The Guidelines are hereby incorporated in this Agreement and made a part hereof as if fully set forth herein in their entirety. Distributor hereby acknowledges receipt of a copy of the Guidelines in effect as of the Effective Date of this Agreement and its agreement thereto. Xilinx has the right to amend the Guidelines without Distributor’s consent if Distributor’s obligations are not materially altered or such changes are compulsory by law.
Xilinx shall give notice to Distributor of proposed amendments to the Guidelines by e-mail communication to the Avnet contacts listed on Exhibit G, which may be changed from time to time without need to amend this Agreement, and on Xilinx’s The SouRCe website.
Distributor can object to any proposed amendment to the Guidelines that does not meet the criteria of Section 3.1 within a period of four (4) weeks after notification of the proposed amendment. If Distributor does not object to the proposed amendment within this period, it shall come into effect immediately after the four (4) week period ends without the need for further notification.
If Distributor objects to the proposed amendment to the Guidelines, Distributor shall specify the provisions objected to and give Xilinx its reasons in writing within the four-week period. If the parties cannot promptly resolve their differences regarding the proposed amendment to the Guidelines, the matter will be escalated to executive management of both parties for resolution, and during such time the Guidelines that were in effect prior to such objection shall remain valid for Distributor.
In the event of a conflict or ambiguity between this Agreement and the Guidelines, the terms and conditions of this Agreement will govern.
Distributor shall use reasonable commercial efforts, commensurate with the proportion of revenue earned from the sale of Products compared to Distributor’s overall revenue, to vigorously promote the sale of the Products.
Distributor shall maintain a sufficient inventory of Products in the Territory, as determined by Xilinx, in order to satisfy Distributor’s anticipated sales of Products within such Territory. Distributor shall maintain at least [***] percent [***] of such inventory in [***] regional hubs as identified on Exhibit A.
Distributor shall send to Xilinx by electronic means point of sale, inventory, and end customer backlog reports, transaction data, and business performance metrics in the form and in the time frame requested by Xilinx in the Guidelines. With respect to point of sale and end customer backlog reports, the submission frequency shall be as directed by Xilinx from time to time.
Distributor agrees to follow all Xilinx policies stated in the Guidelines including, without limitation, adhering to Generally Accepted Accounting Principles (“GAAP”).
If the Products include semiconductor devices that Distributor or a subcontractor of Distributor programs as a service to its customer, Distributor shall indicate (or ensure that its subcontractor indicates) to its customer that such programming has been done by Distributor or a subcontractor of Distributor, and Distributor warrants that all programming performed on the Products by Distributor or its subcontractors shall be performed in a workmanlike manner and in accordance with the instructions and specifications for such programming as provided by Xilinx.
If Distributor or its programming subcontractor has not properly and fully complied with all Xilinx instructions and specifications for such programming, Distributor assumes sole and exclusive responsibility and liability for all consequences resulting from the improper or incomplete programming.
Distributor represents and warrants that it can trace its sales of Products to customers by sorting and tracking such sales according to any or all of the following criteria, as requested by Xilinx: ordering part number including speed grade designators; packaging including the number of pins and/or balls, lot code including split designators, and date code. This information is available from Xilinx on either the Product’s top mark or the box label bar code. Distributor further agrees to provide Xilinx with a written report sorting and tracing Product according to the criteria designated by Xilinx within three (3) business days of receipt of written request from Xilinx.
Distributor shall not seek customers or advertise the Products outside the Territory (web site advertising excluded) or establish any sales office, repair, support or maintenance facilities for the Products outside the Territory without the prior written consent of Xilinx.
In respect of all geographic locations outside of the EEA, unless otherwise restricted or prohibited by applicable laws and regulations, and except as otherwise set forth in Section 4.12 below or approved in writing by the Xilinx Vice President of Sales Operations, Distributor shall not knowingly sell Products to a
In respect of all geographic locations inside the EEA, unless approved in writing by the Xilinx Vice President of Sales Operations, Distributor shall not knowingly sell Products to Brokers within the EEA for export outside the EEA. This includes Brokers identified on the Broker list furnished by Xilinx to Distributor from time to time. When it receives orders from one of the listed Brokers within the EEA, Distributor should verify that the Broker does not intend to sell the Products outside of the EEA (by, for example asking the Broker to provide the name and address of the EEA customer to whom it intends to sell the Products). Distributor shall use all reasonable efforts to avoid sales to Brokers within the EEA for export outside the EEA. Distributor shall inform Xilinx in writing of any sales inadvertently made in violation of this paragraph within thirty (30) days of discovery. Upon discovery of Distributor’s breach of either Section 4.9 or 4.10, in addition to any necessary government reporting, Xilinx may, to the extent permitted under local law, take appropriate steps to redress the violation, including notification to the appropriate Avnet Regional President.
Subject to the terms and conditions of this Agreement, Distributor may perform under this Agreement through one or more of its Subsidiaries on the following conditions: (i) Distributor hereby reaffirms its obligations under that certain Guaranty Agreement between Distributor and Xilinx dated February 8, 2013, as may be amended from time to time, which shall remain in place and effective according to its terms; (ii) Distributor shall ensure that its Subsidiaries comply with the terms and conditions of this Agreement as if they were a party hereto, and shall be liable for their failure to do so as if such failure was the act or omission of Distributor; and (iii) Distributor shall hold Xilinx harmless from and against any and all liabilities, damages, expenses and costs arising from the acts and omissions of any Subsidiary.
Subject to the terms and conditions of this Agreement, Distributor may use Sub-Distributors as an extension of Distributor’s marketing efforts for Products and Software on the following conditions: (i) Distributor shall ensure that its Sub-Distributors comply with the terms and conditions of Articles 20 (Confidentiality), 24 (Export / Reexport), and 25 (US Foreign Corrupt Practices Act Warranties) and Section 27.3 (Compliance) of this Agreement as if they were a party hereto, and shall be liable for their failure to do so as if such failure was the act or omission of Distributor; and (ii) Distributor shall pay any final damages awarded by a court of competent jurisdiction arising out of the conduct or failure to act of a Sub-Distributor if Xilinx gives Distributor notice in writing of the claim as soon as reasonably practicable, (whether or not litigation or other proceeding has been filed or served). In no event shall Distributor’s liability for any claim arising out of a Sub-Distributor’s conduct or failure to act, exceed [***] per incident and no more than [***] per year. Unless otherwise specified in this Agreement and except as may be reasonably required to facilitate compliance by any Sub-Distributor to this Agreement, Distributor shall serve as the sole and exclusive channel of communication to Xilinx in connection with the performance by Sub-Distributor under this Agreement. Regardless of the involvement of a Sub-Distributor, Distributor shall control pricing and shipment to the Xilinx Customer as well as reporting to Xilinx the point of sale and other information typically provided to Xilinx. Compensation of any Sub-Distributor for its marketing efforts shall be solely as between Distributor and the Sub-Distributor, and Distributor shall hold Xilinx harmless from any claims by any Sub-Distributor concerning compensation owed to the Sub-Distributor for such efforts.
Distributor shall be eligible for the Distributor Inventory Relief (“DIR”) program pursuant to Exhibit D.
Xilinx shall keep Distributor informed on a timely basis of changes and innovations in performance, uses and applications of Products via posting of information on Xilinx’s The SouRCe website.
Xilinx shall provide training opportunities in marketing the Products to personnel identified by Distributors. Such training shall be held through methods and at the times and locations as mutually agreed by the parties.
Xilinx, at its expense, shall periodically provide Distributor with digital copies of Xilinx advertising and promotional materials, pricing information and technical data related to the Products.
Prices are subject to change by Xilinx at any time. Xilinx shall give Distributor five (5) business days’ notice of a Price change. A Price change shall be effective on the date of publication in the Price Book.
In the event that Xilinx decreases the Price of any Product, Distributor will be entitled to an adjustment equal to the difference between the Price paid by Distributor, net of any prior adjustments granted by Xilinx, and the newly decreased Price for the Product multiplied by the quantity of such Product in Distributor’s inventory and in transit to Distributor on the effective date of the reduction.
In the event that Xilinx increases the Price of any Product, Distributor may either (i) accept such increase in Price, whereupon Xilinx is entitled to an adjustment equal to the difference between the Price paid by Distributor, net of any prior adjustments granted by Xilinx, and the newly increased Price for the Product multiplied by the quantity of such Product in Distributor’s inventory and in transit to Distributor on the effective date of the increase or (ii) except as otherwise provided in Section 14.3 below, return all or a portion of the applicable inventory of Product to Xilinx, and any portion not returned shall be treated as provided in clause (i) herein.
Distributor shall submit to Xilinx, within thirty (30) days after the effective date of a Price change, a Product inventory report as of the effective date of such Price change and the net dollar value of the Price adjustment. Xilinx shall be deemed to have verified the Product inventory report and the net dollar value of the adjustment unless Xilinx contests the same in writing within thirty (30) days after receiving such report. Uncontested claims for Price adjustments shall be applied to Distributor’s account as of the effective date of such Price change.
All Products shipped to Distributor will be invoiced at the Price in effect at the time of shipment.
All monetary transactions between Distributor and Xilinx will be denominated in US Dollars.
All purchases of Products by Distributor (or any of its Subsidiaries) pursuant to this Agreement shall be made by issuance of Purchase Orders and shall be subject to the terms and conditions of this Agreement.
Purchase Orders shall state the following categories of information: unit quantities, unit descriptions, applicable Prices, requested ship dates and shipping instructions, and such additional categories of information as mutually agreed upon. All other terms and conditions provided on, in, or with a Purchase Order or any other documentation related to a Purchase Order that are in addition to, vary from, or conflict with the terms and conditions of this Agreement shall be deemed null and void.
Distributor shall use commercially reasonable efforts to provide firm quantity and shipment releases consistent with then-current lead times at Xilinx for Products ordered. All Purchase Orders are subject to acceptance by Xilinx, and Xilinx reserves the right to refuse any order or requirements of Distributor.
Xilinx will make reasonable commercial efforts to provide to Distributor (via EDI, email, facsimile or otherwise as may be reasonably requested by Distributor and supported by Xilinx) within one (1) business day of receipt, a written acknowledgment of each Purchase Order accepted by Xilinx including the Original Factory Date.
All Purchase Orders submitted by Distributor and accepted by Xilinx are firm commitments by Distributor to buy Products. Distributor will notify Xilinx in writing in a timely manner of its desire to change or cancel any Purchase Order. Except for items that are NCNR, Distributor may change or cancel orders or reschedule shipment dates for any Products ordered, provided that Distributor notifies Xilinx more than thirty (30) days prior to the Current Factory Date. [***] If a request to change or cancel an NCNR order is accepted by Xilinx, Xilinx may, as a condition to such acceptance, require Distributor to compensate Xilinx for any costs incurred by Xilinx as a result of the change or cancellation.
Except where otherwise agreed in writing by Xilinx, shipping terms shall be one or the other of the following options as determined in the Guidelines:
FCA (Xilinx Designated Location) (INCOTERMS 2010), but Distributor shall pay all applicable freight, insurance, duties, and import charges for delivery of the Product from the Xilinx Designated Location to the location specified by Distributor. Distributor shall have the right to designate the common carrier to which Xilinx shall tender the Product at the Xilinx Designated Location, and, in absence of such specification by Distributor, Xilinx shall select the carrier in its reasonable discretion.
CPT (Mutually Agreed Named Placed of Destination) (INCOTERMS 2010), but Distributor shall be responsible for all insurance, duties and import charges for delivery of the Product from the Xilinx Designated Location to the location specified by Distributor. For US final destinations, the Xilinx Designated Location shall be within the US, and Distributor shall not have the right to designate the common carrier to which Xilinx shall tender the Product at the Xilinx Designated Location.
Title and risk of loss shall pass to Distributor immediately upon tender of the Product to the freight forwarder or carrier at the Xilinx Designated Location for FCA (INCOTERMS 2010), or at the mutually agreed named placed of destination for CPT (INCOTERMS 2010), as the case may be.
Xilinx will use commercially reasonable efforts to ship all Products by the Original Factory Date. In the event of a material delay from the Original Factory Date, Xilinx will use commercially reasonable efforts to inform Distributor five (5) business days in advance of Original Factory Date (via EDI, email, facsimile or otherwise as may be reasonably requested by Distributor and supported by Xilinx).
If Distributor requests delivery for a given Purchase Order prior to the Current Factory Date, and if Xilinx is able to accommodate Distributor’s request, then Xilinx will communicate such ability to Distributor along with any applicable expedite fees determined at Xilinx’ discretion, and if Distributor decides to have Xilinx proceed to expedite the delivery, then such applicable expedite fees shall be invoiced and paid per Section 10 (Payment).
Distributor will use reasonable efforts to promptly inspect Products for visible damage upon delivery, and for conformity with the terms of the Purchase Order (i.e. quantity and part number). If Distributor discovers the Products to be nonconforming to the terms of the Purchase Order, then Distributor will inform Xilinx within twenty (20) days of receipt of shipment. If Products are damaged in shipment, Distributor will contact its freight forwarder regarding Distributor’s claim for damages. Distributor will cooperate with Xilinx regarding the disposition of any Products damaged by shipment.
Distributor shall pay all Xilinx invoices issued in connection with this Agreement net [***] days from date of invoice; provided, however, Xilinx reserves the right to require different payment terms based on credit reviews of
Distributor from time to time, including, but not limited to, the execution of a security agreement as deemed appropriate by Xilinx.Distributor shall notify Xilinx in writing if it disputes any invoice or adjustment within ten (10) days of the date thereof and provide Xilinx with a detailed accounting of its basis for disputing such
At request of Xilinx, Distributor shall execute a security agreement and such other documents as may be necessary or appropriate to perfect a security interest in favor of Xilinx for any delivery of Product on a credit basis.
Prices are exclusive of all federal, state, municipal or other government, excise, use, occupational, sales, goods and services, value added or like taxes or duties now in force or enacted in the future (other than taxes levied on the net income of Xilinx) that Xilinx may be required to collect or pay upon sale or shipment of the Products or upon shipment of or granting of a license to Software (collectively, “Taxes”).
Distributor agrees to pay all Taxes unless Distributor is exempt therefrom. If Distributor claims that it is exempt from Taxes, Distributor will provide Xilinx with an exemption resale certificate or other appropriate evidence to show that it is exempt from the relevant Taxes. In the event Xilinx is required to pay any Taxes at the time of sale or thereafter, Distributor agrees to reimburse Xilinx therefor.
If Distributor is required under local law to apply a withholding tax, Distributor shall notify Xilinx in advance and assist in taking all reasonable steps to minimize its impact. For any taxes withheld, Distributor shall provide Xilinx with an official receipt from the appropriate tax authorities within sixty (60) days of payment.
Except as provided in Section 24.3, all records prepared by or for Distributor in connection with this Agreement shall be preserved for a minimum of three (3) years from generation, or such longer periods as Xilinx may specify in writing. Such obligation to maintain, make available and preserve records shall survive the termination of this Agreement.
Annually, or in the event of a material audit failure as frequently as necessary, and based on ten (10) days working notice, Xilinx shall have the right, at its sole expense, except as otherwise provided herein, by itself and through representatives reasonably acceptable to Distributor, to examine and to audit: (i) all records and accounts containing transaction data for Products, Software and related marketing programs at Distributor; (ii) Distributor’s systems, processes and internal controls; (iii) Distributor’s inventory tracking and management systems; and (iv) Distributor’s legal compliance efforts and related processes applicable and related to Sections 24, 25 and 27.3. Upon request, Distributor shall require its Subsidiaries and Sub-Distributors to submit to an examination and audit under this Section 12.2. In the event a Subsidiary or Sub-Distributor fails to cooperate, Distributor shall make reasonable commercial efforts to itself perform the examination and audit in accordance with instructions provided by Xilinx and report to Xilinx all results, and shall hold Xilinx harmless with regard to Distributor’s obligations of confidentiality to such Subsidiary or Sub-Distributor.
If this Agreement is terminated for cause based on Distributor’s default discovered as a consequence of an audit, Distributor shall pay for the reasonable costs of such audit. The right of Xilinx to audit shall survive the termination of this Agreement.
Except as otherwise specified in this Article 13, and subject to Xilinx approval, Xilinx will accept one (1) stock rotation return of a quantity of Products for credit during the first month of each Xilinx fiscal quarter (January, April, July and October), freight payable by Distributor and risk of carriage borne by Distributor, provided that: (1) the total dollar value of the credit shall not exceed [***] percent of the dollars invoiced by Xilinx to Distributor (or such percentage identified in the Guidelines, if different), net of any adjustment, during the subject three-month period as mutually agreed by the parties; (2) the Products to be returned have been in Distributor’s inventory at least ninety (90) days; (3) Distributor does not have a current backlog of orders for such Products for delivery in any part of the Territory; (4) the Product has not otherwise been designated as NCNR; (5) the Product is in its Xilinx original sealed bag (“Original
The credit to be issued in respect of each such Product returned shall be issued by Xilinx within thirty (30) calendar days after receipt of such Product by Xilinx and shall be issued in the amount of the actual Price charged net of any prior adjustments granted by Xilinx to Distributor for such Product. All Products returned in accordance with this provision must be in Original Condition (except only as indicated in Section 13.1 above) and packaged for returned pursuant to then-current specifications at Xilinx.
Once per quarter, Distributor may scrap particular Product, such as small quantity returns not requiring a RMA or Products with bent leads, with an aggregate Price no greater than [***] percent [***] of the dollars invoiced by Xilinx to Distributor (or such percentage identified in the Guidelines, if different) per such three months. Distributor shall not include as “scrap” any Product that is designated as NCNR and must provide a certificate of destruction for all scrapped Product.
PRODUCT CHANGES AND DISCONTINUATION
Xilinx will use reasonable efforts to abide by JEDEC JESD46-C and notify Distributor at least ninety (90) calendar days in advance for any Products that have a change (“PCN”) to the Form, Fit, or Function of the Products or impacts the reliability of the Products. As used herein, the terms “Form,” “Fit” and “Function” will have the meanings ascribed to them in JEDEC JESD46-C.
Xilinx will use reasonable efforts to abide by JEDEC JESD48-B with respect to product discontinuance by semiconductor suppliers, and provide notice of the discontinuance of Products (“PDN”) to Distributor allowing a minimum of six (6) months from the date of notice to place Purchase Orders, and up to twelve (12) months from the date of notice for final shipment of such Products.
For Products subject to PDN, Distributor may return such Products within thirty (30) days after the last time buy (“LTB”) date, and shall receive full credit for all such Products so returned. Any such credit shall be in the amount of the Price paid by Distributor for the discontinued Products net of any prior adjustments. All freight charges shall be paid by Distributor and Distributor shall package Product in accordance with the then-current Xilinx specification. Any Product held by Distributor thirty (30) or more days after the LTB date cannot be returned to Xilinx for any reason except under a bona fide warranty claim, and Distributor will transfer such inventory to a non-Xilinx product code and remove from all Xilinx reporting within fifteen (15) months after the last time ship (“LTS”) date.
WARRANTIES, DISCLAIMERS AND PASS-THROUGH PROVISIONS
Distributor and Xilinx each represents and warrants to the other that (i) it has the full power to enter into this Agreement and to perform its obligations under this Agreement, and (ii) its compliance with the terms and conditions of this Agreement will not violate any agreements it has with any third party.
Engineering Samples are made available solely for purposes of research, development and prototyping. Article 14 (Product Changes and Discontinuance) and any other provision of this Agreement not applicable in nature to Engineering Samples are hereby deemed null and void with respect to Engineering Samples. Distributor agrees not to promote the use of Engineering Samples for production purposes.
THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE. XILINX DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
Software is warranted, if at all, only by Xilinx in its license agreement with the end customer.
For the Warranty Period, Xilinx warrants to Distributor the Products in accordance with its standard warranty as offered by Xilinx as a seller under the Terms of Sale located at http://www.xilinx.com/legal.htm#tos (“Xilinx Terms of Sale”). From time to time Xilinx may revise the Xilinx Terms of Sale at its sole and absolute discretion, and Xilinx shall give advance written notice promptly to Distributor of such revisions by e-mail communication to Avnet’s Vice President, Global Contracts and at http://www.xilinx.com/legal.htm#tos. Distributor shall, and shall require Subsidiaries to, no later than ten (10) days after such notice, ensure that all quotations and offers subsequently communicated and all contracts subsequently formed for the sale of Products by Distributor (and by Subsidiaries and Sub-Distributors) after such date reflect all such revisions. Xilinx authorizes Distributor to pass through this warranty to any of Distributor’s customers only as offered for the Warranty Period and under the Xilinx Terms of Sale, subject to the exclusions to and limits of liability, and the limits and exclusions to the warranty, defined in the Xilinx Terms of Sale.
Distributor understands and agrees that Distributor is not an agent of Xilinx and has no right, power or authority to create warranties, contracts, obligations or liability by, for or on behalf of Xilinx, except for the pass-through warranty as described in Section 15.5 above or as may be agreed to by Xilinx as set forth in Exhibit F. Subject to the terms and conditions of this Agreement, Distributor shall, at its own cost and expense, indemnify, defend and hold harmless Xilinx from and against any claims, damages, losses, costs and liabilities to the extent caused by Distributor, any Distributor Subsidiary or Sub-Distributor (subject to the liability limit stated in Section 4.12) (i) providing any warranty or infringement indemnification or remedy to any other person or entity except solely as provided by Xilinx as a seller under the Xilinx Terms of Sale, or (ii) failing to limit or exclude liability or to disclaim implied warranties, to the extent that Xilinx has done so as a seller under the Xilinx Terms of Sale. Notwithstanding the foregoing, Distributor may offer to Distributor’s customers its own warranties or infringement indemnification without invalidating any provisions of this Agreement, and any liability associated with such offerings shall be satisfied at Distributor’s sole expense.
INTELLECTUAL PROPERTY INDEMNIFICATION
Subject to the terms and conditions of this Agreement, Xilinx agrees to defend, indemnify and hold Distributor, its successors and permitted assigns (per Section 27.2) (each an “Indemnified Party”) harmless against third-party claims, suits, or proceedings before a court of competent jurisdiction alleging that Distributor’s sale and distribution (to the extent authorized under this Agreement) of Products, as shipped by Xilinx to Distributor, infringes upon any valid patent, mask work or copyright, or that Xilinx has misappropriated or unlawfully disclosed trade secrets of a third party in connection with the design or production of Products (collectively “Claims”), from all loss, damages, and for such other costs and expenses as approved by Xilinx, which approval shall not be unreasonably withheld, (including reasonable attorney’s fees and costs of establishing rights to indemnification) which may be incurred by an Indemnified Party, provided that the Indemnified Party (i) gives Xilinx notice in writing of the Claim as soon as reasonably practicable after learning of the assertion of the Claim (whether or not litigation or other proceeding has been filed or served); (ii) permits Xilinx to have sole control over the defense or settlement of the Claim; (iii) gives Xilinx all necessary information, assistance and authority required; and (iv) makes no admission of liability without the permission of Xilinx.
Xilinx will not be liable for any costs or expenses incurred without its prior written authorization, and will have no obligation or liability for any Claim arising out of: (i) modifications to Products made by anyone other than Xilinx or modifications made by Xilinx at the request of Distributor; (ii) the use or incorporation of any technology, design or specification supplied to Xilinx by or on behalf of Distributor in the design or manufacturing of any Products; (iii) the combination of Products, or of features, functions or elements of Products, with any other circuitry, software, device, subassembly, system, material, component, method or
If, as a result of a Claim, Distributor is enjoined from selling Products, Xilinx may, at its sole discretion: (i) secure for Distributor the right to sell Products, or (ii) replace or modify such Product with functionally compatible non-infringing product; or if neither of such alternatives is, in Xilinx’s opinion, commercially reasonable, then (iii) refund to Distributor the price paid for such Product if returned to Xilinx and terminate this Agreement as it applies to such Product, effective upon written notice to Distributor, without further obligation under this Agreement with respect to such Product.
THE FOREGOING STATES THE ENTIRE LIABILITY OF XILINX AND THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR WITH RESPECT TO CLAIMS RELATING TO THE PRODUCTS. EXCEPT AS EXPRESSLY STATED HEREIN, ALL WARRANTIES AND CONDITIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED, ARE HEREBY DISCLAIMED.
Xilinx and Distributor (each an “Indemnitor”) agree to indemnify and hold the other (each an “Indemnitee”) harmless from and against any and all claims, damages and liabilities resulting directly from any breach by it, or by an of its employees or agents, of any of its warranties in this Agreement, or from any negligent or willful act or omission of any of its employees or agents. Xilinx agrees to indemnify and hold Distributor harmless from any and all liabilities and losses, damages resulting from any claim of Distributor’s customers or any other third party, including employees of Distributor or Xilinx, for death, personal injury or damage to tangible physical property asserted by any person or entity arising out of the Products or the use or operation thereof to the extent caused by the Products as delivered by Xilinx. Such indemnification shall include the payment of all reasonable attorneys’ fees and other direct costs incurred by Indemnitee in defending such claims, including the cost of establishing rights to indemnification. In the event of any such claim, damages or liabilities being incurred, Indemnitee agrees that Indemnitor shall have sole control of any action, proceedings or settlement negotiations which may arise from any such claim, damages or liabilities, provided that prompt notice is given to Indemnitor, and that Indemnitor is not liable for any costs or expenses incurred without its prior authorization.
Each Indemnitor shall indemnify, defend and hold the other party, its officers, directors, employees and agents (collectively, the “Indemnitees”) harmless from and against any and all claims, proceedings, liabilities, damages, costs and expenses (including, but not limited to, attorneys’ fees, costs and disbursements) (collectively, “Damages”) arising out of or related to breach by the Indemnitor, its Subsidiaries or any partners, agents, contractors or employees thereof, of the obligations stated in Article 24, Article 25, or Section 27.3.
LIMITATION OF LIABILITY
EXCEPT FOR THE LIABILITY OF EITHER PARTY AS STATED IN SECTION 15.6, ARTICLE 17 (INTELLECTUAL PROPERTY INDEMNIFICATION), ARTICLE 18 (GENERAL INDEMNIFICATION) OR ARTICLE 20 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, LOSS OF DATA, LOST PROFITS, GOODWILL, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR SALE OF THE PRODUCTS, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY;
WITHOUT PREJUDICE TO SECTION 19.1(1) AND EXCEPT FOR THE LIABILITY OF XILINX AS STATED IN SECTION 15.6, ARTICLE 17 (INTELLECTUAL PROPERTY INDEMNIFICATION), ARTICLE 18 (GENERAL INDEMNIFICATION) OR ARTICLE 20 (CONFIDENTIALITY), IN NO EVENT WILL THE ENTIRE LIABILITY OF XILINX ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED [***] DOLLARS (US [***]);
THESE LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF XILINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN.
THE PARTIES AGREE THAT THIS ARTICLE 19 (LIMITATION OF LIABILITY) REPRESENTS A REASONABLE ALLOCATION OF RISK.
“Confidential Information” means any information disclosed by or on behalf of one party or its Subsidiaries (“Discloser”) to the other party or its Subsidiaries (“Recipient”), including, but not limited to, (i) all nonpublic technical information and materials of Discloser relating to the design, development, manufacture, operation, specifications, use and service of Products, Software and services offered by Discloser; (ii) all nonpublic business information and materials of Discloser, including, but not limited to, business plans, information regarding current and prospective customers, product roadmaps, marketing and product strategies and other information, product cost information, and the like; (iii) all nonpublic corporate information and materials of Discloser, including employee information, corporate financial information, information regarding corporate entities and offices and the like that is confidential and of value to Discloser; (iv) all terms and conditions contained in this Agreement, other than as may be made public by Discloser; and (v) any other nonpublic information or materials that are provided or described under circumstances by which Recipient should reasonably understand such information is to be treated as confidential and all of which is marked as “Confidential Information.” Confidential Information that is disclosed orally or visually shall be confirmed as confidential or proprietary in writing within ten (10) days after such disclosure. As between Xilinx and Distributor, "Confidential Information" of Xilinx also includes all business, financial or technical data or information relating to current and prospective customers of Xilinx made available by either party to the other party, or by any such current or prospective customer directly to Distributor, in connection with either party's performance of this Agreement, including, without limitation, data or information concerning a current or prospective customer's products, technologies, specifications, requirements, plans, roadmaps, strategies, research and development, procurement practices or policies, or contact information for key personnel.
Recipient may use the Discloser’s Confidential Information only for the sole purpose of carrying out Recipient’s rights and obligations under this Agreement (the "Purpose").
Recipient agrees, for a period of five (5) years from the date of disclosure, not to: (i) use Discloser’s Confidential Information for any reason, other than for the Purpose; and (ii) except as expressly set forth in Section 20.4 below, disclose Discloser’s Confidential Information to any third party except its employees that (a) have a legitimate "need to know" for furtherance of the Purpose, and (b) are subject to confidentiality obligations no less restrictive than those set forth herein. Recipient will exercise the same degree of care in protecting Confidential Information that it uses for its own confidential information of a similar nature, but in no event less than reasonable care. Recipient will be liable for any failure of its employees to abide by the terms of this Agreement as if such failure was a failure of the Recipient.
In the course of performing under this Agreement, it may become necessary for actual or prospective customers of Distributor or Distributor’s Subsidiaries (collectively, “Authorized Recipients”), to receive Xilinx Confidential Information. The specific Confidential Information that is eligible for disclosure to Authorized Recipients under this Section 20.4 consists exclusively of the information, materials and data that are made available to Distributor through Xilinx's "Distributor Sales" and "Distributor FAE" portals on the SouRCe ("Xilinx Customer Materials"). Prior to disclosing Xilinx Customer Materials to Authorized Recipients, the Distributor or Distributor Subsidiary as applicable (“Authorized Discloser”) will ensure that at least one of the following conditions has been satisfied: (i) Authorized Discloser has inquired of Xilinx in writing (which may be an email) whether, and Xilinx has confirmed to Authorized Discloser in writing (which may be an email) that, Xilinx and the subject Authorized Recipient are parties to a non-disclosure agreement that in the sole discretion of Xilinx sufficiently protects the confidentiality of the Xilinx Customer Materials; or (ii) Authorized Discloser and the subject Authorized Recipient are parties to a non-disclosure agreement that contains obligations of confidentiality no less restrictive than the terms and conditions of this
The obligations of confidentiality under this Agreement will not apply to information that: (a) is already known to the Recipient at the time of disclosure without obligation of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of the Recipient; (c) is rightfully received by Recipient from a third party without obligation of confidentiality; (d) is approved for public release by written authorization of Discloser; or (e) was developed by Recipient independently and without the use or benefit of the Discloser's Confidential Information. A disclosure of Confidential Information that is required to be made by a Recipient pursuant to any order of a court, administrative agency, or any other governmental agency will not be deemed a breach of this Agreement, provided that Recipient will promptly notify Discloser in writing of such order and cooperate with Discloser to contest disclosure, seek an appropriate protective order, and/or narrow the scope of such order to only that portion of the Confidential Information which is necessary.
All Confidential Information, customer records and information, Marks, patents, copyrights, designs, drawings, formulas or other data, photographs, demonstration units and materials, literature, and sales aids of every kind will remain the sole and exclusive property of the applicable Discloser or owner. No right or license relating to Confidential Information is granted or conveyed hereby by Discloser except as set forth in Section 20.2. Recipient shall not de-compile, disassemble, reverse engineer or use any other process to gain access to the underlying design information or source code of any object or executable code, encrypted or other obfuscated information, prototype, sample or tangible object that may be disclosed hereunder.
Any demonstration unit of the Products provided by or on behalf of Xilinx to Distributor including, without limitation, all boards, beta software, commercial software and device samples, will remain the property of Xilinx. Distributor will have full responsibility for keeping each such demonstration unit in proper operating condition for the duration that such units are in its possession. Distributor will return each demonstration unit in good condition to Xilinx or its authorized designee within fifteen (15) days of a written request from Xilinx, or upon expiration or termination of this Agreement.
All Confidential Information is provided on an "as is" and "with all faults" basis and in no event will Discloser be liable for any loss or damage arising directly or indirectly out of the inaccuracy of its disclosed information.
Each Party agrees that full disclosure of this Agreement may be made by a Party if reasonably required pursuant to applicable securities laws or regulations, or in response to a lawful request of U.S. or other governmental authorities.
No termination of the Agreement will affect either Party's rights or obligations with respect to Confidential Information disclosed prior to termination, which will survive such termination as provided herein. Recipient will promptly return to Discloser all documents, presentations, and other tangible items of Confidential Information furnished by Discloser and all copies and portions thereof in any form within fifteen (15) days of a written request from Discloser, or upon expiration or termination of this Agreement or, if requested, destroy same and certify compliance in writing.
Recipient agrees that any breach or threatened breach of this Article 20 may cause harm to the Discloser for which money damages may not provide an adequate remedy. Recipient agrees that in the event of such a breach or threatened breach of this Article 20, in addition to any other available remedies, Discloser may seek temporary and permanent injunctive relief restraining the Recipient from disclosing or using Discloser’s Confidential Information.
XILINX DATA SYSTEMS; PRIVACY
Xilinx may, subject to the terms of this Agreement, allow Distributor access to certain presently-existing and future-adopted proprietary data systems and means for use, in whole or in part, to facilitate the exchange of
The security model for the Data Systems relies upon each participant's accurate and timely maintenance of its access lists with Xilinx. As a condition of gaining access to the Data Systems, Distributor agrees to: (i) properly maintain its employee access lists with Xilinx (e.g., notify Xilinx when an employee's access status should be changed, such as an increase, decrease, or cancellation of access); (ii) comply with all reasonable security procedures instituted by Xilinx; and (iii) promptly notify Xilinx if Distributor becomes aware of perceived security problems with the Data Systems. Distributor acknowledges that security relies in part on the infrastructure and application. Xilinx makes no representations that the Data Systems cannot, or will not, be compromised. Distributor hereby agrees that, provided Xilinx uniformly applies its security standards to all users of the Data Systems, Xilinx will have no liability in the event there is any compromise of the security of the Data Systems, and Distributor hereby agrees to release and hold Xilinx harmless in such event.
In the event Distributor obtains access to data to which access has not been authorized by Xilinx, Distributor agrees that (i) it will not make any use of such data; and (ii) it will promptly notify Xilinx of the problem and provide such assistance as Xilinx reasonably requests.
Distributor shall comply with Xilinx’ privacy and information security requirements, in addition to applicable laws and regulations, with respect to the collection, storage, processing, transmittal, and/or sharing of Personal Information. As used herein, “Personal Information” means any information related to any identified or identifiable natural or legal person, such as Xilinx’ employees, customers, subcontractors, partners or any other third party, and any other additional data deemed as personal data under applicable personal data protection laws, which information is provided to Distributor for processing on behalf of Xilinx pursuant to this Agreement.
Distributor may use Personal Information only to perform its obligations under this Agreement and may disclose such information only to its employees having a need to know for the performance of these obligations. Where Distributor is authorized by Xilinx to subcontract any services involving the collection, use, storage, transfer or processing of Personal Information, Distributor will agree with its subcontractors to protect and process the Personal Information under terms no less restrictive than those contained in this Agreement. Xilinx reserves the right, at its sole option, to enter into additional confidentiality agreements directly with such subcontractors to ensure adequate protection of Personal Information and to comply with applicable laws.
Distributor shall immediately notify Xilinx by telephone and follow up in writing if it becomes aware of any actual, suspected or alleged unauthorized use of, disclosure of, or access to Personal Information by itself or others, including notification of loss or suspected loss of data whether or not such data has been encrypted. Distributor will cooperate with Xilinx in the manner reasonably requested by Xilinx and in accordance with law, including but not limited to: conducting the investigation; cooperating with authorities; notifying affected persons, credit bureaus, other persons or entities deemed appropriate by Xilinx; and/or issuing press releases.
Distributor shall, at its own expense, at all times during the Term of this Agreement and after its termination, provide and maintain in effect those insurance policies and minimum limits of coverage as designated below together with any other insurance required by law in any jurisdiction where Distributor sells the Products under this Agreement. Such policies shall be issued by insurance companies authorized to do business in the jurisdiction where Distributor’s obligations are to be performed and are reasonably acceptable to Xilinx. In no way do these minimum requirements limit the liability assumed elsewhere in this Agreement.
Distributor shall provide workers' compensation insurance as required by any applicable law or regulation and, in accordance with the provisions of the laws of the nation, state, territory or province having
Distributor shall carry public liability or commercial general liability insurance covering all operations of Distributor arising out of or connected with this Agreement with limits of not less than Ten Million Dollars (US $10,000,000) per occurrence. Such insurance shall also provide, by endorsement or otherwise, for contractual liability and cross liability and provide a Vendors Broad Form Additional Insured Endorsement. If “claims made” policies are provided, Distributor shall maintain such policies for at least one year after the expiration of this Agreement.
Distributor shall carry comprehensive business automobile liability insurance, including bodily injury and property damage for all vehicles used in the performance of Distributor’s obligations under this Agreement, including but not limited to all owned, hired (or rented) and non-owned vehicles. The limits of liability shall not be less than the local currency equivalent of One Million Dollars (US $1,000,000) combined single limit for each incident, or whatever is required by local law or statute, whichever is higher. If injury to third-party passengers of such vehicles is not covered by the above insurance, then Distributor shall also maintain separate insurance to cover injury to such passengers.
Distributor agrees to provide Xilinx with Certificates of Insurance, and shall name Xilinx as an additional insured on any and all general liability insurance policies it may have in effect from time to time, or shall ensure that such policies contain a broad-form additional insured endorsement.
During the term of this Agreement, Distributor is authorized to use Xilinx trademarks, trade names and logos (collectively, the “Marks”) in the Territory on a non-exclusive basis solely in connection with Distributor’s sale, advertisement and promotion of Products and Software in the Territory, provided Distributor follows the instructions of Xilinx for the use thereof as set forth in Exhibit E, as amended from time to time to reflect changes in status of the Marks or to add or delete Marks. Distributor will not alter or remove the Marks from any Products. Distributor will cease to use any of such Marks within thirty (30) days following the effective date of termination of this Agreement. Distributor will promptly notify Xilinx in writing of any possible infringement of the Marks or of any claim or allegation that the Marks infringe the rights of any third party, and Xilinx will have exclusive control over, and conduct of, all claims and proceedings. Xilinx will bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account. Distributor will provide Xilinx with all assistance that Xilinx may reasonably require in the conduct of any claims or proceedings.
Apart from the Marks, no other trademark or logo may be affixed to, or used in connection with, the Products except that, Distributor may use its trade name on packaging, advertising and promotional materials for the Products.
Distributor acknowledges that Xilinx is the owner of the Marks, and all rights not expressly granted to Distributor in this Agreement are reserved by Xilinx. Any goodwill derived from the use by Distributor of the Marks will inure to the benefit of Xilinx. If Distributor acquires any rights in the Marks, by operation of law, or otherwise, such rights will be deemed and are hereby irrevocably assigned to Xilinx without further action by any of the parties. Distributor agrees not to dispute or challenge, or assist any person in disputing or challenging, Xilinx's rights in and to the Marks or the validity of the Marks. Nothing herein will grant Distributor any right, title or interest in the Xilinx Marks.
Distributor agrees that it will not, during the Term or thereafter, directly or indirectly: (i) do, omit to do, or permit to be done, any act which will or may dilute the Marks or tarnish or bring into disrepute the reputation of or goodwill associated with the Marks or Xilinx or which will or may invalidate or jeopardize any registration of the Marks; (ii) apply for, or obtain, or assist any person in applying for or obtaining any trademark registration or domain name of, or based on, the Marks, or any trademark, service mark or trade name confusingly similar to the Marks; or (iii) grant or attempt to grant a security interest in the Marks or record any such security interest against any application or registration regarding the Marks in the United States Patent and Trademark Office or elsewhere.
Distributor acknowledges that it is familiar with the high standards, quality, style and image of Xilinx and the Marks, and Distributor will, at all times, use the Marks in a manner which meets or exceeds such standards. Distributor will ensure that its advertising, marketing and promotion of the Products and Software in no way reduces or diminishes the reputation, image and prestige of the Marks or the Products and Software.
Distributor will promptly provide Xilinx with copies of all communications, relating to the Marks or the Products and Software, with any governmental, regulatory or industry authority.
Distributor shall be responsible for obtaining all applicable export and import consents and licenses in connection with the purchase and resale of the Products under this Agreement. The supply of Products and Software to Distributor is subject to Xilinx receiving any required export or reexport authorizations.
Distributor will not, without assuring compliance with U.S. and all applicable export laws and regulations administered by the U.S. government and/or local governmental authorities, that exist now or as amended, export or re-export (directly or indirectly), divert, or transship any item purchased from Xilinx and/or its subsidiaries, technical data, or a direct product thereof: (i) to any country subject to embargo or special export controls by the U.S. Department of the Treasury or other U.S. agency, (ii) to any country subject to national security controls, (iii) to any persons or entities identified on the U.S. Denied Person’s List, Entities List, Specially Designated Nationals List or other lists published by the U.S. Government, or (iv) for the design, development, production or use of prohibited items, or for any prohibited end uses, including terrorism support, nuclear activities, missile technologies, or chemical or biological weapons.
Distributor will maintain all required export transaction records for five (5) years from the date of export/reexport, and timely produce the same as required for compliance and audit purposes.
Distributor will use the most current Xilinx Product Matrix for product and technology classifications, available on The SouRCe website.
Distributor will attest to compliance with the foregoing by countersigning the Xilinx Export Assurance Statement on an annual basis, an example of which is attached hereto as Exhibit C.
U.S. FOREIGN CORRUPT PRACTICES ACT WARRANTIES
Distributor warrants and represents that it is familiar with the U.S. Foreign Corrupt Practices Act (FCPA), applicable similar laws of other countries, and applicable local governing anti-corruption laws. Distributor represents that to the best of its knowledge, it, and each of its owners, directors, employees, and every other person working on its behalf has not and will not, in connection with the transactions contemplated by this Agreement or involving Xilinx, in order to (i) obtain or retain business or (ii) secure any improper advantage for Xilinx, offer, make or promise to make any payment, or transfer, offer or promise to transfer anything of value, directly or indirectly (including through any partner, agent, contractor, Sub-Distributor or other intermediary) to:
any governmental official or employee (including employees of government owned and government controlled corporations and public international organizations);
any political party, official of a political party, or candidate for public office;
an intermediary for payment to any of the foregoing;
any other person or entity in a corrupt or improper effort to obtain or retain the subject contract or any commercial advantage, such as a permit or license to do business, in connection with the subject contract; or
any other person or entity if such payment or transfer would violate the laws of the country in which made or the laws of the United States.
Distributor warrants and represents that none of officers or directors are government officials or immediate family members of a government official. In the event that during the term of this Agreement there is a change in the information contained in this paragraph, Distributor agrees to make immediate disclosure to Xilinx, and in that case Xilinx may immediately terminate this Agreement by written notice.
Distributor further warrants and represents that, should it learn of or have reason to suspect any breach of the covenants in this Article 25, it will take appropriate remedial steps and promptly notify Xilinx.
At the request of Xilinx at any time, Distributor will certify in writing that it has no knowledge of any of the foregoing or similar activities in the form requested by Xilinx.
TERM, TERMINATION AND SURVIVAL
This Agreement shall begin on the Effective Date and continue in force unless and until terminated pursuant to the terms hereof (the “Term”).
This Agreement may be terminated at any time, without cause, by either party upon giving the other party at least ninety (90) days prior written notice. Such termination shall be effective on the date stated in the said notice or, if none stated, ninety (90) days after the date of notice.
This Agreement may be terminated immediately for cause by either party in the event the other party:
is unable to pay its debts as they fall due;
ceases to function as a going concern or to conduct its operations in the normal course of business;
assigns or transfers, either voluntarily or by operation of law, any or all of its rights or obligations under this Agreement without having obtained the prior written consent of the other party;
sells, assigns, or transfers to a third-party an ownership interest of 30% or more of its business;
upon the filing of a petition by or against it under any applicable bankruptcy or insolvency law, fails to tender to the other party a guarantee of its obligations under this Agreement by a person, firm or other entity having a net worth of at least 85% of its own net worth as of the commencement of this Agreement, such guarantee to be in a form satisfactory to the other party; or
fails to perform any of its obligations under this Agreement, including all Exhibits and the Guidelines, so as to be in default hereunder and fails to cure such default within thirty (30) days after written notice thereof.
In the event Xilinx terminates for its convenience or for any reason other than those listed in Section 26.3, or Distributor terminates, Xilinx shall repurchase, at Distributor’s election, any or all unsold Products in Distributor’s inventory or in transit to Distributor on the effective date of termination, along with any or all technical and promotional material designed to promote the sale of the Products. Within ten (10) days of receipt of notice of termination, Distributor shall advise Xilinx of the inventory it expects to have on hand as of the effective date of termination and identify what part of such inventory Distributor intends to return. Any and all Product that Distributor elects to retain shall be deemed NCNR. The repurchase price for such unsold Products and other material shall be the actual Price paid by Distributor less any prior credits or adjustments. All freight charges associated with such repurchase of Products under this Section 26.4 shall be paid by Distributor (unless Xilinx terminates for its convenience or Distributor terminates for cause, in which case Xilinx shall pay such freight charges) and all Product must be in Original Condition and returned in original cartons or the equivalent.
After any termination of this Agreement Xilinx agrees to sell to Distributor any Products which Distributor is contractually obligated to furnish to a customer and which Distributor does not have in its inventory, provided that Distributor orders such Products within ten (10) days after the effective date of termination. Any Product sold to Distributor under this Section 26.5 is NCNR. Additionally, Distributor agrees to provide Xilinx with point of sale information on all post-termination customer transactions.
In the event this Agreement is terminated for any reason with outstanding credits existing in favor of Distributor, Xilinx shall, upon receipt of proper invoice evidencing the same, promptly refund cash to Distributor in the amount of the outstanding credits.
In the event of a termination for any reason, Distributor agrees to cooperate with Xilinx in the transfer of customer data and all other things necessary to ensure a smooth transition and minimize any disruption in the supply of Products to the customer.
Independent Contractors. It is understood and agreed that Xilinx and Distributor are independent contractors and each is engaged in the operation of its own business and neither will be considered the agent of the other for any purpose whatsoever. Nothing contained in this Agreement will be construed to establish a relationship that would allow either party to make representations or warranties on behalf of the other or to bind the other.
No Assignment. This Agreement may not be assigned or transferred in whole or in part by either party without the prior written consent of the other which shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
Compliance. Each Party shall abide by, and have its Subsidiaries, partners, agents and contractors abide by, any and all applicable laws, regulations, ordinances, or statutes with respect to the performance of its obligations under this Agreement, including, but not limited to, those governing the use of insider information, export laws and regulations, antitrust laws, competition laws, environmental, health and safety laws, employment laws, child labor laws, laws prohibiting bribery or corruption, and any others that may apply in any jurisdictions in which Distributor sells Products, either directly or indirectly through such third parties. Should any of the requirements stated in this Agreement or the Guidelines be in violation of the law in any country or territory, the local law should always take precedence. In such case, however, the non-complying Party shall promptly notify the other Party of the inability to comply. Each party further agrees to hold harmless, and to indemnify the other Party, for any costs, expenses, or losses incurred as a result of breach of the foregoing. In addition, each party shall abide by its published respective Code of Conduct and have those employees and contractors assigned to work on Xilinx premises or those allowed access to Xilinx computer networks, read, acknowledge, and abide such Code.
Entire Agreement. This Agreement, including the Exhibits attached hereto and the Guidelines, constitute the entire understanding of the parties with respect to the subject matter hereof and supersede all prior discussions, representations, arrangements, understandings and agreements relating thereto, written or oral, between the parties (including any pre-contractual misrepresentations, or misstatements, other than those which may have been made fraudulently); however, that certain Guaranty Agreement between Distributor and Xilinx dated February 8, 2013 shall remain in place and effective according to its terms. No party has relied on any representation, statement, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in this Agreement. Amendments to this Agreement must be in writing, signed by the duly authorized officers of the parties, specifically stating that such amendments are made pursuant to this Section 27.4.
No Implied Waivers. The failure of either party at any time to require performance by the other of any provision hereof shall not affect the right of such party to require performance at any time thereafter, nor shall the waiver of either party of a breach of any provision hereof be taken or held to be a waiver of a provision itself.
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating
Survivorship. All rights and obligations under the following provisions of this Agreement shall survive and remain in effect beyond any expiration or termination hereof: Articles 1 (Definitions) and all defined terms, 10 (Payment), 11 (Taxes) and 12 (Audits), Sections 15.3, 15.4 and 15.6, Articles 16 (RMA), 17 (Intellectual Property Indemnification), 18 (General Indemnification), 19 (Limitation of Liability), 20 (Confidentiality), 21 (Xilinx Data Systems; Privacy), 22 (Insurance), Sections 23.3 and 23.4, Articles 24 (Export / Reexport, 25 (US Foreign Corrupt Practices Act Warranties), Sections 26.4, 26.5, 26.6 and 26.7, and Article 27 (General).
Force Majeure. Neither party shall be liable for failure to fulfill its obligations under this Agreement or any Purchase Order issued hereunder or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of terrorism, war, acts or omissions of the other party, man-made or natural disasters, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
Conflicting Terms. The parties agree that the terms and conditions of this Agreement shall prevail, notwithstanding contrary or additional terms, in any Purchase Order, sales acknowledgement, confirmation, invoice, or any other document issued by either party effecting the purchase and/or sale of Products.
Notices. Any notice or other communication given or made under this Agreement shall be in writing and may be sent to the relevant party by pre-paid registered post or reputable over-night courier. Notice will be effective if addressed pursuant to this Section 27.10 notwithstanding any change of address if the party has failed to provide notice of such change. Unless the contrary is proved, each such notice or communication will be deemed to have been made if by post seven (7) days after posting, if by overnight courier three (3) days after dispatch. Notices shall be served to the parties as follows:
Headings. The headings of paragraphs, Sections and Articles herein are inserted for convenience of reference only and shall be ignored in the construction or interpretation hereof.
Governing Law and Jurisdiction. The parties agree that this Agreement shall be governed by, and construed and interpreted in accordance with the law of State of California (except its choice of law rules) as though made by parties residing in California so as to be fully performed within that State. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the state and federal courts (as applicable) located in Santa Clara County, California, in any litigation arising out of or in connection with this Agreement. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement and all transactions contemplated hereunder.
Exhibits. The following Exhibits shall be incorporated in this Agreement by reference herein:
Termination of Prior Agreement. That certain Master Distributor Agreement dated July 27, 2005, as amended (the “Prior Agreement”), shall be deemed terminated effective on the Effective Date of this Agreement. Any “Product” (as defined in the Prior Agreement) held in inventory by Distributor (other than for the account of Distributor or a Distributor Subsidiary) as of such date shall be deemed “Product” (as defined in this Agreement) held in inventory by Distributor under the terms and conditions of this Agreement. All Product sold under the Prior Agreement for the account of Distributor or a Distributor Subsidiary shall be governed by the Prior Agreement.
Allocation of Risk. Distributor acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement.
Interpretation. Distributor acknowledges and agrees that it has read and understood this Agreement, has had an opportunity to discuss this Agreement with its legal and other advisors, and agrees to be bound by the terms and conditions of this Agreement. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
Counterparts. This Agreement may be signed in duplicate originals, or in separate counterparts, which are effective as if the parties signed a single original. A facsimile of an original signature transmitted to the other party is effective as if the original was sent to the other party.
By: /s/ Chris Henry
By: /s/ Eddie Lee
Name: Chris Henry
Name: Eddie Lee
Title: VP Sales Operations
Title: Vice President & Treasurer
XILINX SALES INTERNATIONAL PTE. LTD.
By: /s/ Oren Scotten
Name: Oren Scotten
Title: Site Director
By: /s/ Gerry Fay
Name: Gerry Fay
Title: President, EM Global
YASHIMA DENKI CO LTD
NIHONINTERFACE CO LTD
ADVANCED TECHNOLOGY CORP. OF JAPAN
TECHNO ASTY CO.,LTD
MAKOTO DENSHI CO LTD
JAPAN MICRO ELECTRONICS INC
RIKEI ELECTRONICS INC
ASTRO INTERNATIONAL INC
KAGA ELECTRONICS CO.,LTD
BEE BEANS TECHNOLOGIES CO.,LTD.
MEICO ELECTRONIC CO.,LTD.
NIHON DENSHI DEVICE CO LTD
SEIWA CO., LTD
EIKOSHA CO., LTD.
MIMASA INDUSTRY CORPORATION
TOKIWA WEST CO., LTD
OKAMOTO ELECTRONICS CORP
AID ELECTRONICS CO., LTD
KANETSU CO,. LTD
NISSHO MUSEN CO LTD
PIONICS CO LTD
TAKUMI SHOJI CO LTD
SHINWA CO LTD
TOKYO DENSHI HANBAI CO LTD
SINRYU DENKI CO LTD
CORESTAFF CO LTD
SISTEC CO LTD
MEISOL CO., LTD.
Chubu Ikegami Tsusho Co Ltd
NAGOYA RIKEN DENGU CO LTD
InLine Group head quarter in Moscow http://www.inlinegroup.ru/
Macro Group head quarter in St. Petersburg http://www.macrogroup.ru/
VDMAIS head quarter in Kiev, Ukraine http://www.vdmais.kiev.ua/
Silica Logistics Partners listed below:
1 Komponenta Inc.
2 RSP-Complect Ltd
4 Start 21
5 JSC "GAMMA"
6 MACRO TEAM
8 Electronics Vision GmbH
http :1/www .almaz-sp. ru/
http://n pcgra nat. ru/
http://www. integris. ru/
http://www. radioexport. ru
http://www. rn icrosu n. ru/
125565, Moscow, Leningradskoe shosse, 92A, of. 5
117049, Moscow, Leninsky Av.4, 1A
124498, Zelenograd, Drive 4806, Bld.4/1, office 119b
123103, Moscow, Zhivopisnaya st., 3/1
188800, Russia, Vyborg, Nekrasova st.19
111141, Moscow, Zelenyj Prospect 2
194021, St. Petersburg, ul. Shatelena, 3
73432, Germany, Aalen-Unterkochen, Rathausplatz 7
641800, Moscow, Voronzovskay, 8, bld.4
121059, Moscow, Ukrainskii bulvar, 8
630091, Novosibirsk, Krasniy pr-t 54, of. 426
115230, Moscow, Varshavskoe shosse, 46, of. 550
You certify that you will not, without assuring compliance with applicable U.S. export laws and regulations, that exist now or as amended, export or re-export (directly or indirectly), divert, or transship any item purchased from Xilinx and/or its subsidiaries, technical data, or a direct product thereof: (i) to or via any terrorist-supporting country, (ii) to any country subject to embargo or special export controls by the U.S. Department of the Treasury or other U.S. agency, (iii) to any country subject to national security controls, (iv) to any persons or entities identified on the U.S. Denied Person’s List, Entities List, Specially Designated Nationals List or other lists published by the U.S. Government, or (v) for the design, development, production or use of prohibited items, or for any prohibited end uses, including terrorism support, nuclear activities, missile technologies, or chemical or biological weapons.
You will maintain all required export transaction records for five years from the date of export/re-export, and timely produce them as required for compliance and audit purposes.
You will use the most current Xilinx Product Matrix for product and technology classifications, available on The SouRCe website.
For an up-to-date list of the members of the Country Groups under Supplement No. 1 to Part 740 of the Export Administration Regulations, please refer to http://www.access.gpo.gov/bis/ear/pdf/740spir.pdf. Please note that you are responsible for monitoring any changes to these regulations and complying with the same.
Always use the proper spelling, including spaces and any uppercase and lowercase conventions, as shown below under Use of Trademark Symbols.
Never modify a trademark by creating new words or abbreviations, and do not use plurals, possessives, or hyphens with a trademark.
Do not combine Xilinx trademarks with trademarks of other companies, such as XilinxAvnet.
Always use trademarks as unaltered “proper” adjectives. Do not use trademarks as a noun or a verb in a sentence. Trademarks must always be followed by an appropriate generic noun.
Use of two trademarks together should be avoided, but when necessary, both trademarks must be used with an appropriate trademark symbol upon the first two mark combination within a document or webpage. Examples: Xilinx® EasyPath™ program, or Xilinx® WebPACK™ software.
Distributor will not use Xilinx’s trademarks on Distributor’s business cards or letterhead.
An attribution statement substantially similar to the examples below must be used when Xilinx trademarks are used in print and online:
All proposed use by Distributor of the Marks must be approved in writing by Xilinx
Each graphical trademark, branding treatment, or logo (collectively “Logo(s)”) must be reproduced exactly as specified by Xilinx by using original graphics files available from Xilinx.
A minimum clear space (equal to ½ of the height of the Logo) on all sides of the Logo is to be kept free of other visual elements.
When printed with a third party’s graphical trademark, the Logo must be of at least equal size as such third party’s trademark. Distributor will not print the Logo in black if the third party’s trademark appears in color
ISE® Design Suite
Vivado® Design Suite
also: EasyPath™ program
Tim Barber Senior VP Global Design Chain Business Development
Ron Reed Senior Director Products
Phil Wehrli Senior VP Supply Chain and Materials
Michael Peckham Director Supplier Business Manager
Vincent Cellard Vice President Operations
Bruce Hingston Director of Assets
Francesco Eucherio Xilinx Supplier Business Manager
Francis Lam Director of Asia Marketing
Roy Luk Xilinx Marketing Director
Jane Neo VP Asia Materials Management
Kenji Aoki Senior Manager