The sale of QBit Semiconductor LTD.’s (“QBit”) integrated circuits and electronic assemblies (collectively “Products”) to the person or legal entity purchasing the Products (“Purchaser”), directly or indirectly via a QBit-authorized distributor, are subject to these Supply Terms, as between QBit and Purchaser, unless QBit expressly agrees otherwise in writing.
1. Price, Payment Terms and Delivery Terms
(a) Price, payment terms and delivery terms for sale of the Product shall be as specified in a quotation provided to Purchaser by QBit or a QBit-authorized distributor.
(b) Title in and risk of loss and/or damage of the purchased Products shall pass from QBit or a QBit-authorized distributor to Purchaser upon delivery at the delivery point specified in such quotation.
(c) Prices do not include applicable taxes or duties. Purchaser is solely responsible for paying all applicable taxes and duties.
2. Intellectual Property Rights
(a) Purchaser acknowledges and agrees that QBit and its licensor(s) own all intellectual property rights in and to the Products and that the sale of Products to Purchaser does not convey or otherwise provide to Purchaser or any other entity or person any intellectual property rights in or to such Products, except as may be otherwise licensed in a separate license agreement (if any) between QBit and Purchaser.
(b) Purchaser agrees that it shall not, and shall not direct or cause any entity or person to, directly or indirectly, disassemble, decompile, decode, reverse engineer, or analyze the physical construction of any of the Products for any purpose.
3. Limited Warranty
(a) QBit warrants to Purchaser that each Product conforms to QBit’s specifications for such Product and will be free from defects in material and workmanship for twelve (12) months from date of shipment by QBit or a QBit-authorized distributor.
(b) Purchaser shall obtain written return material authorization (RMA) from QBit or the appropriate QBit-authorized distributor before returning any Product presumed to be defective. For each return, Purchaser shall deliver the Products in original condition to QBit or the appropriate QBit-authorized distributor, at Purchaser's expense, in accordance with QBit’s RMA procedure. If QBit confirms in good faith that such Products are defective, QBit shall, at its sole option, repair or replace such Products within thirty (30) business days of QBit’s receipt thereof. If QBit determines that the Products are unable to be repaired or replaced, QBit shall issue a refund or credit for the purchase price of the defective returned products.
(c) This warranty shall not apply where the Products have been:
(i) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by QBit; or
(ii) reconstructed, repaired or altered by third parties other than QBit or its authorized representative.
(d) This warranty also shall not apply to any Product identified as a pre-production version, sample or similar designation.
(e) EXCEPT AS SET FORTH ABOVE, QBIT MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
4. Safety Critical Use
(a) Purchaser acknowledges and agrees that Products are not designed and are not warranted to be suitable for use in any product in which malfunction or failure could result in personal injury, death, or catastrophic loss (“Safety Critical Use”). QBit shall not be liable to Purchaser and/or any third party for any claims, damages or losses arising out of or in connection with Safety Critical Use of Products.
5. Export Compliance
(a) Exports, re-exports, and transfers of Products are subject to the export controls and sanctions of the U.S. and other governments, including without limitation the U.S. Export Administration Regulations (EAR) administered by the U.S. Department of Commerce, Bureau of Industry and Security (BIS), U.S. Foreign Asset Control Regulations administered by the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC), and relevant U.S. Executive Orders (collectively, “Export Controls”).
(b) Purchaser agrees that it will comply, and will ensure that its subsidiaries and affiliates comply, with all applicable Export Controls whenever it exports, re-exports, or transfers QBit Products.
(c) Purchaser agrees that it will not export, re-export, or transfer Products, and will ensure that its subsidiaries and affiliates will not export, re-export, or transfer Products:
(i) to any destination in violation of embargos, sanctions or restrictions maintained by the U.S. government or other governmental authorities with jurisdiction, including without limitation the U.S. Department of Commerce’s Country Group E list of EAR Supplement No. 1 to Part 740;
(ii) to any person or entity listed on any list of prohibited and restricted parties maintained by the U.S. government or other governmental authorities with jurisdiction, including without limitation the U.S. Department of Commerce’s Denied Parties List, Entity List and Unverified List, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, and parties designated by the United Nations, ("Listed Party"), or to any entity deemed to be subject to restrictions due to ownership or control by a Listed Party;
(iii) for use, directly or indirectly, in any activities relating to the design, development, production, stockpiling, testing or use of weapons of mass destruction (i.e., nuclear, chemical and biological weapons and missiles); or
(iv) otherwise in a manner in violation of Export Controls.
(d) Purchaser agrees that any Product export classification made by QBit shall be for informational 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.
6. Limitation on Liability
(a) IN NO EVENT WILL QBIT OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF PURCHASER’S PURCHASE OF OR THE USE OF PRODUCTS, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT QBIT WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL QBIT’S AGGREGATE LIABILITY, INCLUDING FROM ANY WARRANTY OR OTHER OBLIGATION, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF PRODUCTS EXCEED THE TOTAL AMOUNT RECEIVED BY QBIT FROM PURCHASER DURING THE TWELVE MONTHS PRECEDING THE RELEVANT CLAIM FOR THE PARTICULAR PRODUCTS AT ISSUE WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
7. Governing Law and Jurisdiction
(a) All matters and disputes relating to these Supply Terms, including without limitation Purchaser’s purchase of or the use of Products, and the validity, construction, and interpretation of these Supply Terms, shall (i) be governed by laws of Taiwan, R.O.C., excluding its conflicts of laws rules, (ii) not be subject to the United Nations Convention on Contracts for the International Sale of Goods, and (iii) be subject to, submitted to, and resolved by the exclusive jurisdiction of the courts of Taipei, Taiwan R.O.C.