| ANY PROVISION OR CONDITION, INCLUDING BUT NOT LIMITED TO ANY U.S. GOVERNMENT PROCUREMENT REGULATIONS, ("TERMS") OF AN ORDER FROM ANY CUSTOMER ("BUYER"), WHICH IS IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THESE TERMS SHALL NOT BE BINDING UPON TEXAS INSTRUMENTS INCORPORATED ("TI") UNLESS TI AGREES TO SUCH TERMS IN WRITING. IF BUYER OBJECTS TO ANY TERMS HEREIN, SUCH OBJECTION MUST BE IN WRITING AND RECEIVED BY TI AT TI'S TEXAS HOME OFFICE PRIOR TO COMMENCEMENT OF PERFORMANCE BY TI. RETENTION BY BUYER OF ANY PRODUCTS DELIVERED BY TI HEREUNDER SHALL BE DEEMED ACCEPTANCE OF THE TERMS HEREOF.
PRICES
The prices shall be TI's standard prices that are in effect at the time TI accepts Buyer's order. TI may change product or services prices at any time.
Prices are exclusive of all taxes and are subject to an increase equal in amount to any tax, duty, or other charge TI may be required to collect or pay. Each party acknowledges that the purchase price reflects the allocation of risk expressed herein.
TITLE; DELIVERY; INSPECTION
Products shall be delivered F.O.B. TI's point of shipment except that products shipped outside the U.S. shall be delivered FCA (Incoterms 1990) TI’s point of shipment and title shall pass upon entry to the country of destination. Services shall be deemed delivered upon performance.
TI may deliver the products in installments. Shipping dates are approximate only. Shipments will be freight collect unless otherwise agreed.
Buyer will have five working days from date of receipt to inspect the products. Failure by Buyer to give notice that identifies particular deficiencies during the inspection period will constitute Buyer's acceptance of the products. Services shall be deemed accepted upon completion of delivery.
DEFERMENTS AND CANCELLATIONS
Buyer may defer or cancel services or shipments of standard products by providing TI with advance written notice and paying applicable charges. Products held for Buyer are held at Buyer’s sole risk and expense.
SOFTWARE PROGRAM
Rights to use software programs shall be determined by the end-user license agreement that accompanies the software program. No other license rights are granted.
TERMS AND METHOD OF PAYMENT
Terms of payment are net thirty days from date of invoice, subject to continuing credit approval. On noncredit sales, the parties must agree prior to shipment on the method of payment. In the case of TI’s provision of services, terms of payment are net thirty days from the date services are delivered.
Payment shall be made for products without regard to whether Buyer has made or may make any inspection of the products. Each shipment made under these terms shall be considered a separate transaction. In the event of any default by Buyer, TI may decline to make further shipments.
WARRANTY
THE FOLLOWING WARRANTIES FOR PRODUCTS ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THE PART OF TI OR ITS LICENSORS.
TI warrants that at the time of delivery it has title, or the right to provide the products. TI warrants the products (including software program media) for the applicable warranty period against faulty workmanship or the use of defective materials. Unless a software warranty accompanies the software programs contained in or provided with the products, all such software programs are provided “AS IS” and without warranty. Services are warranted to be delivered and presented in a professional manner. No further warranty for services is given.
These warranties are granted only in the United States and Canada.
No additional obligation or liability shall arise from TI's rendering of technical, programming, or other advice or service in connection with the products.
REMEDIES
THE FOLLOWING STATES TI'S ENTIRE LIABILITY AND BUYER'S SOLE AND EXCLUSIVE REMEDIES:
During the applicable warranty period, at its option, TI will (1) repair, (2) replace (with new or functionally operative parts), or (3) credit Buyer's account for any nonconforming products. These remedies are provided on condition that: (a) TI is promptly notified in writing of the particular defects in the products; (b) TI's examination of the products discloses that the deficiencies actually existed within the warranty period and were not caused by accident, unreasonable use, neglect, alteration, improper service, improper installation, improper connections with peripherals, or other causes not arising out of defects in material or workmanship; and, (c) Buyer delivers the products or otherwise provides them to TI, at Buyer's risk and expense in accordance with TI’s instructions. All such remedies are available only in the United States and Canada.
TI’s liability under any other cause of action, whether brought as a breach of contract, tort, indemnity obligation, or otherwise, shall be limited to direct damages, not to exceed the price of the products involved.
If the preceding sole and exclusive remedies should be found to have failed their essential purpose, in no event shall TI’s liability or Buyer’s remedy exceed the greater of $50,000 or the purchase price for the particular items of products or services involved.
DISCLAIMER OF DAMAGES
IN NO EVENT SHALL TI OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, WHETHER THE ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT, OR INDEMNITY, EVEN IF TI OR ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
The foregoing Remedies and Disclaimer of Damages will not apply to the indemnity obligation set forth in the section entitled Patent and Copyright Indemnification.
PATENT & COPYRIGHT INDEMNIFICATION
TI will defend at its expense any action brought against Buyer which alleges that products developed, manufactured and supplied by TI hereunder directly infringe a United States patent or copyright ("Infringement"), and shall pay all damages and costs finally awarded against Buyer which are attributable to the Infringement, provided that TI is (1) given prompt notice of the claim, (2) furnished a copy of all communications, notices and/or other actions relating to the claim and (3) given the sole authority and reasonable assistance (at TI's expense) necessary to defend or settle the claim. TI shall not be obligated to defend, or be liable for any costs and damages, if the Infringement arises: (a) out of compliance with Buyer's specifications, (b) from Buyer's combination of products with products and/or items not manufactured and developed by TI, (c) from Buyer's modification of the products after delivery by TI, or (d) from the use of the products in the practice of a process.
Should the products delivered by TI under these terms become, or in TI's opinion be likely to become, the subject of a claim of infringement, TI may, at its option: (x) procure for Buyer the right to continue to use the products; or (y) replace or modify the products so that they become non infringing; or (z) refund the purchase price less a reasonable charge for use, and accept the return of the products. If the claim occurs prior to completion of delivery of the products or prior to the making of further copies of software programs by Buyer, TI may decline to make further shipments of products or withdraw Buyer's authorization to make further copies of the software programs.
If any action is brought against TI based on a claim that the products manufactured or developed by TI in compliance with Buyer's specifications directly infringe any United States patent or copyright in the United States, then the indemnity obligations stated herein with respect to TI shall reciprocally apply with respect to Buyer.
Nothing contained in this Agreement shall be construed as granting or implying any rights by license, estoppel or otherwise.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE RIGHTS OF THE BUYER AND THE SOLE AND EXCLUSIVE LIABILITIES OF TI FOR PATENT AND COPYRIGHT INFRINGEMENT AND IS IN LIEU OF ALL CONDITIONS OR WARRANTIES IN REGARD THERETO.
MISCELLANEOUS
The Agreement is in the English language only, which language shall be controlling in all respects.
The validity, performance and construction of this Agreement shall, insofar as may be permitted by applicable law, be governed by and interpreted in accordance with the laws of the State of Texas, U.S.A. as apply to contracts made and fully performed in Texas. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this agreement.
This Agreement shall not be assigned or transferred by Buyer without the prior written consent of TI. Any attempted assignment or transfer of any of the rights, duties or obligations of this Agreement shall be void. If consent is given, this Agreement shall be binding upon and inure to the benefit of the assigns.
If any provision of this Agreement is held invalid, the other provisions shall not be affected.
The products may be subject to export regulations by the U.S. Government. Prior to export or reexport Buyer agrees to obtain any licenses that may be required under the applicable laws of the U.S., including the Export Administration Act and Regulations.
Continued use or possession of the products after expiration of the applicable warranty period will be a conclusive statement by Buyer that the warranty is fulfilled to Buyer's satisfaction, unless Buyer has previously notified TI in writing of a particular defect. Failure of either party to enforce any term and condition of this Agreement will not be deemed to be a waiver of such term or condition.
TI is not liable, either wholly or in part, for nonperformance or a delay in performance due to force majeure or contingencies or causes beyond the reasonable control of TI, including but not limited to shortage of labor, fuel, raw material or machinery or technical or yield failures where TI has exercised ordinary care in the prevention thereof. Production and deliveries may be allocated by TI in any reasonable manner in the event of shortage of products. TI reserves the right to change its product and service offering at any time without notice including adding or deleting products and services or by modifying the specification of existing products.
MODIFICATION /ENTIRE AGREEMENT
THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE EXPRESSION OF ALL THE TERMS OF AGREEMENT BETWEEN THE PARTIES. IT SUPERSEDES ALL UNDERSTANDINGS AND NEGOTIATIONS CONCERNING THE MATTERS SPECIFIED HEREIN. ANY REPRESENTATIONS, PROMISES OR WARRANTIES MADE BY EITHER PARTY THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS AGREEMENT SHALL BE GIVEN NO FORCE OR EFFECT. NO ADDITION TO OR MODIFICATION OF ANY PROVISION OF THIS AGREEMENT SHALL BE BINDING UPON TI UNLESS MADE IN WRITING AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF TI LOCATED AT TI'S TEXAS HOME OFFICE.
REV. 031601 TI-29450
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