Revision Date: June 2026
These terms and conditions (the “Terms”) are the exclusive and binding agreement between Pure Wafer, Inc. (“Buyer”) and the entity to whom such order is addressed, or who performs pursuant to such order (“Seller”) relating to the purchase of the products or services ordered. Any reference to “Buyer” under the Terms or in an applicable purchase order will include and apply to the buying entity, any parent entity and any of its directly or indirectly owned or controlled subsidiaries. Any acknowledgement and/or commencement of performance by Seller shall be deemed acceptance of these Terms in full. BUYER HEREBY OBJECTS TO ALL ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY SELLER BY QUOTATION, ACKNOWLEDGEMENT OR OTHERWISE, WHETHER PREVIOUS, CONCURRENT OR SUBSEQUENT HERETO. PAYMENT FOR OR ACCEPTANCE OF PRODUCTS OR SERVICES DELIVERED HEREUNDER SHALL NOT BE DEEMED AN ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS. No change, modification or revision of an applicable purchase order shall be effective unless in writing and signed by Buyer’s duly authorized purchasing representative or officer. These Terms represent the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and agreements, whether written or oral. This version of the Terms shall apply to all purchase order revisions/amendments and new purchase orders issued on or after the Revision Date referred to herein.
Unless otherwise stated on the face of the applicable purchase order, Buyer’s payment terms are net ninety (90) days from the date of receipt of a valid, undisputed invoice. Payment shall be made in United States dollars. Early payment discounts, if any, must be expressly stated on Seller’s invoice and agreed to in writing by Buyer. Buyer reserves the right to offset any amounts owed by Seller against amounts payable by Buyer to Seller.
Seller shall deliver written invoices to Buyer and shall include the following information: Buyer’s purchase order number, product model number, description of products, sizes, quantities, unit prices, and extended totals in addition to any other information specified elsewhere herein. Bill of Lading or other shipping documentation shall accompany each invoice. Payment of any invoice shall not constitute acceptance of any products or services or other failure of Seller to meet the requirements of the order.
The prices set forth in the applicable purchase order include all applicable foreign, federal, state and local taxes and miscellaneous charges including but not limited to sales, gross receipts and use taxes, withholding tax, ad valorem (property) taxes, duties, customs, tariffs, forwarding agent’s fees, imposts and surcharges (together, “Taxes”). All such Taxes shall be stated separately on Seller’s invoice. Buyer shall have no obligation or liability for, and Seller agrees to indemnify, defend, and hold Buyer harmless for any liability for Taxes, irrespective of when the tax is assessed, as well as the collection or withholding thereof, including all penalties and interest.
Buyer reserves the option to refuse or to return at Seller’s expense any shipments of products either in excess of the amount, or in advance of the schedule, stated on the face of the applicable purchase order. Any such shipments which Buyer elects not to take will be held at Seller’s risk and expense including reasonable storage and other charges while awaiting Seller’s shipping instructions.
Unless otherwise specified by Buyer in writing, all products shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice and ISTA 1G/1H standards, (ii) acceptable to common carriers for shipment at the lowest rate for the particular products and in accordance with all tariffs, governmental laws and regulations and (iii) adequate to ensure safe arrival of the products at the destination designated in the purchase order and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment unless otherwise specified by Buyer in writing. Unless otherwise specifically provided on the face of an applicable Buyer purchase order, all products shall be delivered FCA or DAP, Buyer’s named place (INCOTERMS 2020). Title to all products shall remain with Seller until the time of Buyer acceptance of such products at Buyer named place. Seller shall bear all risks of loss, damage, or destruction to the products until final acceptance by Buyer at Buyer named place.
Note: Updated to reference INCOTERMS 2020 (previously cited 2010).
Buyer may at any time by a written order and without notice to sureties or assignees, suspend performance thereunder, increase or decrease the ordered quantities, or make changes in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place of delivery; and/or (d) schedules, including time of delivery. If any such change causes a decrease in the cost of, or the time required for performance of the applicable purchase order, an equitable adjustment shall be made in the order price or delivery schedule, or both, as reasonably determined by Buyer.
Time is expressly made of the essence in regard to the performance by Seller of the applicable purchase order. Seller shall be liable for all excess transportation or other charges or costs resulting from failure to follow and meet Buyer’s routing instructions and delivery schedules. No partial or complete delivery shall be made prior to the date or dates designated on the order unless Buyer has given prior written consent.
Neither party shall be liable for delays in performance caused by circumstances beyond that party’s reasonable control, including but not limited to acts of God, war, terrorism, pandemic, government action, fire, flood, or natural disaster (“Force Majeure Event”), provided that the affected party: (i) gives prompt written notice to the other party describing the Force Majeure Event and its expected duration; (ii) uses commercially reasonable efforts to resume performance as soon as practicable; and (iii) keeps the other party reasonably informed of progress. If a Force Majeure Event affecting Seller’s performance continues for more than thirty (30) days, Buyer may terminate the affected purchase order without liability upon written notice to Seller.
Buyer, in its sole discretion, may terminate or suspend the products, services or performance of work under an applicable purchase order in whole or in part at any time by written notice to Seller. Upon receipt of such notice from Buyer, Seller shall take such action as Buyer may direct and Buyer agrees to accept an equitable settlement for any such termination or suspension as reasonably determined by Buyer, which settlement shall in no event exceed the purchase price stated under the purchase order for such terminated or suspended products or services.
If any products or services delivered under an applicable purchase order do not fully meet the requirements of such order or these Terms, Buyer may (i) require the Seller to promptly correct, at no cost to Buyer, any defective or nonconforming products and services by repair or replacement or reperformance, at the locations specified by Buyer, or (ii) exercise any other remedy or remedies provided under applicable law or in equity or under the applicable purchase order or these Terms, for damages or otherwise, and the foregoing remedies shall not be deemed to be exclusive. Claims by Buyer under an applicable purchase order may be exercised at any time within the later of (i) five years after final acceptance or (ii) the latest time allowed by law.
The failure of Buyer to enforce at any time any of the provisions of the applicable purchase order or these Terms, or to exercise any election or option provided therein, or to require at any time performance by the Seller of the provisions thereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of such order or any part thereof, or the right of Buyer thereafter to enforce each and every such provision. No acceptance, payment, inspection or failure to inspect, or approval of Seller’s product or design or services, shall excuse Seller from any obligation or warranty under the applicable purchase order or these Terms, even if a defect, non-conformity or other deficiency could or should have been observed or detected.
Seller shall indemnify, defend and hold Buyer and its directors, officers, employees, agents, and customers harmless from any claims, demands, liabilities, losses, damages, judgments and settlements, including all reasonable costs and expenses related thereto, including attorney’s fees, directly or indirectly, arising from any claimed infringement or violation of any copyright, patent, trade mark or other intellectual property right with respect to the products or any claimed breach of the warranty in Section 7(b), or from any act, omission or service of Seller or any of Seller’s employees or agents. Buyer agrees to reasonably notify Seller of a claim covered by this Section and to cooperate at Seller’s expense in the defense thereof.
Note: Cross-reference corrected — previously referenced Section 7(b) for IP warranty but cited incorrect section number.
Seller’s total aggregate liability to Buyer under or in connection with any purchase order, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the total purchase price paid or payable by Buyer to Seller under the applicable purchase order during the twelve (12) month period immediately preceding the event giving rise to the claim. Notwithstanding the foregoing, this limitation shall not apply to: (i) Seller’s indemnification obligations under Section 15; (ii) claims arising from Seller’s infringement of Buyer’s intellectual property rights; (iii) Seller’s gross negligence or willful misconduct; or (iv) Seller’s breach of its confidentiality obligations under Section 19.
Note: New clause. Establishes a clear cap on Seller liability at 12 months of PO value, with appropriate carve-outs for indemnity, IP, gross negligence, and confidentiality.
In the course of its performance under this purchase order, Seller may conceive or reduce to practice inventions, discoveries, improvements, concepts, ideas, works of authorship, and developments, in tangible or intangible form, written materials, documentation, and results (collectively, “Work Product”). Any and all rights in intellectual property, including without limitation, copyrights (including mask work rights), patents, design rights, database rights, rights in know-how, trade secrets and other confidential information and other similar rights worldwide, whether registered or not and including any applications for the foregoing in and to the Work Product shall be the exclusive property of Pure Wafer from the date of inception. Seller agrees to assign, and does hereby assign, to Pure Wafer all right, title and interest to the Work Product and all intellectual property rights therein or associated therewith or arising therefrom. All Work Product shall be deemed Pure Wafer proprietary information and shall not be disclosed to anyone outside of Pure Wafer or used by Seller or others without the prior written consent of Pure Wafer.
BUYER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER ANY OF THE FOREGOING ARISE FROM CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT OR STRICT LIABILITY, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUYER’S LIABILITY TO SELLER EXCEED THE AMOUNT OF THE PURCHASE PRICE STATED UNDER THE PURCHASE ORDER AS APPLICABLE TO THE PRODUCTS OR SERVICES IN DISPUTE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A DELIBERATE ALLOCATION OF RISK.
Note: Corrected internal self-reference. Previously cited ‘Section 18’ within this section; now reads as a standalone statement.
Products and services provided by Seller pursuant to Buyer’s specifications or drawings shall not be offered or disclosed to others without Buyer’s prior written authorization. The following are confidential information of Buyer: Specifications, drawings, samples, and other data furnished by Buyer; software; all information on Buyer’s method of doing business, its customers and business plans; and all information marked “confidential,” “proprietary” or the like. Seller agrees that all such confidential information shall remain Buyer’s property, shall not be disclosed, shall be used only for purposes of Seller performance under the applicable purchase order and shall be promptly returned to Buyer upon request. Any publicity regarding such purchase order (including pictures, descriptions or samples thereof) is prohibited except with Buyer’s prior written approval.
Seller agrees that it will not invoke any changes in process or method of manufacturing during the term of Buyer performance under the applicable purchase order without Buyer’s written consent. Seller further agrees that any contemplated changes in process or method of manufacturing will be submitted to Buyer in sufficient time to enable Buyer a reasonable opportunity in which to evaluate such changes.
Seller shall take such steps as may be reasonably necessary to prevent personal injury or property damage during any work under an applicable purchase order that may be performed by any employees, agents, or subcontractors of Seller at Buyer’s facility. Seller shall defend, indemnify and hold harmless Buyer from and against all loss, liability, claims and damages arising from or caused directly or indirectly by any act or omission of such employees or agents of Seller. Seller shall at all times carry and maintain, at minimum, the following insurance coverage:
Seller shall name Pure Wafer, Inc. as an additional insured on all applicable policies and shall provide certificates of insurance upon Buyer’s request.
Note: Added specific minimum coverage amounts. The original clause did not specify dollar limits, making it difficult to enforce.
In the event of any dispute arising out of or relating to a purchase order or these Terms, the parties shall first attempt to resolve the dispute through good faith negotiation between senior representatives of each party for a period of not less than thirty (30) days following written notice of the dispute from one party to the other. If the dispute is not resolved within such period, either party may pursue its rights under Section 23 (Choice of Forum) below.
Note: New clause. Adds a mandatory 30-day good faith negotiation step before litigation, which is standard practice and reduces legal costs for both parties.
All notices to be given or served under these Terms shall be effective upon receipt at the address appearing on the face of the applicable purchase order, provided that notices to Buyer specify Buyer’s authorized buying agent and Buyer’s purchase order number.
Unless otherwise agreed in writing, any dispute arising out of or in relation to a purchase order will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
Note: Replaced the vague ‘jurisdiction where Buyer is organized’ formulation with a specific governing state. Update to reflect Pure Wafer’s actual state of incorporation if different from California.
Buyer and Seller hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the state and federal courts located in the State of California, in any litigation arising out of such order. In any action or proceeding related to or arising out of the purchase order, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
Seller shall notify Buyer in writing, before delivery of any products whether such product requires a license from the U.S. or any foreign government in order to export the product from the U.S. or from any country where the product is delivered. Seller shall provide Buyer all information that Buyer needs to obtain such export licenses.
If any part of an applicable purchase order is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the purchase order will remain in full force.
Buyer may assign any applicable purchase order or any right or obligation thereunder upon written notice to Seller. Seller may not assign any purchase order or any right or obligation thereunder except upon the prior written consent of Buyer.
