Terms & Conditions

1. QUOTATIONS. A quotation (“Quote”) is Seller’s offer to the individual or entity to whom the Quote is addressed (“Buyer”). The following terms and conditions shall be part of each Quote Seller may issue Buyer for the Standard Product LCD Module product (the “Product”). “Seller” is Three Five Corporation.

2. TERMS OF SALE. The terms and conditions contained herein shall govern the Quote, all purchase orders submitted by Buyer and acknowledgements to any purchase orders received by Seller, and any other purchase and sale agreements between the Seller and Buyer for the Product. THE QUOTE EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS CONTAINED IN THE QUOTE. Buyer shall be deemed to have accepted these terms and conditions if Buyer accepts delivery of the goods and/or services described in the Quote (the “Product”). NO CHANGE, ADDITION OR MODIFICATION TO THESE TERMS AND CONDITIONS (INCLUDING ANY ADDITIONAL OR DIFFERENT TERMS IN BUYER’S PURCHASE ORDER) SHALL BE BINDING ON SELLER UNLESS AGREED TO IN WRITING BY SELLER’S AUTHORIZED REPRESENTATIVE. Seller’s failure to object to provisions proposed by Buyer shall not be deemed a waiver of any of the terms and conditions contained herein.

3. PURCHASE ORDERS; LEAD TIME; MINIMUM ORDER QUANTITY. Buyer’s purchase orders shall contain the following information: (a) part number identification of the Products, (b) quantity, (c) cost per unit, and (d) delivery and shipping requirements. Unless otherwise provided in writing by Seller, purchase orders shall be sent to the following address:

Purchase Orders may not require a delivery date that is shorter than the Product Lead Time without Seller’s written consent. “Product Lead Time” means the Materials Procurement Lead Time plus the manufacturing cycle time required from the delivery of the materials or components at Seller’s manufacturing facility to the completion of the manufacture, assembly and test processes for the Product. “Materials Procurement Lead Time” means with respect to any particular item of materials or components, the longer of (a) lead time to obtain such materials or components as recorded on Seller’s MRP system or (b) the actual lead time, if a supplier has increased the lead time but Seller has not yet updated its MRP system.

The then-current Product Lead Time will be provided to Buyer at the time Buyer places its purchase orders.

4. PRICES. Buyer shall pay the prices for Product specified in Seller’s Quote or as otherwise quoted at the time the purchaser orders are submitted to Seller. All pricing will be in U.S. Dollars. All pricing is calculated based upon the Delivery Point set forth in Section 5. In addition to the prices quoted by Seller, Buyer shall pay applicable federal, state and local excise, sales, use, VAT and similar taxes, duties, or other fees imposed by government authorities. Seller reserves the right to pay such charges and bill Buyer. If Buyer claims an exemption from such charges, it must provide Seller with evidence of such exemption at the time its purchase order is submitted to Seller.

5. SHIPMENT. FOB Hong Kong

6. TERMS OF PAYMENT. Terms of payment are 30 days net from date of invoice. Overdue amounts shall be subject to a late charge at the lesser of 1.5% of the outstanding amount per month or the maximum rate permitted by law.

If Seller determines in good faith that Buyer’s financial condition does not justify continuance of production or shipment of Products, Seller may stop production, require advance payment or by C.O.D. before shipping the Products and modify credit terms in its discretion.

IF BUYER REFUSES SHIPMENT MADE ON THE DATE SPECIFIED IN BUYER’S ACCEPTED PURCHASE ORDER WITHOUT SELLER’S WRITTEN CONSENT, PAYMENTS SHALL BECOME DUE ON THE DATE BUYER REFUSED SHIPMENT. In the event Buyer does not arrange for the prompt pickup of Products ordered by it after being informed by Seller that such Products are ready for pickup in accordance with Buyer’s purchase order, or Buyer attempts to reschedule or cancel a delivery of Products previously ordered by Buyer, in a manner not permitted by these terms and conditions, then Buyer hereby authorizes Seller to transfer such Products to a warehouse operated by Seller or a third party. Any portion of a warehouse operated by Seller will be assigned to Buyer for its exclusive use. Such transfer shall be considered a delivery and sale to Buyer, and title and risk of loss for such Products shall thereupon transfer from Seller to Buyer. In accordance with these terms and conditions, Seller shall invoice Buyer for such sale. Buyer shall also be invoiced for storage and handling charges equal to one half of one percent (0.50%) of the contract fees for the Products per month, or any portion thereof, that the Products are stored for Buyer. Such storage and handling fee shall cover the expense of storage, security and transporting the Products to and from such site. During the time that the Products are stored pursuant to this section hereof, Buyer shall have the right, upon reasonable notice, to inspect the Products. Upon Buyer’s request, Seller shall ship the Products to Buyer, at Buyer’s expense.

7. RESCHEDULING. Products ordered under accepted purchase orders, including blanket purchase orders, may only be rescheduled as follows:

Buyer may only reschedule one time per purchase order and reschedule requests must be in writing. Rescheduling shall not relieve Buyer of the obligation to purchase such Products, unless Buyer elects to cancel the Products after first rescheduling them for a single rescheduling period, in which case the cancellation charges that will apply shall be calculated from the original scheduled ship date to the original reschedule date as if such Products had been canceled rather than rescheduled. Unauthorized reschedules or any portion or all of the quantities on any purchase order shall be treated as a cancellation of such quantities.

8. CANCELLATION. Buyer may not cancel all or any portion of product quantity of an accepted purchase order without Seller’s prior written approval, which, in its sole discretion, may or may not be granted. With Seller’s approval, Buyer may cancel purchase orders in accordance with the following schedule, by payment to Seller of the applicable cancellation charges, to be invoiced in accordance with the payment terms set forth in Section 6:

9. DELIVERIES. Shipping dates and quantities are approximate and not guaranteed. Seller shall use commercially reasonable efforts to fill the orders according to the quantities and delivery date specified in the order. Partial shipments and/or delayed delivery constitute a valid delivery and Buyer shall not be relieved of its obligations to accept and pay for shipments. Any delivery shall be paid for regardless of other controversies relating to other delivered or undelivered Products. Seller reserves the right to close orders short should the need arise due to variation in yield.

10. FORCE MAJEURE. Seller shall not be liable for any failure to deliver any of the Products and/or services due to unforeseen causes beyond Seller’s control. Such causes include, but are not limited to, strikes, fires, floods, labor disputes, civil unrest, war, accidents, an inability to obtain raw materials or supplies, excessive demand for product over the available supply, customs, duties or surcharges, any interruption for any reason in the manufacture of components or other products by Seller’s suppliers, any act of God, or the action of any government. If Seller is able to partially perform, Seller shall attempt to allocate deliveries among its similar customers in a commercially reasonable manner. Seller shall have the right, in the event of the above circumstances, to cancel delivery or any part thereof without resulting liability.

11. DISCONTINUANCE. Seller reserves the right to discontinue any Products with six (6) months’ notification to the Buyer. During the notification period, Seller agrees to accept orders for delivery over the twelve (12) month period immediately following the end of the notification period.

12. ACCEPTANCE. Buyer shall inspect Products within ten (10) days after delivery. If such Products do not substantially conform to their applicable specifications (“Non-conforming Products”), Buyer shall notify Seller immediately stating the full particulars in support of such claim. Together with such report, Buyer shall provide Seller with 25 samples of the Products Buyer asserts as Non-conforming Products. Claims for Non-conforming Products must be made in writing within 90 days after delivery of Products. Products may only be returned to Seller after obtaining a Return Material Authorization (“RMA”) from Seller. Seller shall either repair or replace the Products to conform to their applicable specifications. Buyer shall be responsible for shipping Products back to Seller in the condition Products were received by Buyer. Claims for delivery delays, shipment shortages, or for any other cause other than the fact that they are Non-conforming Products shall be waived and released by buyer unless made in writing within 10 days after delivery of Products.

13. EXPRESS LIMITED WARRANTY. Seller warrants that the Products will be free from defects in workmanship and materials and will substantially conform to their applicable specifications for a period of twelve (12) months from the date of shipment. This express limited warranty does not apply to Products that have been abused, damaged, altered or misused by any person or entity after title passes from Seller. Upon any failure of a Product to comply with the above warranty, Seller’s sole obligation, and Buyer’s sole remedy, is for Seller to promptly repair or replace such unit and return it to Buyer, freight prepaid. SELLER MAKES NO OTHER WARRANTIES OR CONDITIONS ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, AND SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

Buyer shall return Products covered by the warranty freight pre-paid after completing a failure report and obtaining a return material authorization number from Seller to be displayed on the shipping container. Buyer shall bear all of the risk and all costs and expenses, associated with Products that have been returned to Seller for which there is no defect found. Buyer and Seller will negotiate in good faith the terms related to the process for repair of Products.

Buyer will provide its own warranties directly to any of customers, its end users or other third parties. Buyer will not pass through to end users or other third parties the warranties made by Seller under this Agreement. Furthermore, Buyer will not make any representations to end users or other third parties on behalf of Seller, and Buyer will expressly indicate that the end users and third parties must look solely to Buyer in connection with any problems, warranty claim or other matters concerning the Product.

14. INFRINGEMENT. Seller shall defend, indemnify, and hold Buyer harmless against any and all losses, damages, liabilities, costs, and expenses with respect to any claim or proceeding brought by any third party arising out of any alleged infringement or violation (a “Claim”) of any U.S. patent or copyright, provided that Buyer gives Seller written notice of the Claim, the ability to solely control the defense against the Claim, and Buyer fully cooperates with Seller in the defense of such Claim. Seller’s sole obligation under this Section 14 shall be to settle the Claim or judgment on the Claim in one of the following ways, at Seller’s sole option and expense: (a) procure for Buyer the right to continue to use the Product, (b) replace or modify the Product so that it becomes non-infringing but functionally equivalent, (c) grant a refund of the price paid for the individual units of Product which are the subject of the Claim, depreciated over a five-year period on a straight-line basis, upon return to Seller of such Product. This Section 14 shall not apply if the infringement is due to (1) the combination of the Product with other equipment to the extent that the Product alone would not have resulted in a Claim of infringement; (2) any modifications, alterations to the Product performed by anyone other than Seller, (3) use of the Product outside of the intended use; (4) continued use of the Product by Buyer after receiving notice of an infringement claim and being requested by Seller to cease such use or (5) failure of Buyer to replace the Product with a non-infringing substitute provided by Seller.

THE FOREGOING SECTION 14 STATES THE ENTIRE LIABILITY OF SELLER CONCERNING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

15. CONFIDENTIAL INFORMATION. Each party shall refrain from using or disclosing any and all Confidential Information of the disclosing party for any purposes or activities other than those specifically authorized in these terms and conditions or in any Quote. Except as otherwise specifically permitted herein or pursuant to written permission of the party owning the Confidential Information, no party shall disclose or facilitate disclosure of Confidential Information of the disclosing party to anyone without the prior written consent of the disclosing party, except to its employees, consultants, parent company, and subsidiaries of its parent company who need to know such information for carrying out the activities contemplated by this Agreement and who have agreed in writing to confidentiality terms that are no less restrictive than the requirements of this Section 15. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party pursuant to a subpoena or other court process only (a) after having given the disclosing party prompt notice of the receiving party’s receipt of such subpoena or other process and (b) after the receiving party has given the disclosing party a reasonable opportunity to oppose such subpoena or other process or to obtain a protective order. Confidential Information of the disclosing party in the custody or control of the receiving party shall be promptly returned or destroyed upon the disclosing party's written request. Confidential Information disclosed shall be maintained confidential for a period of three (3) years after the disclosure thereof. “Confidential Information” means (x) the existence and terms hereof and all information concerning the quantities and prices for Products and (y) any other information that is marked “Confidential” or the like or, if delivered verbally, confirmed in writing to be “Confidential” within 30 days of the initial disclosure. Confidential Information does not include information that (i) the receiving party can prove it already knew at the time of receipt from the disclosing party; or (ii) has come into the public domain without breach of confidence by the receiving party; (iii) was received from a third party without restrictions on its use; (iv) the receiving party can prove it independently developed without use of or reference to the disclosing party's data or information; or (v) the disclosing party agrees in writing is free of such restrictions.

16. GOVERNING LAW. These terms and conditions shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Colorado. The rights and obligations of the parties hereunder shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Buyer’s submission of purchase orders and Seller’s acceptance of such purchase orders under these terms and conditions serves to confirm that the parties have selected the laws of the State of Colorado as the governing law for these terms and conditions in part because jury trial waivers are enforceable under Colorado law and that the selection of the governing law is a material term of this Agreement.

17. ALTERNATIVE DISPUTE RESOLUTION. The following dispute resolution procedures shall be used by the parties to resolve all disputes, differences, controversies and claims under this Quote or any purchase order submitted pursuant thereto (collectively, “Disputes”). The parties shall resolve all disputes by binding arbitration in Denver, Colorado, in accordance with the Rules of Arbitration of the American Arbitration Association by three arbitrators (one appointed by each of the parties and the third to be appointed by the two other arbitrators). The language to be used in the arbitration proceedings shall be English.

Notwithstanding the above, the parties agree that any breach of a party’s confidentiality obligations set forth herein will result in irreparable injury to the other party for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of such obligations, the non-breaching party will be entitled to seek preliminary injunctive relief in any court of competent jurisdiction in Colorado without first pursuing such relief in arbitration. The provisions contained in this Section 17 shall survive termination and/or expiration of the Quote or any purchase or sale agreement, including any purchase orders and acknowledgements, between the parties. The decision of the arbitration panel shall be final and binding on all of the parties hereto and non-appealable, and the parties hereby waive any right of appeal to any court on the merits of any Disputes.

However, the provisions of this Section 17 may be enforced in any court in Colorado having jurisdiction over the award or any of the parties as set forth herein, and judgment on the award (including, without limitation, equitable remedies) granted in any dispute resolution hereunder may be entered in any such court.

Each party shall pay their own expenses in connection with the resolution of Disputes, including attorneys’ fees, except as set forth in Section 6 hereof. The fees and expenses of the arbitration panel shall be (A) borne equally by Seller and Buyer if and to the extent that the arbitration panel determines that such result would be fair and equitable under the circumstances, or (B) borne by Seller and/or Buyer in inverse proportion to the amount that the arbitration panel’s award in favor of Seller and/or Buyer bears to the total amount of the items in dispute.

IN THE EVENT OF ANY JUDICIAL PROCEEDINGS, THE PARTIES KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. In the event of any lawsuit between the parties arising out of or related to sale and purchase of Products pursuant to these terms and conditions, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

18. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY “COVER” DAMAGES (INCLUDING INTERNAL COVER DAMAGES). IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF OUT OF THE QUOTE, THESE TERMS AND CONDITIONS OR THE PURCHASE OR SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES STATED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SELLER’S LIABILITY SHALL NOT EXCEED THE COST OF PRODUCTS WHICH ARE THE SUBJECT OF THE CLAIM.

19. EXPORT CONTROLS. The Products are subject to United States export control laws and regulations. Buyer agrees that it will not use, distribute, transfer or transmit any Products, software or technical information (even if incorporated into other products) except in compliance with United States export laws and regulations (the "Export Laws"). Buyer will not, directly or indirectly, export or re-export the following items to any country (or to a national or resident of) which is on the then-current list of prohibited countries or to any prohibited person, entity, or end-user as specified by United States export control laws and regulations: (a) Products, (b) software or technical information disclosed or provided to Buyer by Seller or Seller's subsidiaries or affiliates; or (b) the direct product of such software or technical information. The obligations stated above in this clause will survive the expiration, cancellation or termination of any Product purchase and sale relationship between the parties.

20. ENTIRE AGREEMENT AND SEVERABILITY. The terms and conditions contained herein constitute the final, complete, and exclusive statement of the terms of the purchase and sale between the Seller and Buyer pertaining to the Products. If any term or condition contained herein is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken, and such provision shall not affect the legality, enforceability, or validity of the remaining terms and conditions. If any provision or part thereof is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.