The following terms and conditions (the “Terms”) apply to the sale or other provision of products (including distribution of samples, with or without charge) by Parade Technologies, Ltd. (“Parade”) of its semiconductor products, firmware or associated material (the “Products”) to the entity placing an order for such Products (“Customer”). Customer’s placement of an order for and/or acceptance of delivery of Products will constitute Customer’s acceptance of these Terms; Parade’s fulfillment of any such order constitutes express rejection of any contrary, different or additional terms (including but not limited to any terms contained in Customer ordering materials, other Customer documentation, or any other material other than a separate mutually executed written agreement between the parties).
1. Purchase, Confirmation, and Scheduling
Customer’s order will be effective upon Parade’s confirmation of its acceptance of the order. Parade may accept or reject any orders in its discretion. Once accepted by Parade, orders are non-cancelable and non-reschedulable (except as set forth below) unless the parties agree otherwise. The schedule for delivery under that order will be confirmed by Parade. Schedules are estimates only – Parade will not be liable for any damages based on delivery delays. In appropriate cases, Parade may offer a window in which Customer may request rescheduling of the delivery date, and Parade will use commercially reasonable efforts to accommodate such requests. Except as expressly set forth in writing, Parade assumes no obligation to provide technical support for the Products; While Parade may in its discretion provide support, doing so will not create any obligation, liability or expectation of future support.
2. Prices
Unless otherwise agreed in writing, prices will be as quoted by Parade or its authorized representative. Prices may be subject to change at Parade’s discretion based on changes in quantity, technical, product-related, or other factors. Prices are exclusive of taxes, tariffs, duties, or similar items.
3. Terms of Payment
For established customers, payment will be due 30 days from the date of invoice. All payments will be made in US dollars. In the event that payment is more than 30 days overdue, Parade may charge Customer monthly interest on the overdue balance at 3% above the then-current Prime Rate published in the Wall Street Journal at the beginning of each calendar month in which any balance remains unpaid, and Parade may hold future shipments pending satisfaction of any unpaid balance. Parade may require different payment terms in its discretion.
4. Shipment and Delivery
Products shall be shipped Ex Works (Incoterms 2020, Parade’s point of origin (typically Parade’s subcontractor location)). Title to the Products, as well as liability for any loss or damage thereof, will pass from Parade to Customer upon delivery of the Products to Customer’s designated carrier, and Parade will not be liable for any subsequent loss, damages, or storage costs. Customer shall be responsible for any and all import duties, taxes, licenses, or other charges associated with shipment, as well as for insurance and transportation costs (which shall be invoiced by Parade for reimbursement by Customer). Customer will be responsible for inspecting shipments on arrival. Any claims for incorrect quantities of Products or other errors must be raised within thirty (30) days of the shipment date or are waived. For purchases via an authorized distributor, reseller, or agent of Parade, the distributor, reseller, or agent may have additional terms, which will supplement but in no event override these Terms.
5. Customer Commitments
Customer understands that the Products are not designed nor provided for uses wherein death or personal injury is reasonably foreseeable from use or failure of such Products, including medical applications (“Critical Applications”). Customer agrees not to use the Products in Critical Applications or in any military, intelligence, military intelligence, or national-security-related applications. For clarity, medical diagnostic devices or automative uses specifically recognized by Parade shall not constitute Critical Applications for these purposes, provided that any use of Products in medical or automotive applications will be at Customer’s own risk, that Customer will bear sole and full responsibility and liability for such use, and that Customer will limit such use to Products qualified for medical or automotive use as appropriate. Customer further agrees to comply fully with applicable laws and regulations in all uses of the Products, including, without limitation, all laws and regulations relating to the export of technical data or products. Customer will not resell the Products unless specifically authorized in writing by Parade to do so, provided that this term does not prohibit sale of Customer’s own products incorporating the Products. Prior to using the Products, Customer will test them and the systems in which they operate. Customer agrees to bear sole risk and responsibility for any of its own products into which it incorporates Products. Customer will ensure that any such products comply with applicable law and any applicable industry standards; where appropriate, Customer will design its applications or products in consideration of remedial measures to anticipate and address risks associated with failures or other issues. Customer will not, nor will allow others to, reverse engineer, deconstruct, disassemble, modify, create derivative works of, or otherwise attempt to recreate similar functionality to that contained within, the Products, or use them in connection with any effort to design or modify products that compete with the Products or Parade.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT WITH RESPECT TO CONFIDENTIALITY OBLIGATIONS OR CUSTOMER COMMITMENTS SET FORTH IN SECTION 4, NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, REPUTATION, DATA, OR ECONOMIC ADVANTAGE, UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH LOSSES ARE FORESEEABLE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, AND REGARDLESS OF THE LEGAL THEORY OR THEORIES ASSERTED, IN CONNECTION WITH THE PRODUCTS SOLD PURSUANT TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT WITH RESPECT TO VIOLATION OF THE CUSTOMER COMMITMENTS SET FORTH IN SECTION 4, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO ANY OTHER PARTY ARISING OUT OF OR RELATED TO THE PRODUCTS SOLD PURSUANT TO THESE TERMS WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO PARADE FOR THE PRODUCTS ON WHICH SUCH LIABILITY IS BASED DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT OR OCCURRENCE GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. THE FOREGOING LIMITATIONS WILL NOT APPLY TO: A) INTENTIONAL WRONGDOING OR MISREPRESENTATION; B) DEATH OR PERSONAL INJURY; C) MISAPPROPRIATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY; D) OBLIGATION TO PAY THE FEES OWED HEREUNDER; OR E) LIABILITIES THAT CANNOT BE LIMITED OR EXCLUDED AS A MATTER OF APPLICABLE LAW.
7. Warranty and Return
Except for samples, items under development, or other non-production Products (for which Parade makes no warranties), all Products will be free of defects in materials and workmanship for a period of one (1) year after the date of shipment. Nonconforming Products may be subject to return, replacement, or credit at Parade’s option, in each case in accordance with Parade’s standard RMA process and subject to Parade’s reasonable determination that the Products are nonconforming. Such replacement, repair, or credit will be Customer’s sole and exclusive remedy for such nonconformance. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND ANY ASSOCIATED INFORMATION ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” BASIS, AND PARADE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT THERETO, WHETHER STATUTORY, EXPRESS OR IMPLIED. PARADE EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
8. Confidentiality
In connection with Customer’s purchase of Products, the parties may exchange non-public information, including any non-public information embedded in or concerning the Products. All such non-public information will be subject to the terms of the Parade Mutual Nondisclosure Agreement, which is incorporated by reference and which the Parties accept by virtue of placement and acceptance of the order for Products.
9. Force Majeure and Prevailing Conditions
Parade shall not be liable for any failures to deliver Products, or for any delays, to the extent that such failures or delays are caused by events beyond its reasonable control, including but not limited to acts of God, wars, civil unrest, terrorism, transportation disruptions, supply chain disruptions, epidemics or pandemics, earthquakes, hurricanes, natural disasters, changes in applicable law, or any event that qualifies as a force majeure event under applicable law. Parade shall not be liable for delay or cancellation of orders based on substantial changes in prevailing market conditions impacting its ability to supply Products, including availability of capacity from Parade subcontractors at prices substantially in accordance with prices on the date of acceptance of the orders in question. To the extent that any orders or shipments are adversely impacted by such changes or events, Parade will give reasonable notice of any delay (including any rescheduled estimated delivery dates) or cancellation caused by such changes or events.
10. General
These Terms constitute the entire agreement between the parties concerning the subject matter hereof and supersede all prior or contemporaneous representations, communications and agreements, whether oral or written, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No amendment or waiver of any of these Terms, nor any different or additional terms or conditions (including those provided by Customer via purchase order, notice of acceptance, or otherwise), shall be effective unless in writing and signed by authorized representatives of both parties; for clarity, Parade’s confirmation (via email or otherwise) of a Customer’s order shall not constitute acceptance of any such alternate terms unless such confirmation: a) includes a an express statement by Parade indicating that Parade’s Terms are superseded with respect to such order; and b) is also signed by the Customer. In the event of a conflict between these Terms and any other terms not agreed upon by both parties in writing, these Terms will prevail. Notwithstanding the foregoing, in the event that Customer and Parade have separately negotiated and executed a governing agreement in writing (not including purchase orders or other ordering documents), such other governing agreement will apply to the extent provided for therein. The waiver by either party of a default under any of these Terms shall not be construed as a waiver of any subsequent default under any of these Terms, nor shall any delay or omission on the part of either party to invoke any right or remedy hereunder operate as a waiver of any right or remedy. To the fullest extent permissible under applicable law, these Terms and any provision of Products hereunder are for the sole benefit of Parade and Customer; neither these Terms nor provision of Products hereunder create any third party beneficiary rights of any kind in any other party. These Terms shall be governed by the laws of the State of California, without regard to principles of conflicts of law; the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any dispute relating to these Terms or provision of Products thereunder shall be resolved in the courts located in the Northern District of California, and the parties agree that venue and jurisdiction for any proceedings relating hereto shall lie exclusively with such courts. In the event that any provision of these Terms shall be held by a court to be unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision enforceable.