Fillable Printable Product Sales Agreement

Product Sales Agreement

PRODUCT SALES AGREEMENT

The terms and conditions of this Product Sales Agreement (“Agreement”) sets forth the terms under which Buyer

may acquire and use PMC products identified in the executed PMC sales quote or order form (each an “Order”)

referencing this Agreement. All purchase orders issued to PMC by Buyer shall be governed only by the terms and

conditions of this Agreement notwithstanding any preprinted terms and conditions on Buyer’s purchase order. Any

additional or different terms in Buyer’s documents are hereby deemed to be material alterations and notice of

objection to and rejection of them is hereby given.

1. CONFLICTING TERMS

Any additional, conflicting or different terms, including but not limited to the terms affixed to Buyer’s

purchase order or other procurement document issued by the Buyer, are hereby rejected and objected to by PMC.

The terms of this Agreement expressly supersede and take precedence over any such additional, conflicting or

different terms.

2. TERMS OF PAYMENT AND CREDIT

Terms are net cash payable in U.S. dollars with order except where satisfactory open credit is established in

advance in which case the terms are net thirty (30) days from the date of invoice. Accounts over thirty (30) days are

subject to a charge of two percent (2%) per month or the maximum rate of interest allowed by law, whichever is less.

If the deliveries are made in installments, each installment shall be separately invoiced and payment due and payable

therefore shall be made accordingly. If, in the judgment of PMC, the financial condition of the Buyer at any time

does not justify continuation of production or shipment on the terms of payment originally specified, PMC may

require full or partial payment in advance and, in the event of the preceding conditions or of bankruptcy or

insolvency of the Buyer or in the event any proceeding is brought by or against the Buyer under the bankruptcy or

insolvency laws, PMC is entitled to cancel any quantity of product then outstanding, even if acknowledged or in

transit to Buyer, and to receive full payment of its cancellation charges. In the event PMC exercises any right it may

have to stop acknowledged product orders or product in transit because of Buyer’s financial condition, PMC may at

its option resell such articles at public sale without notice to Buyer or at private sale after giving such notice and

without affecting PMC'S right to hold Buyer liable for any loss or damage caused by Buyer’s breach.

3. PRICES AND TAXES

Prices are in U.S. dollars and are exclusive of all federal, state, provincial, municipal or other government,

excise, use, sales, occupational or like taxes, tariffs, duties, surcharges, now in force or enacted in the future. The

Buyer must provide PMC with any applicable tax exemption certificate acceptable to the taxing authorities. If PMC

is required to pay additional taxes, fees, or other charges, Buyer shall be responsible for and shall reimburse PMC for

said amount. PMC is not liable for reporting, collecting and paying any tax, fee, or other charges imposed upon the

Buyer subsequent to the original invoice.

4. PRICE ADJUSTMENTS

The prices and delivery schedule for products covered hereby will be those acknowledged by PMC. If such

prices are based on the purchase of a particular quantity of the products to be delivered over the specified period of

time, then PMC reserves the right to impose additional requirements on such purchase. These additional

requirements may involve clauses which are different than PMC's standard terms and conditions. In such cases, the

terms contained therein shall govern and Buyer accepts these conditions by a written acknowledgement, by

implication, or by acceptance and payment for the goods which are the subject hereof.

5. RESPONSIBILITY, TITLE AND SECURITY INTEREST

(A) All sales are Incoterms EX WORKS PMC'S point of shipment. The time of delivery is the time the

product to be delivered is ready to be picked up by the carrier.

(B) PMC'S title passes to Buyer and PMC'S liability as to delivery ceases upon making delivery of articles

purchased hereunder to the carrier at the shipping point in good condition and the Buyer will be responsible for and

bears the entire risk of loss or damage to the products. The carrier of such product acts as Buyer’s agent. Buyer is

responsible for filing any necessary claims for loss or damages against the carrier. Buyer is responsible for clearing

the goods for export. PMC will provide reasonable assistance at Buyer’s expense.

the amount of the purchase price. In the event of default by Buyer of any of its obligations to PMC, PMC has the

right to repossess the products sold hereunder without liability to Buyer. These security interests will be satisfied by

payment in full. A copy of the invoice may be filled with appropriate authorities at any time as a financing statement

and/or chattel mortgage, in order to perfect PMC'S security interests. On the request of PMC, Buyer will execute

financial statements and other instruments PMC requires to perfect its security interests.

6. DELIVERY DATES AND SHIPPING

(A) Shipping dates are approximate only. Buyer acknowledges that such dates may change due to

unpredictable market trends or other events beyond PMC’s control. PMC may ship up to two (2) weeks in advance

of the acknowledged shipping date and may split shipments. PMC may, from time to time in its sole discretion: (i)

discontinue or limit production of any product; (ii) allocate, terminate or limit deliveries of any product in times of

shortage; and (iii) modify the design of, specifications for or construction of any product, provided the modification

does not materially affect overall product performance.

(B) In the absence of specific shipping instructions, PMC will ship by the method it deems most

advantageous. Transportation charges will be collect, or if prepaid, will be subsequently invoiced to Buyer. Unless

otherwise indicated, Buyer is obligated to obtain insurance against damage to the products being shipped. Unless

otherwise specified, products will be shipped in standard packaging. When special or export packaging is requested,

or in the opinion of PMC, required under the circumstances, the cost of same, if not set forth on the invoice, will be

invoiced separately.

due to causes beyond the reasonable control of PMC, including but not limited to supplier delay, force majeure, act

of God, labor unrest, fire, explosion or earthquake. In any such event the delivery date will be deemed extended for a

period equal to the delay.

(D) In the event of product shortages or an inability to meet Buyer requested requirements for any reason

whatsoever, PMC may allocate production among its customers in its sole and absolute discretion.

7. LIMITATION OF LIABILITY

PMC’S LIABILITY ARISING OUT OF OR RELATING TO THIS SALE OR ANY PRODUCTS OR

SERVICES PROVIDED UNDER THIS SALE SHALL NOT EXCEED THE AMOUNTS PAID BY Buyer FOR

THE PRODUCTS OR SERVICES UNDER THIS SALE GIVING RISE TO SUCH LIABILITY. IN NO EVENT IS

PMC LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE Buyer. IN NO EVENT IS

PMC LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, RELIANCE,

EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR

REVENUE OR LOSS OF USE) WHETHER OR NOT PMC HAS BEEN ADVISED OF THE POSSIBILITY OF

SUCH LOSS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, AND

NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. This

exclusion also includes any liability which may arise out of third party claims against Buyer. The essential purpose

of this paragraph 7 is to limit the potential liability of PMC arising out of all sales hereunder. EACH PARTY

RECOGNIZES AND AGREES THAT THE LIABILITY AND REMEDY LIMITATIONS AND WARRANTY

DISCLAIMERS HEREIN, WHICH ALLOCATE RISK BETWEEN THE PARTIES, ARE FUNDAMENTAL

ELEMENTS OF THE BASIS OF THIS TRANSACTION AND THAT THEY HAVE BEEN TAKEN INTO

ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY

UNDER THIS TRANSACTION AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS

TRANSACTION.

8. LIMITED WARRANTY

For one year after the date of shipment from PMC, PMC warrants that any PMC furnished hardware Product,

if properly used, will be free from defects in material and workmanship. If the Products delivered to Buyer hereunder

include software (including Firmware) components, PMC warrants that the media on which the PMC software is

October-2014

furnished to Buyer will be free from defects for a period of thirty (30) days from the date of delivery. If such a defect

appears within the warranty period, Buyer may return the defective media to PMC for replacement without charge.

Replacement is Buyer’s sole remedy with respect to such a defect. PMC does not warrant that software Products will

operate without interruption or error. PMC makes no warranty with respect to defective conditions or non-

conformities resulting from Buyer’s use, misuse, mis-installation, mishandling, neglect, accident, or abuse of

software Products; or errors resulting from incorporation of software Products into a system, or failure of Buyer to

apply PMC-supplied modifications or corrections. If any Product fails to conform to any warranty provided herein,

PMC will at its sole discretion, replace, repair, or credit

Buyer’s account with an amount equal to the price paid for any

such Product which fails during the applicable warranty period. To receive the benefit of the foregoing warranty, (i)

Buyer must follow PMC’s return instructions; (ii) Buyer must promptly notify PMC in writing within the applicable

warranty period that such Product is defective and must furnish an explanation of the deficiency; (iii) Buyer must return

such Product to a facility designated by PMC at Buyer’s risk and expense and in accordance with PMC’s return policies;

and (iv) PMC must be satisfied that claimed deficiencies exist and were not caused by accident, misuse, neglect,

alteration, repair, improper installation,

unusual physical or electrical stress

, or improper testing.

This shall be PMC’s

sole and exclusive liability for any breach of any warranty herein. THIS WARRANTY IS IN LIEU OF ALL

OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING THE WARRANTY OF

MERCHANTABILITY AND THE WARRANTY OF FITNESS OR OF SUITABILITY FOR A PARTICULAR

PURPOSE, NONINFRINGEMENT, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON PMC'S PART,

AND EXCEPT FOR END-USER PRODUCT WARRANTIES DELIVERED WITH THE PRODUCT AS CONTAINED

IN THE PRODUCT PACKAGING, THESE WARRANTIES ARE PROVIDED SOLELY TO BUYER AND ARE NOT

SUBJECT TO ASSIGNMENT, TRANSFER OR PASS-THROUGH TO BUYER’S END CUSTOMERS. PMC

NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR PMC ANY OTHER

LIABILITIES IN CONNECTION WITH THE SALE OF THE SAID PRODUCT. This warranty may be modified

or amended only by a written instrument signed by a corporate officer of PMC and accepted by Buyer. Buyer hereby

acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any

person or entity except for the warranties or representation specifically set forth herein. Buyer shall be solely

responsible for acquiring any license necessary for its manufacture, sale, and use of any product utilizing the

products sold hereunder. If PMC'S examination does not disclose a defect in material or workmanship on a product

claimed to be defective, Buyer agrees to pay PMC'S established charges for unpacking, testing and repacking the

product for reshipment to the Buyer. This provision states Buyer’s exclusive and sole remedy for breach of warranty.

This provision does not extend the original warranty period of any product that has been repaired or replaced by

PMC. Products which at Buyer’s request are delivered without complete encapsulation, testing or are otherwise not

finished, are specifically excluded from the warranty set out herein. Prototypes are also specifically excluded from

the warranty set out herein. All such products and prototypes are sold as is. Buyer is required to review and accept

PMC’s Prototype Product Limited Warranty prior to purchasing prototype products. THE PRODUCTS SOLD

HEREUNDER ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE

SUSTAINING SYSTEMS, TRANSPORTATION OR COMMUNICATION SYSTEMS, NUCLEAR SYSTEMS,

HAZARDOUS OR CRITICAL ENVIRONMENTS , OR FOR ANY OTHER MISSION CRITICAL APPLICATIONS

IN WHICH THE FAILURE OF THE PMC PRODUCT MAY POSE THE RISK OF PERSONAL INJURY OR DEATH

AND PMC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR ANY

SUCH APPLICATIONS.

Buyer shall indemnify, defend and hold harmless PMC for any costs, expenses, damages and other losses

and liabilities arising out of: (i) Buyer’s purchase or use of Products for any such unintended use; (ii) any warranty of

greater scope or duration than that set forth in this Agreement; or (iii) failure to disclaim all implied warranties and

limit remedies and liabilities on behalf of PMC at least to the extent set forth in this Agreement; in each case with

respect to the products and services sold hereunder.

9. DATA AND PROPRIETARY RIGHTS IN DATA

Data, information and materials supplied hereunder may be proprietary to PMC or its suppliers. PMC retains

for itself all proprietary rights in and to all designs, engineering details, and other data, information and materials

pertaining to any product sold except where rights are assigned under written agreement by a corporate officer of

PMC.

10. SALE CONVEYS NO LICENSE

October-2014

The products are offered for sale and are sold by PMC subject in every case to the condition that such sale

does not convey any license expressly or by implication, estoppel or otherwise under any patent claim or other

intellectual property right with respect to which PMC can grant licenses covering complete equipment or any

assembly, circuit combination, method or process in which any such products are used as components. PMC

expressly reserves all its rights under such patent claims and other intellectual property rights. Nothing contained in

this Agreement will be construed as a warranty or representation that use or sale of any product ordered hereunder

will be free from infringement of third party intellectual property rights.

11. SOFTWARE

(A) If any Software (defined below) is included in any product sold hereunder ( such Software is not sold or

transferred and Buyer obtains only a license to use the Software under the terms and conditions set forth in PMC’s

Software License Agreement found at http://pmcs.com/legal/

. Any Third Party Software (defined below) shall be

licensed in accordance with and subject to the terms and conditions contained in the applicable license

agreement accompanying such Third Party Software.

(B) Buyer acknowledges and agrees that any product that contains or is accompanied by Software is complete upon

delivery and all PMC’s obligations, with the exception of the warranty identified in Section 8, have been satisfied.

Buyer agrees that PMC has no obligation to provide upgrades, updates or support for any such Software.

secrets or other intellectual property) is granted to Buyer directly, by implication, estoppel, statute or otherwise.

(D) For the purposes of this Section:

“Software” means the software in object code form that is provided to Buyer. Software does not

include Third Party Software (including, without limitation, any open source software).

ii.

“Third Party Software” means software product of a third party which may be distributed by PMC

together with PMC’s Software.

12. INFRINGEMENT OF THIRD PARTY RIGHTS

(A) THE PARTIES ACKNOWLEDGE AND AGREE THAT THESE TERMS EXCLUDE ANY AND ALL

WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO NONINFRINGEMENT OF THIRD PARTY

RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS OF PATENT INFRINGEMENT

RELATING TO PRODUCTS SUPPLIED BY PMC OR ANY PART THEREOF, WHETHER OR NOT SUCH

CLAIMS ARISE OUT OF COMPLIANCE WITH BUYER’S SPECIFICATIONS OR ANY ADDITION TO OR

MODIFICATION OF PRODUCTS SUPPLIED BY PMC OR ANY PART THEREOF OR FROM USE OF SUCH

PRODUCTS OR ANY PART THEREOF IN CONJUNCTION WITH OTHER PRODUCTS OR PARTS OR IN

THE PRACTICE OF A PROCESS.

(B) PMC WILL NOT BE LIABLE TO BUYER (NOR TO ANY PERSON CLAIMING RIGHTS

DERIVED FROM THE BUYER’S RIGHTS) FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF THIRD

PARTY RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY PATENT RIGHTS, OR FOR

ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, DIRECT OR

OTHER DAMAGES RELATED TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF THIRD PARTY

RIGHTS, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED,

HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

PMC may decline to make further shipments without being in breach of this Agreement.

13. SUBSTITUTIONS AND MODIFICATIONS

For product described in advanced product descriptions, data sheets or catalogs published by PMC, PMC has

the right to make substitutions and modifications in the specifications of products sold by PMC provided that such

substitutions and modifications will not materially affect overall product performance.

14. CANCELLATION OR RESCHEDULED SHIPMENTS

(A) No cancellation by Buyer for default will be effective unless and until PMC fails to correct such alleged

default within ninety (90) days after receipt by PMC of a written notice specifying such default.

(B) If the cancelled order has an acknowledged shipment date between one (1) and ninety (90) days of the

October-2014

date of cancellation, Buyer will pay the full purchase price.

the reschedule request. All other purchase orders previously acknowledged by PMC that the Buyer is requesting be

rescheduled, must meet the following conditions:

(1) The orders must have an acknowledged shipment date that is outside of thirty (30) days from the

time of the reschedule request.

(2) For orders that have an acknowledged shipment date between thirty-one (31) and sixty (60) days

from the time of the reschedule request, the order may be rescheduled out to a maximum of ninety (90) days

from the original acknowledged shipment date. However, the Buyer MAY NOT subsequently cancel this

order.

(3) The orders have not already been previously rescheduled.

(D) All sales made are final and PMC shall not accept return of any product except as expressly outlined in

section eight (8) above.

15. SOURCE INSPECTION

Buyer and any of its agents must have prior written authorization from PMC to enter any of PMC'S facilities

for the purpose of conducting a source inspection. Buyer's request to conduct a source inspection must include a

statement of the objectives to be achieved as a result of such an inspection.

16. EXPORT CONTROL LAWS

Buyer shall comply with, and PMC’s sales hereunder are subject to Buyer’s compliance with, all export

control laws and regulations (including trade restrictions and sanctions) of the United States and all other relevant

jurisdictions, the United States Foreign Corrupt Practices Act, and all other laws and regulations related to the

export, import, sale, transfer or use of the products and services sold hereunder or the transactions contemplated

herein, and any amendments to such laws, regulations or restrictions. Buyer agrees to indemnify, defend and hold

harmless PMC from any and all fines, claims, damages, losses, costs and expenses (including reasonable attorney's

fees) incurred by PMC as a result of any breach of this Section.

17. BANKRUPTCY

If Buyer becomes bankrupt or insolvent or compounds with his creditors or commences to be wound up or

suffers a receiver to be appointed, PMC has the right, exercised by notice in writing to cancel this contract without

judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which accrues

thereafter to PMC.

18. ASSIGNMENT

PMC may assign its rights or delegate its obligations, or any part thereof under this Agreement without prior

consent from Buyer. Buyer may not assign, whether in conjunction with a change of ownership, merger, acquisition,

sale or transfer of all, substantially all or any part of Buyer’s business or assets or otherwise, either voluntarily, by

operation of law of otherwise, any portion of this Agreement. Any attempt by Buyer to assign or delegate any rights,

duties or obligations set forth in this Agreement without PMC's prior written consent shall be deemed a material

breach of this Agreement and shall be null and void. Except as provided above, the terms and conditions of this

Agreement shall bind and inure to each Party’s successors and assigns.

19. RELATIONSHIP OF PARTIES

The parties hereto are independent contractors. Neither Party has any express or implied right or authority to

assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking

with any third party. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment

or agency relationship between Buyer and PMC.

20. SEVERABILITY.

The terms and conditions stated herein are declared to be severable. If any paragraph, provision, or clause in

this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement

is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall use good

faith to negotiate a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering

October-2014

into this Agreement.

21. WAIVER

Failure by either Party to enforce any term of this Agreement shall not be deemed a waiver of future

enforcement of that or any other term in this Agreement or any other agreement that may be in place between the

parties.

22. ENTIRE AGREEMENT

This Agreement constitute the entire agreement between PMC and Buyer. This contract may not be

modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the

contract by its express terms. A corporate officer of PMC must specifically agree to any changes in the terms of sale

contained herein in writing before becoming binding on PMC. The failure by PMC to enforce at any time any of the

provisions of this contract, or to exercise any election or options provided herein may in no way be construed as a

waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or

the right of PMC thereafter to enforce each and every such provision. Buyer hereby acknowledges that he has not

entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the

warranties or representations specifically set forth herein. All orders, offers, and contracts must be approved and

accepted in writing by a corporate officer of PMC.

23. APPLICABLE LAW

This Agreement is the contract between the parties and is made, governed by, and shall be construed in

accordance with the laws of the State of California without reference to conflict of laws principles and the parties

have agreed that the United Nations Convention for International Sale of Goods will not govern this Agreement. All

disputes arising out of or related to this Agreement or the products or services sold hereunder shall be subject to the

exclusive jurisdiction and venue of the state courts in Santa Clara County, California (or, for matters having

exclusive federal jurisdiction, the United States District Courts for the Northern District of California), and the

parties consent to the personal and exclusive jurisdiction of such courts.

24. ERRORS

Stenographic and clerical errors are subject to correction.

October-2014