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Terms and conditions of sale, delivery and payment
These Terms and Conditions of Sale shall govern the sale of products (“Products”) by Wolfson Microelectronics plc, located at 26 Westfield Road, Edinburgh, EH11 2QB, United Kingdom, company registration number SC089839 (“Seller“) to a party named on any order documentation (“Buyer”), and shall supersede any terms and conditions referred to by Buyer, unless both parties agree otherwise in writing.
2. Order Process
Buyer shall issue an order for the Products on its standard order documentation, clearly stating Buyer’s purchase order number and the applicable Product Part Number (which can be found on the Wolfson datasheet applicable to the Products). All orders for Products must meet the minimum order quantities (and multiples thereof) specified by Seller from time to time. An order shall only be deemed accepted by Seller upon dispatch of an acknowledgement by Seller of the order. Seller reserves the right to make changes at any time to the specification of the Products, provided such changes do not materially affect the installation, performance or price thereof. Any such change shall not invalidate any order placed with Seller prior to such change being implemented, or render Seller liable to Buyer in any way whatsoever.
The price is exclusive of VAT or any other applicable taxes, and all loading transport, shipment and other costs arising as a result of delivery of the Products (collectively “Associated Costs”), unless agreed otherwise in writing between the parties. The price is based on Seller’s current price list (as amended from time to time). However, Seller reserves the right to increase the price to take account of any increase in costs which are outside of Seller’s direct control, at any time prior to delivery of the Products. Such increase in costs may include, but shall not be limited to, an increase in the price of fuel, metals, raw materials and production costs. Further, Seller reserves the right to increase the price if Buyer fails to take delivery of the Products on the agreed delivery date or (if none) within 6 months of receipt by Seller of Buyer’s order.
4. Payment Terms
Payment for the Products and any Associated Costs must be made within 30 days of the date of issue of the relevant invoice by Seller without any deductions. Seller shall be entitled to charge interest on overdue payments at a rate of 2% per annum above the Royal Bank of Scotland plc base rate, and such interest shall accrue daily. Further, Seller shall be entitled to refuse delivery of any further Products to Buyer until such time as any outstanding payments are received, without incurring any liability towards Buyer.
In the event that payment for the Products and any Associated Costs, or a portion thereof, is overdue by more than 30 days, then title to the Products for which payment is overdue shall immediately pass to Seller, and Seller shall be entitled to do the following:
i) request the return of the aforementioned Products, with all shipping costs to be paid by Buyer ; and/or
ii) attend the Buyer’s premises, and seize the aforementioned Products.
5. Shipment and Delivery
Unless otherwise agreed in writing between the parties, Buyer shall select the carrier to be used to ship the Products, and Seller shall notify the carrier to collect the shipment. Seller reserves the right to ship in advance of any date or time provided by Seller for delivery, and to deliver in instalments. Any date or time provided by Seller for delivery of the Products is an estimate only, and Seller shall not be liable for failure to deliver the Products on such date or at such time. Nor shall Buyer be entitled to treat these Terms and Conditions of Sale as repudiated in the event of such failure to deliver the Products.
Seller must be notified in writing within 7 days of receipt of Products by Buyer of any visible defects in the Products, any shortage in quantity, or any incorrect shipments. Seller will not be liable for replacement Products where Buyer fails to notify in accordance with this paragraph. Any claim for breach of warranty by Buyer in respect of the Products shall remain unaffected. Seller shall accept no liability for any issue arising in connection with the shipment, and Buyer shall be responsible for pursuing any necessary claims with carriers for non-delivery, loss, damage or delay.
Buyer must provide Seller with copies of applicable shipping documentation for all Products purchased, including air waybills, within 3 months of the date of shipment. Failure to provide Seller with such shipping documentation will result in Buyer being charged UK Value Added Tax as an Associated Cost.
6. Title and Risk of Loss
All Products delivered to Buyer shall be delivered “Ex Works” (as defined in Incoterms 2000). Accordingly, title and risk of loss with respect to the Products shall pass to Buyer upon collection by the carrier for delivery to Buyer.
7. Cancellation and Rescheduling
A request for order cancellation, delivery rescheduling or return of Products must be made in writing (stating the reason for the request). At all times, whether such request is accepted is entirely at the sole discretion of the Seller. Should the request be accepted by Seller, then Seller reserves the right to invoice Buyer for costs and losses associated with the order cancellation or the delivery rescheduling.
Buyer must not return any Products without Seller’s prior written authorisation and a return material authorisation (RMA) number. The RMA number must be quoted on all correspondence, and all Products must be appropriately packaged for transit.
a) Seller warrants that for 12 months from the date on which risk in the Products passes to Buyer, the Products will be free from material defects caused by poor workmanship or faulty materials, and will conform to the published datasheets applicable to the Products and other specifications in effect at the date of shipment. Seller’s liability under this warranty shall be limited solely to, at Seller’s option, repairing, replacing, or issuing a credit note equal to any amount already paid to Seller in respect of the Products which do not conform to the warranty offered provided that:
(i) Buyer notifies Seller in writing within 14 days of discovering such defects;
(ii) the Products were not damaged in a manner not attributable to Seller, including, without limitation, misuse, neglect, accident, improper storage, installation, handling or repair. Seller reserves the right to invoice Buyer for all costs associated with the examination and investigation of Products returned where, in Seller’s reasonable opinion, they have been damaged in a manner not attributable to Seller; and
(iii) the Products have been purchased through authorised sales channels. Where Buyer returns any Products to Seller claiming breach of the warranty provided under this section, and in the reasonable opinion of Seller the Products are found not to breach the warranty provided hereunder, then Seller shall be entitled to claim reimbursement of any costs associated with the examination of the returned Products.
b) The warranty contained in this section does not apply to Products which are sold at Engineering Sample or In-Design status. Products sold at Engineering Sample or In-Design status are provided by Seller ‘AS IS’, with no warranty, either express or implied. Products at Engineering Sample or In-Design status, for the purposes of these Terms and Conditions of Sale, are defined as Products which have not been fully tested or characterised.
c) EXCEPT FOR EXPRESS WARRANTIES STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY OR SUITABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. Limitation of Liability
9.1 IN NO EVENT SHALL THE TOTAL LIABILITY OF SELLER FOR DIRECT DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS EXCEED THE AGGREGATE SUM PAID TO SELLER BY BUYER IN RESPECT OF THE PRODUCTS WHICH GIVE RISE TO SUCH CLAIM.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER SHALL NOT BE LIABLE HEREUNDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, USE, OR GOODWILL, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 THE PRODUCTS ARE NOT INTENDED FOR USE IN LIFE SUPPORT SYSTEMS, APPLIANCES, NUCLEAR SYSTEMS OR SYSTEMS WHERE MALFUNCTION CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, DEATH OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. ANY USE OF THE PRODUCTS BY BUYER FOR SUCH PURPOSES IS AT BUYER’S OWN RISK AND BUYER WILL INDEMNIFY SELLER AND ITS SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH SUCH USE.
9.4 THE PRODUCTS PROVIDED AT ENGINEERING SAMPLE OR IN-DESIGN STATUS ARE NOT INTENDED FOR USE IN PRODUCTION. ANY USE OF SUCH PRODUCTS BY BUYER IN PRODUCTION IS AT BUYER’S OWN RISK AND SELLER SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY CLAIMS, DAMAGES, LOSSES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH SUCH USE.
9.5 NOTHING IN THESE TERMS AND CONDITIONS IS INTENDED TO EXCLUDE OR LIMIT SUPPLIER’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SUPPLIER’S NEGLIGENCE OR WILLFUL DEFAULT.
10. Intellectual Property Rights
Buyer warrants that Seller shall not infringe any intellectual property rights owned by a third party (including without limitation any patent, copyright, registered design or trade mark), by incorporating any instruction or design furnished or supplied by Buyer in any Products supplied hereunder.
11. Termination of Terms and Conditions
Seller reserves the right to cancel any order and terminate these terms and conditions with immediate effect where Buyer (i) breaches these terms and conditions, and fails to remedy such breach within 10 days of notification by Seller; or (ii) makes an assignment for the benefit of creditors or proceedings are commenced by or for Seller under any bankruptcy or insolvency law; or (iii) the discontinuance of business by Buyer. Termination shall not relieve Buyer from the obligation to pay any amounts that remain due to Seller, and termination shall not limit either party from pursuing other available remedies.
12. Export Control
Buyer shall be wholly responsible for complying with any and all applicable export laws, regulations and orders and shall not by any means or method export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any Products or technology of Seller except as permitted by and in accordance with applicable laws and regulations. This provision shall survive the expiration or termination of these Terms and Conditions.
A. Force Majeure. Seller shall not be liable in any way for non-performance, in whole or in part, of its obligations under these Terms and Conditions as a result of causes beyond its reasonable control including, but not limited to, any acts of God, government restriction, wars and other hostilities, insurrections, riots, strikes (other than strikes by Seller’s employees), lock-outs, fire, flood, earthquake and other natural disasters, shortage of labour, fuel, machinery and materials, and delays in delivery or defaults on the part of Seller’s suppliers.
B. Assignment. Buyer may not assign any of its rights hereunder without Seller’s prior written consent.
C. Severability and Waiver. If any provision of these Terms and Conditions is declared unlawful, void, or unenforceable, then that provision shall be limited to the extent enforceable, or otherwise severed, and will not affect the validity and enforceability of the remaining provisions. No waiver of any contractual right will be effective unless in writing by an authorised representative of the waiving party. No waiver of a contractual right will be deemed a waiver of any future right.
D. Third Party Rights. Nothing in these Terms and Conditions shall create or confer (whether expressly or by implication) any rights or other benefits in favour of any person not a party hereto.
E. Integration and Amendment. These Terms and Conditions constitute the entire agreement between the parties and supersede all prior or contemporaneous conditions, agreements, communications or representations, whether oral or written, relating to the subject matter hereof. Any additional or different terms contained within Buyer’s order documentation (including any terms contained on purchase orders) are hereby deemed to be material alterations to these Terms and Conditions, and notice of objection to and rejection of, them is hereby given.
F. Legal Jurisdiction. These Terms and Conditions shall be governed by the laws of Scotland and the parties submit to the exclusive jurisdiction of the Scottish Courts.
G. Right to Subcontract. Seller reserves the right to subcontract the performance of all or part of the Contract.
Please note that for wafer and die supplies the ‘Wafer Terms and Conditions of Sale’ apply, and for one-time programmable products the ‘One-Time Programmable Terms and Conditions of Sale’ apply. Alternatively, please contact a Wolfson representative.