2. Delivery of Goods and Performance of Services.
3. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Credo may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's sole risk and expense. If Credo does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms. Unless otherwise agreed in writing, delivery shall be made DDP (Incoterms 2020) to the Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Purchase Order, as applicable.
5. Title and Risk of Loss. Title and risk of loss passes to Credo upon delivery of the Goods at the Delivery Point.
6. Inspection and Rejection of Nonconforming Goods. Credo has the right to inspect the Goods on or after the Delivery Date. Credo, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Credo rejects any portion of the Goods, Credo has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety and return the rejected Goods or portion thereof to Seller at Seller’s expense and Seller will promptly refund any amounts paid by Credo for the returned Goods; (b) accept the Goods at a reasonably reduced price; or (c) require replacement of the rejected Goods or portion thereof within a specified time. If Credo requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods within the specified delivery schedule, Credo may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 18. Any inspection or other action by Credo under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Credo shall have the right to conduct further inspections after Seller has carried out its remedial actions.
7. Price. The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without Credo’s prior written consent.
8. Payment Terms. Seller shall issue an invoice to Credo on or any time after the completion of delivery and only in accordance with these Terms. Credo shall pay all properly invoiced amounts due to Seller within thirty (30) days after Credo's receipt of such invoice, except for any amounts disputed by Credo in good faith. All payments hereunder must be in US dollars. Without prejudice to any other right or remedy it may have, Credo reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Credo to Seller under this Agreement. In the event of a payment dispute, Credo shall make commercially reasonable efforts to notify Seller in writing of any disputed amount within 30 days of receiving the applicable invoice. Payment of an invoice will not constitute acceptance under this Agreement, and is subject to adjustment for errors, shortages, defects or other failure of Seller to meet the requirements of this Agreement. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute. Credo is not obligated to pay any invoice received from Seller more than 120 days after Credo accepts the Goods or Services.
9. Seller's Obligations Regarding Services. Seller shall:
10. Change Orders. Credo may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Goods or Services. If any change causes an increase or decrease in the cost of, or the time required for, Seller’s performance, an equitable adjustment may be made in the price or delivery schedule or both, provided that Seller shall within fifteen (15) days of receipt of a Change Order submit to Credo a firm cost proposal for the Change Order, and such cost adjustment shall be subject to Credo’s acceptance of the cost proposal. Upon Credo’s acceptance, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
11. Ownership and use of the parties’ respective Intellectual Property.
12. Grant of Rights Intellectual Property.
14. General Indemnification. Seller shall defend, indemnify and hold harmless Credo and Credo's parent company, its subsidiaries, affiliates, successors or assigns and its and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller's negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Credo's prior written consent.
15. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Credo and Indemnitees against any and all Losses arising out of or in connection with any claim that Credo's or any Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Credo's or Indemnitee's prior written consent.
16. Insurance. During the term of this Agreement, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 USD with financially sound and reputable insurers. Upon Credo's request, Seller shall provide Credo with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in these Terms. [The certificate of insurance shall name Credo as an additional insured.] Seller shall provide Credo with [NUMBER] days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Credo's insurers and Credo.]
17. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Credo may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
18. Termination. In addition to any remedies that may be provided under these Terms, Credo may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller's delivery of the Services, with or without cause. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Credo may terminate this Agreement upon written notice to Seller. If Credo terminates the Agreement for convenience, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Credo prior to the termination.
19. Waiver. No waiver by Credo of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Credo. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. Confidential Information. All non-public, confidential or proprietary information of Credo, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Credo to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Credo in writing. Upon Credo's request, Seller shall promptly return all documents and other materials received from Credo. Credo shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) previously known to Seller at the time of disclosure; or (c) rightfully obtained by Credo on a non-confidential basis from a third party.
21. Force Majeure. Credo shall not be liable or responsible to Seller, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Credo including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
22. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Credo. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Credo may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Credo's assets.
23. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
24. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
25. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
26. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Santa Clara, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party expressly consents to service of process pursuant to the rules of such court. Notwithstanding anything in this Agreement to the contrary, Credo may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors, and Buyer hereby submits to the exclusive jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds.
27. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the purchase order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
28. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
29. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Proprietary Rights, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
30. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
31. Headings. The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.