Actel's Purchase Order Acknowledgement Terms and Conditions

THIS ACKNOWLEDGMENT IS AN ACCEPTANCE OF THE CUSTOMER'S PURCHASE ORDER ONLY FOR THOSE GOODS WITH AN ACTEL CORPORATION (HEREINAFTER CALLED "SELLER") SCHEDULED DELIVERY DATE SHOWN ON THE FRONT HEREOF. SUCH ACCEPTANCE IS CONDITIONAL UPON THE CUSTOMER'S CONSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, WHICH ARE IN LIEU OF AND REPLACE ANY AND ALL TERMS AND CONDITIONS SET FORTH ON CUSTOMER'S PURCHASE ORDER, SPECIFICATIONS, OR OTHER DOCUMENT ISSUED BY CUSTOMER. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER EITHER BEFORE OR AFTER ISSUANCE OF THIS ACKNOWLEDGMENT ARE HEREBY OBJECTED TO BY SELLER, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE UNDER THIS ACKNOWLEDGMENT AND SHALL NOT BE BINDING IN ANY WAY ON SELLER. No waiver or amendment of any of the provisions of this acknowledgment shall be binding on SELLER unless made in a writing expressly stating that it is such a waiver or amendment and signed by an authorized representative of SELLER.

1. SOFTWARE LICENSE. The CUSTOMER acknowledges that its use of any of the SELLER'S software products delivered hereunder shall be subject to corresponding execution of SELLER'S standard Software License Agreement, which defines the terms on which the CUSTOMER shall be entitled to use such software products.

Unless otherwise stated on the face of this acknowledgment (or otherwise agreed in writing by SELLER), all payments are due and payable thirty (30) days from the date of invoice. Accounts thirty (30) days past due will be subject to a monthly charge at the rate of one and one-half percent (1.5%) per month to cover the costs of servicing these accounts. All payments shall be made to SELLER at 2061 Stierlin Court, Mountain View, CA 94043, or such other address as SELLER shall designate. If all the goods covered by this acknowledgment are not delivered at the time of scheduled delivery, that is, only a partial delivery is rendered, the CUSTOMER shall pay the unit prices for the goods delivered as determined by SELLER in its sole discretion. Each delivery, whether full or partial, shall be considered a separate and independent transaction. All deliveries and performance of work covered by this acknowledgment shall at all times be subject to the credit approval of SELLER, and SELLER may at any time decline to make any shipments or deliveries, or perform any work, except upon receipt of payment or upon terms and conditions or security arrangements satisfactory to SELLER.

1. Except as provided in Section 3 (b) below, the prices for the goods covered hereby shall be those shown on the face of this acknowledgment, provided, however, that if such prices are based on the purchase of a particular quantity of goods and CUSTOMER fails to purchase such quantity, SELLER shall have the right (in addition to any other rights and remedies SELLER may have) to collect from CUSTOMER the difference between the price paid by CUSTOMER for the goods purchased and SELLER'S standard price ordinarily charged for such goods in the quantity purchased by CUSTOMER.
2. In the event that the price of precious metals that are incorporated into the goods rises prior to the delivery of such goods by SELLER, SELLER may reasonably adjust the prices set forth in the acknowledgment by written notice to CUSTOMER.
3. As security for CUSTOMER'S performance of its obligations hereunder, SELLER hereby reserves a purchase money security interest in all goods sold by SELLER to CUSTOMER, and in the proceeds thereof. In the event of default by CUSTOMER in any of its obligations to SELLER hereunder, SELLER may repossess the goods sold hereunder without liability to CUSTOMER. A copy of the invoice covering the goods may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect SELLER'S security interest. On request of SELLER, CUSTOMER shall execute such financing statements and other instruments that SELLER may reasonably request to perfect SELLER'S security interest. Furthermore, SELLER is authorized to execute and file on CUSTOMER'S behalf, a financing statement evidencing this security interest.
4. Unless otherwise stated on the face hereof, the prices for the goods covered hereby do not include costs of special packaging or shipping.

Unless otherwise stated on the face hereof, the prices for the goods covered hereby do not include customs duties or sales, use, excise, or other similar taxes of any federal, state, local or foreign governmental authority. The CUSTOMER shall pay, in addition to the prices quoted, the amount of any present or future customs duties or sales, use, excise or other similar tax applicable to the sale of goods or performance of services covered by this acknowledgment, or in lieu thereof the CUSTOMER shall supply SELLER with an appropriate tax exemption certificate.

1. Incoterms. The parties hereto agree to the incorporation by reference and use of Incoterms 2000 as published by the International Chamber of Commerce.
2. Ex Works. Delivery shall be EXW Mountain View, California, USA, EXW Fremont, California, USA, Incoterms 2000 or, as may be appropriate for international orders, SELLER'S supplier facilities EXW Singapore, EXW Hong Kong, EXW South Korea or EXW Philippines.
3. Time of Delivery. The SELLER will make its best efforts to make all deliveries, whether full or partial, in accordance with the established delivery schedule set forth in this acknowledgement or as may be otherwise later revised. Delivery shall be deemed completed when SELLER places the goods at the disposal of CUSTOMER'S carrier at the SELLER'S facility in Mountain View, California, or at SELLER'S supplier facilities in Singapore, Hong Kong, South Korea or Philippines, not cleared for export and not loaded on any collecting vehicle. Upon such delivery of the goods by SELLER to the CUSTOMER'S carrier, title to the goods will pass to the CUSTOMER, and CUSTOMER will thereupon be solely responsible for and bear the entire risk of any loss or damage to the goods.
4. Delivery Dates. The delivery dates set forth on this acknowledgment are approximate only. Therefore, both full and partial deliveries are authorized hereunder, thus the SELLER shall not be liable for, nor shall SELLER be in breach of, its obligations to the CUSTOMER because of any partial delivery made at the time of scheduled delivery or because of any delivery made within a reasonable time after the stated delivery date. SELLER may change any delivery date and such date shall become the agreed upon delivery date unless CUSTOMER objects to such date in writing.
5. Packaging. The goods shall be packed by SELLER and will be delivered for shipment in standard commercial packaging. When special or export packaging is requested or, in the opinion of SELLER, is required under the circumstances to minimize risk of loss or damage in transit, the cost of the same, if not set forth on the invoice for delivery, will be separately invoiced to the CUSTOMER.

SELLER shall not be liable for any failure to deliver, or delay in the delivery of, any goods due to any cause beyond its control, including but not limited to acts of God, fires, labor disputes, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. The date of delivery or SELLER'S performance hereunder shall be extended by a period equal to the time lost by reason of such delay in the event SELLER'S production is curtailed for any of the above reasons. Furthermore, in such event SELLER may allocate its production as it determines in its sole discretion among its various CUSTOMERS.

1. Data and Proprietary Rights in Data. Portions of the data supplied by SELLER hereunder are proprietary to SELLER. SELLER retains for itself all proprietary rights in and to all designs, engineering details and other data pertaining to any goods sold except where rights are assigned under written agreement by a corporate officer of SELLER.
2. Sale Conveys no License. The goods sold hereunder are offered for sale and are sold by the SELLER subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent claim with respect to which SELLER can grant licenses covering complete equipment, or any assembly, circuit combination, method or process in which any such goods are used as components. SELLER expressly reserves all of its rights under such patent claims.

1. SELLER warrants that semiconductor devices, other than prototypes, as to which no warranty applies, delivered hereunder shall be free from defects in material and workmanship under normal use and service for a period of one (1) year from the date of delivery at SELLER'S facility.
2. SELLER warrants that hardware products, other than semiconductor devices, delivered hereunder shall be free from defects in material and workmanship under normal use and service for a period of one (1) year from the date of delivery at SELLER'S facility. SELLER warrants that Evaluation Boards, delivered hereunder, shall be free from defects in material and workmanship under normal use and service for a period of three (3) months from the date of delivery from SELLER'S facility. This warranty is invalidated if any alterations are done to the Evaluation Board by any person or entity other than SELLER.
3. If, during the applicable warranty period for any goods delivered hereunder described above (i) SELLER is notified promptly in writing upon discovery of any defect in the goods, including a detailed description of such defect, (ii) such goods are returned to SELLER, Ex Works CUSTOMER'S facility, and (iii) SELLER'S examination of such goods discloses to SELLER'S satisfaction that such goods are defective and such defects are not caused by accident, abuse, misuse, neglect, alteration, improper installation, repair or alteration by someone other than SELLER, improper testing, or use contrary to any instructions issued by SELLER; then within a reasonable time SELLER shall repair or replace any such defective goods and return the repaired or replacement goods to CUSTOMER, transportation collect. In no event shall SELLER be liable for any consequential or incidental damages. Prior to any return of goods by the CUSTOMER pursuant to this Section 7, the CUSTOMER shall afford SELLER the opportunity to inspect such goods at the CUSTOMER'S location, and any such goods so inspected shall not be returned to SELLER without its prior written consent. The performance of this warranty does not extend the warranty period for any goods beyond that period applicable to the goods originally delivered. The foregoing warranty is the only warranty made by SELLER with respect to the goods delivered hereunder and constitutes SELLER'S exclusive liability, and the exclusive remedy of the CUSTOMER, for any defect, failure of performance, or other nonconformity of the goods covered by this acknowledgment.
4. Warranty information on SELLER'S software products are provided in SELLER'S software license agreement.
5.  THE FOREGOING WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER.

Any one of the following acts by CUSTOMER shall constitute a breach of CUSTOMER'S obligations hereunder:

1. Failure to make payment for any goods or services from SELLER when due;
2. Failure to accept conforming goods or services supplied hereunder;
3. The return of any goods delivered to CUSTOMER without the prior written consent of SELLER;
4. The filing of a voluntary or involuntary petition in bankruptcy against CUSTOMER, the institution of any proceedings in insolvency or bankruptcy (including reorganization) against CUSTOMER, the appointment of a trustee or receiver of CUSTOMER, or an assignment for the benefit of the CUSTOMER'S creditors; or
5. Any other act by CUSTOMER in violation of any of the provisions hereof.
6. In the event of any such breach by CUSTOMER, SELLER may, by written notice to CUSTOMER, terminate the order covered hereby or any part thereof, without any liability whatsoever. CUSTOMER shall pay all costs, including reasonable attorneys' fees, incurred by SELLER in any action brought by SELLER to collect payments owing or otherwise enforce its rights hereunder.

1. SELLER shall, at its own expense, defend any suit that is instituted against CUSTOMER to the extent such suit alleges that any goods, other than prototypes, and goods covered by Section 9(b) below, or any part thereof sold or leased hereunder infringes any United States patent, trademark or copyright that the CUSTOMER gives SELLER immediate notice in writing of any such suit, permits SELLER, through counsel of its choice, to answer the charge of infringement and defend such suit, and gives SELLER all the needed information, assistance and authority, at SELLER'S expense, to enable SELLER to defend or settle such suit. SELLER shall not in any event be responsible for infringements of combination patents, process patents or copyrights covering the use of the products in combination with other products, equipment or materials not furnished by SELLER, nor shall SELLER be responsible for any infringements arising from any modification or addition made to the goods by any person other than SELLER or from the use of such goods to practice any method or process other than those for which the goods were manufactured. In the case of a final award of damages in any such suit, SELLER shall pay such award, but shall not be responsible for any settlement made without its prior written consent. If the goods furnished by SELLER are held in and of themselves in any such suit to constitute infringement and their use is enjoined. SELLER will at its own option and expense: (1) procure for CUSTOMER the right to use, lease or sell such goods; (2) replace such goods (3) modify such goods; or (4) remove such goods and refund the aggregate payments made by CUSTOMER, less a reasonable sum for use, damage and obsolescence. THIS SECTION 9(a) STATES SELLER'S TOTAL RESPONSIBILITY AND LIABILITY, AND THE CUSTOMER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT BY ANY GOODS DELIVERED; HEREUNDER OR ANY PART THEREOF. THIS SECTION 9(a) IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT.
2. The CUSTOMER shall, at its own expense, indemnify and hold SELLER harmless from and against any expense or loss resulting from any infringement of any patent, trademark or copyright arising as a result of SELLER'S compliance with any of the CUSTOMER'S designs, specifications or instructions, and CUSTOMER shall defend at its own expense, including attorneys' fees, any suit brought against SELLER alleging any such infringement, provided that SELLER (i) gives the CUSTOMER immediate notice of any such suit and permits the CUSTOMER through counsel of its choice to defend such suit, and (ii) gives the CUSTOMER all needed information, assistance and authority, at the CUSTOMER'S expense, necessary for the CUSTOMER to defend any such suit.

1. For standard product, CUSTOMER shall not be entitled to defer or cancel any order, or any portion thereof, scheduled for delivery less than thirty (30) days prior to the scheduled delivery date.
2. For non-standard or programmed product, CUSTOMER shall not be entitled to defer or cancel any order, or any portion thereof, scheduled for delivery less than sixty (60) days prior to the scheduled delivery date.

SELLER'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF GOODS HEREUNDER SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE FOR SUCH GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE CUSTOMER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) RESULTING FROM SELLER'S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS SOLD PURSUANT HERETO, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL THE AMOUNT OF SELLER'S LIABILITY EXCEED THE AMOUNTS PAYABLE BY CUSTOMER HEREUNDER. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST THE CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

1. Life Support Applications. The goods delivered hereunder are neither designed nor intended for use in life support appliances, devices, or systems where malfunction of the goods can reasonably be expected to result in a personal injury or loss of life. Notwithstanding anything to the contrary contained in these terms and conditions, CUSTOMER shall indemnify SELLER against, and hold SELLER harmless from, any cost, loss, damage, or other related liability (inclusive of reasonable attorney's fees) arising from or related to the use of the goods in such appliance, device, or system.

1. Export. The SELLER'S goods, inclusive of technical data, materials, and related services, are subject to U.S. export control laws, regulations and Executive Orders and are not intended to be used, except in strict compliance with such laws, regulations, and Executive Orders, by the CUSTOMER or their end-users, either directly or indirectly, in the proliferation of weapons of mass destruction, inclusive of, but not limited to, those with nuclear applications and missile technology, chemical and biological weapons, and advanced conventional weapons. Exportation, re-exportation, diversion or disclosure, either directly or indirectly, contrary to U.S. export law is prohibited. No exports of the delivered goods may occur without SELLER'S prior written consent. SELLER shall be responsible for obtaining any required U.S. export license and will provide such license to CUSTOMER'S carrier at the time of delivery.
2. Re-export. Should the CUSTOMER intend to re-export the goods, the CUSTOMER shall have the sole responsibility for obtaining all required re-export licenses. The CUSTOMER shall also be responsible for determining which export regulations apply to any re-exportation and for assuring that the applicable requirements thereof are met. The CUSTOMER shall also be responsible for ensuring the that end-user is not on the U.S. Department of Commerce's Denied Party, Entity or Unverified lists, the U.S. Department's Debarred Party list, the U.S. Department of Treasury's Specially Designated Nationals List, and that the end-use of the goods will not be for the proliferation of weapons of mass destruction as described in Section 12(a) above. The SELLER makes no guarantees or assurances of the re-export licensability of any goods purchased pursuant to this purchase order. The CUSTOMER agrees to defend and hold SELLER harmless from any claims, damages or liability resulting from the breach of any part of Section 12. Failure by the CUSTOMER to comply with U.S. export control regulations and the provisions of this Section 12 shall be sufficient cause for SELLER, at its option, to either terminate the purchase order or demand proof of compliance therewith from the CUSTOMER.

1. The validity, performance and construction of the terms of this acknowledgment and all sales of goods covered by this acknowledgment shall be governed by the laws of the State of California, U.S.A., wherein Santa Clara County, California shall be the appropriate venue and jurisdiction for the resolution of disputes hereunder.
2. The CUSTOMER may not assign its rights or obligations under this acknowledgment without the prior written consent of SELLER, and any purported assignment without such consent shall have no force or effect.
3. Any waiver by SELLER of any default by the CUSTOMER hereunder shall not be deemed to be a continuing waiver of such default or a waiver of any other default or any other term or condition of this acknowledgment.
4. The terms and conditions of this acknowledgment may not be superseded, modified or amended except in writing and signed by an authorized representative of each party hereto, provided, however, that SELLER may modify the specifications of the goods sold hereunder if such modification does not change the form, fit or function of such goods.
5. This acknowledgment, along with the documents incorporated by reference on the face hereof (but expressly excluding the terms and conditions of the CUSTOMER'S purchase order or any similar document issued by CUSTOMER) constitutes the entire agreement between the CUSTOMER and SELLER with regard to the goods listed on the face hereof, and expressly supersedes and replaces any prior or contemporaneous agreements, whether written or oral, relating to such goods or services.