MOONS' Terms of Sale
1. Offer and Acceptance
Buyer may offer to buy Products under these terms by submitting an order to MOONS’. MOONS’ may accept or reject any order at MOONS’ sole discretion. The terms in this contract are the sole terms governing MOONS’ sale of Products to Buyer. MOONS’ acceptance of Buyer’s offer is expressly limited to these terms. MOONS’ hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless MOONS’ expressly agrees to such terms in writing.2. Prices
MOONS’ communicates pricing to customers in various ways (e.g., quotes) and confirms transaction prices with its order acknowledgements. Prior to shipment, MOONS’ price may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price in effect on the date of shipment as stated in MOONS’ invoice applies. Unless otherwise agreed, prices are in U.S. Dollars and Payment must be in U.S. Dollars.3. Delivery
Unless MOONS’ notifies Buyer otherwise, shipments will be delivered DDU (Incoterms 2010). MOONS’ delivers shipments to designated shipping address of buyers, MOONS’ will not be responsible for any costs related to buyers’ destination countries, like customs duties, taxes. MOONS’ may deliver shipments by installments. MOONS’ will communicate to Buyer an Estimated Ship Date. MOONS’ will not be liable for any damage, loss, or expense incurred by Buyer if MOONS’ fails to meet the Estimated Ship Date.4. Cancellations and Rescheduling
Buyer may cancel or reschedule orders according to the following rules:
Notwithstanding the above rules, certain Products are subject to special cancellation and reschedule terms that MOONS’ will communicate to Buyer prior to order acceptance. 5. Payment terms
Payment before delivery is necessary. MOONS’ may change or withdraw credit amounts or payment terms at any time for any reason. If buyer fails to make the payment within 3 working days after it is placed, MOONS’ may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders. MOONS’ will not be liable for any cost or losses resulting from suspension or cancellation on account of buyer’s failure to make payment. As MOONS’ takes the third-party payment platform, it will not be responsible for buyer’s losses during the payment.6. Contingencies
MOONS’ will not be in breach of this contract and will 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 MOONS’ 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, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act, or Act of God. In the event of a shortage of components, MOONS’ may, at its sole discretion, allocate Product production and deliveries.7. Warranties and Related Remedies.
7.1 Subject to Section 9 and Sections 8.2 through 8.5 below, MOONS’ warrants to Buyer that each Product conforms to MOONS’ published Specifications for such Product. This warranty lasts for twelve (12) months after the date MOONS’ or a MOONS’-authorized distributor delivers the Product. Notwithstanding the foregoing, MOONS’ will not be liable for a nonconforming Product if:(a) the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than MOONS’, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than MOONS’;
(b) the nonconformity resulted from Buyer’s design, specifications, or instructions for such Products or improper system design; or (c) Buyer has not paid on time.
Testing and other quality control techniques are used to the extent MOONS’ deems necessary. MOONS’ does not necessarily test all parameters of each Product. Buyer’s claims against MOONS’ under this Section 8 are void if Buyer fails to notify MOONS’ of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
7.2 MOONS’ sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above, or credit Buyer’s account for such Products. If MOONS’ elects to repair or replace such Products, MOONS’ will have a reasonable time to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
7.3 MOONS’ may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter MOONS’ warranties as set forth above and no additional obligations or liabilities arise from MOONS’ providing such services or items.
8. Buyer’s Applications and Compliance
8.1 General. Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer’s application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.8.2 Industry Standards. Unless MOONS’ has explicitly designated an individual Product as meeting the requirements of a particular industry standard (e.g., ISO/TS 16949 and ISO 26262), MOONS’ is not responsible for any failure to meet such industry standard requirements.
8.3 Safety Requirements. Where MOONS’ specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety-related requirements and standards applicable to its applications.
8.4 Specifically Designated Qualification. MOONS’ may expressly designate certain Products as completing a particular qualification (e.g., Q100, Military Grade, or Enhanced Product). Buyer agrees that it has the necessary expertise to select the Product with the appropriate qualification designation for its applications and that proper Product selection is at Buyer’s own risk. Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
8.5 Life-Critical Medical. Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death (e.g., life support, pacemakers, defibrillators, heart pumps, neurostimulators, and implantables).
8.6 Indemnification by Buyer. Buyer will fully indemnify MOONS’ and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with Section 9.
9. Intellectual Property Indemnification
9.1 Subject to Sections 8 and 9, MOONS’ will defend Buyer against any claim, suit, or proceeding brought against Buyer, insofar as such claim, suit, or proceeding is based on an allegation that Products manufactured and supplied by MOONS’ to Buyer directly infringe any United States, Canadian, Japanese, or European Union member country patent (excluding utility models), copyright, or trade secret (“Covered Claim”), and MOONS’ will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by MOONS’ as settlement or compromise of a Covered Claim.MOONS’ has no obligation to defend or indemnify Buyer unless Buyer:
(a) promptly informs MOONS’ of the Covered Claim and furnishes MOONS’ a copy of the claim, suit, or proceeding,
(b) gives all evidence in Buyer’s possession, custody, or control to MOONS’, and
(c) gives MOONS’ reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to MOONS’ the benefit of any defense available to Buyer to any Covered Claim hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such Covered Claim. Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
9.2 If MOONS’ is obligated to defend Buyer pursuant to Section 10, MOONS’ may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or
(c) if neither (a) nor (b) is available to MOONS’ at a commercially reasonable expense, then MOONS’ may stop selling the Products to Buyer without being in breach of this contract.
If MOONS’ elects to provide either of the options set forth in clauses (a) and (b) above, MOONS’ obligation pursuant to Section 10.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to MOONS’ taking such action. If MOONS’ elects the option set forth in clause (c) above, MOONS’ indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to MOONS’ any and all Products remaining in Buyer’s possession, custody, or control.
9.3 MOONS’ will have no liability or obligation under Sections 10.1 or 10.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the thirty-six (36) months preceding the date Buyer informed MOONS’ of the Covered Claim, (b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer’s customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without MOONS’ prior written consent, and
(e) to the extent that a Covered Claim is based upon:
i. Buyer’s use of the Products in combination with any other Product, device, software, or equipment,
ii. Buyer’s use of the Products in a process, including a manufacturing process,
iii. Buyer’s modifications to the Products,
iv. MOONS’ compliance with Buyer’s particular design, instructions, or specifications, or
v. MOONS’ compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e., those set forth in (i) through (v) above - are individually and collectively referred to herein as “Other Claims”).
9.4 Buyer will defend MOONS’ against any claim, suit, or proceeding brought against MOONS’ insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against MOONS’ for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. MOONS’ will be entitled to participate in its defense at its own expense with counsel of its own choosing.
9.5 the foregoing states the sole liability of the parties for intellectual property rights infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. Buyer understands and agrees that the foregoing intellectual property indemnification terms are essential elements of this contract, and that in the absence of such terms, the material and economic terms of this contract would be substantially different.
10. Limitations and Damages Disclaimer
10.1 General Limitations. In no event will moons’ be liable for any special, collateral, indirect, punitive, incidental, consequential, or exemplary damages in connection with or arising out of this contract or the use of the products, regardless of whether moons’ has been advised of the possibility of such damages. Excluded damages include, but are not limited to, cost of removal, rework or reinstallation, ancillary costs to the procurement of substitute goods or services, retesting, outside computer time, labor costs, loss of goodwill, loss of profits, loss of savings, loss of use, loss of data, or business interruption. No claim, suit, or action will be brought against moons’ more than twelve (12) months after the event that gave rise to the cause of action has occurred.10.2 Specific Limitations. In no event will moons’aggregate liability from any use of a product provided hereunder, including from any warranty, indemnity, or other obligation arising out of or in connection with this contract exceed the total amount paid to moons’ for the particular products at issue during the prior twelve (12) months with respect to which losses or damages are claimed. The existence of more than one claim will not enlarge or extend this limit.
10.3 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.
11. Non-Waiver of Default
In the event of any default by Buyer, MOONS’ may decline to make further shipments. If MOONS’ elects to continue to make shipments, MOONS’ action will not be a waiver of any such default or affect MOONS’ legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.12. Governing Law and Venue
If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in SHANGHAI, CHINA and consents to venue in shanghai, china.13. Export Control
13.1 Exports, re-exports, and transfers of Products are subject to CHINA export controls and sanctions, Buyer acknowledges and agrees that it will comply, and will ensure that its subsidiaries comply, with all applicable laws and regulations whenever it exports, re-exports, or transfers Products.13.2 Buyer also acknowledges and agrees to observe all other applicable restrictions concerning other end-uses/end-users according to other laws and regulations To the extent applicable, Buyer undertakes to refrain from the following transactions under all circumstances: (a) transactions involving persons, organizations, or institutions listed in any applicable sanctions list, (b) prohibited transactions involving embargoed countries, and (c) transactions subject to any license requirement for which the necessary export license has not been granted.
13.3 Buyer further agrees to obtain any necessary export authorization prior to the exportation, re-exportation, or transfer of any Product acquired from MOONS’ under this contract. Each party will secure, at its own expense, such authorization and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. Further, Buyer will 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 from Buyer with the intention of exportation. If government approvals cannot be obtained by MOONS’, MOONS’ may terminate, cancel, or otherwise be excused from performing any obligations it may have under these terms.
13.4 Requests by Buyer for MOONS’ to provide assistance or services in connection with the integration of Products into any military end-use item must be approved in advance by MOONS’ in writing for export control purposes and MOONS’ ability to provide any such assistance to Buyer is conditioned upon obtaining any Chinese government export authorization that may be required. MOONS’ is not obligated to provide such assistance or services.
13.5 Any Product export classification made by MOONS’ shall be for MOONS’ 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 authorization is required for the exportation of such Product.
13.6 If Buyer violates any of its obligations and commitments under Section 14, MOONS’ may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Buyer will fully indemnify MOONS’ and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with Section 14. Section 14 will survive termination of this contract.
14. Assignment and Third Party Beneficiaries
This contract is not assignable by Buyer without MOONS’ prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or MOONS’. MOONS’ affiliates and subsidiaries may perform all or any part of MOONS’ obligations under this contract.15. Miscellaneous
This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this contract will be binding upon MOONS’ unless made in writing and signed by a duly authorized MOONS’ representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.