PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING AND/OR USING ANY INFORMATION AND/OR MATERIALS ON THIS WEBSITE. BY USING THIS WEBSITE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, THEN PLEASE DO NOT USE THIS WEBSITE.
1. Offer and Acceptance
These terms and conditions (the “Terms”) shall apply to Buyer’s purchase of products from Integrated Device Technology, Inc. (for sales within the United States) or Integrated Device Technology (Malaysia) Sdn. Bhd. (for sales outside the United States), and/or any of their subsidiary companies (the relevant selling party shall be referred to as "IDT"), which are not stated in any separate written agreement between Buyer and IDT and signed by both parties. These Terms are a material part of the bargain for IDT. No other terms will be valid unless specifically agreed in writing by IDT. Any purchase order or other document which purportedly modifies, supersedes or otherwise alters these Terms is rejected by IDT and shall be of no force or effect whatsoever.
2. Price and Payment
Prices are in U.S. dollars. Transportation and all sales, vat, property, excise, duties, and other federal, state and local taxes (other than those based on IDT's net income) shall be paid by Buyer. All invoices are due and payable within thirty (30) days of date of invoice. Overdue invoices shall incur a finance charge of one percent (1%) per month or the maximum amount permitted by law, whichever is lower. IDT may require full or partial payment prior to delivery. There is no discount for advance payment.
3. Cancellation and Reschedule
Buyer may cancel or reschedule orders for standard product with thirty (30) days written notice prior to the then current scheduled shipment date. Buyer may cancel or reschedule orders for non-standard product with ninety (90) days written notice prior to the then current scheduled shipment date. Buyer may not cancel, reschedule or return orders for custom product. Upon the cancellation of any purchase orders for custom product, cancellation charges will be limited to an amount not to exceed IDT’s costs. The designation of “non-standard product” or “custom product” is made by IDT in its sole discretion. Buyer is responsible for confirming the status of any product with IDT prior to placing its order.
Delivery terms shall be EX WORKS IDT shipping point (INCOTERMS 2010). Title and risk of loss shall pass to Buyer at the applicable delivery point set forth above. Delivery shall be subject to IDT’s then current lead times. Shipment dates are approximate, and there shall be no penalty for early or late shipment. IDT reserves the right to adopt an equitable plan of allocation and to adjust delivery schedules accordingly in the event of reasonably unforeseeable shortages. IDT shall not be liable for any loss, expense, or damage caused by delays or failures in performance resulting from acts of God, or other causes beyond its reasonable control.
5. Tools; Property Rights; Acceptance of Services
Unless agreed in writing, IDT will retain title to and possession of any models, drawings, composites, patterns, dies, molds, masks, working plates, schematics, bread boards, jigs, fixtures and tools made for or obtained from sources other than Buyer for the furnishing of products hereunder. Tools, dies, and other equipment furnished to IDT will be at Buyer's risk and expense. All material developed from services provided by IDT, as well as the design, development or manufacture by IDT of a product for Buyer, will not be deemed to produce a work made for hire, and will not give Buyer any copyright, trademark, patent, trade secret or other intellectual property rights in the service or product, or any interest in all or any portion of the mask works relating to the product. All such rights will remain the property of IDT and its licensors, and no license of any type, express or implied, is granted to Buyer under the Terms with respect to such rights or with respect to any trademark of IDT or its affiliated companies. Even if IDT provides product exclusively to Buyer, IDT will retain possession of all masks. All masks unique to Buyer’s design will be held by IDT for the exclusive use of Buyer. IDT will not use the mask for any party without authorization from Buyer. If Buyer places no production orders for six (6) months from the date of engineering sample approval or six (6) months from the last production delivery, IDT is free to dispose of such mask with no further obligation to Buyer. Services performed by or on behalf of IDT will be deemed accepted by Buyer upon completion by IDT.
6.1 IDT warrants to Buyer that all products will be free from defects in material and workmanship; will conform to IDT’s specifications; and will be free from liens and encumbrances, for a period of one (1) year from IDT’s shipment date, or in the case of development systems, boards and development software, for a period of ninety (90) days from the shipment date, provided that all of the following conditions have been satisfied: (a) IDT is promptly notified upon discovery of any defect (but in no event later than ten (10) days following the end of the warranty period) of any warranty claim; (b) Buyer returns the products to IDT by IDT’s designated carrier, within seven (7) days after Buyer has received a return material authorization (RMA) number from IDT. IDT will accept products for warranty claim verification only when returned by Buyer in a condition that allows for suitable testing by IDT. Products must be segregated by product type when more than one type of product is returned. If IDT determines that any returned products are not covered by IDT’s warranty, IDT will invoice Buyer, and Buyer will pay, the shipping costs for such products both to IDT and back to Buyer; and (c) IDT determines that any claimed defects in the products were not caused by it being a preproduction or developmental product, misuse, static discharge, abuse, vandalism, neglect, improper handling, installation or shipment, unauthorized repair, purchase from an unauthorized source, alteration or accident or damage due to the elements or similar causes not within the control of IDT or its authorized supplier. Any returned products electrically or mechanically destroyed by Buyer or third parties will not be covered by this warranty, and will not be returned to Buyer, but will be scrapped by IDT. Any modification of products by Buyer, unless specifically authorized in writing in advance by IDT, shall invalidate the above warranty. Notwithstanding anything herein to the contrary, IDT shall have no liability for any defects in any products sold in die and/or wafer form without connection to a lead frame (“Unpackaged Products”), or for failure of the Unpackaged Products to meet the technical specifications in the finished product data sheet. Further, the warranty of this Section 6 shall not apply to any Unpackaged Products sold hereunder. Additionally, IDT makes no warranty of any kind, and accepts no liability for evaluation boards, which are supplied “as-is,” without any testing to national or international safety requirements.
6.2 In addition to the warranty terms above, the following additional terms will apply to development tools (“DTs”) covered by a purchase order. NO WARRANTY OBLIGATION WILL ARISE FOR DTs UNLESS AND UNTIL BUYER REGISTERS THE DT BY COMPLETING AND MAILING THE REGISTRATION CARD TO IDT WITHIN THIRTY (30) DAYS OF THE DELIVERY DATE. Within thirty (30) days after the discovery of defects, Buyer will contact IDT’s local office nearest Buyer’s address. IDT’s engineer will be the sole judge as to whether the DT is defective in either material or workmanship. If the DT is found to be defective, IDT’s engineer will contact IDT’s Customer Service Dept., which will then provide Buyer with instructions for returning the defective DTs. Buyer will provide sufficient information about any alleged defects to allow IDT to determine the existence and cause of said defects. If the DT is defective and repairable but not covered by this warranty, IDT may offer to repair said DT at Buyer’s expense. This warranty does not apply (a) if the DT was not purchased from IDT or its authorized distributor; (b) if Buyer fails to register the DT or file a warranty claim within the period and in the manner specified above; (c) if the DT was not used as specified in the applicable manuals and other operating instructions; (d) to any defects caused by equipment or other devices connected to the DT; or (e) to consumable parts and components.
6.3 Upon determination by IDT that any product is defective and covered by this warranty provision, IDT shall, at its option, acting in its sole discretion, either repair the product, replace the product, or issue Buyer a credit for the amount paid by Buyer for the product under warranty. IDT shall have no other liability to Buyer for products covered by the warranty provided herein.
6.4 THIS WARRANTY IS EXTENDED TO BUYER, ONLY, AND IS NOT TRANSFERABLE TO SUBSEQUENT PURCHASERS OR USERS OF THE PRODUCTS. IDT HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY AGAINST INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, WITH RESPECT TO MATERIALS OR SERVICES PROVIDED UNDER THESE TERMS OR TO THE PRODUCT, MATERIAL OR DOCUMENTATION OR ANY USE THEREOF BY BUYER. THIS SECTION 6 STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY. IDT EXPRESSLY DISCLAIMS ALL WARRANTIES FOR ANY SERVICES PERFORMED BY OR ON BEHALF OF IDT. NO SALESPERSON, REPRESENTATIVE OR AGENT OF IDT IS AUTHORIZED TO GIVE ANY GUARANTY OR WARRANTY, OR MAKE ANY REPRESENTATION CONTRARY TO THOSE CONTAINED IN THESE TERMS.
7. Patent Indemnification
7.1 IDT agrees to defend, at its own expense, any rightful claims made against Buyer by a third party unrelated to Buyer (“Claimant”) alleging that the products as sold by IDT to Buyer under these Terms directly infringe a United States, Japanese or European patent, utility model, design patent, trademark, copyright, mask work right or trade secret (“Intellectual Property”). IDT also agrees to indemnify Buyer against actual damages for such direct infringement which are awarded against Buyer in such suit or proceeding, subject to Section 8 herein.
7.2 IDT’s obligations described in Section 7.1, above, shall arise only with respect to claims where: (1) Buyer promptly notifies IDT, in writing, of all allegations in the claim; (2) Buyer gives IDT full control and authority for the defense and settlement of the claim; (3) Buyer provides IDT with all information and assistance necessary for the defense and settlement of the claim; and (4) Claimant agrees that it will resolve the claim directly with IDT.
7.3 IDT shall have no obligations under Section 7.1, above, with respect to any claim where: (1) the claim arises from either (i) IDT’s use of any material, part or subassembly provided by or specified by Buyer, or (ii) IDT’s compliance with any designs, instructions or specifications furnished by Buyer; (2) such claim arises from any modifications or additions made to the products by Buyer or any third party; (3) such claim arises from Buyer’s use of any information, services, technical support or technical proposals furnished by IDT; (4) such claim arises from the use or combination of the products with any other material, part, structure, subassembly, apparatus, external circuitry, software or other external elements; (5) such claim arises from an implementation of industry wide standards, including de facto standards, whether or not such standards have been formally established or promulgated by any governmental or industrial standard setting body (“Industry Standard”), relating to the form, fit, functionality, interconnectivity or other aspects of any apparatus incorporating the products, where such Intellectual Property would not have been infringed but for the implementation of such Industry Standard; or (6) such claim is otherwise attributable to any act or omission on the part of Buyer.
7.4 If an infringement claim is asserted, or if IDT believes one likely, IDT will have the right, but not the obligation: (i) to procure for Buyer the right to use the products for the use contemplated by IDT and Buyer in making these Terms; (ii) to modify the products as appropriate to avoid such rightful claim of infringement, as long as modification for this purpose does not materially impair the operation thereof; or (iii) to accept the return of the products and reimburse Buyer for the sales amount thereof.
7.5 THE FOREGOING STATES IDT’S EXCLUSIVE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED.
7.6 Buyer shall indemnify and hold IDT and its suppliers harmless against any expense or liability from claims of infringement of any Intellectual Property which are described in Section 7.3, above.
IDT SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INFRINGEMENT OF A THIRD PARTY’S PROPRIETARY RIGHTS, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS OR OTHER TORTS. NO ACTION MAY BE BROUGHT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION AROSE, EXCEPT THAT LEGAL ACTION MAY BE COMMENCED TO RECOVER PAYMENTS DUE AT ANY TIME WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. IN NO EVENT SHALL IDT'S TOTAL LIABILITY TO BUYER EXCEED THE CUMULATIVE SALES AMOUNT ACTUALLY PAID BY BUYER TO IDT FOR THE PRODUCTS OR SERVICES UPON WHICH LIABILITY IS BASED DURING THE YEAR PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
9. Compliance With Laws
Buyer agrees to comply with all applicable laws, regulations, licensing or other requirements regarding IDT’s products and services. Buyer agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the Arms Export Control Act, 22 U.S.C. §§ 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. § 120, et seq.; the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. §§ 730-774; the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701- 1706 and the Trading with the Enemy Act, 50 U.S.C. §§ 1 et. seq., including U.S. trade sanctions and economic embargo programs administered by the Treasury Department's Office of Foreign Assets Control. Without limiting the foregoing, Buyer agrees that it will not, directly or indirectly, export, re-export, trans-ship, transfer, transmit or release products, technology or software in violation of any applicable export control laws, rules or regulations. Buyer shall immediately notify IDT if Buyer is, or becomes, listed in any Denied Parties List or if Buyer’s export privileges are otherwise denied, suspended, or revoked in whole or in part by any U.S. Government entity or agency. If Buyer is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Buyer represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and that it maintains an effective export/import compliance program in accordance with the ITAR. For any items and technologies controlled under the International Traffic in Arms Regulations (22 C.F.R. 120-130), Buyer will inform IDT of such items and technologies prior to transfer or release to IDT, and obtain written permission from IDT in advance of such transfer. Where Buyer is a signatory under an export license or export agreement (e.g., TAA, MLA), Buyer shall provide prompt notification to IDT in the event of changed circumstances, including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect Buyer’s performance. Buyer also agrees to comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit both direct and indirect corrupt offers of anything of value to anyone, including government officials, to obtain or keep business, or to secure any other improper commercial advantage. Buyer shall ensure that its officers, employees, agents, suppliers, or subcontractors comply with this Section, and Buyer shall be responsible for all losses, costs, claims, causes of action, damages, liabilities, and expenses (including attorneys’ fees, all expense of litigation and/or settlement, and court costs), arising from any act or omission of Buyer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under these Terms.
10. Government Contracts
If Buyer's original purchase order indicates by contract number that it is placed under a government contract, Buyer will notify IDT in writing of the Federal Acquisition Regulations (FAR) or Defense Federal Acquisition Regulations Supplement (DFARS) applicable to the purchase order. Such FAR/DFARS shall not apply unless agreed to by IDT in writing.
IDT has no obligation to hold any information received from Buyer in confidence unless the information is covered by a separate signed Non-Disclosure Agreement. Neither party will publicize nor disclose the existence or substance of the transactions without the express, prior written consent of the other party. IDT’s performance under these Terms is subject to all contingencies beyond IDT’s control or beyond the control of IDT’s suppliers, including, but not limited to, strikes, labor disputes, floods, the elements, civil commotion, war, riot, vis major, rules, laws, orders, restrictions, embargoes, quotas, actions or inactions of any government, foreign or domestic, or any agency or subdivision thereof, casualties, fires, accidents, shortages of transportation facilities, detention of products by customs authorities, loss of products in public or private warehouses, or other casualty or contingency beyond IDT’s control or the control of IDT’s suppliers or otherwise unavoidable. In any such event, IDT shall have the right, at its election and without any liability to Buyer, to (a) perform these Terms as so restricted or modified to the extent determined by IDT in its sole and absolute discretion; or (b) perform these Terms within a reasonable time after the causes for nonperformance or delay have terminated. These Terms shall be governed and construed in accordance with the laws of the State of California without regard to its conflict of law rules, and without application of the United Nations Convention on Contracts for the International Sale of Goods. Any conflicting rights under the laws where Buyer is located are waived by Buyer. The exclusive forum for the resolution of any disputes hereunder shall be California State courts in the County of Santa Clara, or federal district courts in the Northern District of California located in San Jose, California. If a disagreement, whether in tort, contract or otherwise, arises between Buyer and IDT, the parties will meet to attempt to resolve the disagreement before any litigation is commenced. If the parties cannot resolve the disagreement, they will submit the matter to mediation. The parties will mutually agree on a suitable mediator. At least ten (10) business days before the mediation, each side will provide the mediator with a statement of its position and copies of all supporting documents. Each party will send to the mediation a person who has authority to bind the party. Neither party may assign its rights or obligations hereunder to a third party without the consent of the other party; provided, however, that without the consent of Buyer, IDT may assign its rights and obligations hereunder to any affiliate of IDT or successor to IDT’s business, or to any third party authorized to enforce IDT’s rights hereunder. These Terms have been made and are made solely for the benefit of Buyer and IDT and their respective successors and permitted assigns. Nothing in these Terms is intended to confer any rights or remedies on any persons other than the parties to it and their respective successors and permitted assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to any party to these Terms. No waiver of any provision of these Terms or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties making such waiver. Any such waiver shall be effective only in the specific instance and for the specific purpose stated in writing. In the event that any provisions hereof are found invalid or unenforceable pursuant to judicial decree or decision, the remainder of these Terms shall remain valid and enforceable according to its terms.