1.General Provisions
1.1.
These general terms and conditions of purchase (“Terms of Sale”) set out the terms on which LOTUS MICROSYSTEMS APS (“Lotus Microsystems”), a private limited company incorporated under the laws of Denmark, sells, and customer (“Buyer”) purchases Lotus Microsystems’ semiconductor products (“Products”) and services (“Services”) directly, through authorized agent or Lotus Microsystems’ representative, or by telephone, or at the website https://www.lotus-microsystems.com/ (“Website”) and its mobile version.
1.2.
Lotus Microsystems’ acceptance of the Buyer’s order or confirmation of an offer to sell/deliver Products and/or Services (“Items”) is either the confirmation of the Item being shipped or expressed confirmation of acceptance.
1.3.
Lotus Microsystems’ acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of Terms of Sale and any associated terms, notices or disclaimers that accompany Lotus Microsystems’ items or related materials.
1.4.
Lotus Microsystems’ offers are non-binding. Buyer may offer to purchase Items under these Terms of Sale by submitting an order to Lotus Microsystems. Lotus Microsystems reserves the right to accept, reject, cancel, or limit any order at Lotus Microsystems’ sole discretion.
1.5.
The inclusion of any Items on the Lotus Microsystems website at a particular time does not imply or warrant that these Items shall be available at any time. Lotus Microsystems reserves the right to discontinue any Products or Services at any time.
1.6.
Lotus Microsystems reserves the right to amend this Terms of Sale from time to time without prior notice to Buyer. The version of Terms of Sales that shall apply to the Buyer’s order shall be those on the Website at the time Buyer has placed the order.
1.7.
Buyer agrees to protect the confidentiality of Lotus Microsystems’ Items and to prevent any disclosure to third parties.
1.8.
Unless otherwise agreed, these general Terms of Sale shall apply to any contract for the sale of Lotus Microsystems Items.
Lotus Microsystems ApS
Stamholmen 153
DK-2650 Hvidovre
Denmark
CVR: 41950250
2. Prices, Taxes and Delivery Charges
2.1.Lotus Microsystems is obliged to express the agreement to the Pricing terms in written or electronic acknowledgement.
2.2.
Prior to the Shipment, Lotus Microsystems may reasonably change the Price as a result of changes in specifications, quantities, shipment agreements, or other circumstances that Lotus Microsystems is not responsible for and cannot predict with reasonable certainty.
2.3.
Prices may be subject to an increase equal to additional costs (“Additional Costs”) incurred by Lotus Microsystems, for which the company is not accountable. These costs may include taxes, tariffs, duties, freight, or fees that Lotus Microsystems is obligated to pay or collect during the sale, delivery, holding, or storage of the items. This charge is determined by the Buyer’s local customs authority. Payment of these is necessary to release Buyer’s order from customs.
2.4.
The final Price in effect on the date of Shipment as stated in invoice applies. Prior to theShipment, Additional fees, delivery, and shipping details shall be stated on the financial invoice of Buyer’s order.
2.5.
For the delivery of the Items to buyers located within the EU, VAT shall be charged as per applicable law at the time of the sale.
2.6.
Unless otherwise agreed, Prices and Payment are in US Dollars.
3. Payment Terms and Methods
3.1.
Payment terms and Methods (“Payment Terms and Methods”) are negotiated individually. Lotus Microsystems is obligated to issue an electronic invoice (“Electronic Invoice”) for the purchased Items, and Buyer agrees to such form of invoicing. The Electronic Invoice shall be established based on upon the information provided by Buyer.
3.2.
Unless otherwise agreed, the payment (“Payment”) is due thirty (30) after Buyer receiving the Electronic Invoice.
3.3.
The Delivery may be authorized in instalments. Each Shipment shall be invoiced and paidwhen due without regard to other deliveries. Overdue payments shall be subject to finance charges computed at nine (9) percentage points above the then current basic interest rate of the European Central Bank in the overdue amount.
3.4.
Lotus Microsystems may pre-authorize full or partial order amount with Buyer’s credit or debit issuer. In the event that the Payment cannot be processed, Lotus Microsystems is required to contact Buyer immediately. Lotus Microsystems may suspend or cancel the order without liability to Buyer.
3.5.
On its own responsibility Buyer covers the relevant charges or fees, if any, applied by its card issuer, bank, or other payment institution due to Lotus Microsystems’ processing of the Payment.
3.6.
Buyer may legally request Lotus Microsystems to deliver the invoice in accordance with Buyer’s selected delivery address.
4. Shipment and Delivery
4.1.
Unless otherwise agreed, Lotus Microsystems is bound to select the carrier (“Carrier) and ship the Products in accordance with Buyer’s selected delivery address. Lotus Microsystems shall confirm the Delivery schedule in writing and amend as appropriate, where applicable with an Estimated Ship Date. The Estimated Ship date is non-binding, unless confirmed in writing as binding. Lotus Microsystems is not liable for any damage, loss or expense incurred by Buyer if Lotus Microsystems fails to meet the non-binding EstimatedShip Date. Lotus Microsystems shall not be held liable for any delay in Delivery for any reason. Estimated Ship Date is only an estimate; the Buyer shall have no remedy.
4.2.
Lotus Microsystems shall provide all reasonable actions to deliver Products within the estimated periods communicated to Buyer during the checkout process before confirmation of the order, expect if a force majeure event, an event beyond Lotus Microsystems’ reasonable control or any unforeseeable circumstances occurs. If the Delivery has not shipped within the date specified in the Order Acceptance, or, if no such date has been specified, 30 (thirty) days, Buyer shall be entitled to specify a date for the Delivery, and this cannot be met, Buyer shall be entitled to cancel the Contract and Lotus Microsystems shall then refund Buyer all sums paid within the Contract.
4.3.
If the Delivery and/or Products are damaged or if there is a discrepancy in the number of packages or documentation, the Carrier shall acknowledge it immediately on its delivery note. To the extent permitted under applicable laws, once Buyer have signed the Carrier’s delivery note, the Buyer may no longer make a claim with respect to damages to packages or discrepancies in the number of packages.
4.4.
Buyer is solely responsible for accepting the Delivery once the order is shipped and forAdditional Cost of tax, freight, or insurance. Lotus Microsystems is not responsible for any delivery issues arising from incomplete or incorrect address details supplied by Buyer.
4.5.
Under no circumstances, Lotus Microsystems is liable to Buyer for any loss, damage or delay of the Shipment and Delivery. Any subsequent loss, damage or delay of the Shipment and Delivery shall not result in relief of Buyer’s obligations.
4.6.
Lotus Microsystems reserves the right to allocate production and deliveries among its various customers under and any circumstances, and to deliver Products in installments provided that the partial delivery is reasonably acceptable for Buyer, in particular if the delivery of the remaining Products ordered is ensured and no significant Additional Costs or expenditure arise for Buyer as result thereof.
4.7.
Delay or default on Delivery of any instalment shall not relieve the Buyer of the obligation to accept and pay for other deliveries.
4.8.
In the event of any default by Buyer, Lotus Microsystems may decline to make further shipments. If Lotus Microsystems elects to continue to make shipments, Lotus Microsystems’ action shall not be a waiver of any as such default or affect Lotus Microsystems’legal remedies for any such default. Each shipment made under any order shall be treated as separate sale and transaction.
5. Cancellation and Rescheduling
5.1.
Buyer’s request for order cancellation, rescheduling, return or modification shall be made in writing within thirty (30) days from the date of receiving the Delivery.
5.2.
Lotus Microsystems may accept or reject any such request by Buyer and reserves the right to impose charges on Buyer in connection therewith.
5.3.
Buyer shall not return any Products for any reason without the request not being approved by the authorized agent or Lotus Microsystems’s representative.
5.4.
All the refunds shall be made within thirty (30) days from the day Lotus Microsystem receives the return of Products.
5.5.
No refunds shall be made for any postage, packaging costs, or Additional Costs except as otherwise required by applicable law.
6. Retention of Title
6.1.
Lotus Microsystems shall retain ownership of all Products delivered to Buyer, (“Products with Title Reserved”), until all claims it has against Buyer for business transacted with Lotus Microsystems are fully settled at time of delivery. Buyer shall be entitled to resell Products with Title Reserved in the normal course of its business, provided it does not default on its obligations (e.g., the Payment) to Lotus Microsystems.
6.2.
Buyer shall not pledge or transfer as security title to any Products with Title Reserved.
6.3.
Buyer hereby assigns to all claims Lotus Microsystems may arise in relation to Productswith Title Reserved either from resell thereof or on any legal grounds, in the amount equal to their invoiced value. Any balance on an agreed current account is also subject to thisrule.
6.4.
Lotus Microsystems authorizes Buyer to collect in Buyer’s name but on Lotus Microsystems’ account claims thus assigned to Lotus Microsystems. Lotus Microsystems is entitled to revoke such authorization to collect and require that Buyer discloses all such claims if Buyer is in delay with any obligation due to Lotus Microsystems, if judgment enforcement proceedings are brought against Buyer, if Buyer’s assets deteriorate substantially or incase of insolvency proceedings.
6.5.
If a third party attempts to seize Products with Title Reserved, Buyer shall inform immediately that such Products with Title Reserved are the property of Lotus Microsystems and shall immediately notify Lotus Microsystems.
6.6.
If Buyer fails to notify Lotus Microsystems, Lotus Microsystems is entitled to claim all amounts of outstanding immediately. To the extent that that Delivery has not taken place, Lotus Microsystems shall have the right to deliver immediately or to withhold the Delivery until Payment is tendered.
6.7.
Any proceeding or reworking of Products with Title Reserved shall be undertaken by Buyer on behalf of Lotus Microsystems. Lotus Microsystems shall acquire title to the result of such proceeding or reworking in the amount of market value of the Products with Title Reserved at the time they are processed or reworked.
6.8.
If Products with Title Reserved are commingled or combined with other goods, Lotus Microsystems acquires pro rata joint ownership of the new product proportional to the value of the Products with Title Reserved as compared to that of the other goods at the time of commingling or combining. If another good is deemed the major item in the proceeding, it is hereby agreed that Buyer shall, to the extent that it owns the new product, grant LotusMicrosystems joint ownership in the new products proportional to the value of the Products with Title Reserved as compared to the value of the new product.
6.9.
In case Buyer is in breach of any purchase order, in particular default in Payment, LotusMicrosystems is entitled to recover the Products with Title Reserved without the need to set a grace period. In order to recover the Products with Title Reserved, Lotus Microsystems may enter Buyer’s premises where these are stored, and subsequently store them or have them stored for Lotus Microsystems.
6.10.
The recovery of Products with Title Reserved does not require that Lotus Microsystems rescinds the Contract. Recession requires Lotus Microsystems’ express statement to that effect.
7. Contingencies
7.1.
Lotus Microsystems will not be in the breach of this Contract and shall not be liable for anynon-performance or delay in performance.
7.2.
If such non-performance or delay is due to a majeure event or other circumstances beyond Lotus Microsystems’ reasonable control, whether foreseeable or unforeseeable, including but not limited to, shortages of labor, energy, fuel, machinery, or materials, technical or yield failures, war, civil unrest, epidemic, pandemic, any government act, law or regulation, including judicial order or decree, any communication of power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act, or damnum fatale.
7.3.
In case of a shortage of components, Lotus Microsystems reserves the right, at its sole discretion, to allocate the manufacturing and delivery of products.
8. Intellectual Property Indemnification
8.1.
Lotus Microsystems shall defend Buyer against any claim, suit or other proceeding brought against Buyer, to the extent that the claim, suit or proceeding alleges that theItems manufactured, delivered and supplied by Lotus Microsystems to Buyer directly infringe any European Union, United States, Canadian and Japanese member countrypatent (excluding utility models), copyright or trade secret (“Covered Claim”), and Lotus Microsystems shall cover damages, losses or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by Lotus Microsystems as settlement or compromise of a Covered Claim.
8.2.
In no event is Lotus Microsystems obligated to defend or indemnify Buyer unless:
a) Promptly informs Lotus Microsystems of the Covered Claim and furnishes LotusMicrosystems of the claim, suit or proceeding;
b) Provides all evidence in Buyer’s possession, custody, or control to Lotus Microsystems;
c) Provides Lotus Microsystems reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to Lotus Microsystems the benefit of any defense available to Buyer and Covered Claim hereunder, including, but not limited to, an option or license to license or sublicense any intellectual property right that is the subject of the Covered Claim. Buyer shall be entitled to participate in its defense at its own expense with counsel of its own choosing.
8.3.
If Lotus Microsystems is obligated to defend Buyer, Lotus Microsystems may, but has no obligation to:
a) Obtain a license that allows Buyer to continue the use of Products;
b) Replace or modify Products if Buyer is satisfied with their use, but not in a way that materially affects their functionality;
c) Lotus Microsystems may at a commercially reasonable expense stop shipping the Products to the Buyer without being in breach of this contract.
8.4.
Pursuant to Section 8.3, if Lotus Microsystem elects to provide:
a) Either of clauses 8.3a or 8.3b, Lotus Microsystems’ obligation shall be entirely fulfilled as to that Covered Claim, except for any losses, damages and costs incurred by Buyer prior to Lotus Microsystems taking such action.
b) Clause 8.3c, Lotus Microsystems’s indemnity obligation under this contract shall be entirely fulfilled, regardless of any additional claims, and Buyer shall return to Lotus Microsystem any and all Products remaining in its possession, custody, or control.
8.5.
Lotus Microsystems shall have no liability or obligation under Sections 8.1-8.4 if:
a) Buyer has not purchased the Items subject to the Covered Claim within thirty-six(36) months preceding the date Buyer notified Lotus Microsystems of the Covered Claim;
b) The Items subject to Covered Claim were not paid in full or promptly by the Buyer;
c) The Covered Claim arose because Buyer to Buyer’s customer brought a claim, suit or proceeding against a third party;
d) Buyer by its intentional acts or settlements made by Buyer without Lotus Microsystems’ prior written consent may cause the Buyer to incur additional costs, damages, or losses.
8.6.
Under Sections 8.1-8.5, Lotus Microsystems is not liable or responsible for a Covered Claim to the extent that it is based on:
a) Buyer’s use of the Products in combination with any other Item, device, equipment, software, or hardware;
b) Buyer’s Products in a process use, including the manufacturing undertaking;
c) Buyer’s modification to the Products;
d) Lotus Microsystems’ compliance with Buyer’s particular design, instructions, or specifications or;
e) Lotus Microsystems’ compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standards.
8.7.Buyer is obligated to defend Lotus Microsystems against any and all claim, suit or proceeding brought against Lotus Microsystems insofar as such claim, suit or proceeding is based on Other Claims and Buyer shall cover any damages, losses or costs (excluding consequential and exemplary damages) finally awarded against Lotus Microsystems for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. Lotus Microsystems shall be entitled to participate in its defense at its own expense with counsel of its own choosing.
9. Buyer’s Applications and Compliance
9.1.Buyer agrees that it has the necessary expertise to select Products with the appropriate qualification designation for its applications, and that proper Products selection it at Buyer’s own risk.
9.2.
It is expressly prohibited for Lotus Microsystems’ products to be used in equipment intend-ed for life support, implantable medical devices, transportation, nuclear, safety or other equipment where malfunction may reasonably have been expected to cause personal injury or death, severe property damage or severe environmental damage.
9.3.
Buyer represents and warrants that it shall use appropriate safeguards to minimize potentially dangerous consequences associated with Products failure.
9.4.
Buyer is solely responsible for design, validation, and testing of its applications as well as for compliance with legal and regulatory requirements.
9.5.
In the event of Buyer using or selling Products in such critical applications, Buyer at its own risk agrees to defend, indemnify, and hold harmless Lotus Microsystems from any and all damages, claims, suits, or expenses resulting from such us.
10. Warranties and Related Remedies
10.1.
As a condition of delivery, Lotus Microsystems warrants to Buyer that Products conform to published specifications for Products that are subject to a limitation period for claims for defects for twelve (12) months from the date Lotus Microsystems or an authorized agent delivers Products to the Buyer.10.2.The limitation set forth in the paragraph above, shall not apply in the following cases:
a) Liability under the Danish Product Liability Act (Produktansvarsloven);
b) Any defect for which a warranty of the quality of the Items is provided;
c) Fraudulently concealed defects:
d) Injury of life and limb;
e) Intent or gross negligence of Lotus Microsystems.
10.3.
For repaired Items and Replacement Items the remainder of the original limitation periodshall run from the return date of repaired Items or Replacement Items to Buyer.
10.4.
Lotus Microsystems shall not be liable for a nonconforming Items in the following cases:
a) Entity other than Lotus Microsystems caused the nonconformity by negligence, misuse or mistreatment, including improper storage, installation, testing or usage outside of the instructions set forth, or for any Items that were altered or modified in any way by an entity other than Lotus Microsystems, after the transfer of risk from Lotus Microsystems to Buyer;
b) The nonconformity was caused by Buyer’s specifications, instructions and design regarding such Items or improper design of system;
c) Buyer has not settled the Payment due to the appointed date.
10.5.
Lotus Microsystems shall repair defects or supply Replacement Items (“Replacement Items”).
a) Instead of Replacement Items, Lotus Microsystems may offer Buyer to take back defective Products concerned and credit the purchase price to Buyer’s account;
b) Replacement Products shall be provided without recognition of a legal obligation.
10.6.
If the Replacement Products fails, Buyer shall be entitled to rescind the respective purchase order, the right claim to the price reduction shall be excluded.
10.7.
The place of fulfilment for Lotus Microsystems’ Replacement Items shall its business place. Claims of for costs required for the purpose of Replacement Products, notably the costs of transport, journeys, materials, and labor, are excluded to the extent that costs are increased, as a result of Items being brought to a place other than the agreed delivery address.
a) Costs of dismounting and installing the defective Items shall be excluded.
10.8.
Lotus Microsystems may provide Buyer technical, application or design support (including reference designs), quality characterization, reliability data or other services. Lotus Microsystems’ warranty is not extended or altered by the Services, as set forth above. LotusMicrosystems providing such Services or Items shall not arise any additional obligations or liabilities.
11. Limitation of Liability
11.1.
Lotus Microsystems is not liable for damages caused by slight negligence, except for such damages exist due to the breach of a material contractual obligation Buyer usually relies on, and may reasonably relay on, and in a manner endangering the purpose of the contract. Lotus Microsystems’ liability is limited to foreseeable and typical damages.
11.2.
The limitation period for claims for damages shall be thirty-six (36) months from the pointin time the claim arose, and Buyer became aware thereof.
11.3.
The above liability limitations shall not apply in the following cases:
a) Liability under the Danish Product Liability Act (Produktansvarsloven);
b) Any defect for which a warranty for the quality of Products is provided;
c) Fraudulently concealed defects;
d) Injury of life and limb;
e) Lotus Microsystems’ intent or gross negligence.
12. Governing Law, Venue and Out-of-court Complaints
12.1.
Terms of Sale are governed by and interpreted in with accordance with the substantive laws of the Kingdom of Denmark, without reference to the conflict of laws provisions. Any provision of the Terms of Sale that is found to be unenforceable by a competent court shall be enforced to the maximum extent possible to affect the intent of the parties, and the remainder of the Terms of Sale shall remain in full force and effect.
12.2.
Terms of Sale are not governed by the United Nations Convention for the InternationalSale of Goods.
12.3.
Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to theTerms of Sale lies with a competent court for the location of Lotus Microsystems’ head-quarters.
12.4.
Notwithstanding the foregoing, any judgement may be enforced in any Danish or foreign court, and Lotus Microsystems seek injunctive relief in any Danish or foreign court.
12.5.
Lotus Microsystems agrees on submission of any disputes arising in connection with the concluded contracts for resolution through negotiation or non-binding mediation prior to commencement of court proceedings. Details shall be determined by the parties of the dispute.
13. Resale and Export Conditions
13.1.
Unless otherwise agreed in writing, Buyer shall not resell Products. If Buyer breaches terms of Resale, Buyer agrees to fully indemnify Lotus Microsystems, its representatives, and distributors from any and all resulting liability.
13.2.
Lotus Microsystems’ performance hereunder shall be contingent upon Lotus Microsystems obtaining an export license or other permission to lawfully export Products or technical data or to undertake export-controlled services, as applicable, at the time or times of its performance hereunder. The issuance of the appropriate license shall constitute a condition precedent to Lotus Microsystems’ obligations hereunder.
13.3.
Buyer agrees to comply with all the applicable export laws, regulations, and orders. Lotus Microsystems reserves the right to stop the performance at any time. Lotus Microsystems believes that such performance may violate export law, regulations, and orders.
13.4.
Unless otherwise agreed in writing, Buyer shall not resell, re-export, re-transfer, or ship, directly or indirectly any Products or technical data in any form without obtaining approval export or re-export licenses.
14. Assignment and Third-Party Beneficiaries
14.1.
Terms of Sale are not assignable by Buyer without Lotus Microsystems’ prior written consent. Any unauthorized assignment is null or void.
14.2.
No provision in the Terms of Sale confers any benefits, rights, or remedies to any person other than Buyer or Lotus Microsystems.
14.3.
Lotus Microsystems affiliates and subsidiaries may perform all or any part of Lotus Microsystems’ obligations under the Terms of Sale.
14.4.
Terms of Sales shall be bonding upon each party and their successors and permitted assigns.
