– These general terms of sale together with the Purchase Order and all other
attachments specified in them.
– The entity who addresses the Purchase Order, as specified in the Agreement.
For the sake of the Agreement, Customer shall include its agencies,
representatives, affiliated companies, subcontractors, vendors and successors
– Shall mean collectively the Products and the Services as detailed herein and
shall be interpreted according to the applicable and relevant meaning.
Point” – Agreed location of deliverance of the Deliverables to Customer or
its forwarder, which shall be also detailed in the Purchase Order.
Date” – Date by which the Agreement becomes effective upon its signature
and Approval by both Parties.
Terms of Sale" – these General Terms of Sale.
– Customer and SCD.USA.
– Customer or SCD.USA as the case may be.
– Price of Deliverables to be paid to SCD.USA by the Customer under the Agreement,
as set out in the Purchase Order.
- "Price Proposal" –
The Price Proposal provided to Customer by SCD.USA in connection with the
- “Products” – The goods specified in
the Purchase Order which SCD.USA is required to deliver under the Agreement as
detailed and agreed upon in the Spec, or any part thereof.
- "Purchase Order" –
A Specific Purchase Order, provided by Customer to SCD.USA in accordance with the
- "SCD.USA" – SemiConductor
Devices- An Elbit Systems – Rafael Partnership.
- "Services" – The specified
and agreed work which SCD.USA is required to perform under the Agreement, as
detailed in the SOW, or any part thereof.
- "SOW" – The agreed
statement of work.
- "Spec" – The agreed
General Terms of Sale apply to all Price Proposals made by SCD.USA and all purchase
orders for SCD.USA's Deliverables provided by SCD.USA to its customers, unless
otherwise agreed upon in writing.
shall, pursuant to and in accordance with the provisions of the Agreement,
provide to Customer the Deliverables as defined herein and Customer, pursuant
to and in accordance with the provisions of the Agreement, pay SCD.USA in
accordance with the agreed prices and terms of payment as detailed in the
In the event of conflict
in the terms and conditions as detailed in the documents of the Agreement, the
following order of precedence shall apply:
Purchase Order issued by Customer and duly approved by SCD.USA
- The most
recent and applicable Spec
General Terms of Sale
of Purchase Orders
subsequently negotiated or otherwise agreed upon, Purchase Orders from Customer
shall be solely based on SCD.USA's Price Proposal and the prices, quantities and
schedules specified in it.
Purchase Orders that SCD.USA accepts and confirms in writing to Customer shall bind
SCD.USA and SCD.USA shall have no obligation to accept Purchase Orders from Customer.
shall provide Customer with SCD.USA's approval, rejection and/or reservation to a
shall deliver the Deliverables according to the agreed terms and schedule as
detailed in the Price Proposal or otherwise agreed upon ("Delivery")
and in accordance with the rules of Incoterms 2010 edition. In the event of any
contradiction between the Agreement and the Incoterms the terms and conditions
of the Agreement shall apply.
otherwise agreed upon by the Parties, Delivery Point shall be FCA Ben Gurion
International Airport, Israel.
delivery up to 2 (two) months from the original delivery date is allowed
subject to prior notification from SCD.USA to Customer.
shall be packed and in the best commercial manner normally used by SCD.USA for
shipment of the same kind of Deliverables, or as agreed in the Agreement,
to the Deliverables shall pass upon Delivery. However, SCD.USA shall maintain
security interest in the delivered Deliverables until full and final payment is
received from Customer. Risk of loss of or damage to the Deliverables shall
pass to Customer upon Delivery.
the delivered Deliverables shall be free and clear of any and all liens,
encumbrances or any other claims of any nature whatsoever.
shall perform acceptance tests at SCD.USA's facilities on all the Deliveries
according to SCD.USA's custom and relevant acceptance test procedures ("ATP").
certificate of conformance ("COC") signed by SCD.USA's authorized
Quality Assurance representative shall serve as final proof that the
Deliverables passed all relevant acceptance tests and are ready to be delivered
to Customer according to the agreed requirements of the Agreement.
may, at its option and sole cost and expense, observe the formal testing of the
Deliverables at SCD.USA’s facility on a non-interference basis, in accordance with
SCD.USA’s security procedures and solely upon prior coordination with SCD.USA. However,
in no event shall SCD.USA be delayed in its testing schedule because of Customer’s
inability to provide the appropriate personnel to witness testing.
to the provisions set forth in the Agreement, and unless otherwise detailed in
SCD.USA's Price Proposal and if not, agreed upon by the Parties and specified in
the Purchase Order, SCD.USA hereby warrants that for a period of 12 (Twelve) months
from Delivery ("Warranty Period"), all Deliverables shall be
free from defects in materials and workmanship and shall conform to the
requirements of the Spec.
and rejection of Deliverables
5 (five) working days from Delivery, Customer shall notify SCD.USA in writing of
acceptance or rejection of the Deliverables. If Customer did not notify SCD.USA of
accepted or rejected deliverables within 5 (five) working days, the delivered
Deliverables shall be automatically deemed unconditionally accepted by
case of rejected Deliverables solely due to non-conformance with the agreed
specification, SCD.USA will be responsible for reasonable transport costs from
Customer to SCD.USA at the Delivery Point and back to Customer at the Delivery
Point. Customer will notify SCD.USA prior to shipping any Deliverables back to SCD.USA
and shall request and obtain from SCD.USA a Return Material Authorization ("RMA")
shall replace or repair at SCD.USA's option rejected Deliverables which are
demonstrated to SCD.USA's satisfaction to have been at the time of delivery to
Customer, defective in material or workmanship or not in conformance with the
of Deliverables during the Warranty Period
Deliverables returned by Customer to SCD.USA during the Warranty Period which are
demonstrated to SCD.USA's satisfaction to be defective in material or workmanship
under the provided warranty shall be repaired or replaced by SCD.USA and at SCD.USA's
option. SCD.USA will be responsible for reasonable transport costs for the
defective Deliverables from Customer to SCD.USA at the Delivery Point and back to
Customer at the Delivery Point. Customer will notify SCD.USA prior to shipping any
Deliverables back to SCD.USA and shall request and obtain from SCD.USA a RMA number.
the Warranty Period, SCD.USA shall provide the repaired or replacement Deliverables
to Customer, within an agreed Turn-Around-Time ("TAT") of
SCD.USA's receipt of the defective Deliverables under a Warranty claim.
Warranty Period of the repaired or replaced units shall be for the remaining
original Warranty Period of the Deliverables.
the Warranty Period, SCD.USA shall provide repaired or replacement units of
Deliverables to Customer, subject to the terms of a separate agreement to be
mutually agreed-upon and signed between the Parties.
shall not be responsible nor bear any costs of Customer or of any third party
relating to removing Deliverables or any part of them from and
installing/reinstalling a replacement/repaired Deliverables in Customer's
shall have no obligation under this Warranty Article unless the applicable
Deliverables have been installed, operated, handled, maintained and stored in
accordance with the current recommendations of SCD.USA as stated in its manuals
and/or other written instructions provided to Customer, and as long as the
Deliverables conform with all the specifications which were provided to SCD.USA by
Customer in connection with production of the Deliverables and provided that
said items have not been subject to accident, abuse, misuse or misapplication,
negligence, neglect, alteration or repairs have been attempted by any party
other than SCD.USA or SCD.USA’s authorized representatives, non-conformities that
result from Customer's design or process, improper handling or not authorized
performance, testing, installation, operation or use or any defects or claims
caused by acts not performed by SCD.USA, acts or omissions of Customer or third
parties or by combination of the Deliverables with additional ones.
extent of SCD.USA's liability shall not exceed the cost of repairing or replacing
any defective part/s, to the extent and in the manner expressly set forth in
the foregoing provisions of this article.
otherwise expressly provided herein, the Agreement may be amended only by a
written and agreed upon agreement which is duly signed by authorized
representatives of both Parties.
any other provision in this Agreement, a Party who desires to make any
engineering changes in the Deliverables which may affect their contractual fit,
form, function, logistics, configuration, technical requirements, safety or
production ("Class I Change"), shall notify the other Party in
writing of the nature of the proposed change.
30 (thirty) days of receipt of such notice from Customer regarding a Class I
Change, SCD.USA shall provide Customer with an estimation of the effect of such
change, including time table adjustments. The Parties shall then enter into
negotiations to establish the equitable adjustment to be made to the Individual
Order, and if agreement is reached, a formal written change order relating
thereto shall be signed, and the Parties shall forthwith comply with such
has the right to request Class I Changes to the Deliverables. Such requests
shall explain the reasons for the changes and their expected effects. Customer
shall respond to SCD.USA's request within 14 (fourteen) days. Following receipt of
Customer's approval SCD.USA shall have the right to implement the changes.
respect to engineering at final product level (including acceptance test
procedure – ATP), in case of changes which do not affect contractual fit, form,
function, logistics, configuration, technical requirements, safety or
production of the Deliverables ("Class II Change") SCD.USA will
notify Customer on the details of the Class II Changes. If Customer's Objection
to the required Class II Changes is not provided within 7 (seven) days, SCD.USA
shall be free to implement the changes, provided that such changes are based on
SCD.USA's good faith determination that such changes will not degrade reliability
and all other changes, including inter alia changes in time tables and delivery
shall be requested and agreed upon in writing. Each Party shall respond in
writing to the other Party's request for a change.
agreed upon changes taken into count shall be properly updated, signed and
documented as an amendment to the Agreement by the Parties.
ANYTHING ELSE IN THE AGREEMENT OR IN ANY AGREEMENT, OR IN ANY PURCHASE ORDER
ISSUED PURSUANT HERETO, OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER
PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THE
AGREEMENT OR UNDER ANY OTHER AGREEMENT, TRANSACTION, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY MATTER BEYOND ITS
REASONABLE CONTROL; (II) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION
LOST PROFITS, LOST REVENUES AND LOSS OF USE, OPPORTUNITY, MARKET POTENTIAL AND
GOODWILL), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR
DAMAGES AND REGARDLESS OF THE LEGAL THEORY UNDERLYING ANY ASSERTION OF SUCH
NO EVENT SHALL SCD.USA'S LIABILITY REGARDLESS OF THE LEGAL THEORY UNDERLYING SUCH
CLAIMS, EXCEED THE TOTAL VALUE OF PAYMENT SCD.USA ACTUALLY RECEIVED FROM CUSTOMER
PURSUANT TO THE APPLICABLE PURCHASE ORDER.
Party shall abstain from directly or indirectly offering and/or giving and/or
receiving any benefit or anything of value in order to change or influence in
an improper manner, directly and/or indirectly, any decision of any person,
entity or government authority, in connection with the Agreement or any
Purchase Order placed consequent thereto.
Parties shall comply with all applicable law, ordinance or regulation and shall
make all efforts to avoid involvement in legal proceedings which may prejudice
or harm the Deliverables or either Party and its good name.
Parties shall neither directly or indirectly solicit or participate up to any
extent in any form of bribery, corruption, criminal behavior, infringement of
labor laws or any other applicable law, ordinance or regulation, improper
solicitation or unethical business behavior.
shall conduct its activities pursuant to this Agreement in a manner that will
reflect favorably on SCD.USA, and shall avoid any deceptive or corrupt or
will not make or promise to make any payment in violation of any applicable law
or regulation. The foregoing prohibition shall include but not be limited to
facilitating, recommending or interceding, officially or unofficially, to
further contract award with a "Recipient". A Recipient is
defined as: any person whatsoever, including without limitation: (i) any
Government Official; or (ii) any person or individual whether self-employed or
acting as an individual, or whether employed by, affiliated with, representing or
acting on behalf of any private sector entity; or (iii) any person while
knowing or suspecting that the payment or gift will be passed on to any other
person, including without limitation a Government Official.
Party shall notify the other Party immediately after it becomes aware of any
infringement of the provisions the Agreement or the possibility of one.
Party shall inform its relevant employees, subcontractors and anyone on its
behalf acting under the Agreement of its provisions, and to enforce its full
- Proprietary Rights and Confidentiality
- "Proprietary Information"
as used herein means any and all information, including confidential
information, disclosed by one Party to the other, its employees, agents and
assigns, whether in oral, written, graphic or machine-readable form, or whether
visually obtained, before or after signature of the Agreement relating to the
Deliverables, and including all derived information thereof, such as but not
limited to copyrights, patents, trademarks, sketches, planning documents,
software (including source code), instructions and procedures relating to
development, production, assembly, quality control, maintenance, operation and
production regardless of form (such as magnetic media).
- Proprietary Information, or any part
thereof, whether capable of being copyrighted, patented, or otherwise
registered at law or not are for the purposes of the Agreement acknowledged by
the recipient Party as being the sole property of the disclosing Party, or
which otherwise should reasonably be construed under the circumstances as being
confidential or of proprietary nature except to the extent such information:
(i) is known to the recipient Party at the time it is disclosed, other than by
previous disclosure by or on behalf of the disclosing Party or any of their
employees, researchers or students, as evidenced by the receiving Party’s
written records at the time of disclosure; (ii) is or becomes known to the
public through no fault of the recipient Party; (iii) is lawfully and in good
faith becomes available to the recipient Party by a third party who is not
subject to obligations of confidentiality to the disclosing Party with respect
to such information; or (iv) is independently developed by the recipient Party
without the use of or reference to the disclosing Party's Confidential
Information, as demonstrated by documentary evidence; (v) is disclosed to SCD.USA's
subcontractors, subject to equivalent confidentiality obligations, if such
disclosure is required for SCD.USA in order to fulfill its obligations under the
- The recipient Party shall keep the
Proprietary Information in confidence and exercise at least the same degree of
care and protection as the recipient Party takes to preserve its own
proprietary information. Without the prior written approval of the disclosing
Party, the recipient Party shall not use, duplicate or disclose, or permit the
use, duplication or disclosure by the recipient Party’s employees, agents or
assigns, or by any other person, in any manner or form whatsoever, of the
Proprietary Information, in whole or in part, other than for the sole purpose
of the performance of the Agreement and only to employees and consultants of
the receiving Party who have a “need to know” such information in order
to enable the recipient Party to exercise its rights or fulfill its obligations
under this Agreement and are legally bound by agreements which impose
confidentiality and non-use obligations comparable to those set forth in this
Agreement. The above provisions shall remain in force and effect throughout the
period in which the recipient Party is actively engaged in performance under
the Agreement and for a period of 7 (seven) years thereafter.
- Unless otherwise expressly specified and
notwithstanding any other provision in the Agreement, all Proprietary
Information and All patent rights, copyrights, designs, trade secrets,
know-how, ideas, proprietary information, confidential information, inventions,
technical data, and other intellectual property related information or
materials and other industrial or rights owned by either Party will continue to
be owned by such Party and concerning Deliverables developed by SCD.USA in
connection with the Agreement shall remain vested with SCD.USA.
- If the Parties hold a valid and relevant
Non-Disclosure Agreement ("NDA"), the terms of the NDA shall
supersede the terms of the Agreement with the exception that the longer
remaining period for the confidentiality obligations shall prevail.
- The Provisions of this article shall survive
the termination or expiration of the Agreement.
- Prices for all Deliverables shall be as
specified in SCD.USA's Price Proposal attached to the Agreement.
- Unless otherwise agreed, prices of all
Deliverables hereunder are net and exclusive of all applicable taxes including,
but not limited to, purchase taxes and value added taxes, import duties, fees,
excises, and/or charges which are now or may hereafter be directly imposed on
SCD.USA with respect to sale of the Deliverables, or on the Agreement itself. All
applicable taxes shall be borne by Customer and If SCD.USA is required by law to
directly pay any such taxes, fees, excises, and/or charges, Customer shall
promptly reimburse SCD.USA upon SCD.USA’s presentation to Customer of a receipt
acknowledging such payment.
- To the best of SCD.USA's knowledge the
Deliverables are free from third-party rights such as copyrights and/or
property rights, in particular patent, utility patent and design patent rights,
which have not been lawfully acquired by SCD.USA.
- In the event that any party claims or
threatens to claim infringement, SCD.USA shall defend the Customer from finally
adjudicated judgments, provided that the Customer informs SCD.USA immediately of
the claim, assists SCD.USA in the defense of the claim and provides SCD.USA with the
sole control of the defense and settlement of the claim. SCD.USA, at its sole
discretion, may modify the Deliverables so that they are not infringing,
procure the right to use the Deliverables or request the return of the
Deliverables for refund of the purchase price.
- SCD.USA is not responsible for infringement
caused by integration of the Deliverables with another apparatus or component
or modifications to the Deliverables.
- The terms in this article shall serve as
Customer's sole and exclusive remedy in any matter of infringement from any
kind of third party rights.
Non-Recurring Engineering Fees and Prototypes
- SCD.USA and Customer may agree upon development
of new Deliverables and prototypes or modification or adaptation of existing Deliverables
by SCD.USA ("Development").
- In the event Customer pays non-recurring
engineering fees (“NRE”) for SCD.USA's efforts to develop prototypes or
novel Deliverables, such development, same as any other modification or
adaptation requested by Customer, shall be subject to these General Terms of
Sale unless otherwise expressly agreed upon by both Parties and Customer
acknowledges that all Deliverables and prototypes are developed and provided
strictly “as is,” with no warranties, either expressed or implied,
including without limitation any implied warranties of merchantability,
non-infringement and fitness for use, and, notwithstanding anything to the
contrary in the Agreement, SCD.USA shall have no liability of any kind relating to
the development, failure to develop, functionality, lack of functionality, or
performance of any Deliverables or Prototype.
- Unless otherwise agreed upon and without
derogating any of the provisions of this Agreement, any and all Development or
NRE shall not produce any proprietary right in the Deliverables or any part
thereof, and all Proprietary rights including all Intellectual Property rights
whatsoever shall remain vested with SCD.USA and no license to use or right is
granted to Customer thereon.
- Terms of Payment shall be as agreed upon
and set out in SCD.USA's Price Proposal or Price Agreement attached to the
Agreement. Payment shall be made via wire transfer unless otherwise agreed
- Unless otherwise explicitly agreed upon,
Terms of Payment are net 30 (thirty) days from receipt by Customer of the
applicable invoice from SCD.USA.
- All payments due from Customer to SCD.USA
pursuant to the Agreement shall be made in freely transferable USD.
- The Parties shall comply with all relevant
and applicable export control or other laws and regulations.
- SCD.USA shall be responsible to procure a valid
Export License if required, and Customer shall be responsible to procure a
valid Import License, if required.
- SCD.USA's compliance with this requirement is
contingent upon receipt from Customer of all necessary assistance, support and
documentation required from Customer and/or from Customer's customers and/or
any intermediate and/or end user of the Deliverables, subject of the Agreement
in a timely fashion. Accordingly, SCD.USA shall bear no responsibility whatsoever
for any failure to comply with the requirements of the Agreement, resulting
directly or indirectly from failure to receive any required assistance, support
or documentation as mentioned herein.
- It is agreed and acknowledged that
provision by SCD.USA of the Deliverables may require that Customer will furnish an
End-Use Certificate for the application of the relevant export licenses.
Notwithstanding the provisions of these General Terms of Sale, failure to
provide the aforementioned End-Use Certificate shall relieve SCD.USA of its
obligations to supply the Deliverables subject thereof, until such Certificate
has been received and the required license has been issued by the applicable
authorities in Israel.
- Upon obtaining the relevant export
approval, SCD.USA shall inform the Customer of any limitations or provisions that
may affect Customer’s use of the Deliverables, or which may affect SCD.USA’s
ability to comply with its obligations under the Agreement.
- Where a failure or delay of SCD.USA to comply
with its obligations under this article is due to governmental acts or
omissions (including changes in governmental policy) the failure will
constitute a Force Majeure event for which the provisions of article 18 will
- Unless otherwise approved, neither Party
may assign, delegate, subcontract or otherwise transfer in any manner the
Agreement nor any part thereof.
- Notwithstanding the forgoing, SCD.USA shall be
entitled to transfer its rights under the Agreement without any limitation
solely in case of corporate structural change and incorporation of the SCD.USA to a
company and solely to the incorporated company. Customer shall be notified of
any such realization of incorporation process.
failure of either Party at any time to enforce any of the provisions of the
Agreement or to require performance by the other Party of any of the provisions
hereof, shall in no way be construed to be a waiver of such provisions or in
any way affect the validity of the Agreement or any part thereof, or the right
of either Party thereafter to enforce each and every such provisions.
- Neither Party shall be in default on
account of the interruption of its performance under the Agreement by inter
alia extraordinary natural disturbances, acts of God, acts or failure to act of
a government in its sovereign capacity, any civil commotion, riot, insurrection
or hostilities, epidemics, labor shortages or disputes and work stoppages, acts
of terror, acts of war, whether declared or not, reserve draft, conditions that
may adversely affect the safety of such Party's personnel and/or equipment,
restrictions due to quarantines, unavailability of materials, severe and
unforeseeable market shortage, or any other circumstances inclusive of circumstances
which result from subcontractors, beyond the control of the Parties which will
operate to frustrate the Agreement, or that arise without the fault or
negligence of such Party and that result in delay of performance hereunder.
- Any such delay shall be referred to herein
as a “Force Majeure” and shall entitle the delayed Party to a corresponding
extension of the schedule. The Party whose performance is delayed by such
events shall use its best efforts to notify the other Party within 10 (ten)
days after the occurrence of such an event, and shall take all reasonable
measures to mitigate the effect of such delay.
- All disputes between the Parties which
cannot be settled by agreement between the Parties shall be finally and
exclusively settled by arbitration in accordance with the Rules of Arbitration
of the International Chamber of Commerce (ICC) by single arbitrator appointed
in accordance with the said Rules by both Parties.
- If the Parties cannot agree on the identity
of the Arbitrator within 14 days of written notice of one party demanding the
appointment of an Arbitrator, the Arbitrator will be appointed by the head of
the ICC chapter in Israel.
- Place of arbitration shall be Haifa, Israel
and the language to be used in the arbitral proceedings shall be Hebrew or
English if Customer is not an Israeli corporation.
- The appointed arbitrator shall detail his
judgment and his decisions shall be final and binding upon the Parties.
- All documentation and details regarding the
arbitration shall remain confidential and undisclosed and shall be regarded as
Proprietary Information as defined herein.
- This clause constitutes an arbitration
All notices and other communications shall be possible via Email and/or fax, if
addressed to the formal point of contact within each Party. Official
notifications as detailed in the Agreement shall be given in writing by
personal delivery, registered mail or courier, and shall be addressed to the
respective Party as follows, unless such address is changed by written notice
to the other Party:
| As agreed and detailed in
the Purchase Order
| SCD.USA SEMI-CONDUCTORS
DEVICES PO.BOX 2250
In the event that any part of the Agreement is determined to be invalid or
unenforceable to any extent, such part, provision or condition shall be severed
from the remaining parts which shall continue to be valid and enforceable to
the fullest extent allowable by law.
shall be governed by and construed in accordance with the laws of the State of
The headings of the articles of these General Terms of Sale shall not be used
to construe and/or interpret these Terms.
All correspondence between the Parties, as well as all documentation, manuals,
software listings and other writings, in connection with the Agreement shall be
in the Hebrew language or in the English language for non-Israeli customers.