1. Application of Terms.
1.1. Your Warranties. You represent and warrant that you have the capacity to agree to, and be bound by, these Product Sample Program Terms. If you are accepting these Product Sample Program Terms on behalf of another person or entity, including, without limitation, your employer, agent, principal, or client, then you also represent and warrant that (i) you have the legal authority to bind that person or entity to these Product Sample Program Terms and (ii) you will promptly inform that person or entity about them.
1.2. Order Confirmation. Any Order Confirmation or other acknowledgement Microchip issues in response to an Order ("Confirmation") is subject to these Product Sample Program Terms. If there is any conflict between the Confirmation and these Product Sample Program Terms, these Product Sample Program Terms will prevail.
1.3. Additional Definitions. Unless the context clearly requires otherwise, as used in these Product Sample Program Terms: (a)
the terms "Microchip," "our," "we,"
"us" and the like mean and refer to Microchip Technology
Inc. ("Microchip Technology") or the applicable subsidiary of
Microchip Technology that issues the Confirmation or that otherwise fulfills
an Order; (b) the terms "your," "you," "Recipient,"
and the like mean and refer to the individual placing the Order and his or
her employer or principal; (c) "Samples" means the goods and
services provided to you as samples; (d) "Order" means your
electronic, verbal, or written order or request for the Samples; and (e) "Product-Sample
Collective Terms" means these Product Sample Program Terms and any terms and conditions in the applicable Confirmation.
1.4. Assent. Our acceptance of your Order is conditioned
upon your assent to the Product-Sample Collective Terms. Your order or
request of any Samples from us, your act of clicking or otherwise placing the
requested symbol via our website indicating acceptance of the Product-Sample Collective
Terms, or your receipt of any Samples constitutes your assent. Only the Product-Sample
Collective Terms shall apply to the Order, and all other terms and conditions
that you proffer, whether as part of an Order or otherwise, are rejected and
do not form a part of the Product-Sample Collective Terms.
2.Account. You agree not to create more than one account, user name, email
address, or physical-location address (unless Microchip provides data-entry
fields within its Sample-ordering website for more than one physical-location
address under the same account and user name) in connection with ordering or
receiving any Samples from Microchip. Furthermore, you agree that you are
responsible for all activity within or through your account for ordering
Samples ("Account"), whether you authorized the activity. For any or
no reason, Microchip may, in its sole discretion, terminate your access to
Discretionary Fulfillment. Microchip is not obligated to
fulfill any Order for any reason even if we issued a Confirmation. Without
limiting the generality of the foregoing, if Microchip determines, at its
sole discretion, that you (or someone associated with you) might have ordered
or requested more than the number of Samples Microchip expressly allows per
month (or other period of time as Microchip determines), Microchip may elect
to not send you any Samples or otherwise fulfill your Order, and may, at its
discretion, pursue any rights or remedies available to it under applicable law.
4. Fees. Microchip
may charge you a fee for processing, shipping, handling, and/or packaging in
connection with each Order (individually or collectively, "Order Fees").
If we charged you any Order Fees, you must pay in U.S. dollars when you place
an Order (unless Microchip expressly in writing agrees to a different
currency for your payment of that fee). Microchip reserves the right to
modify or withdraw payment terms at any time. Any taxes, duties, and other
government assessments are your responsibility.
5. Use of Samples.
Use. Subject to the Product-Sample Collective Terms, you may use the Samples
only to evaluate them specifically for (i) qualifying one or more Microchip
products for use in your existing product designs, or (ii) designing or
developing your new products designs incorporating one or more Microchip
products. If you are a student, researcher, or instructor at a
nationally-recognized academic institute, you may, subject to the Product-Sample
Collective Terms, also use the Samples in support of your academic
institute’s science or engineering curriculum. The Samples may not be used
for any other purpose.
Without limiting the generality of Section 5.1, you may not do any of the
following (collectively, "Misuse Activities"):
(a) use the Samples
in production systems, or in any goods that you or your distributors,
resellers, agents, or representatives sell, offer for sale, lease, license, or
otherwise transfer to others.
(b) offer for sale,
sell, distribute, license, or otherwise transfer any Samples to any
third party (including, without limitation, any customer, reseller, or
distributor), through brokers, exporters, or otherwise.
If you breach the terms of this Section, in addition to Microchip’s
cancellation rights or other rights available under the Product-Sample
or under applicable law, you agree to indemnify Microchip and its
distributors, from any and all damages, liability, losses, costs, or expenses
related to any Misuse Activities, including, without limitation, attorneys’
fees and costs.
Delivery. You expressly acknowledge and accept that all delivery times or
shipment dates are approximate and may be changed at any time. Time for
delivery of the Samples is not of the essence and accordingly we shall not be
liable for any loss or damage you may suffer as a result of any such changed
or missed delivery times or shipment dates.
Export Control. You will not export or re-export any Samples, technical data,
direct products thereof or any other items in any way which would violate any
applicable export control laws and regulations, including, but not limited to,
those of the United States or United Kingdom. You expressly acknowledge that
it is your responsibility to obtain copies of and to familiarize yourself with
these laws and regulations to avoid violation.
Quantities. Quantities of Samples that may be ordered are at Microchip’s
discretion, and are subject to availability.
Modification and Substitution. We reserve the right to modify
our process or performance specifications for the Samples, and to substitute
samples substantially equivalent to those ordered, or manufactured to the
modified specifications. As a result, you agree that it is your
responsibility to test all shipments of Samples to ensure they are suitable
for your requirements.
TO THE MAXIMUM EXTENT OF THE LAW, ALL SAMPLES ARE PROVIDED "AS IS"
AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL,
STATUTORY OR OTHERWISE, RELATED TO THE SAMPLES, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTIES RELATED TO NON-INFRINGEMENT, AND ANY AS TO THEIR
CONDITION, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED UPON YOUR
OWN SKILL AND JUDGMENT TO SELECT THE SAMPLES ORDERED BY YOU. OUR HAVING GIVEN
YOU TECHNICAL ASSISTANCE REGARDING THE SAMPLES WILL NOT MODIFY THIS WAIVER OF
WARRANTY. NOTHING IN THE PRODUCT-SAMPLE COLLECTIVE TERMS MAY BE CONSTRUED AS
A WARRANTY OR REPRESENTATION BY MICROCHIP THAT THE SAMPLES, OR ANY PRODUCT OR
SYSTEM DEVELOPED WITH OR INCORPORATING THE SAMPLE, WILL BE FREE FROM
INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
Majeure. We will not be liable for any delay in performance or failure
to perform attributable to an unforeseen circumstance or a cause beyond our
reasonable control ("Force Majeure Event"). During the Force Majeure
Event, we may suspend, modify, or cancel delivery of Samples, and if
shortages of Samples ensue, we may allocate production of the Samples among
Cancellations. At our discretion, we may cancel all or any part of the Order or
the Confirmation at any time without notice.
Limitation of Liability.
A. In General. YOU EXPRESSLY ACKNOWLEDGE AND AGREE
THAT, IN NO EVENT, SHALL WE BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY,
INDEMNITY, CONTRIBUTION, OR OTHERWISE, FOR ANY DIRECT, INDIRECT, SPECIAL,
PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL LOSS, DAMAGE, COST, OR
EXPENSE OF ANY KIND, WHATSOEVER OR HOWSOEVER CAUSED, OR FOR ANY LOSS OF
PRODUCTION, COST OF PROCUREMENT OF SUBSTITUTE SAMPLES, LOSS OF CAPITAL, LOSS
OF SOFTWARE, LOSS OF PROFIT, LOSS OF REVENUES, CONTRACTS, BUSINESS, COST OF
REWORK, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, OR WASTED MANAGEMENT TIME,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OR THEY ARE FORESEEABLE. OUR
TOTAL LIABILITY ON ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY,
CONTRIBUTION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT YOU HAVE PAID
MICROCHIP FOR THE SAMPLES.
B. YOUR RESPONSIBILITY FOR PRODUCTS AND PROCESSES.YOU ACCEPT THAT YOU
ARE RESPONSIBLE FOR (I) ANY PRODUCT OR PROCESS WHICH USES OR INCORPORATES THE
SAMPLES AND THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR SUCH PRODUCT OR
PROCESS, AND (II) TESTING THE SAMPLES AND DETERMINING THE SUITABILITY OF THE
SAMPLES FOR USE IN YOUR APPLICATION, PRODUCT OR PROCESS. SAMPLES ARE NOT
SPECIFICALLY MANUFACTURED OR DESIGNED FOR USE IN LIFE SUPPORT, SAFETY
EQUIPMENT, OR OTHER APPLICATIONS WHERE MALFUNCTION CAN RESULT IN BODILY
INJURY OR DEATH. YOUR USE IS AT YOUR OWN RISK. YOU WILL DEFEND ALL SUITS
AND CLAIMS, AND INDEMNIFY MICROCHIP AND KEEP MICROCHIP INDEMNIFIED, FOR,
FROM, AND AGAINST ALL RESULTING CLAIM, LOSS, DAMAGE, AWARD, AND COST
(INCLUDING, BUT NOT LIMITED, TO ATTORNEYS’ FEES) ARISING OUT OF USE OF THE
C. ALLOCATION OF RISK. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE
ALLOCATION OF RISK CONTAINED IN THE PRODUCT-SAMPLE COLLECTIVE TERMS IS
REASONABLE IN ALL THE CIRCUMSTANCES HAVING REGARD TO ALL RELEVANT FACTORS,
INCLUDING, WITHOUT LIMITATION, YOUR ABILITY TO RELY ON YOUR OWN INSURANCE
ARRANGEMENTS AND YOUR RESOURCES TO BEAR OR RECOVER ANY COSTS OR DAMAGE
INCURRED FOR WHICH WE ARE NOT LIABLE, AND THE PARTIES’ BARGAINING POSITION.
may provide technical, applications, or design advice, information, or other
services in connection with the Samples or otherwise (collectively, "Services").
ANY SERVICES ARE PROVIDED "AS IS." MICROCHIP DISCLAIMS ALL
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND
NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT IN CONNECTION
WITH THE SERVICES. Further, you agree that Microchip's provision of the
Services will not alter the exclusion of warranties and liabilities for the
Samples as set forth in the Product-Sample Collective Terms, and that
Microchip will not have any additional obligations or liabilities from
Microchip providing any Services.
of Trade Secrets and Confidential Information; No License. Recipient must
maintain the secrecy of and not disclose, without Microchip’s express written
consent, all trade secrets, proprietary information, or confidential
information, which Recipient receives from Microchip. All intellectual
property rights in the Samples or Services remain vested in Microchip or its
licensors. No rights are transferred or licensed to Recipient as a result of
the provision of the Samples or any Services. Title to all software within
the Samples or otherwise provided by Microchip ("Microchip Software") remains
vested in Microchip or its licensors. Microchip Software is licensed to Recipient
for use with the Samples and is provided "AS IS." Recipient must not, nor
permit others to, manufacture, reverse engineer, translate, decompile, create
derivative works based on the whole or any part of the Samples or Microchip
Software, or disassemble, adapt, modify, duplicate, or otherwise copy or
reproduce any of the Samples or Microchip Software. If, as a result of
applicable law, Recipient is entitled to decompile the Samples in order to
obtain information necessary to render the Samples interoperable or
compatible with other goods or software ("Permitted Objective"), then Recipient
must first notify Microchip of Recipient’s requirements and give Microchip
the opportunity to provide Recipient with the information necessary to
achieve the Permitted Objective without undertaking a prohibited action. If
Microchip provides the necessary information to achieve the Permitted
Objective, Recipient must only use it to achieve the Permitted Objective and
must not create goods, which are substantially similar to the Samples. Recipient
must not remove any product identification, copyright, trademark, or other
proprietary notice attached to or provided with the Samples.
A. Government Contracts If the Samples covered by the Order are
furnished or to be used in the performance of a U.S. Government contract or
subcontract for which a mandatory passdown clause or clauses are applicable
to us or our performance or the Samples, you will so inform us and allow us
to review the clause(s) in question before we commence performance, so that
we may make an informed decision on whether we wish to undertake performance
of this Order. If we elect to rescind our willingness to proceed after having
been notified of the clause(s) following our commencement without having
received such notice earlier, we will have no liability for such rescission.
B. Assignment We may assign, transfer, or subcontract our
rights or obligations under the Product-Sample Collective Terms. You may not
assign, transfer, or subcontract any rights or your obligations under the Product-Sample
Collective Terms without our prior written consent, except to a successor in
interest to all or substantially all of the assets of your business;
provided, however, that any such assignment will not relieve you from your
obligation to perform according to the Product-Sample Collective Terms, if
the assignee fails to perform and notice of such failure is given to both it
and to you. Except as indicated in this Section 16(B), the Product-Sample Collective
Terms will inure to the benefit of the respective parties, their successors
C. Notices. All notices required or permitted by the Product-Sample
Collective Terms must be in writing and signed on behalf of the party giving
the notice, addressed to the party receiving it, and sent by courier,
certified mail, facsimile, personal delivery, or email, addressed to the
respective address specified at time of Order or in your account. If notice
is sent by facsimile, in-person delivery, or email, notice will be deemed
received and effective upon the earlier of actual receipt or one business day
after delivery. If notice is sent via other delivery methods, notice will be
deemed received and effective upon the earlier of actual receipt or five
business days after delivery.
Agreement: Modifications and Waiver; Severability; Survival. The Product-Sample
Collective Terms constitute the entire agreement and understanding of
Microchip and you with respect to the subject matter of the Product-Sample Collective
Terms, Confirmation, or Order, and supersedes all prior communications,
representations, agreements, understandings, proposals, negotiations and
promises relating to that subject matter, whether written or oral. Except as
expressly set forth in the Product-Sample Collective Terms, no modification
or waiver of any of those terms will be effective unless made in writing
signed by the party to be charged with having given the modification or
waiver. No failure or delay by us to assert any rights or remedies arising
from a breach of the Product-Sample Collective Terms shall be construed as a
waiver or a continuing waiver of such rights and remedies, nor shall a
failure or delay to assert a breach be deemed to waive that or any other
breach. If any part of the Product-Sample Collective Terms is found by a
court of competent jurisdiction to be invalid, unlawful or unenforceable then
such part shall be severed from the remainder of the Product-Sample
Collective Terms, which will continue to be valid and enforceable to the
fullest extent permitted by law. Section and paragraph titles or
headings are for reference convenience only, and do not define, limit, or
fully describe the scope or intent of the Product-Sample Collective Terms.
E. Governing Law; Venue; Waiver of Jury Trial; Dispute Resolution.
(i) If the
physical-address location on the Confirmation or the Account indicates a
country within the Americas or Asia or any other non-European country, then
the following terms apply: (1) the Product-Sample Collective Terms will be
construed and enforced according to the laws of the State of Arizona,
excluding its conflicts-of-law principles, all implementations of the Uniform
Commercial Code, and all conventions relating to the international sale of
goods; (2) courts in the State of Arizona have exclusive jurisdiction over
all disputes arising out of the Product-Sample Collective Terms, the
Confirmation, or the Order; and (3) you hereby expressly consent to the
personal jurisdiction of the courts of the State of Arizona.
the physical-address location on the Confirmation or the Account indicates a
country within Europe, then the following terms apply: (1) the Product-Sample
Collective Terms will be construed and enforced according to English laws,
excluding its conflicts-of-law principles and all conventions relating to the
international sale of goods; (2) English Courts have exclusive jurisdiction
over all disputes arising out of the Product-Sample Collective Terms, the
Confirmation, or the Order; and (3) you hereby expressly consent to the
personal jurisdiction of the English courts.
hereby expressly consent to service of process being effected upon you by
e-mail at the e-mail address you used to register to access Microchip’s
online system to place an Order or you otherwise provided Microchip. MICROCHIP
AND YOU IRREVOCABLY AND UNCONDITIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING TO WHICH EACH IS A PARTY INVOLVING ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THE PRODUCT-SAMPLE
COLLECTIVE TERMS, THE CONFIRMATION, OR THE ORDER.
Last Updated: February 18, 2015.