NOTES: These Terms and Conditions of Sale (“Terms and Conditions”) govern the sale of Products by Nanya Technology Corporation and its Subsidiaries (“NTC”). Sale of any Products is expressly conditioned on Buyer's assent to the Terms and Conditions. Any acceptance of NTC's offer, acceptance of NTC's shipments. or NTC's acceptance of any purchase orders results in acceptance of the Terms and Conditions. NTC expressly objects to any additional or different terms proposed by Buyer, and all those terms are inapplicable unless the parties enter into a written amendment that is signed by both parties with authorized signatures and that references specific terms and conditions herein to be amended. Any order to perform work and/or NTC's performance of work constitutes Buyer's assent to the Terms and Conditions.

 

Definitions

  1. "Buyer" means the entity to which NTC is providing Products under the Contract.
  2. "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.
  3. “Contract Price” means the agreed price stated in the Contract for the sale of Product, including adjustments, if any, in accordance with the Contract.
  4. “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.
  5. “Products” means the equipment, parts, materials, supplies, services, software, and other goods NTC has agreed to or be requested to supply to Buyer under the Contract.
  6. “Subsidiary” means any corporation or other legal entity in which a Party directly or indirectly owns more than fifty percent (50%) of the voting shares or equity interests, in which a Party otherwise has the power to direct or cause the direction of the management and policies of such entity, or that is subject to common ownership, control, or more than fifty percent (50%) ownership, control, or voting rights with a Party.

 

Price and Payment

  1. Prices for Products.  Unless otherwise agreed by NTC and Buyer in writing, the Prices for Products quoted by NTC or specified in each Purchase Order or invoice shall be on EXW NTC's site base and include no tax, tariff, freight, insurance or other expenses. Buyer shall be responsible for all state, municipal, federal, national, or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, except for taxes based on NTC's net income, personal and real property, and assets. When applicable, transportation and taxes shall appear as separate items on NTC's invoice.
  2. 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 and compounded each 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, interests as required above, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.

 

Orders

  1. 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 other terms and conditions contained in or referenced by Buyer's Purchase Order, forms, or online procurement system are expressly rejected and shall not apply. 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.
  2. 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

  1. Packing NTC will package all Products according to good commercial practice or in the way unless otherwise agreed by both Parties in advance.
  2. Delivery NTC shall deliver the Products to, and Buyer shall take delivery of the Products, at the destination and date mutually agreed upon. NTC may perform partial deliveries and partial performance at any time with Buyer's 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.
  3. Inspection Buyer shall inspect and confirm whether the packaging, type and quantity of the delivered Products comply with the Purchase Order and other requirements and inform NTC any noncompliance within twenty-four (24) hours of receipt of the Products.

 

Disclaimer and Limited Liability:

Buyer acknowledges and agrees that any sales of NTC's Product to Buyer are governed by the following terms and conditions, which Buyer fully accepts by accepting NTC's sales or by accepting NTC's shipment or delivery of Products:

  1. Subject to and limited to normal use in compliance with applicable datasheet released by NTC, NTC warrants to Buyer that the Products shall substantially conform to its datasheets released by NTC on NTC's website (https://www.nanya.com/en/Product/) for standard Products , or specification agreed by NTC in writing for customized Products, and remain free of defects in manufacturing and materials for a period of twelve (12) months from the date of shipment by NTC. Except as set forth expressly herein, seller makes no warranty, expressed or implied, statutory, or otherwise, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement of any patent or intellectual property rights. NTC does NOT warrant that the use, manufacture, sale, offer for sale, importation, export, distribution, or other exploitation of the Products or any related product, service, technology, or information is, or will be, free from claims of infringement, misappropriation, or violation of any patent, copyright, trade secret, trademark, or any other intellectual property or proprietary right anywhere in the world.  For any confirmed and approved claim for breach of aforesaid warranty, NTC's liability is limited to, either replacement of the defective product with equivalent or comparable product or credit of the purchase price of the defective product at NTC's discretion.
  2. THE AFOREMENTIONED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO BUYER, AND NTC IS NOT LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COST OF REMOVAL, RECALL, REWORK, REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF REVENUE, OR BUSINESS INTERRUPTION.
  3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NTC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY PRODUCT (REGARDLESS OF THE NUMBER OR MAGNITUDE OF CLAIMS OR INJURIES INVOLVING THAT PRODUCT) EXCEED 10% OF THE TOTAL AMOUNT PAID BY THE BUYER TO NTC FOR SUCH PRODUCT THAT WAS SHIPPED TO THE BUYER DURING THE TWELVE?MONTH PERIOD PRIOR TO THE FIRST CLAIM FOR SUCH PRODUCT.
  4. This section shall survive expiration or termination of this Agreement.  
  5. Except as otherwise agreed by the Parties, the remedy provided in this section shall be the sole and exclusive remedy for any claim and replaces any other remedies.

 

Confidentiality

  1. 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.
  2. 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.
  3. The obligations under this Article 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.
  4. 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.

  

Use of Products

  1. Buyer acknowledges and agrees that:
  • The Product is not designed, intended, nor authorized for use as a critical component in life?support devices or systems, life?sustaining, nuclear, or any other applications where a failure could reasonably be expected to cause personal injury, loss of life, or catastrophic property damage.
  • The Buyer shall not use, incorporate, or otherwise apply the Product in any automotive application unless the Product has been duly certified, qualified, or approved for such use. Any permitted automotive use must be strictly confined to the scope, specifications, conditions, and intended applications expressly covered by the applicable certifications, qualifications, or approvals.
  • The Buyer shall not use, incorporate, sell, supply, transfer, or otherwise make the Product available—directly or indirectly—for any military applications, weapons systems, or defense?related end?uses.

 

  1. If the Buyer uses or sells the Product for any of the prohibited applications, the Buyer i) acknowledges that such use or sale is undertaken at the Buyer's sole risk; ii) agrees that NTC shall not be liable, in whole or in part, for any claim or damage arising from such use; and iii) agrees to indemnify, defend, and hold harmless NTC from any and all claims, damages, losses, costs, expenses (including reasonable attorneys' fees and court costs) and liabilities arising out of or in connection with such use or sale.

 

Compliance with Export Contril Laws

Buyer acknowledges that the Products are or may be subject to export laws and regulations of the United States and the destination country(ies) and any use, distribute, transfer or transmit of such Products must comply with those applicable export control laws. Buyer agrees that it will not use, distribute, transfer or transmit the Products (even if incorporated into other products) unless such use, distribute, transfer or transmit of the Products complies with export laws. If requested by NTC, Buyer agrees to provide all necessary export- related documents as may be required to comply with applicable export laws. Buyer shall indemnify and hold harmless NTC all damages and losses arising from its non-compliance with the applicable export laws.

 

Information Security

Buyer and any individual entering NTC's premises on behalf of or under the direction of Buyer shall comply with the “NTC Visitor and Customer Information Security Requirements,”which may be amended by NTC from time to time. Buyer shall be responsible for any damages, losses, costs, or expenses suffered by NTC as a result of any breach of the Information Security Requirements by Buyer or by any such individual.

 

Personal Data Protection

Buyer shall protect the personal data NTC party provides under this Agreement in accordance with all applicable personal data protection laws and warrants that the personal data it provides to NTC under this Agreement can be reasonably used for the purpose of this Agreement.

 

Governing Law and Dispute Resolution

These Terms and Conditions are made under and shall be interpreted the laws of Taiwan, and that the Taipei District Court shall have the exclusive jurisdiction over any dispute between NTC and Buyer.

 

Force Majeure

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, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources, shortage of material, power or water, 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 discretion, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.

 

Entire Agreement

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 is held invalid or unenforceable, that part shall, when possible and acceptable under the applicable law, be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties' intent, 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.