Agreement between You and Efinix

These Terms of Sales (“Terms”) shall exclusively govern the offer and sale to you by Efinix, Inc. ("Efinix", “we”, “us” and “our”) of Efinix’s semiconductor devices (including without limitation FPGA, Engineering Samples (as defined below), wafers and unpackaged dies), development boards and kits, programming cables, software, intellectual properties, reference designs, design tools, design files, services and other products (“Products”) available on the efinixinc.com website (the "Site"). “Engineering Samples” means semiconductor devices and die that are developmental or experimental in nature or are in prototype form. Efinix offers to sell and deliver Products only in accordance with these Terms, and acceptance of any Efinix offer is expressly limited to the terms and conditions herein. Use of any software provided with or for use with the Products is subject to Efinix’s Software License Terms and Conditions, which must be accepted by you prior to any installation or use of the software.

Acceptance

When you place an order, we may verify your method of payment, shipping address and/or tax exempt identification number, if any, before processing your order. You agree that your order is an offer to buy, under these Terms, the Products listed in your order. We, at our discretion, may choose to accept your order by processing your payment and shipping the Product, or may, for any reason, decline to accept your order or any part of your order. We may limit or cancel quantities available for purchase on any order on any basis, and to alter the availability or duration of any special offers at any time. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

Description and Pricing

We make reasonable efforts to provide current and accurate information relating to the Products and prices, but do not guarantee the currency or accuracy of any such information. All descriptions of Products or Product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to modify or discontinue any Product at any time. In the event we discover a material error in the description or availability of a Product that affects your outstanding order, or an error in pricing, we will notify you of the corrected version, and you may choose to accept the corrected version, or cancel the order. If you choose to cancel the order, and your credit card has already been charged for a purchase, we will issue a credit to your credit card in the amount of the charge.

We shall not be liable to you or to any third-party for any modification, price change, errors in description or pricing, suspension or discontinuance of the Products. We do not warrant that the quality of any Products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the material will be corrected.

Taxes

You are responsible for all applicable duties, tariffs, brokerage fees, and any other taxes imposed by any government authority, including, without limitation, sales, use, excise, value-added taxes or similar taxes. Any applicable taxes will be due at time of delivery. When required by law, we will collect Federal, State and/or Local sale, use, excise, and other taxes that apply to your shipment. These taxes are in addition to the purchase price of the Products subject to an order.

Shipping

You are responsible for all shipping and freight charges. Available shipping methods and carriers and their corresponding charges are provided to you for your selection before you complete your purchase.

Delivery dates provided to you during your purchase are estimates only and we will not be liable for failure to deliver on such dates.

We reserve the right to make deliveries in installments. Delay in delivery of one installment will not entitle you to cancel any other installment(s). Delivery of any installment of Products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity that varies from the quantity specified shall not relieve your obligation to accept delivery and pay for the Products delivered.

Delivery of Products to a carrier at the shipping point in good condition or delivery by Efinix to your representative at our warehouse or plant shall constitute delivery to you, and risk of loss shall thereupon pass to you; provided, however, that title shall remain in Efinix until you make payment in full for any such Products.

Products or services are deemed accepted by you unless you notify Efinix of shortages, damage or defects in writing within 5 days of delivery or performance of services. All returns or refunds must comply with Efinix’s returns and warranty policy. If you receive Product that has been damaged in transit, it is important to keep the shipping carton, packing material and parts intact.

Payment/Default

All payments must be made in USD when you place an order. We accept major credit cards as listed on the Site during your purchase. You agree to pay the entire net amount of each invoice pursuant to the terms of each such invoice, without offset or deduction. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. In the event you default in paying for the Products purchased hereunder, you shall be responsible for all reasonable costs and expenses incurred by Efinix in collection of any sums owing by you (including reasonable attorney’s fees), and we may decline to make further shipments to you without in any way affecting its rights under these Terms.

No Cancellations or Refunds/Return Policy

All Products are non-returnable and non-refundable except for warranty returns on certain Products (see Limited Warranty). Orders accepted by Efinix are non-cancellable and cannot be rescheduled. You have no rights in partially completed goods.

Product Use Restrictions

Products sold by Efinix are not authorized for use in certain applications including, but not limited to, military, chemical or biological weapons, life safety, life support, life sustaining, surgical, human implant, nuclear, missile technology or aircraft applications or for any use or application in which the failure of a single component could create a situation in which property damage, personal injury, or death is likely to occur, unless an authorized officer of the manufacturer has signed an agreement specifically governing such use. Engineering Samples shall be used solely for purposes of research, development and prototyping. You agree not to use Engineering Samples for production purposes. YOU AGREE TO INDEMNIFY AND DEFEND EFINIX AGAINST ALL DAMAGES, COSTS, AND EXPENSES THAT MAY BE INCURRED, INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND COSTS RELATING TO ANY LAWSUIT OR THREATENED LAWSUIT ARISING OUT OF THE USE OF PRODUCTS IN UNAUTHORIZED APPLICATIONS.

Limited Warranty

Except as otherwise stated in these Terms, Efinix warrants that Products as delivered will, for sixty (60) days following the date title for such Products transfers to you hereunder, be free from material defects in materials and workmanship and will substantially conform to Efinix’s publicly available Product datasheets and known errata in effect on such date (“Specifications”). This limited warranty does not apply to and excludes to the maximum extent permitted by applicable law: (i) Engineering Samples, wafers and die; (ii) Efinix Products procured from unauthorized sources; (iii) Products that have been subject to misuse, mishandling, accident, alteration, neglect, or unauthorized repair or installation; (iv) Products used in an application or environment that is not within the Specifications; and (v) Products returned to Efinix in a condition not suitable for failure analysis; (vi) software, intellectual properties, reference designs, design tools and design files; (vii) services, including without limitation maintenance and training (the items described in sub-paragraphs (i) to (vii) inclusive being, collectively, “Excluded Items”). You waive any right to assert a warranty claim unless such claim was made with written notice to Efinix prior to expiration of the warranty period and setting out in as much detail as possible the nature of the claim. For any breach by Efinix of this limited warranty, your exclusive remedy and the sole liability of Efinix shall be, at the option of Efinix, to replace or repair the affected Products, or if neither is reasonably feasible in Efinix’s sole opinion, to refund to you the price paid to Efinix for the affected Products. You cannot return Products without first obtaining a Return Material Authorization (RMA) from Efinix. Once you have obtained the RMA, you agree to ship the Products to Efinix according to the instructions on the RMA and pay for all shipping charges. Product replacement is subject to such Product’s availability and not having been discontinued. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND NON-TRANSFERABLE. EFINIX DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, 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 OR OTHERWISE HOWSOEVER ARISING.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) ALL EXCLUDED ITEMS ARE SOLD “AS-IS” WITH NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY; (2) EFINIX DOES NOT WARRANT OR REPRESENT THAT EXCLUDED ITEMS ARE FULLY VERIFIED, TESTED, OR WILL OPERATE IN ACCORDANCE WITH THE SPECIFICATIONS; (3) EFINIX DISCLAIMS ANY OBLIGATIONS FOR TECHNICAL SUPPORT AND BUG FIXES RELATING TO EXCLUDED ITEMS; (4) EFINIX WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF EXCLUDED ITEMS IN ANY MANNER WHATSOEVER, REGARDLESS OF WHETHER OR NOT EFINIX HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR THEY ARE REASONABLY FORESEEABLE; (5) EFINIX MAKES NO WARRANTY OR REPRESENTATION THAT EXCLUDED ITEMS PROVIDE ANY PARTICULAR FUNCTIONALITY, OR THAT EXCLUDED ITEMS WILL MEET THE REQUIREMENTS OF A PARTICULAR CUSTOMER APPLICATION; (6) EFINIX DOES NOT WARRANT OR REPRESENT THAT EXCLUDED ITEMS ARE ERROR-FREE, NOR DOES EFINIX MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND (7) THE FOREGOING STATES THE ENTIRE LIABILITY OF EFINIX WITH RESPECT TO EXCLUDED ITEMS. Some States may not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you, but in any event shall apply to the maximum extent allowed by law.

Proprietary Rights

You acknowledge that the Products sold by Efinix hereunder contain valuable proprietary, confidential, and trade secret information of Efinix and are protected by patent rights, copyrights, trademarks and other intellectual property and proprietary rights. You agree not to disassemble, decompile, or otherwise reverse engineer the Products or otherwise attempt to learn the source code, structure, algorithms, or ideas underlying the Products.

Software and Firmware

With respect to software or firmware Products or portions thereof provided by Efinix, you are granted a non-exclusive, non-transferable, and non-sublicensable limited license for use with the Products. Such software may not be copied, modified or sub-licensed, in whole or in part, provided, transferred, or otherwise disclosed or made available to third parties without the express written consent of Efinix. Title and ownership of the software provided by Efinix shall at all times remain with Efinix and its licensors.

Force Majeure

Efinix will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control including, but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fires, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots or war. Efinix’s time for delivery or performance will be extended by the period of such delay or Efinix may, at its option, cancel any order or remaining part thereof, without liability, by giving notice to you.

Export Compliance

The semiconductor devices, unpackaged dies, software, design tools, design files, development board and kits, services, this Site and other products offered by Efinix are subject to export controls under the laws and regulations of the United States and other applicable governments as required. You agree to comply with all applicable export control laws, restrictions, regulations and orders of the United States or applicable foreign jurisdictions, agencies or authorities, and you agree to indemnify, defend and hold Efinix and its third-party vendors harmless from any claim against Efinix or its third-party vendors due to your violation or alleged violation of any of such laws, restrictions, regulations or orders. You shall not, directly or indirectly, sell, export, transfer, transship, assign, use, or dispose of these products in a manner which may result in any non-compliance with applicable export control laws, restrictions, regulations, and orders of the United States or applicable foreign jurisdictions, agencies or authorities. You are responsible for obtaining any license or other official authorizations that may be required to export, re-export or import these products. These products are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations.

To obtain export classification information, such as ECCN, for all Efinix products, please send your request to support@efinixinc.com.

General

These Terms contain the entire agreement between the parties hereof and supersedes any prior or contemporaneous oral or written understandings, agreements, or communications between them relating to the subject matter hereof.

No addition to, deletion from, or modification of, any of the provisions of these Terms shall be binding upon Efinix unless acknowledged in writing and accepted by an officer of Efinix. Any change made by Efinix will be deemed accepted by you unless within 10 days from the date Efinix delivers notice of such change you notify Efinix in writing of your objection to such change. These Terms shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of these Terms by their express terms. The failure by Efinix to enforce at any time any of the provisions of these Terms, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provision or option, nor in any way affect the validity of these Terms (or any part hereof), or the right of Efinix thereafter to enforce each and every such provision.

These Terms shall bind and inure to the benefit of Efinix’s successors and assigns, including without limitation, any entity into which Efinix shall merge or consolidate. You may not assign any of your rights or obligations under these Terms without Efinix’s prior written consent. Any attempted assignment, delegation, or transfer by you without such consent of Efinix shall be void.

To the maximum extent permitted by law, the Terms are governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in Santa Clara, California in all disputes arising out of or relating to these Terms or your use of the Products. If any legal action is brought in connection with these Terms, the prevailing party shall be entitled to receive its attorney’s fees and court costs in addition to any other relief it may receive.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Efinix as a result of any purchase under these Terms. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms shall continue in effect.

Last updated: July 23, 2018