1. ACCEPTANCE – AGREEMENT All purchase orders (“Orders”) shall be in writing and subject to written acceptance by IQE. If for any reason IQE should fail to accept in writing, IQE's commencement of work on the products subject to the purchase order (the "Products") or shipment of the Products, whichever occurs first, shall be deemed an effective mode of acceptance. ANY ACCEPTANCE OF THIS ORDER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS CONTAINED HEREIN. No changes of any kind whatsoever to the Order are binding on IQE unless they are in writing and signed by an authorized representative of IQE.
2. PRICE QUOTATIONS Price quotations are only solicitations for offers and not offers which may be accepted by Buyer. Unless otherwise agreed to in writing by IQE, all quotations expire thirty (30) days after the date of the quotation or, if earlier, the end of the ordering period of any purchase agreement against which the quotation is issued. All prices quoted are valid only if Buyer’s requested delivery date (including any change orders) is within twelve (12) months of the date on which the original Order is placed. Prices may be increased by IQE in the event and to the extent of any substantial increase after the date of IQE’s quotation in the cost to IQE of any materials, labor, services, duties or other expenses beyond IQE’s reasonable control. Unless otherwise agreed to in writing by IQE, all prices quoted are exclusive of any federal, state, municipal or other governmental taxes, duties, excise taxes or tariffs now or hereafter imposed on the production, storage, sale, transportation, import, export, licensing or use of Products, excluding taxes levied against IQE’S income. Buyer agrees to pay such charges unless Buyer has provided IQE with an exemption certificate acceptable by IQE and the applicable authority. When applicable, such charges shall appear as a separate item on IQE’S invoice.
3. PAYMENT Unless otherwise agreed to in writing by IQE, Buyer shall pay all invoices within thirty (30) days from the date of invoice. IQE shall have the right to cancel any previously accepted Order placed by Buyer, change the credit terms, or refuse or delay shipment if Buyer shall fail to meet payment schedules or other credit or financial requirements established by IQE (or fail to submit necessary financial materials under such requirements), or if in IQE’S opinion the credit or financial ability of Buyer shall become impaired. The cancellation of such Orders or the withholding of shipment by IQE under the provisions set forth above shall not be construed as a termination or breach of this Agreement by IQE. If Buyer shall be at any time overdue on payments, IQE may impose interest at the rate of one and one-half percent (1-1/2%) per month, or such lesser amount as imposed by law, on the past due amount until Buyer is current on all past due amounts.
4. DELIVERY; RISK OF LOSS AND TITLE All U.S. domestic deliveries will be shipped FOB IQE’s facility. All international deliveries will be shipped EXW Incoterms 2000. All shipping terms shall have meaning set forth in the Uniform Commercial Code (the “UCC”) for domestic sales or in INCOTERMS 2000, as published by the International Chamber of Commerce, Paris, France for international sales. Products shall be shipped in IQE’s standard packaging for both domestic and international sales as applicable and legal title and risk of loss shall pass to Buyer upon delivery by IQE to the carrier at IQE’s facility. Notwithstanding anything to the contrary contained in the INCOTERMS 2000 EXW term IQE shall bear responsibility for obtaining the export licenses, if necessary, for shipments from IQE’s facility. Shipments of Products purchased are subject to IQE’S availability schedule. IQE shall use reasonable effort(s) to meet delivery date(s) quoted or acknowledged. However, IQE will not be liable for its failure to meet such date(s). Partial shipments shall be permitted, and if delivery is to be made in instalments, no breach with respect to any instalment shall be deemed to be a breach of the entire Order or any purchase agreement between IQE and Buyer. Once accepted the Buyer may not cancel this Order except with the written consent of IQE. The Buyer shall grant, and by acceptance of the Products shall be deemed to have granted, to IQE a first security interest and charge in all Products to secure payment of the purchase price and other amounts owing by the Buyer and performance of all the Buyer’s obligations under this sale. IQE may reclaim any Products delivered to the Buyer or in transit if the Buyer shall fail to make payments when due.
5. DELAYS IN PERFORMANCE IQE shall not be liable for any delay in performance hereunder due to its inability to obtain any necessary export licenses for the export of the Products, due to unforeseen circumstances or due to causes beyond its control including, but not limited to, acts of nature, acts of government, acts of terrorism, labor disputes, delays in transportation, and delays in delivery or inability to deliver by IQE’S suppliers. In the event IQE is unable to wholly or partially perform because of any cause beyond its control, including the inability to obtain necessary export licenses, IQE may terminate the Order without any liability to Buyer.
6. ACCEPTANCE Each Product shall be deemed accepted by Buyer unless written notice of nonconformity is received within fourteen (14) days of delivery. Use of the Product by Buyer or any of its agents or employees for any purpose (other than to determine that it meets specifications) after delivery thereof, shall constitute acceptance.
7. ORDER OF PRECEDENCE These Terms and Conditions of Sale and any attachments shall control over any conflicting or inconsistent terms or conditions or any purchase order of Buyer, notwithstanding any provision to the contrary in such purchase order; provided, however, that these terms and conditions are superseded by those appearing in any applicable written IQE quotation or purchase agreement between IQE and Buyer. Neither IQE’S commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
8. WARRANTY IQE warrants that its Products sold hereunder will at the time of shipment and for a period of six months thereafter be free from substantial defects in material and workmanship and will conform to IQE’S applicable specifications or, if appropriate, to Buyer’s specifications accepted by IQE in writing. Upon receipt of written notice thereof, and at no additional cost to Buyer, IQE agrees to correct all substantial defects in the Products by replacement or repair of defective Products, which defects cause the Products to fail to conform to specifications, or at its option, refund the purchase price paid for such defective Products. These Terms and Conditions of Sale shall not be construed to require IQE to modify or enhance the Products other than to correct such defects. Nonconforming Products shall be returned to IQE’S plant within thirty (30) days after shipment. Buyer shall be responsible for any shipping costs associated with such return. This warranty shall not apply to any Products IQE determines have been, by Buyer or otherwise, subjected to testing for other than specified electrical characteristics or to operating and/or environmental conditions in excess of the maximum values established in applicable specifications, or have been the subject of mishandling, misuse, neglect, improper testing operational procedures, repair, alteration, damage, assembly or processing. This warranty excludes all costs of shipping, customs clearance and related charges outside the continental United States and Canada.
THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED BY BUYER ONLY FOR ITS CUSTOMERS. IQE WILL NOT ACCEPT WARRRANTY RETURNS DIRECTLY FROM BUYER’S CUSTOMERS OR USERS OF BUYER’S PRODUCTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUFFICIENCY FOR A PARTICULAR USE OR PURPOSE INTENDED AND EVEN IF IQE HAS BEEN ADVISED OF SAME. IN NO EVENT SHALL IQE BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF CUSTOMERS OR GOODWILL, OR INCREASED MANUFACTURING COSTS) ARISING OUT OF OR RESULTING FROM THE PRODUCTS OR THE USE OR MODIFICATION THEREOF BY BUYER OR ITS CUSTOMERS OR DUE TO THE BREACH OF THIS WARRANTY OR ANY OTHER OBLIGATION UNDER THIS ORDER OR THESE TERMS AND CONDITIONS WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL IQE BE LIABLE FOR DAMAGES WHICH EXCEED THE PURCHASE PRICE HEREUNDER. THIS WARRANTY CONSTITUTES BUYER’S SOLE RIGHT AND REMEDY WITH RESPECT TO PRODUCTS.
9. INDEMNITY As an express condition of sale, Buyer agrees to hold IQE and its employees and affiliates harmless from any damage or injury whatsoever resulting from or in any way related to: (i) any fault or neglect of others not parties hereto; (ii) any fault or neglect of Buyer, its employees, agents or licensees; (iii) any claims based on IQE’s compliance with Buyer’s designs, specifications or instructions, or modification or any Products by parties other than IQE or use in combination with other products; and (iv) any breach obligation under these terms and conditions. Buyer shall so indemnify IQE notwithstanding any fault or neglect attributable to IQE, provided however, if it is determined, in accordance with applicable law, that any fault or neglect of IQE, its employees or agents materially contributes to damage or injury, to third parties resulting from or related to any of the causes set forth in classes (i) or (ii) hereinabove, IQE shall be responsible in such proportion as reflects its relative fault therefor.
10. CANCELLATION AND TERMINATION No cancellation for default shall be effective unless IQE shall have failed to correct such alleged default within (30) days after receipt by IQE of a written notice of default. Buyer may terminate this Order, other than for default, only upon payment of all IQE’S costs incurred for any reasonably allocated to the terminated portion of the work plus a cancellation charge of 25% of such costs. If the termination includes custom product, cancellation charges for such product shall equal the order price for the total number of units representing work in process. Unless otherwise agreed and confirmed in writing, items scheduled for shipment are not subject to revision, reschedule or termination within thirty (30) days prior to shipment.
11. INSPECTION IQE reserves the right to control access to its facilities.
12. NUCLEAR AND AVIATION APPLICATIONS Products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance, operation or use of any nuclear facility nor for the flight, navigation or communication of aircraft or ground support equipment. Products used in a static application which is not a functional part, component or assembly of an aircraft is not subject to this paragraph.
13. GOVERNMENT CONTRACT CONDITIONS If Buyer’s purchase order contains a U.S. Government contract number and Buyer orders products to be used in the performance of said contract, those clauses of applicable U.S. Government procurement regulations mandatorily required by Federal Statute to be included in U.S. Government subcontracts shall be incorporated herein by this reference. Cost and pricing data pursuant to PL 87-653 (e.g. Form SF 1411 and supporting Certificate) shall be provided only upon prior written agreement by IQE. Unless otherwise agreed in writing, IQE shall retain all right, title and interest in any and all data to be provided pursuant to this order or contract. No U S. Government procurement regulations shall be included hereunder and such regulations shall not be binding on either party unless specifically agreed to in writing prior to incorporation herein.
14. CONFIDENTIAL INFORMATION All drawings, diagrams, specifications and other materials disclosed or furnished by IQE and identified as confidential relating to the manufacture and/or use of Products ordered hereunder, and any proprietary information contained therein, are considered proprietary to IQE (referred to as ‘Confidential Information”). All such Confidential Information shall be kept secret by Buyer. Buyer shall take all necessary precautions and use its best efforts to hold such Confidential Information in confidence and to insure that its employees shall likewise keep secret and not make direct or indirect use of Confidential Information except in performance of their duties.
a. Notice. Any required notices shall be in writing and shall be deemed given when sent by U.S. Mail, registered return receipt requested or by Telex at the address of each party set forth on the reverse side hereof, or to such other address as either party may substitute by written notice to the other.
b. Assignability. Buyer may not assign or transfer any of the rights, duties or obligations herein without the prior written consent of IQE, and any purported attempt to do so shall be null and void.
c. Non-waiver. IQE’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
d. Export. Buyer shall comply with all applicable provisions of the United States Export Administration Regulations and other laws and regulations regarding export. Buyer shall not export or re-export technical data or products supplied by IQE, directly or through others, or the direct product of such data, to any country for which the United States Government or any agency thereof at the time of the export requires an export license or other governmental approval, without first obtaining the written consent to do so from the United States Department of Commerce or other agency of the United States Government when required by an applicable statute or regulation
e. Governing Law. Any dispute regarding the interpretation or validity hereof shall be governed by the laws of the Commonwealth of Massachusetts including its provisions of the Uniform Commercial Code, but specifically excluding its conflicts of laws provisions and the provisions of the U.N. Convention on Contracts for the International Sale of Goods.
f. Disputes. All disputes under any this order concerning Products not otherwise resolved between Buyer and IQE shall be finally resolved in a court of competent jurisdiction for the judicial district encompassing Taunton, Massachusetts, and no other place, provided that in IQE’s sole discretion, such action may be heard in some other place designated by IQE. Buyer hereby consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof. No action, regardless of form, arising out of, or in any way connected with, any Product or service furnished, or to be furnished, may be brought by Buyer more than (1) one year after the cause of action has accrued to Buyer. g. Entire Agreement and Severability. This Order, together with any purchase agreement and specifications which may be referred to herein or attached hereto, sets forth the complete and final agreement between the parties, and supersedes any and all prior or contemporaneous oral or written communications relating to its subject matter. Except as permitted herein, no amendment or modification of this Order shall be effective unless in writing and signed by an authorized representative of both parties. If any of the provisions of this Order shall be declared void by a court of final jurisdiction, such provisions shall be severed from the other provisions of this Order, and the validity of the other provisions and of the entire Order shall not be affected thereby.