Terms and Conditions of Sale - Atmel Store
These terms and conditions of sale (“these Terms”) govern transactions at the Atmel Store, found at http://store.atmel.com (the “Atmel Store”). Other transactions with Atmel for the purchase of goods or services are subject either to (1) the terms set out in a separate agreement between the buyer (“Buyer”), on the one hand, and, on the other, Atmel Corporation or its subsidiary corporation (collectively, “Atmel”), or (2), absent such an agreement, Atmel’s Terms and Conditions of Sale, found at http://www.atmel.com/general/terms_conditions_sale.asp. The Buyer must affirmatively accept these Terms before placing an order at the Atmel Store.
1. OFFER AND ACCEPTANCE
Atmel offers to sell products (“Products”) at its Atmel Store solely on these terms and conditions (these “Terms”) and any acceptance is expressly limited to these Terms. If Buyer has ordered Products from Atmel and such order is deemed to be an offer by Buyer, Atmel’s acceptance of such offer is expressly conditional on Buyer’s assent to these Terms. Any additional, different, or conflicting Terms proposed by Buyer in any offer, acceptance, or confirmation (including any Buyer purchase order or specifications) are requests for material alterations of these Terms, are hereby rejected, and will not be binding in any way on Atmel. Buyer is hereby notified of Atmel’s objection to all such additional, different, or conflicting terms and conditions. Acceptance of or payment for any Products by Buyer will constitute Buyer’s assent to and acceptance of these Terms.
The prices for the Products are as posted at the Atmel Store on the date Buyer places an order and do not include any taxes or customs duties. Buyer will pay, in addition to the prices stated, the amount of any present or future taxes and customs duties applicable to the sale or licensing of Products or, if appropriate, supply Atmel with an effective tax exemption certificate for each jurisdiction in which taxes otherwise would be due. Atmel reserves the right to change prices for products displayed at the Atmel Store at any time and particularly to correct pricing errors that appear at the Atmel Store. Atmel is not responsible for typographical or similar errors, and reserves the right to cancel orders if there was an error on the Atmel Store concerning the pricing or availability of the ordered item at the time Atmel received the order.
3. TERMS OF PAYMENT
All payments for Products are due at the time the order is placed. As payment, the Atmel Store accepts PayPal remittances and these credit cards: American Express, Discover, MasterCard, and VISA. Atmel reserves the right to place a credit hold or process payment against credit cards at the time Atmel receives the Atmel Store order.
4. TITLE AND DELIVERY
(a) Unless otherwise agreed by Atmel and Buyer, all Atmel Store sales are FCA Penang Airport (as defined in Incoterms 2000). Title and risk of loss or damage to Products will pass to Buyer upon delivery to the Buyer.
(b) Delivery dates quoted at the Atmel Store are estimates only. Atmel will use commercially reasonable efforts to deliver in accordance with the quoted delivery dates, but may change those dates as it deems necessary or convenient. Atmel may reduce quantities to be delivered, delay shipments, or allocate among customers in Atmel’s sole discretion. Atmel will not be liable for failure to deliver or perform by the quoted dates.
(c) Product specifications may change at any time, without notice.
5. ACCEPTANCE AND WARRANTY
(a) Any Product Atmel sells will be deemed accepted by Buyer upon delivery. Except as provided elsewhere in this Section 5, Atmel warrants to Buyer that Products delivered under these Terms (i) will comply substantially with the Product’s applicable published data or specifications and (ii) will be free from defects in material and workmanship under proper use, service and conditions for a period of one (1) year from the date of invoice. To the maximum extent permitted by and subject to applicable law, the foregoing warranty will not apply to any (i) Products delivered as samples, prototypes, design verification units, or as development kits, or (ii) Licensed Software or Software Documentation (defined in Section 6 below), all of which are provided or sold by Atmel "AS IS," "WITH ALL FAULTS," and with no warranty whatsoever. In addition, to the maximum extent permitted by and subject to applicable law, Atmel will have no liability for any failure of any Product to conform with the foregoing warranty if such failure is caused by accident, abuse, misuse, neglect, alteration, improper installation, repair, improper testing, use contrary to any specifications for such Product or instructions issued by Atmel (each of the foregoing, a “Disqualifying Cause”).
(b) If, with respect to a Product warranted under these Terms, during the applicable warranty period, or, with respect to any Product sold at the Store, as Atmel otherwise agrees in writing, (i) Buyer notifies Atmel promptly in writing upon discovery that a Product does not conform to this warranty, including a detailed description of such nonconformance, (ii) Buyer returns such Product to Atmel in accordance with Atmel’s instructions (which may require return of the Product DDP Atmel’s facility (Delivered Duty Paid as defined in Incoterms 2000)) and completion of Atmel’s Returned Material Authorization form), and (iii) Atmel confirms to Atmel’s satisfaction that such Product does not conform to this warranty and that the failure of such Product to conform to this warranty is not caused by a Disqualifying Cause, Atmel will, at its sole option, either repair, replace, or credit Buyer the purchase price of such Product. Buyer may not return any Products to Atmel without Atmel’s Returned Material Authorization form. Replacement Products, parts, and repairs are warranted for the remainder of the original Product’s warranty period.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTY REMEDY CONSTITUTES ATMEL'S EXCLUSIVE LIABILITY AND OBLIGATION, AND
BUYER’S EXCLUSIVE REMEDY, FOR ANY BREACH OF ANY WARRANTY OR OTHER DEFECT OR NONCONFORMITY OF WARRANTED PRODUCTS COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. ATMEL MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT MAY ARISE FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE TRADE. ATMEL DOES NOT EXTEND THE FOREGOING WARRANTY, AND BUYER MAY NOT TRANSFER IT, TO BUYER’S CUSTOMERS OR OTHER THIRD PARTIES.
(d) OTHER THAN AS PROVIDED WITH RESPECT TO ATMEL’S EXPRESS WARRANTY OBLIGATIONS IN THESE TERMS, ATMEL IS NOT LIABLE FOR ANY COSTS ASSOCIATED WITH THE REMOVAL, REPLACEMENT OR REPAIR OF ANY PRODUCT, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS INCURRED BY BUYER.
The following terms and conditions will apply to software and firmware that Atmel provides to Buyer at the Webstore (“Licensed Software”), and to documentation for such Licensed Software that is provided by Atmel (“Software Documentation”):
(a) Atmel or Atmel’s licensor retains full rights, title, and ownership including all patents, copyrights, trade secrets, trade names, trademarks, and other intellectual property rights in and to the Licensed Software and Software Documentation;
(b) With respect to any Licensed Software (including without limitation, software contained in a development kit), subject to these Terms, Atmel grants to Buyer a non-exclusive, nontransferable, non-sublicensable, limited license to (i) use internally such Licensed Software solely in connection with an Atmel Product, (ii) distribute any Licensed Software that is embedded into Atmel Product (“Licensed Firmware”) (in machine code only) solely as programmed into such Atmel Product, and (iii) use internally any Software Documentation for such Licensed Software solely in connection with the foregoing;
(c) Subject to mandatory applicable law, Buyer will not (i) engage in (and will take all reasonable steps to prevent), unauthorized use and disclosure of, including without limitation any effort to reverse engineer, disassemble, de-compile, or otherwise attempt to derive the source code of, any Licensed Software or any portion thereof, (ii) copy, reproduce, modify, create derivative works of, sell, distribute, disclose or otherwise exploit any Licensed Software or any portion thereof, except as expressly set forth in this Section 6, (iii) otherwise make any Licensed Firmware available for execution on, or other use with, any semiconductor products except the Products with which such Licensed Firmware was provided by Atmel, or (iv) program into any Products any Licensed Firmware updates or upgrades (whether Buyer obtained them from Atmel or otherwise), except as expressly permitted in another agreement between Buyer and Atmel; and
(d) Buyer will not remove or destroy any trademark, copyright markings, legends or notices placed upon or contained within the Licensed Software or Software Documentation.
7. INTELLECTUAL PROPERTY
(a) If Buyer complies with these Terms, Atmel will, at its own expense, defend or settle any suit that a third party institutes against Buyer to the extent based on a claim that the Product in the form provided by Atmel to Buyer under these Terms, infringes such third party’s US, Japanese, or EU member country patent(s) (excluding processes or methods claimed by such patent(s)), trademark(s), or copyright(s) (“Third Party IP Rights”), provided that (i) the claimed infringement is not based on an Excluded Claim (as defined in Section 7(c)), (ii) Buyer gives Atmel immediate notice in writing of any such suit, (iii) Buyer gives Atmel sole control over the defense and settlement of such suit through counsel of Atmel’s choice, and (iv) Buyer gives Atmel all needed information, assistance and authority, at Atmel’s expense, to enable Atmel to defend or settle such suit. Atmel will pay any final judgment awarding damages when due to the extent such award is based upon a finding that the Product in the form provided by Atmel to Buyer infringes such Third Party IP Rights, but will not be liable for any settlement made without its prior written consent or legal fees incurred by Buyer in connection with any such settlement.
(b) In full satisfaction of all of its obligations under Section 7(a), Atmel, at its sole discretion, may (i) replace or modify the allegedly infringing Products with non-infringing products that are functionally equivalent, (ii) obtain a release of claims against Buyer or covering Products sold to Buyer, (iii) obtain a license for Buyer to continue to use or sell the allegedly infringing Products, or (iv) accept the return of allegedly infringing Products and refund the amount paid by the Buyer for such returned Products.
(c) Notwithstanding anything to the contrary in these Terms, Atmel will have no liability for, and the obligations of Atmel under Section 7(a) will not apply to, any claim arising from or related to (i) the use of Products as a part of or in combination with any other devices, parts, processes, methods, or software or firmware including, without limitation any Buyer Code, whether or not modified by Atmel, (ii) Atmel’s compliance with any designs, specifications, or instructions provided by or for Buyer, (iii) the use of Products contrary to any Atmel instructions or in breach of these Terms, (iv) modifications or alterations to the Products, (v) the practice of any process or method relating to Buyer’s or its customers’ use of the Products, (vi) use or purchase of the Products after receiving notice
of such claim, (vii) Atmel’s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard, or (viii) Buyer’s intentional, knowing, or willful infringement of the Third Party IP Rights (collectively, “Excluded Claims”).
(d) THIS SECTION 7 STATES ATMEL'S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCTS DELIVERED HEREUNDER, OR ANY PART THEREOF. THIS SECTION 7 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY RELATING TO ANY SUCH INFRINGEMENT OR MISAPPROPRIATION. IN NO EVENT WILL ATMEL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT OR MISAPPROPRIATION.
(e) Buyer, at its own expense, will indemnify and hold Atmel harmless from and against any liabilities, costs, damages, or losses resulting from any Excluded Claim, and will defend or settle at its own expense, including attorney's fees and costs, any suit against Atmel based on an allegation arising from any Excluded Claim, provided that (i) Atmel gives Buyer immediate notice in writing of any such suit, and (ii) Atmel and Buyer give each other all needed information, assistance and authority, at its own expense, necessary to defend or settle such suit.
8. SAFETY-CRITICAL, MILITARY AND AUTOMOTIVE APPLICATIONS
(a) Products are not designed for and will not be used in connection with any applications where the failure of such Products would reasonably be expected to result in significant personal injury or death (“Safety-Critical Applications”) without an Atmel officer’s specific written consent. Safety-Critical Applications include, without limitation, life support devices and systems, equipment or systems for the operation of nuclear facilities and weapons systems. Buyer will fully defend (at Atmel’s option), indemnify and hold Atmel harmless from and against any cost, loss, liability, or expense arising out of or related to use of Products in Safety-Critical Applications.
(b) Products are neither designed nor intended for use in military or aerospace applications or environments unless specifically designated by Atmel as military-grade. Buyer acknowledges that any such use of Products not designated as military-grade is solely at Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
(c) Products are neither designed nor intended for use in automotive applications unless specifically designated by Atmel as automotive-grade. Buyer acknowledges that any such use of Products not designated as automotive-grade is solely at Buyer’s risk, and that Buyer is solely responsible for compliance with all requirements in connection with such use.
9. FORCE MAJEURE
Atmel will not be liable for any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, terrorism, sabotage, labor disputes, yield problems, governmental actions (including inability or delay in obtaining governmental authorizations), or inability to obtain materials, components, energy, manufacturing services or facilities, or transportation on commercially reasonable terms. In the event of any such delay, the date of delivery or performance hereunder will be extended by a reasonable period of time.
10. LIMITATION OF LIABILITY
(a) TO THE EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ATMEL WILL IN NO EVENT BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OR FOR LOST PROFITS OR LOSS OF BUSINESS, WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING FROM OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, EVEN IF ATMEL IS APPRISED OF OR SHOULD HAVE KNOWN THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL ATMEL'S TOTAL LIABILITY, INCLUDING ANY ATTORNEYS’ FEES AND COSTS INCURRED, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO ATMEL FOR THE PRODUCTS ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION OR IF THERE IS NO ACTION THE DATE THE BUYER WAS FIRST PLACED ON NOTICE OF THE CLAIM GIVING RISE TO THE LIABILITY). THIS LIMITATION IS CUMULATIVE WITH ALL PAYMENTS MADE TO BUYER FOR ANY CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
(c) BUYER MAY NOT BRING ANY CLAIM, SUIT OR ACTION AGAINST ATMEL MORE THAN ONE YEAR AFTER THE EVENTS GIVING RISE TO THE CAUSE OF ACTION OCCUR.
(d) BUYER ACKNOWLEDGES THAT ATMEL HAS SET ITS PRICES AND FEES AND AGREED TO SELL PRODUCTS TO BUYER IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES AND EXCLUSIVE REMEDIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH ATMEL WOULD NOT HAVE AGREED TO SELL PRODUCTS TO BUYER. SUCH PROVISIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
(e) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, ATMEL WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY EXCESS COSTS OF REPROCUREMENT.
(a) Atmel will retain all patents, copyrights, trade secret rights, and other intellectual property rights it possesses with regard to any and all design, process, manufacturing and other technologies used in or resulting from the development or production of Products. Neither Buyer nor any third party (whether by implication, operation of law, estoppel or otherwise) will have any right or license in or to any patent, copyright, trade secret right, mask work right, or any other intellectual property right not expressly granted by Atmel in these Terms.
(b) During this business relationship, Atmel will use Buyer-related data, including but not limited to Buyer address and contact person information. To the extent consistent with law, Buyer’s placement of an order at the Atmel Store constitutes Buyer’s consent that such data may be used and distributed within Atmel and to certain third parties, such as contractors and representatives.
(c) Buyer will comply with applicable laws, regulations and requirements regarding the export, import or re-export of Products. Buyer will not export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, Atmel’s products, software, or technology to any country, end-use, or end-user that requires an export license or other approval without first obtaining such license or approval.
(d) Government procurement requirements and regulations (including but not limited to, certified cost or pricing data, Cost Accounting Standards, Defective Pricing, and Audit requirements) will not be binding upon Atmel unless Atmel otherwise agrees in a writing signed by an officer of Atmel.
(e) Buyer may not assign any of its rights or delegate any of its obligations under these Terms, whether voluntarily, by operation of law, or otherwise without Atmel’s prior written consent and any purported assignment or delegation without such consent will be null and void and of no force or effect. In addition, Buyer may not assign any of its rights or delegate any of its obligations to any entity controlled by, controlling or under common control with Buyer or in connection with Buyer’s merger or the transfer or sale of all or substantially all of Buyer’s assets or stock without Atmel’s prior written consent and any purported assignment or delegation without such consent will be null and void and of no force or effect. Atmel may assign its rights and/or delegate its obligations under these Terms upon written notice to Buyer. Subject to the foregoing, these Terms will bind each party and its respective successors and permitted assigns.
(f) Atmel’s waiver of any right it may have or default by Buyer will not be a continuing waiver of such right or default or a waiver of any other right it may have under these Terms or other default, nor will Atmel’s delay or omission in exercising or availing itself of any right or remedy that it has or may have be a waiver of any right or remedy. No Atmel waiver will be effective except pursuant to a writing signed by a duly authorized representative of Atmel.
(g) Atmel may modify these Terms at any point by posting the modified Terms at the Atmel Store. Buyer’s placement of an order at the Atmel Store after any such modification is Buyer’s acceptance of the modified Terms. No other act, document, usage, or custom will be deemed to supersede, cancel, modify or amend these Terms. If any provision of these Terms is determined to be invalid, illegal, or unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties and the remaining provisions will remain in full force and effect.
(h) These Terms will constitute the entire agreement between Buyer and Atmel with regard to the Products sold under these Terms, and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to such Products.
(i) The laws of California, without giving effect to its choice of law rules, will govern the validity, performance and construction of these Terms, and any disputes arising from or relating to these Terms, including any non-contractual disputes arising from or relating to these Terms. All disputes will be subject to the exclusive jurisdiction of the state or federal courts in Santa Clara County, California and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, either party has the right to apply to a court of competent jurisdiction for provisional relief, including without limitation, attachment or injunction, as may be necessary to preserve the rights of the applying party. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act will not apply to these Terms.
(j) These Terms do not create, and shall not be construed as creating, any rights for any third party who is not party to these Terms.