Apogee Semiconductor, Inc.

STANDARD TERMS AND CONDITIONS OF SALE

Limited Warranty for Business Customers

The following Terms and Conditions (“Terms”) give you specific legal rights. You may also have other rights that vary depending on local law.

These Terms set forth the only obligations and agreements by APOGEE SEMI concerning the Products and Services. These Terms supersede and replace any prior or inconsistent statements, terms, or warranties. APOGEE SEMI rejects any additional or inconsistent terms regardless of whether such terms were proposed by the Buyer in any bid request, quotation request, purchase order, or related document. If Buyer purchased an APOGEE SEMI Product through an authorized distributor or reseller who offered additional incentives or terms, Buyer shall look solely to that authorized distributor or reseller for the performance of such additional incentives or terms, and APOGEE SEMI shall have no liability therefore. 

1. Definitions:
   “You“, “Your”, or Buyer” means the original purchaser from APOGEE SEMI of a Product or Services covered by these Terms. “Hardware” means semiconductors provided by APOGEE SEMI. “Software” means any software, library, utility, tool, or other computer or program code provided by APOGEE SEMI. “Documentation” means the Hardware and Software related media, printed materials, online and electronic documentation provided by APOGEE SEMI. “Product” or “Products” means Hardware, Software, and Documentation collectively. The Products are offered and sold or licensed by APOGEE SEMI exclusively for Buyer’s own internal professional, business, or commercial use (including government agencies) and are not promoted or marketed for the purpose of resale to third parties, unless through an executed authorized distributor agreement, reseller agreement, or for any consumer, non-professional, or leisure use. “Services” means the services APOGEE SEMI has agreed to perform.
2. Offer and Acceptance:
   APOGEE SEMI offers to sell or license and deliver Products and/or provide Services in accordance with the Terms. A Buyer of APOGEE SEMI’s Products and/or Services is assumed to have accepted these Terms in their entirety. APOGEE SEMI hereby rejects any different terms, including those that may appear in or be implied by a Buyer’s purchase order or any means of communication, unless APOGEE SEMI explicitly agrees to such different terms in writing. The Software and Documentation are licensed not sold, and are provided “AS IS”, without any warranty. The licenses granted to Buyer by these Terms will automatically terminate if Buyer violates or authorizes others to violate any of the Terms.
3. Prices and Releases:
   APOGEE SEMI’s quoted price of Products at the time APOGEE SEMI receives Buyer’s purchase order, unless expired, shall continue to apply if the quantity ordered is released by APOGEE SEMI within twelve months. If more than twelve months have elapsed since the quote was provided, APOGEE SEMI’s price in effect on the actual release date shall apply for the quantity shipped at that time.  Services may be provided on a time and materials or milestone basis at Apogee Semi’s then current hourly rates or at rates mutually agreed to in writing. 
4. Title and Delivery:
   Shipments inside the U.S. shall be delivered EXW (Ex Works) APOGEE SEMI’s facility in Texas, unless explicitly stated otherwise on quote from APOGEE SEMI. Shipments to outside the U.S. shall be delivered FCA (Incoterms 2010) Buyer’s designated carrier.  Title and liability for loss or damage shall pass to Buyer upon APOGEE SEMI’s delivery to Buyer’s designated carrier. APOGEE SEMI will not be responsible for any subsequent loss or damage. Buyer shall reimburse APOGEE SEMI for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred, or licenses or clearances required. APOGEE SEMI may deliver Products in installments. Delivery dates that are communicated ahead of actual delivery are only estimates. APOGEE SEMI shall not be liable for any damage, losses or expenses resulting from the actual delivery dates deviating from the estimated dates. Apogee Semi will use commercially reasonable efforts to provide any agreed deliverables in accordance with the delivery schedule as agreed by Apogee Semi. 
5. Payment Terms:
   If APOGEE SEMI extends credit to Buyer, payment terms shall be net thirty (30) days after APOGEE SEMI’s invoice. Payment shall be in U.S. dollars unless otherwise explicitly agreed in writing.  APOGEE SEMI may change or withdraw credit amounts or payment terms at any time for any reason. If the Products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, APOGEE SEMI may suspend or cancel performance under any agreements in which APOGEE SEMI has extended credit to Buyer. APOGEE SEMI’s suspension of performance may result in rescheduling delays. If, in APOGEE SEMI’s judgment, Buyer’s financial condition does not justify the payment terms specified herein, then APOGEE SEMI may terminate the order unless Buyer immediately pays for all Products that have been delivered and pays in advance for all Products to be delivered. Termination in accordance with this clause shall not affect APOGEE SEMI’s right to pursue any other available remedies.
6. Taxes:
   Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. APOGEE SEMI will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides APOGEE SEMI with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to APOGEE SEMI, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
7. Contingencies:
   APOGEE SEMI shall not be in breach and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond APOGEE SEMI’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, epidemic or pandemic, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, explosion, or terrorist act. In the event of a shortage of Products, APOGEE SEMI may allocate, at its sole discretion, Product production and deliveries.
8. Warranties and Related Remedies:
• 8.1   Subject to clauses 8.5 and 8.6 below, APOGEE SEMI warrants that all Products will conform either to APOGEE SEMI’s published specifications for such Product or other mutually agreed upon written specifications signed by an authorized APOGEE SEMI representative. For finished Hardware, this warranty lasts for twelve (12) months after the date APOGEE SEMI delivers such Products to Buyer, provided, however, that Hardware sold in dry pack is installed within one year after shipment. APOGEE SEMI shall not be liable for any defects that occur in dry packed Hardware that is installed more than one year after having been delivered. For Hardware sold in wafer or die form, the warranty period is thirty (30) days. APOGEE SEMI warrants that Services will be performed in a good and workmanlike manner. Notwithstanding the foregoing, APOGEE SEMI SHALL NOT BE LIABLE FOR ANY DEFECTS THAT ARE CAUSED BY NEGLECT, MISUSE OR MISTREATMENT BY AN ENTITY OTHER THAN APOGEE SEMI, INCLUDING IMPROPER INSTALLATION OR TESTING, OR FOR ANY PRODUCTS THAT HAVE BEEN ALTERED OR MODIFIED IN ANY WAY BY AN ENTITY OTHER THAN APOGEE SEMI. MOREOVER, APOGEE SEMI SHALL NOT BE LIABLE FOR ANY DEFECTS THAT RESULT FROM BUYER’S DESIGN, SPECIFICATIONS, OR INSTRUCTIONS FOR SUCH PRODUCTS. Testing and other quality control techniques are used to the extent APOGEE SEMI deems necessary.
• 8.2   If any APOGEE SEMI Products fail to conform to the warranty set forth above, APOGEE SEMI’s sole liability shall be at its option to repair or replace such Products, or credit Buyer’s account for such Products. APOGEE SEMI’s liability under this warranty shall be limited to Products that are returned during the warranty period to the address designated by APOGEE SEMI and that are determined by APOGEE SEMI not to conform to such warranty. If APOGEE SEMI elects to repair or replace such Products, APOGEE SEMI shall have a reasonable time to repair such Products or provide replacements. Repaired Products shall be warranted for the remainder of the original warranty period. Replaced Products shall be warranted for a new full warranty period. Buyer’s sole and exclusive remedy and APOGEE SEMI’S entire liability with respect to Service’s warranty will be, at the sole option of Apogee Semi, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Buyer related to the portion of the Services not in substantial compliance; provided, in each case, Buyer notifies Apogee Semi in writing within five (5) business days after the performance of the applicable Services.
• 8.3   Except as set forth above, Products are provided “AS IS” and “WITH ALL FAULTS.” APOGEE SEMI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, ACCURACY, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT. EXCEPT AS SET FORTH ABOVE, APOGEE SEMI EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED THE RESULTS TO BE OBTAINED FROM THE SERVICES.
• 8.4   Buyer agrees that prior to using or distributing any systems that include APOGEE SEMI Products, Buyer will thoroughly test such systems and the functionality of such APOGEE SEMI Products as used in such systems. APOGEE SEMI may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter APOGEE SEMI’s warranties, as set forth above, and no additional obligations or liabilities shall arise from APOGEE SEMI providing such services.
• 8.5   Safety-Critical, Aerospace and Automotive Applications.
  Products are not authorized for use in safety-critical applications (such as life support) where a failure of the Product would reasonably be expected to cause personal injury, death, or catastrophic property damage, unless officers of the parties have executed an agreement specifically governing such use. Buyer shall fully indemnify APOGEE SEMI and its representatives against any damages arising out of the unauthorized use of Products in such safety-critical applications.
  Buyer acknowledges and agrees that any such use of Products is solely at the Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
  Products are neither designed nor intended for use in automotive applications or environments unless the specific Products are designated by APOGEE SEMI as compliant with ISO/TS 16949 requirements. In any case of such use of non-designated Products, APOGEE SEMI will not be responsible for any failure to meet ISO/TS16949 requirements.
  Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its Products and any use of Products in Buyer’s applications, notwithstanding any applications-related information or support that may be provided by APOGEE SEMI.
• 8.6   Notwithstanding anything to the contrary, Software and experimental and development Products are provided “as is” and “with all faults.” APOGEE SEMI disclaims all warranties, express or implied, regarding such software products and experimental and development products, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
9. Limitations and Damages Disclaimer:
• 9.1   General Limitations: IN NO EVENT SHALL APOGEE SEMI BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE PRODUCTS PROVIDED HEREUNDER, REGARDLESS OF WHETHER APOGEE SEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOST BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, LOST PROFITS, LOST SAVINGS, LOSS OF USE, LOST DATA, OR BUSINESS INTERRUPTION. APOGEE SEMI DISCLAIMS ANY LIABILITY CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT OR PRODUCT SELECTION, IMPROPER PRODUCT INSTALLATION, OR PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.  NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST APOGEE SEMI MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
• 9.2   Specific Limitations: In no event shall APOGEE SEMI’s aggregate liability from any warranty, indemnity, or other obligation arising out of any use of any Product and/or Services provided hereunder, exceed the total amount paid to APOGEE SEMI for the particular units sold under the contract with respect to which losses or damages are claimed. The existence of more than one claim against the particular units sold to Buyer under this contract shall not enlarge or extend this limit.
• 8.3   Buyer understands and agrees that the foregoing liability limitations are essential elements of this contract and that in the absence of such limitations the material and economic terms of this contract would be substantially different.
10. Cancellations and Rescheduling:
    No cancellation or rescheduling of Product by Buyer within thirty (30) days of APOGEE SEMI’s estimated shipping date for such Product will be accepted. Any cancellation or rescheduling of Product by Buyer more than thirty (30), but less than ninety (90), days before APOGEE SEMI’s estimated shipping date for such Product may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by APOGEE SEMI based on factors such as whether the Product was manufactured specifically for Buyer, APOGEE SEMI’s ability to change its production schedule within the period of notice provided by Buyer, whether APOGEE SEMI acquired or allocated particular supplies or equipment to meet Buyer’s order and such other factors as reasonably determined by APOGEE SEMI. Orders may be cancelled or rescheduled by Buyer more than ninety (90) days before APOGEE SEMI’s estimated shipping date for such Product at Buyer’s discretion and without charge.
11. Non-waiver of Default:
    In the event of any default by Buyer, APOGEE SEMI may decline to make further shipments. If APOGEE SEMI elects to continue to make shipments, APOGEE SEMI’s action shall not constitute a waiver of any such default or affect APOGEE SEMI’s legal remedies for any such default.
12. Governing Law:
    These Terms shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of these Terms to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Terms will continue in full force and effect. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to these Terms lies within courts located in the State of Texas and consents to venue in Collin County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and APOGEE SEMI may seek injunctive relief in any United States or foreign court.
• 12.1 Class Action Waiver: All proceedings will be conducted solely on an individual basis. No claims will be combined with another without the prior written consent of all parties to all affected claims or proceedings. You will not seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which you act or propose to act in a representative capacity.
13. Export Control:
• 13.1  Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), received from APOGEE SEMI, or export, re-export, or release, directly or indirectly, any direct Product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct Product is prohibited by the EAR. Buyer furnishes the assurances provided herein to APOGEE SEMI in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
• 13.2  Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software, or software source code acquired from APOGEE SEMI under this contract or any direct product of such technical data, software, or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software, or software source code directly or indirectly to any person, firm, entity, country, or countries prohibited by US or applicable non-US laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such product, technical data, software, or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, APOGEE SEMI may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract.
• 13.3  Any product export classification made by APOGEE SEMI shall be for APOGEE SEMI’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This section shall survive termination of this contract.
14. No Reverse Engineering:
    Customer will not, nor allow any third party to, alter, modify or adapt any integrated circuits, processes, intellectual property or software, including but not limited to translating, reverse engineering, decompiling, disassembling, or creating derivative works, and may not take any other steps intended to reproduce APOGEE SEMI’s hardware and software Products, or any part thereof without APOGEE SEMI’s express written consent, which can be withheld for any reason.
15. Assignment:
    Buyer shall not assign any rights or obligations under these Terms without APOGEE SEMI’s prior written consent. Any unauthorized assignment shall be null and void.
16. Entire Agreement:
    These Terms constitutes the entire agreement between the parties relating to the sale of the Products  and performance of Services and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products or performance of Services made by any APOGEE SEMI representative, which are not stated herein, shall be binding on APOGEE SEMI. No addition to or modification of any provision of these Terms shall be binding upon APOGEE SEMI unless made in writing and signed by a duly authorized APOGEE SEMI representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any Terms. These Terms shall prevail notwithstanding any different, conflicting, or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
17. Product and Production Changes:
    APOGEE SEMI reserves the right to make any time Product and/or production changes. In such event, APOGEE SEMI represents that said changes will not negatively affect form, fit or function of the Products and their performance characteristics.
18. Modifications and Changes:
    APOGEE SEMI reserves the right to modify these Terms at any time. The Terms posted at the time Buyer places an order will govern the order in question unless otherwise agreed in writing by APOGEE SEMI and Buyer.

Apogee Semiconductor, Inc., Rev: 603-000-299-A02 (4/24)