PURCHASE ORDER TERMS AND CONDITIONS
Please read these Terms and Conditions carefully. They govern Next Silicon’s Purchase Order. Changes may be made to these Terms and Conditions from time to time at Next Silicon’s sole discretion.
The Supplier will deliver the Deliverables for Next Silicon’s inspection by no later than the Date of Delivery to 91 Ha’Hashmonaim Street, Tel-Aviv, or to any other delivery point agreed by the parties. Next Silicon Ltd. (“Next Silicon”) shall inspect the Deliverables to ascertain conformity with Next Silicon’s specifications. Supplier shall, at its expense, correct any defects or non conformities and redeliver the modified Deliverables to Next Silicon no later than fourteen (14) days after Next Silicon’s notice of the defect or nonconformity. If after three (3) repeated inspections the Deliverables are not accepted (“Acceptance” as defined below), Next Silicon shall have the right to terminate this Purchase Order pursuant to the Term and Termination section below and receive a full refund of the purchase price paid for the Deliverables, without derogating from any rights or remedies available to Next Silicon under law or contract. “Acceptance” means Next Silicon’s written notice explicitly stating Next Silicon’s acceptance of and full satisfaction with the Deliverables. Risk of loss in respect of the Deliverables shall pass to Next Silicon only following delivery and final Acceptance of the Deliverables.
In the event of a delay in the delivery of the Deliverables, the Supplier shall be required to pay Next Silicon, as liquidated damages, a fee as agreed on by the parties for each day of delay, without derogating from any other right or remedy available to Next Silicon under this Purchase Order or under applicable law.
The consideration paid by Next Silicon under this Purchase Order is the full and final consideration of the Supplier. The consideration hereunder shall include all taxes, levies, and charges however designated and levied by any state, local, or government agency (including sales taxes and VAT). Supplier shall have sole responsibility for the payment of all of taxes, levies, charges, and expenses. Next Silicon may deduct and withhold from any payments made hereunder all sums which it may be required to deduct or withhold pursuant to any applicable statute, law, regulation, or order, and the reduced amount shall be deemed the full payment of the consideration hereunder
It is hereby agreed that the Deliverables, specifications, and confidential information and all modifications, enhancements, and derivatives thereof and all intellectual property rights thereto (“Next Silicon IPR”) shall be owned exclusively by Next Silicon upon creation and shall be deemed works for hire. If by operation of law any of Next Silicon IPR is not owned in its entirety by Next Silicon automatically on its creation, Supplier hereby assigns and agrees to assign to Next Silicon exclusive ownership and all rights, titles, and interests in such Next Silicon IPR and Supplier hereby waives (and shall obtain such waivers from its employees and subcontractors if any) all right, title, and interest in such IPR, including moral rights and any right to compensation or royalties. Supplier also shall obtain such waivers from its employees and subcontractors, if any. Title to the Deliverables shall transfer to Next Silicon upon creation.
5. Representations and Warranties:
Supplier represents and warrants to Next Silicon that: (i) During the Warranty Period the Deliverables: (A) shall conform with their specifications, and (B) shall be free from any defects in design, material, manufacturing, and workmanship. “Warranty Period” means the period of one (1) year from the date of Next Silicon’s Acceptance of the Deliverables; (ii) There are no limitations, obligations, or restrictions whatsoever which restrict or prevent Supplier from fulfilling all of its obligations under this Purchase Order or to grant the rights granted to Next Silicon under this Purchase Order; (iii) Supplier has, and will have at all times, all rights, standards, permits, consents, licenses, and approvals required in respect of the Deliverables and fulfill its obligations in compliance with applicable laws, regulations, and standards; (iv) Supplier complies and shall continue to comply with all applicable, laws, rules, and regulations including without limitation in respect of export control; and (v) The Deliverables: (A) do not and will not infringe any third-party intellectual property rights, and (B) shall be free and clear of any and all liens, charges, encumbrances, debts, restrictions, rights, and claims of any kind or nature whatsoever. The obligation of the warranty set forth in Section 5(i) shall be limited to, at Next Silicon’s option: (i) Repairing or replacing any parts free of charge and within fourteen (14) days of Next Silicon’s notice thereof; and/or (ii) Paying a full refund for the part. As to any part of the Deliverable that is repaired or replaced, the warranties in Section 5(i) shall continue to apply to such parts of the Deliverable for the greater of: (a) the full remaining balance of the original Warranty Period; or (b) one hundred and eighty (180) days from the date such repaired or replaced part of the Deliverable is received and accepted by Next Silicon.
Supplier shall indemnify, hold harmless, and at Next Silicon’s first request, defend Next Silicon, its affiliates, and their officers, directors, agents, and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys' fees, incurred as the result of a third-party claim against any of them, including without limitation for body injury or death, which arises out of or in connection with Supplier’s breach of any representation or warranty provided under this Purchase Order.
- 7.1 “Confidential Information” means all information disclosed by one party or any of its affiliates to the other party under this Purchase Order that is marked as confidential or the confidential nature of which is evident to a reasonable person. The receiving party will (i) not disclose Confidential Information, except on a need-to-know basis to its employees, affiliates’ employees, consultants, contractors, and financial, tax, and legal advisors, (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this Purchase Order, and (iii) protect Confidential Information from unauthorized use or disclosure. The receiving party (i) will ensure that all its recipients of Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (ii) will be liable for compliance with this section by each of its recipients.
- 7.2 Exclusions. The foregoing confidentiality obligations will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Purchase Order; (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality; (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party; (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information; or (v) is required to be disclosed by a governmental agency or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
Supplier undertakes to take out and maintain at its expense insurance policies during the term of this Purchase Order and for at least one (1) year thereafter, at levels of insurance to cover its liability under this Purchase Order. The confirmation of the existence of the aforesaid policies, signed by a recognized insurance company, shall be provided to Next Silicon upon request.
9. Term and Termination
This Purchase Order shall be effective from the Effective Date and shall remain in effect until completion of the Warranty Period (defined in section 5(i) above), unless earlier terminated as provided in this Purchase Order. This Purchase Order may be terminated by Next Silicon on written notice to the Supplier if the Supplier breaches a material term or condition of this Purchase Order. On termination or expiration of this Purchase Order, Supplier shall, at Next Silicon’s option, either deliver to Next Silicon or delete or destroy all confidential information and Next Silicon IPR in its possession or under its control, in any media or form whatsoever. The provisions of Sections 5 and 7–13 shall survive and remain in full force and effect in perpetuity.
10. Limitation of Liability
In no event shall Next Silicon or its affiliates be liable to Supplier under any legal theory, whether contract, tort, or otherwise, for any damages whatsoever, including, without limitation, incidental, consequential, direct, indirect, special, punitive, or exemplary damages, including damages for loss of business profits, business interruption, loss of information, or loss of data including arising out of this purchase order, even if Next Silicon or its affiliate has been advised of the possibility of such damages. If despite the aforementioned limitation of liability, any competent authority finds Next Silicon or its affiliate liable, Next Silicon’s aggregate liability shall not exceed the amounts actually paid by Next Silicon under this Purchase Order for goods or services.
Supplier agrees to comply with all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including those of the United States and the European Union. Supplier warrants that no Supplier products or services shall be provided to or used in support of any U.S. embargoed entity or U.S. embargoed location, including Cuba, Iran, Syria, North Korea, or the Crimea, Donetsk People’s Republic (DNR), or Luhansk People’s Republic (LNR) regions of Ukraine, nor exported for any military end uses or to any military end users in Russia without required export authorization.
Supplier may not use Next Silicon’s name and logo in any manner or medium whatsoever without Next Silicon’s prior written consent.
Supplier may not assign, subcontract, or transfer any of its rights or obligations hereunder to any third party without the prior written consent of Next Silicon. Next Silicon may assign its rights or obligations hereunder at its sole discretion. Supplier is an independent contractor of Next Silicon and nothing herein shall be construed to create a joint venture, partnership, or employment relationship. Supplier may not make any representations, warranties, covenants, or undertakings on behalf of Next Silicon and may not represent Next Silicon in any manner.
This Purchase Order shall be exclusively governed by, and construed and interpreted in accordance with, the laws of the State of Israel without regard to the choice of law provisions of any related contract or agreement. Any action arising out of or in any way connected with this Purchase Order shall be brought exclusively in the courts of Tel Aviv, Israel.
15. Sole Agreement
This Purchase Order constitutes the entire agreement between the parties regarding the subject matter hereof and shall supersede all previous agreements between the parties, whether oral or written, regarding the subject matter hereof. This Purchase Order may only be amended by an instrument in writing signed by each of the parties hereto.