DIAMOND FOUNDRY MASTER TERMS AND CONDITIONS [FOR OUR SALE OF GOODS AND SERVICES]
1. PROCESS FOR PURCHASING PRODUCTS. These Terms and Conditions of Sale (“Terms and Conditions”) govern the sale of any products by Diamond Foundry Inc. (“DFoundry”) to the party referenced on any purchase order, bill of sale, invoice, purchase agreement or any other such documentation (such party the “Company”, with DFoundry and the Company each a “Party” to these Terms and Conditions). These Terms and Conditions may be attached to any agreement between the Parties (an “Agreement”), and in the case of a conflict in terms between an Agreement to which these Terms and Conditions are attached, and these Terms and Conditions themselves, the terms in the Agreement shall control. Unless otherwise agreed to in writing by the Parties, DFoundry’s acceptance of any purchase order is conditioned upon Company’s agreement to these Terms and Conditions stated herein and on DFoundry’s Confirmation of Order, which exclusively govern and control and are in lieu of, replace and supersede any and all terms and conditions set forth in any documents issued or submitted by Company, including, without limitation, purchase orders and specifications (excluding any Agreement to which these Terms and Conditions are attached). ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ISSUED OR SUBMITTED BY COMPANY IN ANY MANNER WHATSOEVER AT ANY TIME ARE HEREBY REJECTED BY DFOUNDRY, AND SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON DFOUNDRY. No waiver or amendment to these Terms and Conditions shall be binding on DFoundry unless made in writing expressly stating that it is such a waiver or amendment and signed by DFoundry.
2. PRICES. Except as otherwise specified by DFoundry in writing or in any Agreement, all billings for products and services will be at the price indicated on the Confirmation of Order. DFoundry shall have the right to increase the prices at any time to reflect increases for any additional duty, tariff, tax, or other charge imposed as a result of any action by the U.S. Government, any state or local government, or any agent or agency thereof or to compensate for exchange rate variations. For such different prices, Company may upon five (5) days written notice and within five (5) days of the date of DFoundry’s acknowledgement, cancel this order without liability.
3. PAYMENT. Except as set forth in any Agreement, ALL PAYMENTS SHALL BE MADE IN UNITED STATES DOLLARS WITHIN THIRTY (30) DAYS OF THE DATE OF INVOICE; provided, however, that if shipments are delayed by Company without DFoundry’s prior written consent, payments shall become due on the date that DFoundry is prepared to make shipment. Time is of the essence. On any amounts not paid when due, Company agrees to pay interest at the rate of 0.5% per day, starting with the fifth day, or, if such rate is in excess of the rate allowed by law, then Company agrees to pay the highest rate allowed by law. In addition, Company agrees to pay all costs of collection, including costs of litigation and reasonable attorneys’ fees. DFoundry may accept partial payment in an amount less than the full amount of any invoice, but such acceptance shall not constitute a waiver of DFoundry’s right to collect the balance or accord and satisfaction notwithstanding DFoundry’s endorsement of a check or other instrument. If Company does not comply with the payment terms, DFoundry may suspend further shipments and require new payment terms as a condition of further shipments. If Company is adjudicated bankrupt or a petition for winding up or judicial management is made against Company or corporate reorganization under any bankruptcy or similar laws is filed by or against Company, or Company makes a general assignment for the benefit of creditors or a receiver and/or manager for Company is appointed, DFoundry may, to the extent allowed by applicable law, cancel any unfilled order. Each individual shipment shall be invoiced and paid as a separate and independent transaction. Company hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to DFoundry and DFoundry reserves a purchase money security interest in the products sold to Company, and in the proceeds thereof, until payment is made in full by Company. In the event that Company sells or otherwise disposes of the products sold to Company without the prior written consent of DFoundry prior to full payment for these products being made to DFoundry, DFoundry shall be entitled to the entire proceeds of sale, which amount will be held by Company in a separate bank account on trust for DFoundry. Company agrees to execute financing statements and other instruments at DFoundry's request and Company authorizes the filing and recording of such financing statements and other instruments. Alternatively, DFoundry may file a copy of these Terms and Conditions of Sale.
4. CREDIT. All shipments, deliveries, and performance of work covered by this sale shall at all times be subject to credit approval or review by DFoundry at its sole discretion. Company shall provide such credit information, references, and assurances as are requested by DFoundry at any time. Company authorizes such references to release credit information about Company’s accounts and warrants that all such information and assurances shall be true and correct. Company agrees to indemnify and hold harmless DFoundry and their employees and agents from any and all liability, including all costs and reasonable attorneys’ fees, resulting from the references and released information and the extension of credit hereunder. DFoundry, in its sole discretion and judgment, may discontinue credit at any time without notice.
5. TAXES. Stated prices do not include any customs duties, sales, use, value added, excise, goods and services, federal, state, local or other similar taxes. All such duties or taxes shall be paid by Company, or, in lieu thereof, Company shall provide DFoundry with an appropriate exemption certificate acceptable to the relevant taxing authority.
6. F.C.A. AND RISK OF LOSS. All shipments are F.C.A. DFoundry's shipping facility. DFoundry's liability for delivery shall cease and title and all risk of loss or damage shall pass to Company upon delivery to carrier, per Incoterm 2022 rules, regardless of any provision for payment of freight or insurance or the form of shipping documents. Products held by DFoundry for Company shall be at Company’s risk and expense. Unless otherwise specified by DFoundry in writing, DFoundry shall ship by the method which it deems most advantageous. Transportation will be collected, or if prepaid, will be subsequently billed to Company. Claims against DFoundry for shortages shall be deemed waived if not made within ten (10) days after receipt of the shipment. DFoundry may modify the specifications of products designed by DFoundry, provided such modifications do not adversely affect the performance of the products.
7. REMEDIES. If Company fails to pay any sum when due, fails to accept any delivery of conforming goods, returns product without advance written authorization of DFoundry, or otherwise fails to abide by these Terms and Conditions, in addition to any other remedies allowed by law and under these terms, DFoundry may suspend deliveries while Company is in breach, or cancel all further deliveries, and Company shall remain liable for, as damages, the difference between the stated price of this sale and the average selling price obtained by DFoundry for product of like kind and quality for sales at or about the time of scheduled delivery.
8. FORCE MAJEURE. DFoundry shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, terrorism, epidemic, pandemic, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties which are beyond the reasonable control of DFoundry, including business interruption due to orders of the State, Local or Federal authority having jurisdiction over the party for reasons of health and safety. In the event a suspension of performance as a result of Force Majeure, at DFoundry’s sole discretion, (i) the term of any applicable Agreement shall be extended by a period equivalent to any suspension caused by such a business interruption, (ii) such Agreement or any part hereof may be terminated as to products not delivered or shipped and/or (iii) such Agreement may be suspended in whole or in part for the duration of the delay however performance shall be resumed as soon as the delay ceases and items and employees are available to resume production.
9. NO RESALE OR DIAMOND MULTIPLICATION; TRANSFER RESTRICTIONS. Company shall not: i) resell or otherwise transfer the Products in their original or modified form to third parties; ii) use the Products as substrate seeds to manufacture or grow any form of carbon based crystals (e.g. by homo-epitaxy) or other diamond, conductor or semiconductor substrates (including, cubic boron nitride and its alloys and phosphorus based doping); iii) sell or otherwise transfer the Products combined with Company's products to customers active in diamond substrate, wafer, coupon, seed, plate, block, or ingot growth, or to distributors active in diamond sales; or iv) sell or otherwise transfer the Products combined with Company's products to customers active in semiconductor substrates (including, cubic boron nitride and its alloys), or to distributors active in semiconductor sales. Company shall fully indemnify DFoundry for breach of the transfer and use restrictions set forth in this Section.
10. INSPECTION; AUDIT. Company hereby grants, to DFoundry and its authorized representatives, access to Company’s premises and all pertinent documents and other information, whether stored in tangible or intangible form, in connection with this Agreement, for the purpose of auditing Company´s compliance with the terms Section 9 above (“NO RESALE OR DIAMOND MULTIPLICATION”). Company agrees to cooperate fully with DFoundry in connection with any such audit or inspection. Company shall maintain, during the Term and for a period of three (3) years after the Term, complete and accurate books and records. Company shall segregate its records and otherwise cooperate with DFoundry so as to facilitate any audit by DFoundry.
11. PRODUCT SAMPLES. Product samples are sold or provided on an “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND.
12. WARRANTY. EXCEPT AS SET FORTH EXPRESSLY IN THIS SECTION, DFOUNDRY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OTHER WARRANTIES THAT MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE. DFOUNDRY WARRANTS ONLY THAT THE PRODUCT COMPLIES WITH DFOUNDRY’S SPECIFICATION SHEET FOR THE PRODUCT AT THE TIME OF DELIVERY.
DFoundry warrants and represents that (i) Company shall acquire good and clear title to all products free and clear of all liens and encumbrances, (ii) all products, or any part thereof, are owned or properly licensed by DFOUNDRY or in the public domain, and (iii) DFoundry has the full power to enter into this Agreement.
All sales of products are AS IS and final. There are no returns, refunds or exchanges of Product unless otherwise specified in this Agreement or mutually agreed by the parties.
13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DFOUNDRY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM THESE TERMS, DFOUNDRY'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS SALE, OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, THE NEGLIGENCE OF DFOUNDRY, OR OTHERWISE. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL, RECALL, REWORK, REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE. NO CLAIM, SUIT OR ACTION WILL BE BROUGHT AGAINST DFOUNDRY MORE THAN TWELVE (12) MONTHS AFTER THE EVENT THAT FIRST GAVE RISE TO THE CAUSE OF ACTION OCCURRED. IN NO EVENT WILL DFOUNDRY’S AGGREGATE LIABILITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, FROM ANY WARRANTY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO DFOUNDRY FOR THE PARTICULAR ORDER AT ISSUE DURING THE PRIOR SIX (6) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
14. NO WARRANTY AGAINST PATENT INFRINGEMENT. COMPANY EXPRESSLY UNDERSTANDS AND AGREES THAT DFOUNDRY DOES NOT WARRANT THAT THE PRODUCT IS FREE OF CLAIMS OF PATENT INFRINGEMENT OR OTHER INFRINGEMENT BY ANY THIRD PARTY. DFOUNDRY HEREBY DISCLAIMS ANY SUCH WARRANTY OR INDEMNIFICATION AGAINST ANY INFRINGEMENT.
15. CONFIDENTIAL INFORMATION. DFoundry shall have no obligation to hold any information received from Company hereunder in confidence unless such information is covered by a separately negotiated non-disclosure agreement which is reduced to writing and signed by both parties. Unless covered by a separate non-disclosure agreement executed by the parties, Company acknowledges that all information and materials that come into Company’s possession or knowledge in connection with past and future purchases of product from DFoundry and which is marked, identified, accepted as confidential or proprietary information or may be deemed confidential or proprietary by its nature or by the circumstances of tis disclosure (“Confidential Information”), consists of confidential or proprietary information the improper disclosure or use of which will be damaging to DFoundry. Therefore, Company agrees to hold all Confidential Information in confidence to disclose Confidential Information only to those of its employees having a need to know, and not to disclose Confidential Information to any other party. Company agrees that it will not use of any DFoundry’s Confidential Information, and to the fullest extent permissible under applicable law, will not copy or synthesize in any way DFoundry products whether for internal consumption, open market sale or for any other purpose inconsistent with these Terms and Conditions.
16. EXPORT COMPLIANCE AND ECONOMIC SANCTIONS. Company is responsible for complying with all applicable export control laws and regulations with respect to the reexport, shipment, transfer, or use of the products. Company will not provide products to entities or individuals that are prohibited from receiving such products under applicable laws, including the laws of the United States. Company shall conduct sufficient screening and due diligence to ensure the transaction does not involve any person or entity identified as a restricted or denied party pursuant to any embargo, sanction, debarment or denied party designation maintained by any country or government whose laws are applicable to this transaction, to the extent that designation prohibits the transaction. A current list of such prohibited entities under U.S. law is available at the following link: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm. Company will not export, reexport, or transfer products as follows, unless it has authorization to do so under any applicable export control and sanctions laws of the United States: (a) to Cuba, Iran, North Korea, Syria, and the Crimea Region or any other country sanctioned or embargoed under U.S. law, or any nationals of such countries; (b) for military or military intelligence or security classified end uses (including to processing technical data controlled under the U.S. International Traffic in Arms Regulations) or other applicable countries' laws on military or military intelligence or security classified end uses; and (c) for any end use involving the development, production or uses in connection with weapons of mass destruction, including designing, developing, producing, or using nuclear, chemical, or biological weapons, materials, or facilities, or activities related to missiles or supporting missile projects. Company agrees to obtain an export license, if applicable, for sales, exports, reexports and/or transfers of DFoundry’s products, as applicable. Company agrees that they will not transfer any export-controlled item to include transfer to foreign persons, including any lower tier companies, without the necessary export license, or applicable exemption or exception. DFoundry may suspend or terminate any order if the Company violates this Section or any international trade requirements. Company shall defend DFoundry against any claims or actions arising from the failure of Company to comply with this Section.
17. GOVERNING LAW. The validity, interpretation and enforceability of these Terms and Conditions and any applicable Agreement shall be governed and construed in all respects in accordance with the laws of the State of California without regard to principles of conflict of laws. Each Party hereby consents to the personal jurisdiction of the courts of California for any dispute arising out of this Agreement, and the venue of any action arising out of this Agreement shall be in California. The Parties hereby acknowledge and agree that the provisions of the Sale of Goods (United Nations Conventions) Act, Chapter 283A, as amended or replaced, are expressly excluded and shall not apply to these Terms and Conditions of this Order.
18. TERM; TERMINATION. These Terms and Conditions will remain in effect from the Effective Date of any written agreement to which these Terms and Conditions are attached through the 60th month from the first shipment made under any such agreement (such period the “Initial Term”), and may be extended for one five year period by the Company upon written notice to DFoundry no later than three months prior to the end of the Initial Term. If Company materially breaches these Terms and Conditions and fails to cure such breach within thirty (30) days after receiving such notice of the breach from DFoundry, DFoundry may terminate these Terms and Conditions. DFoundry may terminate these Terms and Conditions and uncompleted portions of any and all pending orders if Company files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, or a trustee or a similar officer is appointed for the other party or its assets. On termination or expiration of these Terms and Conditions the sections intended to survive termination by their nature shall survive. Termination will not prejudice either party to require performance of any obligation due at the time of termination.
19. ENTIRE AGREEMENT; SEVERABILITY; HEADINGS. These Terms and Conditions and any applicable Agreement (including nondisclosure agreement (but expressly not including any terms and conditions of Company’s documents, including any Purchase Order)) constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to said sale. DFoundry and Company are independent contractors of one another. This agreement shall be binding upon the heirs, successors, and permitted assigns of the parties hereto. If any provision of this agreement is adjudged to be unenforceable in whole or in part, such adjudication shall not affect the validity of the remainder of this agreement. Each provision of this agreement is severable from every other provision and constitutes a separate, distinct and binding covenant. No third-party beneficiaries are intended or created unless specifically agreed otherwise in writing. A waiver of a breach of any term will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after that other’s breach will not be construed as a waiver of that breach. Each party will, at its own expense, comply with all applicable governmental laws, statutes, ordinances, administrative orders, rules or regulations relating to its obligations and performance under this agreement. Headings are inserted solely for convenience of reference, shall not constitute a part of this agreement and shall not otherwise affect the interpretation hereof.
DF updated March 2024