TERMS OF SALE & USE

These Silicon Designs, Inc. Terms and Conditions of Sale and Use shall be the sole terms and conditions governing the sale of products (“Products”) of Silicon Designs, Inc. (SDI) to the party listed on the purchase order or other order documentation (“Buyer”). SDI’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these terms and conditions. Any and all Buyer terms and conditions are hereby rejected and shall be of no effect. Buyer shall be conclusively deemed to have accepted these terms and conditions upon any of the following by Buyer, its agents or representatives: (i) written or electronic acknowledgement or acceptance of the SDI terms and conditions, (ii) transmission to SDI, its agents or representatives of any order for SDI Products or services, or (iii) acceptance of or payment for any Product or service covered hereby. SDI’s failure to object to any provision contained in any communication from Buyer shall not be deemed a waiver of any provision hereof.

Prices: All prices are invoiced and payable in U.S. Dollars and based on the specifications, quantities, shipment arrangements or other terms and conditions part of the original price quotation. Modification to any of the above may result in a change to quoted prices. Prices are exclusive of all federal, state, municipal or other government excise, value added tax, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of Buyer regardless of whether invoiced to Buyer by SDI. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that SDI pays or is required to pay or collect upon sale or delivery of the Products.
Terms of Payment: Terms are as expressly stated on each quotation, and are prepaid except where open account credit is established. SDI reserves the right at any time, in its sole discretion, to revoke any credit extended to Buyer. SDI will issue invoices on delivery in the case of all Products; and if deliveries are authorized in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Amounts owed by Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that Buyer may claim are owed by SDI and regardless of any other controversies that may exist.
Shipment: Unless specific written instructions to the contrary are supplied by Buyer, SDI will select the carrier and ship the Products to Buyer’s address indicated on Buyer’s purchase order. SDI reserves the right to make shipments in installments, to make shipments when Product is available, and shall invoice shipments as made. SDI reserves the right to allocate production and deliveries among its various customers under any circumstances. Buyer shall be responsible for making all claims with carriers, insurers, warehousers and others for non-delivery, loss, damage or delay. All claims for damages to the Products or shortages must be made within thirty (30) days of shipment. Under no circumstances shall SDI be liable to Buyer for any delay either in shipment or in delivery. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Products on the acknowledged shipment date, SDI may select another carrier and service level similar to that of Buyer’s selected carrier (if any), so as to complete the order as originally acknowledged by SDI.
Title and Risk of Loss: Except as otherwise stated herein, all Products will be shipped Ex Works point of origin (Incoterms 2020) or as otherwise designated by SDI in a notice to Buyer. Products held or stored by SDI, at Buyer’s request or due to Buyer’s failure to accept delivery, after the scheduled shipment date in the applicable order, shall be at the sole risk of Buyer, and Buyer shall pay to SDI all SDI’s expenses associated with holding or storing such Products. Buyer is responsible for any delay or loss due to U.S. Customs and Border Protection investigation or seizure.
Cancellation, Rescheduling, Returns and Modifications: Any request for order cancellation, rescheduling, return, or modification must be made in writing and such action must be approved in writing by an authorized agent of SDI. SDI, at its option, may accept or reject any such request by Buyer, and SDI reserves the right to impose charges on Buyer in connection therewith. Buyer shall not return any Products for any reason without issuance of a Return Material Authorization (RMA) number by SDI for such Products.
Source Inspection: Source inspection by Buyer or Buyer’s customer must be mutually agreed in writing, at the time of ordering, and is subject to reasonable charges and safety and security conditions. Buyer shall have no right of access to any SDI facility except as specifically authorized in advance by SDI. Buyer shall indemnify and hold harmless SDI and its affiliates from any and all suits, damages, and expenses of Buyer, its agent or its customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to any facility of SDI or its affiliates.
Product Warranty: Except as otherwise provided herein, SDI warrants to Buyer that for one (1) year from the date title to the Product passes, each Product sold hereunder will be free of defects in materials or workmanship and will conform to specifications set forth in SDI’S published data sheets in effect at the time title passes.
Product Warranty Limitation: Buyer assumes full responsibility to ensure compliance with the appropriate handling, assembly and processing of Products and compliance with all guidelines set forth in the applicable SDI specifications. SDI assumes no responsibility for environmental effects on Products or for any activity of Buyer or a third party that damages the Products due to improper use, abuse, negligence, improper installation, accident, loss, damage in transit, or unauthorized repair or alteration by a person or entity other than SDI. Except as expressly provided herein, Buyer shall assume responsibility for all warranty issues with respect to its customers and end users.
Warranty Remedy: SDI’S sole liability and responsibility for Products under this warranty is for SDI to repair or replace any Product that is returned to it by Buyer or credit Buyer’s account for such returned Product, provided that SDI shall have the right to reject any such remedy where SDI determines that the Warranty does not apply. Product returned to SDI for warranty service will be shipped to SDI at Buyer’s expense and will be returned to Buyer at SDI’S expense. SDI’S obligation to honor its warranty for a Product is contingent upon receipt of payment in full for such Product.
WARRANTY DISCLAIMER: IN NO EVENT SHALL SDI BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR LOST PROFITS LOSSES OR DAMAGES OR FOR ANY FINANCIAL OR ECONOMIC LOSS CONNECTED WITH THE USE OF THE PRODUCT ORDERED UNDER THESE TERMS AND CONDITIONS. SUCH DAMAGES FOR WHICH SDI SHALL NOT BE RESPONSIBLE INCLUDE, BUT ARE NOT LIMITED TO, LOST TIME AND CONVENIENCE, LOSS OF USE OF THE PRODUCT, THE COST OF A PRODUCT RENTAL, COSTS OF GASOLINE, TELEPHONE, TRAVEL OR LODGING, THE LOSS OF PERSONAL OR COMMERCIAL PROPERTY, LOSS OF CONTRACTS, LOSS OF PRODUCTION, AND THE LOSS OF REVENUE. EXCEPT AS PROVIDED HEREIN, SDI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND SDI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL SDI BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, STATIC DISCHARGE, MISUSE OF A PRODUCT OR MISTREATMENT OF A PRODUCT. SDI SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY. SDI SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY BUYER. SDI SHALL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS OR PRODUCTS PURCHASED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS SHALL TERMINATE WITH THE WARRANTY OF THE ORIGINAL PRODUCT. UNLESS SEPARATE TERMS ARE PROVIDED, ALL SOFTWARE IS EXPRESSLY PROVIDED “AS IS”.
LIMITATION OF LIABILITY: SDI’S EXPRESS WARRANTY TO BUYER AND THE INTELLECTUAL PROPERTY INDEMNITY DESCRIBED HEREIN ARE SOLELY FOR THE BENEFIT OF BUYER AND NO OTHER PARTY, CONSTITUTE SDI’S SOLE LIABILITY AND THE BUYER'S SOLE REMEDY WITH RESPECT TO THE PRODUCTS, AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES. UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY BOTH PARTIES, SDI DOES NOT INDEMNIFY, NOR DOES IT HOLD BUYER HARMLESS, AGAINST ANY LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY'S FEES) RELATING TO ANY CLAIMS WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE RELATING TO THE PRODUCTS SOLD HEREUNDER. IN NO EVENT SHALL SDI BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES, DUE TO ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SDI MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. THE TOTAL LIABILITY OF SDI TO BUYER AND/OR ANY OTHER PARTY FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY BUYER TO SDI FOR THE SPECIFIC PRODUCTS (AS IDENTIFIED BY PART NUMBER) SOLD UNDER THE ORDER SHIPMENT(S) AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS THAT GAVE RISE TO THE LAWSUIT, CLAIM, WARRANTY OR INDEMNITY. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
Use in Life Support and Other Critical Applications: Products sold by SDI are not designed, intended or approved for use in life support, implantable medical devices, transportation, nuclear, safety or other equipment where malfunction of the Product can reasonably be expected to result in personal injury, death, severe property damage or severe environmental harm. Buyer represents and warrants that it will use appropriate safeguards to minimize potentially dangerous consequences associated with Product failure. Notwithstanding the foregoing, if Buyer uses or sells Products for in such critical applications, it does so at Buyer’s own risk and Buyer agrees to defend, indemnify and hold harmless SDI from any and all damages, claims, suits or expenses resulting from such use.
Intellectual Property Rights Indemnity: SDI agrees to defend Buyer against any claim that a Product, as delivered, infringes a valid and enforceable United States patent, United States copyright, United States trademark or other United States intellectual property right (“IP Claim”), and indemnify Buyer against any damages arising from such IP Claim that are awarded to a third party by a court of competent jurisdiction or in a settlement approved by SDI, provided that Buyer promptly advises SDI of any such IP Claim or related action and Buyer provides SDI with sole control of the defense and settlement of any such action. Buyer shall provide SDI with all information and assistance reasonably requested by SDI to defend any such IP Claim. SDI shall not be responsible for any settlement or compromise made without its prior written consent. If at any time use of a Product is the subject of a IP Claim or, in the opinion of SDI, is likely to become the subject of an IP Claim, SDI shall have the right, but not the obligation, at its sole option and expense, to either procure for Buyer the right to continue using the Product, replace or modify the Product so that it becomes non-infringing or accept the return and grant Buyer a credit for the Product as depreciated. If SDI elects to accept the return of Products, then Buyer shall return to SDI any and all such Products remaining in Buyer’s possession, custody or control. SDI shall not have any liability to Buyer for any infringement or other violation of a third party right that is based in any way upon (i) the use of the Product in combination with other components, equipment or software not furnished by SDI or any third party software furnished by SDI; (ii) the use of the Product in practicing any process or method; (iii) any Product that has been modified or altered; (iv) the manner in which the Product is used even if SDI has been advised of such use; (v) SDI’S compliance with Buyer’s designs, specifications or instructions; (vi) the use of the Product after Buyer has received notice of such infringement or other violation, and SDI has offered a replacement, modification or refund therefor, or (vii) compliance with an industry standard or communication protocol. THE ABOVE INDEMNITY STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND IS IN LIEU OF ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO INFRINGEMENT.
Assignment: These terms and conditions are not assignable by Buyer without SDI’S prior written consent and any unauthorized attempt to assign any rights, duties or obligations arising hereunder shall be void. SDI may, as it deems necessary, subcontract any part of the work or services to be provided pursuant to these terms and conditions. These terms and conditions shall be binding upon each party and their successors and permitted assigns.
Arbitration: If a dispute, controversy or claim arises out of or relates to these terms and conditions, or the breach, termination or validity thereof, and if either party decides that the dispute cannot be settled through direct discussions, the parties agree to settle the dispute through arbitration. The arbitration shall be conducted by one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the parties. The seat of the arbitration shall be King County, Washington and the arbitration shall be conducted in the English language. The arbitrator shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of these terms and conditions. In each case, the arbitral award shall be in writing and shall be final and binding on the parties. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets. Subject to any arbitral award, costs of arbitration shall be borne equally by the parties. The arbitration requirement does not limit the right of either party to obtain provisional or ancillary remedies, such as injunctive relief, before, during or after any arbitration proceeding.
Governing Law: Except as provided below, any and all matters in dispute between the parties, whether arising from or relating to these terms and conditions or arising from alleged extra-contractual facts including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of contract, shall be governed by, construed, and enforced in accordance with the laws of the State of Washington, without resort to the State’s conflict of laws provisions and regardless of the legal theory upon which such matter is asserted, and any applicable United States federal law. The sole jurisdiction and venue for all actions related to the subject matter hereof shall be the state and federal courts located in King County, Washington. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from these terms and conditions.
Force Majeure: SDI shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond SDI’S control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by SDI’S vendors, or acts or omissions of Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one-hundred-twenty (120) days, SDI or Buyer shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.
General
1. Export: Buyer acknowledges and agrees that the Products being sold hereunder are subject to the export control laws and regulations of the United States and/or other national governments. Buyer will comply with these laws and regulations. These laws and regulations include, but are not limited to, the U.S. Customs and Border Protection Regulations, U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) and export laws and regulations of the European Union (EU) and/or any of its member states. Buyer shall not, without prior U.S. Government authorization, export, reexport, or transfer any commodities, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, the Treasury, or Commerce. In addition, any Products sold hereunder may not be exported, reexported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction (e.g., nuclear, chemical, or biological weapons, and the missile technology to deliver them). Under no circumstances will SDI be held responsible for loss of product due to seizure deemed an Export Control violation by any United States government agency.
2. Sales and Distribution to the United States Government: In any contract with the United States government or in any contract that is a subcontract of any tier under a United States government contract:
  1. SDI accepts only those clauses of the United States Federal Acquisition Regulations (FAR) that the regulations themselves mandate be flowed-down to a party in SDI’S position, given all relevant limitations, including SDI’S status as a customer or a subcontractor and the size and type of contract; and
  2. SDI retains proprietary rights in all technical data and computer software provided under such contract. Neither the United States government nor any higher-tier contractor under a United States government contract receives any rights in technical data and computer software beyond the rights provided to all commercial customers under these terms and conditions, except that SDI grants to the United States government the minimum additional rights required under the narrowest applicable provisions of the FAR or DFARS. Except as specifically agreed in writing, SDI will not provide certified cost and pricing data and therefore does not accept any Cost Accounting Standards, defective pricing, or audit requirements.
Compliance with Laws: Buyer shall comply, and shall cause its employees to comply, with all applicable local, national, regional and international laws, ordinances, regulations, codes, standards, directives and international conventions and agreements to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court or other proper tribunal (collectively “Laws”), including but not limited to (i) anti-bribery and recordkeeping Laws, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”), the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD”), and the Inter-American Convention Against Corruption, (ii) environmental Laws, and (iii) import and export control Laws, including but not limited to the U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of the Treasury Office of Foreign Assets Controls (OFAC), export laws and regulations of the European Union (EU) and/or any of its member states and export laws of other national governments. Buyer shall not, without prior U.S. Government authorization, export, re-export, or transfer any commodities, software or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the sanctioned parties lists maintained by the U.S. Departments of State, the Treasury or Commerce. Buyer shall comply, and shall cause its employees to comply, with all applicable laws, ordinances and/or directives of countries in which they conduct business as they relate to the Universal Declaration of Human Rights, child labor laws, data privacy laws, criminal reporting laws, Environmental, Health and Safety laws or any similar laws, including, but not limited to identifying and filing or purchasing (as applicable) any and all required permits, certificates, licenses, insurance, approvals and inspections required in performance of its obligations hereunder. Buyer will indemnify and hold Seller harmless to the full extent of any loss, liability, damage, or expense, including but not limited to lost profits, fines, penalties, attorneys' fees, defense expenses and court costs, for any failure or alleged failure of Buyer, its officers, employees, agents, or subcontractors to comply with the requirements of this clause.
Bankruptcy or Insolvency: SDI reserves the right, by written notice of default, to cancel any order, without further obligation or liability to Buyer, on the occurrence of any of the following: (i) the insolvency of Buyer; (ii) the filing of a voluntary petition in bankruptcy by Buyer; (iii) the filing of an involuntary petition to have Buyer declared bankrupt; (iv) the appointment of a receiver or trustee for Buyer; (v) the execution by Buyer of an assignment for the benefit of creditors; (vi) the discontinuance of business by Buyer; or (vii) the sale by Buyer of the bulk of its assets other than in the usual course of business.
Severability: Should any of these terms and conditions be held by a court of competent jurisdiction to be contrary to law, that term or condition will be enforced to the maximum extent permissible and the remaining terms and conditions will remain in full force and effect.
No Agency: SDI and Buyer are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these terms and conditions. Buyer is solely responsible for its employees and agents and shall indemnify SDI against any claim, liability, cost or damage related to Buyer’s actions or those of its employees or agents, including, but not limited to, the making of unauthorized warranties or representations on behalf of SDI.
Third Party Beneficiaries: Buyer represents and warrants that there exist no third party beneficiaries to Buyer’s rights hereunder.
Basis of Bargain: THE PARTIES AGREE THAT THE WARRANTY DISCLAIMER, THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY PROVISIONS ARE MATERIAL, BARGAINED TERMS THAT ARE FUNDAMENTAL TO THESE TERMS AND CONDITIONS AND ARE REFLECTED IN THE CONSIDERATION TO BE GIVEN BY BOTH PARTIES UNDER THESE TERMS AND CONDITIONS AND IN THE DECISION BY BOTH PARTIES TO ACCEPT THESE TERMS AND CONDITIONS.
Separate Transactions: Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer, SDI may decline to make further shipments. If SDI elects to continue making shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect SDI’S legal remedies for such default.
Entire Agreements and Amendments: These terms and conditions constitute the entire agreement between the parties and supersede all previous communications, whether oral or written. Any change to these terms and conditions may be made only upon mutual agreement of the parties in writing.

Modified January 27, 2022