These Terms and Conditions of Sale (these “Terms”) apply to any sale or transfer of Products, Software or Technical Information by MaxLinear, Inc. or its worldwide affiliates (collectively, “MaxLinear”) to the customer, reseller, distributor, or other buyer or recipient (“Customer”) as set forth in the applicable Order. “Order” means the order form, PO, quote, online order, or other binding transaction document entered into between MaxLinear and Customer. “Products” means the MaxLinear chipsets, kits, components, or other hardware products described in the applicable Order. “Software” means all computer programs, software, firmware, code and related documentation described in the applicable Order, including updates and upgrades provided by MaxLinear. “Technical Information” means MaxLinear data, materials and other technical information made available by MaxLinear to Customer (including without limitation such information provided by or on behalf of MaxLinear as part of any services or training). These Terms and each applicable Order comprise this “Agreement”.
The terms and conditions set forth in this Agreement constitute an offer to sell and not an acceptance of any offer to purchase, and are deemed accepted by Customer: (a) entering into an Order that references these Terms; or (b) purchasing, paying for, receiving delivery of, or accepting any Products, Services, or Technical Information. MaxLinear’s offer to sell is limited to the terms and conditions of this Agreement and acceptance is conditioned on assent to all and only this Agreement without modification. MaxLinear objects to and rejects any proposals for additional or different terms or deletions of terms by Customer. In the event that Customer uses its own purchase order or any other ordering document to accept this Agreement, such form shall be deemed to be used for convenience only and any terms or conditions contained therein that are different from, in addition to, or that delete any of the terms and conditions contained in this Agreement shall be of no force or effect. Any failure to return the acknowledgment or writing of MaxLinear shall not alter, add to, or otherwise affect these terms and conditions. MaxLinear hereby expressly objects to and rejects any additional or different terms or conditions in any Customer purchase order, invoicing portal, or other form or document tendered by Customer. In the event of any conflict between a provision of these Terms and those of the Order or any separate purchase, license or supply agreement entered into between the parties, these Terms shall govern except to the extent the applicable portion of the Order or separate agreement expressly states that it shall supersede.
MaxLinear may revise these Terms from time to time in its sole discretion by posting an updated version on its website, which shall apply to any Orders placed after the new version is posted.
Unless otherwise expressly agreed in writing by MaxLinear, only MaxLinear and its authorized distributors may sell or license Products and Software on a standalone basis. Customer shall not purchase Products and license Software from any source other than MaxLinear or a MaxLinear authorized distributor, unless such Products and/or Software are integrated in or used in conjunction with the applicable third party vendor’s product.
Orders, Changes, Cancellations, and Returns.
Orders are not binding on MaxLinear unless and until affirmatively accepted by MaxLinear. Unless and until affirmatively accepted by MaxLinear, any purported orders shall be deemed proposals and not Orders for purposes of these Terms. MaxLinear may impose certain minimum order quantities and/or charge additional fees for small orders, as indicated by MaxLinear from time to time. All Orders are subject to MaxLinear’s then-current applicable lead times.
All Orders accepted by MaxLinear are non-cancellable, non-reschedulable, and non-returnable except as expressly set forth herein or permitted by MaxLinear it its sole discretion. Notwithstanding the foregoing, MaxLinear may cancel an Order at any time prior to shipment, in which case it shall promptly refund any prepaid amounts for such Order to Customer. MaxLinear may also suspend further deliveries if Customer fails to pay any amount when due or otherwise breaches this Agreement or any other agreement between the parties. If MaxLinear authorizes a return, Customer must follow MaxLinear’s then-current return process, including obtaining and using a return material authorization (“RMA”) number and packaging the returned Products in accordance with MaxLinear’s instructions. Except as expressly set forth herein, Customer shall bear all costs associated with the packaging, shipping, and insurance of any returns.
MaxLinear may any time in its sole discretion: (a) discontinue or limit its production of any Products or Software; (b) reallocate, terminate, or limit its deliveries of Products or Software in event of any shortages or disruptions; and (c) modify or update any Product, Software or the functional and technical specifications provided by MaxLinear regarding a Product or Software (“Specifications”).
Pricing and Payment.
Prices are as set forth in the Order (or the applicable MaxLinear quote referenced in the Order). All prices are in USD unless otherwise expressly set forth in the Order. MaxLinear may change its pricing from time to time in its sole discretion, and any such increases shall automatically apply to: (a) any Orders placed after such increase, and (b) any unshipped portion of any current Order, provided MaxLinear gives Customer at least 30 days’ prior notice of the increase before shipping such portion (in which case Customer may cancel the affected portion of the Order by notifying MaxLinear in writing within 10 days from its receipt of such price increase notice).
Pricing does not include any applicable taxes, customs or import duties, tariffs, levies, or other governmental charges arising out of the sale or delivery of the Products, Software or Technical Information hereunder (collectively, “Taxes”). Customer shall be responsible for calculating and paying Taxes, and where MaxLinear has an obligation to collect and pay such Taxes, Customer shall reimburse MaxLinear for the same. If Customer is required to withhold any Taxes from the payments made to MaxLinear, Customer shall pay an additional amount to ensure the net amounts received by MaxLinear after all Taxes is equal to the amounts MaxLinear would have been entitled to receive in the absences of such Taxes. If Customer claims exemption from any Taxes, it must provide MaxLinear with a valid exemption certificate or similar documentation, and shall indemnify, defend, and hold harmless MaxLinear from and against any claims from a taxing authority related to such purported exemption. Product pricing does not include any freight, insurance, and other shipping expenses, as well as any special packing expenses, which shall be invoiced to and paid by Customer.
Provided Customer has an approved credit application, payments, in US dollars, is due thirty (30) calendar days after the date of invoice. MaxLinear typically invoices upon Delivery (as defined below) but may in its sole discretion (based on its credit determination or otherwise) require payment in advance. MaxLinear may require an acceptable, confirmed, irrevocable letter of credit, or similar documentation in its sole discretion before making any shipments.
Late Payments; Security Interest.
Any amount not paid when due shall be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer shall reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by MaxLinear to collect any amount that is not paid when due. MaxLinear may accept any check or payment in any amount without prejudice to MaxLinear’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due from Customer may not be withheld or offset by Customer against amounts due to Customer for any reason.
MaxLinear hereby reserves a purchase money security interest in all Products sold hereunder and the proceeds hereof, in the amount of the purchase price. In the event of default by Customer in any of its obligations to MaxLinear, MaxLinear shall have the right to repossess the goods sold hereunder without liability to Customer. These security interests shall be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect MaxLinear’s security interest. On the request of MaxLinear, Customer shall execute financing statements and other instruments that MaxLinear may request to perfect this security interest.
Delivery.
Delivery dates and lead times are estimates only, not guarantees, and MaxLinear shall not be liable for any failure to deliver Products or Software by any particular date. MaxLinear shall package Products for shipment in MaxLinear’s standard shipping cartons, marked for shipment to Customer’s destination specified in the Order, and delivered to Customer or its carrier agent Ex-Works (Incoterms® 2020) MaxLinear’s point of shipment (“Delivery”), at which time risk of loss and title shall pass to Customer. Unless otherwise set forth in the Order, MaxLinear shall select the carrier. Customer shall pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. Any such charges indicated on MaxLinear’s invoice may reflect pre-shipment estimates, and Customer shall be responsible for paying the actual incurred charges. Customer shall perform the functions necessary to clear Products through all customs and similar controls. If MaxLinear holds Products at Customer’s request or upon Customer’s failure to take Delivery, Customer shall pay MaxLinear’s corresponding storage charges. Products and Software are deemed accepted upon Delivery.
Mutual Warranties.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
MaxLinear Limited Warranty.
MaxLinear warrants to Customer that each production unit of Product purchased directly from MaxLinear shall be free from material defects in workmanship that cause the Product to not substantially conform to the applicable Specifications for a period of 90 days from Delivery (the “Warranty Period”). MaxLinear warrants to Customer that the Software shall not fail to execute its programming instructions due to material defects in workmanship, and that the Software shall substantially conform to the applicable Specifications during the Warranty Period when properly installed and used on the hardware designated by MaxLinear. MaxLinear does not warrant that Software shall operate in hardware and software combinations selected by Customer or meet requirements specified by Customer.
Customer must notify MaxLinear of any warranty claim by contacting MaxLinear’s designated warranty or claims support center by email (or an online claim submissions form, if offered by MaxLinear) within the Warranty Period. The claim must include sufficient information and details to enable MaxLinear to verify and determine the cause of the alleged defect. MaxLinear may require Customer to return one or more samples of the allegedly defective Product to further validate the claim.
If a Product is to be returned to MaxLinear, Customer shall, at its expense, return the Product in accordance with MaxLinear’s instructions, including first obtaining an RMA number. If MaxLinear reasonably determines that a returned Product in fact conforms to the limited warranty set out above, MaxLinear shall invoice Customer for, and Customer shall pay for, MaxLinear’s costs to return the Product to Customer.
MaxLinear’s sole obligation and liability, and Customer’s exclusive remedy, for any validated warranty claim hereunder shall be for MaxLinear to, at its sole discretion, either: (a) repair the affected Products or Software such that they materially conform to Specifications; (b) replace the affected Products or Software with conforming Products or Software; or (c) accept return of the non-conforming Products or Software and issue a refund of the purchase price to Customer. Any repaired or replaced Products or Software shall be warranted for the remainder of the original Warranty Period.
MaxLinear’s warranty shall not apply to: (a) any samples, prototypes, reference designs, pre-production items, or board level Products; (b) Products or Software that has been altered, modified, or added to, or any alterations or modifications of, or additions to, the Products or Software made by parties other than MaxLinear; (c) use of the Products or Software in a manner for which they were not designed or other than as specified in the applicable documentation or Specifications; (d) the combination, use, or interconnection of the Products or Software with other products, software or components not supplied or not expressly approved in writing by MaxLinear; (e) abnormal usage or misuse of the Products or Software, including exposure to abnormal conditions (mechanical, electrical, or thermal) during storage, installation, or use, or use in a non-standard environment; or (f) Customer’s or a third party’s negligence, damage in transit, or any other factor or cause beyond MaxLinear’s reasonable control. If MaxLinear determines that any warranty claim reported by Customer falls within any of the foregoing exceptions, Customer shall pay MaxLinear for any investigation and remediation services at MaxLinear’s time and materials rates then in effect, in addition to bearing all shipping costs associated with the return to and from MaxLinear.
The foregoing warranty is made for Customer’s benefit only and is not transferable to any third parties.
DISCLAIMERS.
MAXLINEAR DOES NOT WARRANT THAT ANY SOFTWARE IS ERROR FREE OR THAT CUSTOMER WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. MAXLINEAR DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH SUCH SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE SECTION ABOVE TITLED “MAXLINEAR LIMITED WARRANTY”, MAXLINEAR MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO ANY PRODUCT, SOFTWARE, TECHNICAL INFORMATION, SERVICE OR OTHER ITEMS. MAXLINEAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NONINFRINGEMENT, AND TITLE. MAXLINEAR DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS. CUSTOMER SHALL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF MAXLINEAR TO ANY END USER OR OTHER THIRD PARTY.
CRITICAL APPLICATIONS.
PRODUCTS, SOFTWARE AND TECHNICAL INFORMATION ARE NOT DESIGNED FOR, AND SHOULD NOT BE USED IN, THE PLANNING, CONSTRUCTION, MAINTENANCE, OR OPERATION OF ANY NUCLEAR FACILITY OR IN ANY EMERGENCY, SECURITY, LIFE-SAVING, HEALTHCARE, MILITARY, AVIATION, AUTOMOTIVE, AEROSPACE, OR OTHER CRITICAL USE CASE WHERE A FAILURE OR MALFUNCTION COULD CAUSE PERSONAL INJURY OR DEATH, DAMAGE TO OR LOSS OF PROPERTY, OR SEVERE ENVIRONMENTAL DAMAGE (COLLECTIVELY, “CRITICAL APPLICATIONS”). CUSTOMER AND END USERS ASSUME ALL RISK FOR USING THE MAXLINEAR PRODUCTS, SOFTWARE AND TECHNICAL INFORMATION IN CRITICAL APPLICATIONS. CUSTOMER AND END USERS ARE SOLELY RESPONSIBLE FOR USING THEIR OWN SKILL AND JUDGMENT TO DETERMINE WHETHER MAXLINEAR PRODUCTS, SOFTWARE AND TECHNICAL INFORMATION ARE SUITABLE FOR THE INTENDED USE CASE. CUSTOMER ACKNOWLEDGES THAT ALL SEMICONDUCTOR PRODUCTS AND SOFTWARE CAN EXPERIENCE FAILURE RATES WHICH MAY VARY BASED ON FACTORS SUCH AS USE CONDITIONS. CUSTOMER REMAINS RESPONSIBLE FOR ALL DESIGN DECISIONS REGARDING ITS OWN PRODUCTS AND OFFERINGS AND IS SOLELY RESPONSIBLE FOR TAKING ADEQUATE SAFETY MEASURES TO PREVENT INJURY OR DAMAGE IN THE EVENT OF A PRODUCT OR SOFTWARE FAILURE. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS MAXLINEAR AND ITS AFFILIATES FROM AND AGAINST ANY FINES, PENALTIES, LOSSES, LIABILITY, DAMAGES, AND COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR IN CONNECTION WITH USE OR SALE OF PRODUCTS, SOFTWARE OR TECHNICAL INFORMATION FOR ANY CRITICAL APPLICATION, EVEN IF SUCH CLAIM ALLEGES THAT MAXLINEAR WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE PRODUCTS, SOFTWARE OR TECHNICAL INFORMATION.
Legal Compliance; Corporate Policies.
Customer acknowledges that the Products, Software and/or Technical Information are subject to export controls, including the Export Administration Regulations (“EAR”), 15 C.F.R. Parts 730-774, maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), 31 C.F.R. Parts 500 et seq., and the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Parts 120-130, maintained by the Department of State (together with any other applicable export control laws around anywhere in the world, “Export Laws”). Customer shall comply with all applicable Export Laws. Without limiting the generality of the foregoing, Customer shall not, directly or indirectly, use, sell, export, reexport, transfer, divert, or otherwise dispose of any Products, Software or Technical Information to any destination, entity, or person, or for any use, prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer acknowledges that U.S. export control laws and regulations prohibit the export, reexport and transfer (in-country) of the Products, Software and Technical Information, except as authorized by the U.S. Government, to: (a) any person or entity included on any U.S. Government list of sanctioned, prohibited, and restricted parties (i.e., the U.S. Treasury Department’s OFAC list of specially designated nationals and blocked persons; and the U.S. Commerce Department’s Denied Parties List, Entity List and Unverified List); (b) any military end-user or military intelligence end-user, or for any military end-use or any military intelligence end-use, in Belarus, Cambodia, China, Russia, Crimea Region, the Donetsk People’s Republic (DNR) or Luhansk People’s Republic (LNR) regions of Ukraine, Iran, Syria, Cuba, North Korea, Venezuela, or Myanmar; or (c) any other person or entity for use, in any activities directly or indirectly related to the design, development, production, testing, stockpiling or use of any nuclear, chemical or biological weapons or any missiles, rocket systems or unmanned aerial vehicles (UAV) (collectively, “Prohibited Entities”). Customer hereby represents and warrants that Customer is not a Prohibited Entity, and that, for any transaction in which Customer proposes to sell, supply, export, reexport or transfer any Products, Software or Technical Information, Customer shall have screened all parties to the transaction (including, without limitation, any end users, end customers and/or affiliates or subsidiaries of Customer, as applicable), and shall have received confirmation that no such party is a Prohibited Entity or owned or controlled by a Prohibited Entity. Customer further certifies that, under no circumstances, shall any Products, Software or Technical Information be sold, supplied, exported, reexported, or transferred to any country or region that is subject to a U.S. Government embargo under any export control or economic sanctions laws and regulations.
Customer warrants that it is familiar with applicable anti-corruption and anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”) the UK Bribery Act (2010) (“UKBA”) and MaxLinear’s Global Anti-Bribery and Anti-Corruption Policy. Customer represents that it, and any party acting on its behalf, shall not take any action that violates the FCPA or other applicable anti-corruption or anti-bribery law or is inconsistent with MaxLinear’s anti-corruption policy while performing under this Agreement, or cause MaxLinear to violate the FCPA, any other applicable anti-corruption or anti-bribery law, or its anti-corruption policy. Specifically, Customer (including its officers, directors, employees and agents) shall not directly or indirectly authorize, offer, give, or agree to offer or give any payment, loan, gift, or any other thing of value to any person to influence: (a) any person to breach an expectation of good faith, impartiality, or trust to gain any advantage for MaxLinear or any other person in connection with any transaction related to this Agreement; or (b) any Governmental Official to improperly: (i) influence any act or decision of any Governmental Official in their official capacity, (ii) induce any Governmental Official to do or omit to do any act in violation of their lawful duty, (iii) secure any improper advantage; or (iv) induce any Governmental Official to use their influence with a Governmental Authority to affect or influence any act or decision of a Governmental Authority in order to assist MaxLinear in obtaining, retaining, or directing any business. Customer shall not make any payment behalf of or for the benefit of MaxLinear that is not properly and accurately recorded in the Customer’s books and records. None of Customer’s owners or employees is a Government Official, and Customer shall notify MaxLinear promptly if any of its owners or employees becomes a Government Official during the term of this Agreement. Customer shall complete and return a certification of compliance in a form acceptable to MaxLinear stating that Customer has complied with this paragraph and all applicable anti-corruption laws and has read, understands, and agrees to comply with MaxLinear’s anti-corruption policies. “Government Authority” means any: (a) government or other regulatory entity; (b) government-owned or controlled entity (including state-owned or state-controlled businesses or quasi-government entities); (c) commission, board, or legislative body; (d) political party; (e) royal family; or (f) public international organization (e.g., the World Bank or Red Cross). “Governmental Official” is any (a) officer, agent, or employee of a Governmental Authority, (b) person acting in an official capacity for or on behalf of a Governmental Authority, (c) candidate for government or political office, or (d) member of a royal family.
Customer shall comply with MaxLinear’s policies, procedures, requirements and obligations as set out on MaxLinear’s corporate website, each of which is incorporated herein by reference, located at https://www.maxlinear.com/company/corporate-policies.
Customer shall indemnify, defend, and hold harmless MaxLinear from and against any fines, penalties, losses, liability, damages, and costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred arising out of or in connection with any breach of this section titled “Legal Compliance; Corporate Policies” or any other violation of applicable law by Customer or any party acting on its behalf. Additionally, in the event MaxLinear reasonably suspects any such non-compliance, MaxLinear shall be entitled to immediately suspend performance under, or terminate, this Agreement with no further obligation or liability to Customer.
Software License; Proprietary Rights.
MaxLinear and its third party suppliers own and retain all rights, title and interest in the Software, except for any open source software. Third party suppliers may protect their rights in the Software in the event of any violation of applicable license terms. Software provided by MaxLinear to Customer is licensed, not sold. Subject to the terms and conditions of this Agreement, MaxLinear grants Customer a non-transferable, non-exclusive limited license to use the Software in accordance with the documentation provided therewith and solely as incorporated into, or for use solely in connection with, Products (and not for use on a standalone basis). Documentation provided with or for Software may include license terms provided by MaxLinear and MaxLinear’s third party suppliers, which shall apply to the use of Software and take precedence over these license terms to the extent of any conflict. Except and only to the extent as expressly permitted herein, or required to be permitted by applicable law, Customer shall not itself or allow any reseller or third party to: (a) reproduce the Software; (b) modify, incorporate into or with other software, or create a derivative work of any part of the Software, (c) reverse-engineer any Products or Software or decompile, disassemble, or otherwise attempt to derive the source code of the Software except to the extent such restriction is prohibited by applicable law; (d) distribute, sublicense, lease, rent, loan or otherwise transfer the Software to any third party; (e) remove Software from any Product into which such Software has been embedded; or (f) use the Software to provide processing services to third parties or otherwise use the Software on a service bureau basis, electronically distribute or timeshare the Software or market the Software by interactive cable or remote processing services. Customer's licenses hereunder shall terminate upon Customer’s breach of these Terms. Customer must destroy all copies of the Software immediately upon such termination and shall provide a certificate of such destruction upon MaxLinear’s request. Use of the Software in connection with any hardware or products other than MaxLinear chipsets, kits, components, or other hardware products is not licensed under this Agreement.
Without limiting the foregoing, Customer shall not take any actions whatsoever that could or would cause the Software or any portion thereof to become subject to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Artistic License, Apache License, Q Public License, IBM Public License, or any other open source license requiring the distribution of the Software or any part thereof in source code format. Customer shall not distribute externally or disclose to any third party any reports or statements that directly compare the speed, functionality or other performance characteristics of the Software with any similar third party products without the MaxLinear’s prior written consent.
Customer acknowledges that MaxLinear has no and shall have no obligation or responsibility whatsoever to provide to Customer, Customer’s end users or any third party any maintenance, support or assistance, including without limitation in relation to the Software, and MaxLinear cannot and shall not be held liable or responsible to Customer, Customer’s end users or any third party for the failure to provide any such maintenance, support or assistance. MaxLinear may from time-to-time in its sole discretion provide such maintenance, support or assistance, but such provision shall not create nor impose any future obligation on MaxLinear to do so.
MaxLinear and its third party suppliers shall own and retain all trademarks, copyrights, patents, trade secrets, mask work, and other intellectual and industrial property in and to the Products, Software and Technical Information (collectively, “MaxLinear IP”). MaxLinear IP includes, without limitation, any feature requests, feedback, enhancements, improvements, or modifications requested or suggested by Customer regarding any Products or Software. Customer shall not act to jeopardize, limit, or interfere in any manner with MaxLinear’s ownership of and rights with respect to any MaxLinear IP. Should Customer become aware of any facts which may indicate an infringement or violation of any MaxLinear IP, it shall promptly notify MaxLinear, and shall cooperate reasonably with MaxLinear in enforcing such rights, at MaxLinear’s request and reasonable expense. Except as expressly set forth in this Agreement, no license is granted by MaxLinear by implication, estoppel or otherwise, under any MaxLinear IP, and MaxLinear reserves all rights not expressly granted in this Agreement. The design, development, or manufacture by MaxLinear of any custom or modified Products or services for shall not be deemed a work made for hire. The sale or provision of any Product, Software or Technical Information by MaxLinear shall not in any way confer any license (expressly, by implication, by estoppel or otherwise) under any patent claim of MaxLinear or others covering or relating to any combination, machine or process in which such Product, Software or Technical Information is or might be used, or to any process or method of making such Product, Software or Technical Information. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer shall not, and shall not permit or authorize End Users or other third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Product, Software or Technical Information; (b) circumvent or disable any technological features or measures in the Products, Software or Technical Information including security features; (c) remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Products, Software or Technical Information or related documentation; (d) apply for any registration in any country for any MaxLinear IP; or (e) do any other act that might invalidate or be inconsistent with the MaxLinear IP and MaxLinear’s ownership thereof.
Government Contracting.
In the event that any Products, Software or Technical Information are being acquired by or on behalf of the U.S. government or by a U.S. government prime contractor or subcontractor (at any tier), then the government’s rights in such components and any accompanying documentation shall be limited to the rights provided to Customers herein. MaxLinear disclaims acceptance of any provisions required in any U.S. government contract. Unless expressly agreed in writing by MaxLinear, no provision herein shall be deemed an acceptance of any provisions required in any U.S. government contract or subcontract relating thereto nor shall any provision of any such contract or subcontract become part of these Terms or otherwise purportedly binding on MaxLinear. MaxLinear makes no representations, warranties or certifications whatsoever about compliance with acquisition statutes or regulations (including without limitation those related to pricing, quality, origin or content), and Customer shall remain solely liable for compliance with all acquisition statutes and regulations.
Customer Indemnification.
Customer shall indemnify, defend, and hold MaxLinear harmless from any claims from any third parties related to, arising out of or based upon: (a) use or resale of a Product or Software in combination with other products, software, elements or components to the extent the claims of infringement would not have arisen but for such combination; (b) a custom Product or Software, or any other Product or Software that is modified or provided to comply with designs, requirements, instructions or specifications required by or provided by or on behalf of Customer; (c) use or resale of a Product or Software for applications or purposes not intended; (d) use or resale of a Product or Software not in accordance with MaxLinear’s instructions, documentation, or Specifications; or (e) any addition to or modification of a Product or Software not made or authorized in writing by MaxLinear.
Confidentiality.
“Confidential Information” means any trade secrets or other non-public information of MaxLinear, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to Customer and that is identified as “Confidential”, “Proprietary”, or should be reasonably understood as such based on the nature of the information or circumstances of the disclosure. Without limiting the generality of the foregoing, MaxLinear’s Confidential Information includes all non-public information regarding the Products, Software and Technical Information, and their development, manufacture, features, performance, and pricing. Confidential Information does not include any information that: (a) was known to Customer prior to receiving the same from MaxLinear; (b) is independently developed by Customer without use of or reference to any Confidential Information; (c) is lawfully acquired by Customer from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of Customer or its personnel, agents, or representatives.
Customer shall not use Confidential Information except as necessary to use or resell the Products as authorized by MaxLinear and permitted under this Agreement and shall not disclose Confidential Information to any third party without MaxLinear’s prior written consent. Customer shall be responsible for any unauthorized use or disclosure by any individuals or entities to whom it discloses Confidential Information hereunder. Customer may only use and disclose Confidential Information of MaxLinear that is disclosed to Customer by MaxLinear, and Customer shall not engage in (or attempt to engage in or allow any third party to engage in) any unauthorized access, hacking, or data scraping activities to obtain or attempt to obtain any other confidential information of MaxLinear. If Customer becomes aware of any unauthorized access, hacking or data scraping activities, it shall immediately notify MaxLinear in writing. The obligations on use and non-disclosure of Confidential Information herein shall survive completion or termination of each Order. Customer recognizes and acknowledges that unauthorized disclosure by Customer of Confidential Information would cause immediate and irreparable injury, loss and damage to MaxLinear and that an adequate remedy at law for such injury, loss and damage may not exist.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, MAXLINEAR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF MAXLINEAR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. MAXLINEAR IS NOT LIABLE FOR ANY DAMAGES CAUSED BY NON-DELIVERY TO CUSTOMER BY MAXLINEAR OR FOR ANY CAUSES BEYOND ITS REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES SHALL MAXLINEAR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL NET AMOUNT PAID BY CUSTOMER TO MAXLINEAR DURING THE PREVIOUS 12 MONTHS UNDER THE APPLICABLE ORDER FOR THE RELEVANT PRODUCT(S) OR SOFTWARE GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MAXLINEAR TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS SHALL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
General Provisions.
Force Majeure: MaxLinear shall not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as a result of any cause or condition beyond MaxLinear’s reasonable control (including without limitation acts of God, war, riot, fire, terrorism, civil disturbance, explosion, accident, earthquake, flood, sabotage, inability to obtain or market wide shortage of fuel, power, supplies, components, or material, supply chain or transportation disruptions, failure of service providers or suppliers, governmental laws or orders, telecommunications disruptions, pandemics, or epidemics).
Notices: Legal notices given in accordance with this Agreement shall be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the applicable Order and with the appropriate postage affixed. Copies of notices to MaxLinear shall be sent to LegalDepartment@MaxLinear.com. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. MaxLinear may alternatively provide notice to Customer via the Customer email address set forth in the Order, which shall be deemed sent upon submission (unless MaxLinear receives a non-deliverable message or similar automated response indicating a delivery failure).
Relationship: The relationship of the parties is that of independent contractors. Nothing contained in this Agreement shall be construed to give Customer the right to act as the agent of MaxLinear or purport to bind MaxLinear to any third parties.
Assignability. Customer may not assign or transfer this Agreement, in whole or in part, without MaxLinear’s prior written consent.
Governing Law and Venue: This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. If Customer’s headquarters are in the United States of America, the courts in San Diego County, California shall have exclusive jurisdiction over all disputes relating to this Agreement.
Arbitration: If Customer’s headquarters are not in the United States of America, then, subject to this paragraph, any disputes arising between the parties under or in connection with this Agreement shall be resolved via binding arbitration conducted under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”). The parties shall first diligently seek to agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received. If the parties do not agree on an arbitrator within such period, the arbitrator shall be selected in accordance with the Rules. The selection of an arbitrator under the Rules shall be final and binding on the parties. The arbitrator shall have at least 15 years of appropriate experience in the semiconductor industry and be independent of the parties. The arbitrator shall conduct the arbitration in accordance with the Rules. The arbitration shall be held in San Diego County, California and the proceedings shall be in English. The arbitrator shall limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision shall be final and binding on both parties. The costs and expenses of the arbitration shall be shared equally by both parties. This paragraph shall not prohibit either party from seeking injunctive or other equitable relief in a court of competent jurisdiction. To the extent this arbitration agreement is held invalid or unenforceable, the parties submit and consent to the exclusive jurisdiction of the state and federal courts in San Diego County, California to resolve any disputes arising hereunder.
Waiver: The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement shall not be a waiver of such party’s right to demand strict compliance in the future, nor shall the same be construed as a novation of this Agreement.
Severability: If any part of this Agreement is found to be illegal, unenforceable, or invalid, the affected part shall be limited or severed to the extent necessary, and the remaining portions hereof shall remain in full force and effect.
Entire Agreement: These Terms, the applicable Order, and any separate purchase or supply agreement, non-disclosure agreement or license agreement executed by authorized representatives of both parties, represent the entire understanding of the parties regarding the sale or delivery of Products, Software or Technical Information by MaxLinear to Customer and supersede and replace any other previous oral or written communications regarding these matters. No employee, agent, or other representative of MaxLinear has any authority to bind MaxLinear with respect to any statement, representation, warranty, or other expression not contained herein. No usage of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement, or alter the terms of this Agreement.
MaxLinear Standard Terms and Conditions of Sale (July 2024)
