Below is the Terms of Conditions governing the sales of Products by Nanya Technology Corporation (NTC) and its affiliates.
NOTES: These Terms and Conditions (“Terms and Conditions”) govern the sale of Products by Nanya Technology Corporation and its affiliates (“NTC”). Sale of any Products is expressly conditioned on Buyer's assent to the Terms and Conditions. Any acceptance of NTC’s offer is expressly limited to acceptance of the Terms and Conditions and NTC expressly objects to any additional or different terms proposed by Buyer. Any order to perform work and NTC's performance of work shall constitute Buyer’s assent to the Terms and Conditions.
"Buyer" means the entity to which NTC is providing Products under the Contract.
"Contract" means either the contract agreement signed by NTC and Buyer, or the purchase order signed by Buyer and accepted by NTC in writing, for the sale of Products, together with these Terms and Conditions, NTC’s final quotation, the agreed scope(s) of work, and NTC’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price” means the agreed price stated in the Contract for the sale of Product, including adjustments, if any, in accordance with the Contract.
“Insolvent/Bankrupt” means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.
“Products” means the equipment, parts, materials, supplies, services, software, and other goods NTC has agreed to supply to Buyer under the Contract.
Price and Payment
Payment Terms. Unless otherwise agreed by both Parties in writing, Buyer shall pay the prices of the Products at least three days before the scheduled shipping date without any deduction. On any past due invoice, NTC may impose interest at the rate of one and a half percent [1.5%] per month. If Buyer fails to make each payment when it is due, NTC reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all Purchase Orders or agreements in which NTC has extended credit to Buyer. In the event of default by Buyer, NTC shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
Purchase Orders. All orders placed by Buyer are subject to acceptance by NTC. Orders may not be cancelled or rescheduled without NTC’s written consent. Any pre-printed terms and conditions or liability statement shall be null and void. Unless previously agreed by NTC in writing, all orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. NTC may in its sole discretion allocate Products among its Customers.
Change and Cancellation of Purchase Order. NTC may designate certain Products as non-cancelable, non- returnable (“NCNR”) and the sale of such Products shall be subject to the special terms and conditions contained in NTC’s Customer Acknowledgement or NCNR Product Form, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. If a change or cancellation is agreed by NTC, Buyer shall pay NTC any loss, damages and expense incurred to NTC resulted from such change or cancellation.
Delivery and Inspection
Packing NTC will package all Products according to good commercial practice or in the way unless otherwise agreed by both Parties in advance.
Delivery NTC shall deliver the Products to and Buyer shall take delivery of the Products at the destination and date mutually agreed upon. NTC shall be entitled to perform partial deliveries and partial performance at any time with Buyer’s written consent, which shall not be unreasonably delayed or withheld. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries.
Inspection Buyer shall inspect and confirm whether the packaging, type and quantity of the delivered Products complying the Purchase Order and other requirements and inform NTC any noncompliance within twenty-four (24) hours of receipt of the Products.
The warranty period for Products shall expire one (1) year from the date of delivery of the Products.
Should any Products be found non-conforming with the specification during the Warranty Period, Buyer shall promptly inform NTC of the non-conformity and provide supporting documents. Upon verification of the non-conformity, NTC shall at its expense:
(a)replace the non-conforming Product with conforming Product at NTC’s expense; or
(b)credit or refund Buyer the price of the Product after the non-conforming Product has been returned.
The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing NTC access to those records, and (c) modification or repair of Products only as authorized by NTC in writing. Failure to meet any such conditions renders the warranty null and void.
No warranty will apply if the Products have been subject to misuse, neglect, accident or modification.
This Article 5 provides the exclusive remedies for all claims based on failure of or defect in Products, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
NTC and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. “Confidential Information” means (a) information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within thirty (30) days after the oral or visual disclosure. In addition, prices for Products shall be considered NTC’s Confidential Information.
Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and use of Products, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, (a) NTC may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract, and (b) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information. NTC may also retain one archive copy of Buyer’s Confidential Information.
The obligations under this Article 6 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.
Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither Buyer nor NTC shall make any public announcement about the Contract without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Article 6 shall expire five (5) years after the date of disclosure. Article 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.
NTC shall defend and indemnify Buyer against any and all damages finally awarded or settled for alleged or actual intellectual property infringement or misappropriation claims raised by a third-party including any claims alleging that the manufacture, use and/or sale of any Products constitute infringement or misappropriation of such third-party’s patent, trademark, copyright or other intellectual property right in any suit by reason solely attributable to NTC (“Claims”), except to the extent solely or partially caused by the negligence of Buyer, provided that Buyer (a) promptly notifies NTC in writing of the Claims, (b) makes no admission of liability and does not take any position adverse to NTC, (c) gives NTC sole authority to control defense and settlement of the Claims, and (d) provides NTC with full disclosure and reasonable assistance as required to defend the Claims.
Section 7.1 shall not apply and NTC shall have no obligation or liability with respect to any Claims based upon (a) Products that have been modified, or revised, (b) Products made or performed to Buyer’s specifications, (c) the combination of any Products with other products when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by NTC that would have prevented the Claim, or (d) unauthorized use of Products.
Limitation of Liabilities
TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT SHALL NTC BE LIABLE TO BUYER FOR ANY CLAIM OTHER THAN THOSE HAVE BEEN SPECIFIED IN THE TERMS AND CONDITIONS.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, LOSS OF PROFIT, OR LOSS OF REVENUE, HOWEVER ARISING WHETHER OR NOT THAT PARTY WAS AWARE OF THE POSSIBILITY OF THOSE DAMAGES AND DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THE TERMS AND CONDITIONS.
BUYER WILL INDEMNIFY, DEFEND AND HOLD NTC HARMLESS FROM ANY CLAIMS BASED ON (a) NTC’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN NTC, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.
NOTWITHTANDING OTHERWISE PROVIDED HEREIN TO THE CONTRARY, NTC’S TOTAL LIABILITY UNDER THE TERMS AND CONDITIONS (“LIABILITY AMOUNT’’) SHALL IN NO EVENT EXCEED TEN PERCENT (10%) OF THE TOTAL AMOUNT PAID BY BUYER TO NTC FOR THE PRODUCTS AT ISSUE DURING THE TWELVE-MONTH PERIOD PRIOR TO THE CLAIM (“LIABILITY PERIOD”). IF THERE EXISTS TWO OR MORE CLAIMS SHARING A LIABILITY PERIOD IN WHOLE OR IN PART, THEN THE PORTION OF A LIABILITY AMOUNT OF PREVIOUS CLAIM(S) AMORTIZED TO THE OVERLAPPED PERIOD(S) SHALL BE DEDUCTED FROM THE LIABILITY AMOUNT OF THE OTHER CLAIM(S).
Use of Products
Unless otherwise agreed by NTC and Buyer in writing, Products sold by NTC are not designed, intended or authorized for use as critical component in life support devices or systems, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that NTC and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold NTC and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
Governing Law and Dispute Resolution
This Terms and Conditions is made under to the laws of Taiwan, and that the Taipei District Court shall have the exclusive jurisdiction over any disputation raised by the interpretation or enforcement of the Terms and Conditions.
NTC is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond NTC’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing NTC from performance and barring remedies for non-performance. In an event of force majeure condition, the NTC’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting NTC to any liability or penalty. NTC may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
These Terms and Conditions represent and constitute the entire agreement between NTC and Buyer and supersede all prior consent, understanding or agreements between NTC and Buyer, whether written or oral. If any part of these Terms and Conditions are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. NTC's failure to enforce any right or provisions in the terms and Conditions will not constitute a waiver of such or any other provision. NTC will not be responsible for failures to fulfill any obligations due to causes beyond its control.