Astera Labs, Inc.
TERMS OF SALE
For Astera Labs Products
Effective February 10, 2023
These Terms of Sale (these “Terms” or this “Agreement”) cover all hardware products and associated Firmware (as defined below)(“Products”) sold by Astera Labs, Inc. or any of its affiliates (“Astera”) and purchased by the person or entity identified as buyer (“Buyer”) as noted on a product quotation provided by Astera or its authorized distributors to Buyer referencing these Terms (“Quotation”). Capitalized words have the meaning ascribed to them herein.
2. Offer and Acceptance.
Buyer may offer to buy Products under these Terms by submitting an order to Astera. Astera may accept or reject any order at Astera’s sole discretion. Astera’s acceptance of Buyer’s offer or order to purchase Products is expressly limited to these Terms. Astera hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless Astera expressly agrees to such terms in a signed writing.
Astera communicates pricing to customers in a Quotation and confirms transaction prices in its sales order acknowledgement. Astera is not responsible for pricing, typographical or other errors and reserves the right to revise Quotations to correct such errors. Prior to shipment, the price of the Products may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price in effect on the date of shipment as stated in the Astera invoice applies. Unless otherwise agreed in the applicable Quotation, prices are in U.S. Dollars and payment must be in U.S. Dollars. Astera’s prices are the Confidential Information (as defined below) of Astera.
Unless Astera notifies Buyer otherwise in writing, shipments will be delivered FCA (Incoterms 2020). Risk of loss or damage will pass to Buyer upon Astera’s delivery to the Astera designated shipping point. Any subsequent loss or damage will not relieve Buyer from its obligations. Buyer is solely responsible for the costs of freight and insurance after delivery to the Astera designated shipping point. If Astera incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse Astera for such freight or insurance costs.
Buyer is importer of record and is responsible for all import duties, taxes and any other expenses incurred, or licenses or clearances required. Astera may deliver Products in installments.
Astera will communicate to Buyer an Estimated Ship Date (“ESD”) in a sales order acknowledgment. Astera will not be liable for any damage, loss, or expense incurred by Buyer if Astera fails to meet the ESD.
5. Cancellations and Rescheduling.
Buyer may cancel or reschedule orders according to the following rules:
|Non-Standard Products & Pre-Production Products
|< 90 before ESD
|Requires Astera’s approval. Additional charges may apply.
|90 – 180 days before ESD
|One reschedule allowed up to 90 days from the original ESD.
|Requires Astera’s approval. Additional charges may apply.
|>180 days before ESD
|Requires Astera’s approval. Additional charges may apply.
|Non-Standard Products & Pre-Production Products
|< 90 before ESD
|90 – 180 days before ESD
|Buyer shall pay 75% of the purchase price.
|>180 days before ESD
“Non-Standard Product(s)” means a Product furnished by Astera pursuant to these Terms that contains custom or customer-specific hardware, firmware, software, and/or other specifications requested Buyer. “Standard Product(s)” means a Product that is not defined as Non-Standard Product under these Terms. “Pre-Production Product(s)” are defined in Section 9.6 below.
6. Payment Terms.
Payment of invoices is due thirty (30) days after Astera’s invoice date. Astera may change or withdraw credit amounts or payment terms at any time for any reason. If Buyer fails to make payment when due, Astera may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders. Astera will not be liable for, and Buyer will hold Astera harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make payment. Buyer may not deduct any payment amounts on account of unresolved disputes. Astera may charge Buyer 1.5% per month on overdue accounts to the extent permitted by law.
Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. Astera will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides Astera with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to Astera, Buyer will take all reasonable steps to minimize such withholding tax, provide Astera with a receipt or certificate as evidence the tax has been paid, and reimburse Astera for the amount of withholding so that Astera receives payment for the full value of the invoice.
Astera will not be in breach of this Agreement and will not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond Astera‘s reasonable control, whether foreseeable or unforeseeable, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, pandemic, fire, flood, earthquake, explosion, terrorist act, or act of god. In the event of a shortage of components or any other resources in its supply chain, Astera may, at its sole discretion, allocate Product production and deliveries.
9. Warranties and Related Remedies.
9.1 Purchases from Unauthorized Sources. For full warranty and support, Buyer must purchase Astera products through Astera’s authorized sources. Astera does not provide device authentication or support for products purchased outside of Astera’s authorized sources due to uncertainty regarding authenticity, storage, and handling.
9.2 Subject to Sections 9, 10, 11, and 13 , Astera warrants to Buyer that each Product will be free from defects in workmanship and materials for a period of twelve (12) months from the date of shipment to Buyer (“Warranty Period”). Astera further warrants to Buyer that during the Warranty Period each Product substantially conforms to Astera’s published Specifications for such Product. “Specifications” means the data sheet and product brief provided by Astera for the applicable Product in effect at the time of shipment. This warranty extends only to Buyer and not to indirect purchasers or users. Notwithstanding the foregoing, Astera will not be liable for a nonconforming Product if:
(a) the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than Astera, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than Astera; or
(b) the nonconformity resulted from Buyer’s design, specifications, or instructions for such Products or improper system design; or
(c) Buyer has not paid on time.
9.3 Testing and other quality control techniques are used to the extent Astera deems necessary in its sole discretion. Astera does not necessarily test all parameters of each Product.
9.4 Buyer’s claims against Astera under this Section 9 are void if Buyer fails to promptly notify Astera of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
9.5 Astera’s sole liability will be at its option to repair or replace Products that fail to materially conform to the warranty set forth above, or credit Buyer’s account for such Products. Astera’s liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by Astera and that are determined by Astera not to conform to such warranty. If Astera elects to repair or replace such Products, Astera will have a reasonable time period to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
9.6 NOTWITHSTANDING SECTION 9.2 OR ANY OTHER SECTION OF THESE TERMS, ASTERA PROVIDES ALL PRE-PRODUCTION PRODUCTS, SERVICES, AND SOFTWARE “AS-IS,” WITHOUT WARRANTY OF ANY KIND. “PRE-PRODUCTION PRODUCT(S)” MEANS ANY PRELIMINARY, TEST OR EVALUATION VERSION OF A PRODUCT WHICH ASTERA HAS NOT DEEMED SUITABLE FOR PRODUCTION IN COMMERCIAL QUANTITIES, INCLUDING, BUT NOT LIMITED TO, PROTOTYPES, SAMPLES, TEST CHIPS, EVAL AND VALIDATION BOARDS, AND DEVELOPMENT BOARDS. “SERVICES” MEANS TECHNICAL, APPLICATIONS, OR DESIGN ADVICE (INCLUDING REFERENCE DESIGNS), QUALITY CHARACTERIZATION, RELIABILITY DATA, OR OTHER SERVICES ASTERA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE.
10. Buyer’s Applications and Compliance.
10.1 General. Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer’s application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (i) anticipate dangerous consequences of failures, (ii) monitor failures and their consequences, and (iii) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
10.2 Industry Standards. Unless Astera has explicitly designated an individual Product as meeting the requirements of a particular industry standard, Astera is not responsible for any failure to meet such industry standard requirements.
10.3 Dangerous Applications. The Products are not designed, manufactured, or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation, such as the operation of nuclear facilities, vehicle navigation or communication systems, life support equipment, or in any other applications or activities in which failure of the products may pose the risk of environmental harm or physical injury or death to humans ("Dangerous Applications"). ASTERA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ANY DANGEROUS APPLICATION AND ANY SUCH USE SHALL BE AT BUYER’S SOLE RISK.
10.4 Indemnification by Buyer. Buyer will fully indemnify Astera Labs and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance with this Section 10.
11. Firmware and Proprietary Rights.
11.1 Firmware License. Subject to these Terms, Astera hereby grants to Buyer a non-exclusive, non-transferable (except as part of a permitted assignment by Buyer of these Terms), royalty free license to use and distribute to Buyer’s end customers the software programs (in object code format only) embedded in the Products purchased hereunder (the “Firmware”), in each case solely (i) in accordance with any related documentation for the Firmware made available by Astera, (ii) as such Firmware is embedded on and/or integrated in the Products by Astera or as such Firmware is otherwise made available by Astera to Buyer for Buyer’s use of the Products and (iii) for the purpose of Buyer’s or its end customer’s operation of the Products as integrated and/or incorporated into Buyer’s applications. The foregoing license will automatically terminate upon Buyer’s breach of these Terms, and upon such termination Buyer will discontinue use of the Firmware and destroy all copies of the Firmware in its possession or control.
11.2 Restrictions. Buyer shall not, and shall not attempt or permit any third party to, (i) copy (except as reasonably necessary to exercise the foregoing license), prepare derivative works of, modify, merge with other technologies, reverse engineer, decompile, disassemble, repair, sublicense (except as expressly permitted below), offer as a service bureau, derive the source code of or learn the trade secrets embodied in any portion of the Firmware, in each case except to the extent such a restriction is not permitted by applicable law, (ii) export the Firmware into any country, or use the Firmware in any manner, prohibited by any applicable export laws, restrictions or regulations or otherwise use the Firmware in violation of applicable law or outside the scope expressly set forth herein, or (iii) use the Firmware in any manner that would cause the Firmware to become subject to an open source software license. Buyer hereby confirms that it is not a resident or citizen of any country currently embargoed by the United States and that Buyer is not otherwise prohibited from receiving the Firmware.
11.3 End Customer Sublicenses. Buyer may grant sublicenses under the license granted in Section 11.1 above to Buyer’s end customers who purchase Buyer’s applications which integrate and/or incorporate the Products, to permit such end customers to operate the Products as integrated and/or incorporated into Buyer’s applications, provided that such applications are accompanied by a binding terms of purchase or other agreement that contains restrictions and disclaimers regarding use of the Firmware that are no less protective as those herein.
11.4 Other License Agreement. Buyer’s use of any other Astera software products (“Software”) will be subject to the terms of Astera’s software license agreement or other agreement entered into between Buyer and Astera for such Software (the “Other License Agreement”). In the event of any conflict, ambiguity, or inconsistency between these Terms and the Other License Agreement, the terms of the Other License Agreement shall govern with respect to such Software.
11.5 Proprietary Rights. Notwithstanding anything herein, Astera and its affiliates and suppliers own and retain all right, title, and interest in and to (i) the Firmware, Software and related documentation (including any copies, modifications, updates, and improvements thereof) and all intellectual property rights thereto, and (ii) all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Products ((i) and (ii), collectively, the “Astera IP”). Any rights not expressly granted by Astera in these Terms are reserved. Buyer acknowledges and agrees that Buyer acquires no ownership interest in any Astera intellectual property, and no implied licenses are granted by Astera.
11.6 Government Rights. The Firmware has been developed entirely at private expense, is a “commercial item” consisting of “commercial computer software” and “commercial computer software documentation” and is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this contract pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is Astera Labs, Inc., 2901 Tasman Dr., Suite 204, Santa Clara, CA 95054. Accordingly, Buyer will have no rights in the Firmware except as expressly set forth herein.
Unless covered by a separate non-disclosure agreement executed by the parties, Buyer acknowledges that all information and materials which come into Buyer’s possession or knowledge in connection with past and future purchases of Products from Astera and which is marked, identified, or accepted as confidential or proprietary (“Confidential Information”), consists of confidential or proprietary information the improper disclosure or use of which will be damaging to Astera. Buyer agrees to hold all Confidential Information in confidence, to disclose Confidential Information only to those of its employees having a need to know and who agree to protect the Confidential Information as set forth herein, and not to disclose Confidential Information to any other party.
13. Intellectual Property Indemnification
13.1 Subject to Sections 10, 11, 13, and 14, Astera shall defend at its expense, or at its option reimburse Buyer against any claim, suit, or proceeding brought against Buyer, insofar as such claim, suit, or proceeding is based on an allegation that Products manufactured and supplied by Astera to Buyer directly infringe any United States patent issued as of the Quotation date, copyright, or trade secret (“Covered Claim”), and Astera will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by Astera as settlement or compromise of a Covered Claim.
Astera has no obligation to defend or reimburse Buyer unless Buyer:
(a) promptly informs Astera Labs of the Covered Claim and furnishes Astera Labs a copy of the claim, suit, or proceeding,
(b) gives all evidence in Buyer’s possession, custody, or control to Astera Labs, and
(c) gives Astera Labs reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to Astera Labs the benefit of any defense available to Buyer to any Covered Claim hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such Covered Claim. Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
13.2 If Astera Labs is obligated to defend Buyer pursuant to this Section 13, Astera Labs may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or
(c) cease selling the infringing or allegedly infringing Products to Buyer, including cancelling any outstanding orders, without being in breach of these Terms.
13.3 Astera Labs will have no liability or obligation under Sections 13.1 or 13.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the twenty-four (24) months preceding the date Buyer informed Astera Labs of the Covered Claim,
(b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer’s customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer’s willful acts, or any settlement or compromise incurred or made by Buyer without Astera Labs' prior written consent, and
(e) to the extent that a Covered Claim is based upon Buyer’s use of the Products in combination with any other Product, device, software, or equipment, or Buyer’s use of the Products in a process, including a manufacturing process, or Buyer’s modifications to the Products;
(f) Astera’s compliance with Buyer’s particular design, instructions, or specifications; and
(g) Astera‘s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard,(such claims, those set forth in (a) through (g) above, are individually and collectively referred to herein as “Other Claims”).
13.4 Buyer will defend Astera Labs against any claim, suit, or proceeding brought against Astera Labs insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Astera Labs for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. Astera Labs will be entitled to participate in its defense at its own expense with counsel of its own choosing.
13.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
14. Limitations and Damages Disclaimer.
14.1 General Limitations. IN NO EVENT WILL ASTERA LABS BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE PRODUCTS, REGARDLESS OF WHETHER ASTERA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL, REWORK OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT, OR ACTION WILL BE BROUGHT AGAINST ASTERA LABS MORE THAN TWELVE (12) MONTHS AFTER THE EVENT THAT GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED.
14.2 Specific Limitations. IN NO EVENT WILL ASTERA LABS' AGGREGATE LIABILITY FROM ANY USE OF A PRODUCT PROVIDED HEREUNDER, INCLUDING FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT EXCEED THE TOTAL AMOUNT PAID TO ASTERA LABS FOR THE PARTICULAR PRODUCTS AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
14.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
15. Non-Waiver of Default.
In the event of any default by Buyer, Astera Labs may decline to make further shipments. If Astera Labs elects to continue to make shipments, Astera Labs' action will not be a waiver of any such default or affect Astera Labs' legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
16. Governing Law and Venue.
This contract is governed by and interpreted in accordance with the laws of the State of California, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of California. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court and Astera Labs may seek injunctive relief in any United States or foreign court.
Buyer warrants that it shall comply with the U.S. Foreign Corrupt Practices Act, the U.S. Export Administration Regulations (EAR), the U.S. International Traffic in Arms Regulations and all other export, import, or sanctions, laws, restrictions, controls, and regulations of the United States and any applicable foreign agency or authority (collectively “Laws”). Buyer acknowledges that Products, Software, Firmware and/or technical information provided hereunder may be subject to export controls, including but not limited to export controls administered under the EAR. Upon delivery of such Products, Software, Firmware and/or technical information, Buyer shall be responsible for ensuring compliance with the Laws and shall not export, re-export, or otherwise transfer, or authorize the export, importation, re-export or transfer of any Products, Software, Firmware and/or technical information received from Astera in violation of the Laws. Buyer agrees to indemnify and hold harmless Astera from any and all fines, claims, damages, losses, costs and expenses (including reasonable attorneys’ fees) incurred by Astera as a result of any violation of this Section 17 by Buyer. If requested, Buyer agrees to sign written assurances and other export-related documents as may be required to comply with U.S. export regulations or any other governmental regulatory agency requirement.
18. Government Contracts.
Unless otherwise separately agreed in writing by Astera, no provision herein shall be deemed an acceptance of any provisions required in any U.S. Government contract or subcontract relating thereto (“Government Contract”) nor shall any provision of any Government Contract become part of these Terms, imposed upon or binding on Astera.
19. Assignment and Third-Party Beneficiaries.
This Agreement is not assignable by Buyer without Astera’s prior written consent. Any unauthorized assignment is null and void. No provision in this Agreement confers any benefits, rights, or remedies to any person other than Buyer or Astera. Astera’s affiliates and subsidiaries may perform all or any part of Astera’s obligations under this Agreement.
This Agreement constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this Agreement will be binding upon Astera unless made in writing and signed by a duly authorized Astera representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this Agreement. These Terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in these Terms are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms.