as were defective at the time delivered to Purchaser, and subject to Seller’s Return Material Authorization requirements, provided that Seller will not be liable under this warranty unless (i) Seller is promptly notified in writing upon discovery of defect(s) by Purchaser; (ii) the defective unit is returned to Seller, transportation charges prepaid by Purchaser; (iii) the defective unit is received by Seller no later than one (1) year following the date on which such Products were delivered; and (iv) Seller’s determination that the failure was not caused by misuse, neglect, improper installation, repair, alteration, accident or in combination with products not provided by Seller. Seller's warranties shall be unaffected by technical support or services offered hereunder. Products may be updated, revised or discontinued at any time by Seller at its sole discretion, and Seller may provide substitute products with similar functionality and performance. Replacement and spare parts may be reconditioned. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF, EXCLUDE, AND SELLER WAIVES, ANY OTHER REPRESENTATIONS, GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8. SERVICE WARRANTIES. Seller warrants to Purchaser that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The Seller shall not be liable for a breach of the warranties set forth above unless: (i) Purchaser gives written notice of the defective Services, reasonably described, to Seller within seven (7) days of the time when Purchaser discovers or ought to have discovered the defect and (ii) Seller reasonably verifies Purchaser’s claim that the Services are defective. With respect to any Services subject to a claim under the warranty set forth in this section, Seller’s sole liability and Purchaser’s sole remedy for a breach of warranty shall be for Seller to, in its sole discretion, either (i) repair or re-perform the applicable Services or (ii) credit or refund the prorated price of such Services. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF, EXCLUDE, AND SELLER WAIVES, ANY OTHER REPRESENTATIONS, GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. INTELLECTUAL PROPERTY. Purchaser agrees to the terms of any license of software included with any Products sold as equipment hereunder, and if applicable will pass through such terms unmodified to Purchaser’s customers. Unless expressly agreed otherwise by SanDisk in an applicable software license agreement for a Product, (a) Seller retains all its intellectual property rights, title and interest in and to: (i) service marks, trademarks, trade names, logos, trade dress, packaging or any other designations or identifications; and (ii) copyrights, patent rights, trade secrets and other proprietary rights related to the Products hereunder including without limitation, specifications (“IP”), and (b) Purchaser obtains no license under Seller’s IP nor any rights to use or display, or make any representations regarding, any of Seller’s IP. Purchaser shall not disparage any of Seller’s IP rights. Purchaser has no rights to sublicense or otherwise transfer any of Seller’s IP rights to third parties. Purchaser shall indemnify, defend and hold Seller harmless against any and all expenses, damages, costs or losses resulting from any claims, suits or proceedings brought for (a) infringement of IP, or (b) unfair competition or other claims against Seller arising from Seller's compliance with Purchaser's designs, specifications or instructions. Purchaser shall not disassemble, decompile, or otherwise alter, modify or reverse engineer Products or any component or packaging thereof, or disable any security devices or codes incorporated therein. Purchaser grants Seller a worldwide, irrevocable, perpetual, transferable, royalty-free right to use, sublicense, distribute and modify any feedback (including information, suggestions, ideas or comments) provided by Purchaser to Seller.
10. CONFIDENTIAL INFORMATION. Any designs, quotations, specifications, drawings, marketing plans, reports, and photographs related to the Products, functionality or availability furnished by Seller hereunder, other than that which is rightfully available to the public, is Seller’s confidential information and shall not to be disclosed to any third party without Seller’s prior written approval. Such information shall remain the sole property of Seller and upon request be returned to Seller. Purchaser shall not make nor issue (nor cause third parties to do any of the same) any press release or publicity associated with this Agreement without the express prior permission of Seller.
11. FORCE MAJEURE. Seller shall not be liable for any failure or delay in performance, caused by circumstances beyond its control, including, but not limited to, acts or omissions of Purchaser, war, rebellion, sabotage, epidemics, labor disputes and shortages, failure or delays in transportation, inability to secure raw materials or machinery, acts of God, or acts of judicial or government authority whether or not valid.
12. NONWAIVER OF DEFAULT. Each Delivery hereunder shall be treated as a separate transaction, but in the event of any default by Purchaser, Seller may decline to make further deliveries without in any way affecting its rights under such order and Seller’s actions will not constitute a waiver of any default by Purchaser in whole or in part unless the waiver is in writing signed by Seller. The failure by Seller or Purchaser to require performance of any provision shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
13. ASSIGNS. Any contract made hereunder shall not be assigned by Purchaser voluntarily, involuntarily or by operation of law, nor are any obligations of Purchaser hereunder delegable by Purchaser, without the written consent of Seller. This Agreement may be assigned or delegated by Seller without the consent of Purchaser to one or more of Seller’s corporate affiliates, or in connection with a change of control or sale of all or substantially all of the assets of Seller or Seller’s corporate affiliates. Subject to the foregoing, any contract made hereunder shall be binding upon and inure to the benefit of the permitted parties’ successors and assigns.
14. REMEDIES AND LIMITATION OF LIABILITIES. If Purchaser repudiates this Agreement, or if Seller terminates this Agreement due to default or breach by Purchaser, then without limiting Seller’s rights or remedies in law or equity, Purchaser shall be liable to Seller for the purchase price of all Products, shipped or unshipped at the contract price for such Products. As security for all amounts payable by Purchaser hereunder, Purchaser grants to Seller a security interest, including right of repossession, in the Products sold and upon request agrees to execute all financing statements or other documents and to take actions necessary to perfect or protect Seller’s interest. Seller may set off or credit any monies owed by Purchaser to Seller against any monies owed by Seller to Purchaser. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE REGARDLESS OF A FAILURE OF ESSENTIAL PURPOSE OR WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES FOR ANY (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS AND LOSS OF DATA, NOR (2) CUMULATIVE DAMAGES HEREUNDER THAT EXCEED THE LESSER OF (A) THE AMOUNT DUE AND/OR PAYABLE TO SELLER for purchases made during THE preceding twelve (12) months for the products GIVING RISE TO THE LIABILITY OR (B) FIFTY THOUSAND U.S. DOLLARS ($50,000).
15. DISCLAIMER OF WARRANTIES FOR HAZARDOUS USES. SELLER DOES NOT RECOMMEND NOR WARRANT PRODUCTS FOR USE IN LIFE SUPPORT, NUCLEAR, MEDICAL, AUTOMOTIVE, TRANSPORTATION OR INDUSTRIAL APPLICATIONS WHEREIN A FAILURE OR MALFUNCTION OF THE PRODUCT MAY DIRECTLY THREATEN LIFE, INJURY, LOSS OF SIGNIFICANT AMOUNTS OF PROPERTY OR RESULT IN CATASTROPHIC FAILURE (“NON-WARRANTED USES”). PURCHASER HEREBY ASSUMES ALL RISK OF ANY NONWARRANTED USES AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AGAINST ALL CLAIMS AND DAMAGES ARISING FROM SUCH USE. ACCORDINGLY, IN THE EVENT OF ANY NON-WARRANTED USES OF SELLER'S PRODUCTS, THE PRODUCTS SHOULD ONLY BE INCORPORATED IN SYSTEMS DESIGNED WITH APPROPRIATE REDUNDANCY, FAULT TOLERANT OR BACK-UP FEATURES. PURCHASER FURTHER REPRESENTS, COVENANTS AND WARRANTS THAT IT HAS OBTAINED ALL PERMITS AND APPROVALS TO USE, HANDLE AND DISPOSE OF MATERIALS AND WASTES IN CONNECTION WITH THE PURCHASE OF PRODUCTS.
16. EXPORT. Purchaser agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations 15 CFR 730 et.seq. ("EAR") maintained by the U.S. Department of Commerce. Without limitation to the foregoing, Purchaser covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products or technology (including products or services derived from or based on such technology) received from Seller under this Agreement to any country including but not necessarily limited to Cuba, Iran, North Korea, Sudan and Syria (or national or entity thereof) subject to export licensing requirements, antiterrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the U.S., or to any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles and sounding rockets or unmanned air vehicle systems without obtaining, at Purchaser’s expense, prior authorization from the competent government and regulatory authorities as required by those laws and regulations. Purchaser is responsible for obtaining and paying for all applicable import licenses, taxes and duties. Upon Seller’s request, Purchaser shall provide Seller with sufficient documentation and information to demonstrate that Purchaser has complied and is in current compliance with this provision. Purchaser agrees to indemnify, defend and hold harmless to the fullest extent permitted by law, Seller from and against any fines or penalties that may arise as a result of Purchaser’s breach of this provision.
17. GOVERNMENT CONTRACTING. Unless otherwise separately agreed in writing by Seller, no provision herein shall be deemed an acceptance of any provisions required in any U.S. Government contract or subcontract relating thereto (“Government Contract”) nor shall any provision of any Government Contract become part of this Agreement, imposed upon or binding on Seller.
18. GOVERNING LAW AND DISPUTES. This Agreement, performance and disputes arising out of or related to Products hereunder shall be governed by the laws of the State of California, excluding the choice and conflicts of law provisions thereof. Seller and Purchaser expressly disclaim the application of the U.N. Convention on the International Sale of Goods to this Agreement. The exclusive jurisdiction and venue for any action brought between the parties shall be the state or federal courts of Santa Clara County, California, and the U.S. District Court for the Northern District of California. The parties hereby irrevocably waive any objection that service of process must conform with the Hague Convention on Service of Process Abroad or other applicable law or treaty regarding service of process.
19. COMPLIANCE WITH LAWS. The parties each agree to comply with all applicable laws including without limitation the U.S. Foreign Corrupt Practices Act, 15 U.S.C. 78 ("FCPA"). Purchaser represents to and assures Seller that it neither has, nor will, make or offer, or agree to make or offer, directly or indirectly, any gift or payment of any kind, or political contribution to a political candidate, political faction, political committee, governmental officer or governmental employee in the solicitation or promotion of any Product, or to otherwise secure the conclusion of a sale of Products on behalf or for the benefit of Seller. Any illegal or other payment to any person or party in conflict with this section or the FCPA will result in a material breach of this Agreement rendering it invalid, and any Seller obligation created herein shall become void upon such a breach.
20. MARKS, LOGOS AND PACKAGING. For all Products purchased under this Agreement, (a) Purchaser authorizes Seller to use Purchaser’s designated trademark(s) and/or logo(s) on the Products as required for Seller to comply with Purchaser’s orders; (b) Purchaser shall strictly comply with all applicable standards organizations and governmental regulations; (c) Seller grants no rights to third party trademarks and logos; and (d) Purchaser shall not cause or allow to be caused, repackaging of any Products or modifications thereof under other labels, without Seller’s express prior written consent. Purchaser shall indemnify, defend and hold harmless Seller from any liability or damages arising in connection with a breach of this provision.
21. RELATIONSHIP BETWEEN THE PARTIES. Unless otherwise agreed in writing by Seller, Purchaser may not resell the Products as an authorized distributor. Nothing contained herein shall be construed to imply a joint venture or principal/agent relationship between the Parties, and neither Party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other in connection with the performance under this Agreement.
22. ENTIRE AGREEMENT; SEVERABILITY. This Agreement constitutes the entire agreement between Purchaser and Seller with respect to the purchase and sale of the Products hereunder and supersedes any prior or contemporaneous communications and understandings, written or verbal, between the parties on the subject matter of this Agreement. These Terms apply to all sales made by Seller except to the extent the Terms add to or conflict with an agreement signed by an authorized representative of Seller. If any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.