Astera Labs, Inc.
TERMS OF SALE
For Astera Labs Products
Effective July 1, 2020
The following Terms of Sale cover all Astera Lab’s Products purchased directly from Astera Lab’s as noted on Astera Lab’s Sales Order Acknowledgement Form.
2. Offer and Acceptance.
Buyer may offer to buy Products under these terms by submitting an order to Astera Labs. Astera Labs may accept or reject any order at Astera Labs’ sole discretion. The terms in this contract are the sole terms governing Astera Labs’ sale of Products to Buyer. Astera Labs’ acceptance of Buyer’s offer is expressly limited to these terms. Astera Labs hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless Astera Labs expressly agrees to such terms in writing. Capitalized words will have the meaning described in the Glossary of Defined Terms located at the end of this contract.
Astera Labs communicates pricing to customers in various ways (e.g., quotes) and confirms transaction prices with its order acknowledgements. Prior to shipment, Astera Labs’ price 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 Astera Labs’ invoice applies. Unless otherwise agreed, prices are in U.S. Dollars and Payment must be in U.S. Dollars.
Unless Astera Labs notifies Buyer otherwise, shipments will be delivered FCA (Incoterms 2020). Risk of loss or damage will pass to Buyer upon Astera Labs’ delivery to the Astera Labs designated shipping point. Any subsequent loss or damage will not relieve Buyer from its obligations. Buyer is solely responsible for costs of freight and insurance after delivery to the Astera Labs designated shipping point. If Astera Labs incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse Astera Labs 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 Labs may deliver Products in installments.
Astera Labs will communicate to Buyer an Estimated Ship Date (“ESD”). Astera Labs will not be liable for any damage, loss, or expense incurred by Buyer if Astera Labs fails to meet the Estimated Ship Date.
5. Cancellations and Rescheduling.
Buyer may cancel or reschedule orders according to the following rules:
|Buyer-Requested Cancel or Reschedule Date||Standard Products||Non-Standard Products|
|< 45 Days before ESD||Not allowed||Not allowed|
|45-90 Days before ESD||Allowed||Not allowed|
|> 90 Days before ESD||Allowed||Requires Astera Labs approval. Charges may apply.|
Notwithstanding the above rules, certain Products are subject to special cancellation and reschedule terms that Astera Labs will communicate to Buyer prior to order acceptance.
6. Payment Terms.
Payment is due thirty (30) Days after Astera Labs’ invoice date. Astera Labs may change or withdraw credit amounts or payment terms at any time for any reason. If Buyer fails to make Payment when due, Astera Labs may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders. Astera Labs will not be liable for, and Buyer will hold Astera Labs 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 Labs 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 Labs will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides Astera Labs 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 Labs, Buyer will take all reasonable steps to minimize such withholding tax, provide Astera Labs with a receipt or certificate as evidence the tax has been paid, and reimburse Astera Labs for the amount of withholding so that Astera Labs receives Payment for the full value of the invoice.
Astera Labs will not be in breach of this contract 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 Labs’ 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, Astera Labs may, at its sole discretion, allocate Product production and deliveries.
9. Warranties and Related Remedies.
9.1 Subject to Sections 9.2 through 9.4, 10 and 12 below, Astera Labs warrants to Buyer that each Product materially conforms to Astera Labs’ published Specifications for such Product. This warranty lasts for twelve (12) months after the date Astera Labs or an Astera Labs -authorized distributor delivers the Product. Notwithstanding the foregoing, Astera Labs 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 Labs, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than Astera Labs; 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.
Testing and other quality control techniques are used to the extent Astera Labs deems necessary in its sole discretion. Astera Labs does not necessarily test all parameters of each Product.
Buyer’s claims against Astera Labs under this Section 9 are void if Buyer fails to promptly notify Astera Labs 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.
9.2 Astera Labs’ 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 Labs’ liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by Astera Labs and that are determined by Astera Labs not to conform to such warranty. If Astera Labs elects to repair or replace such Products, Astera Labs 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.
9.3 EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS CONTRACT) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” ASTERA LABS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.4 Astera Labs may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter Astera Labs’ warranties as set forth above and no additional obligations or liabilities arise from Astera Labs providing such services or items. ASTERA LABS PROVIDES ALL SERVICES AND ITEMS TO BUYER (OTHER THAN “PRODUCTS” DEFINED IN THIS CONTRACT) “AS IS” AND “WITH ALL FAULTS.” ASTERA LABS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES AND ITEMS, INCLUDING, BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR 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 (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) 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 Labs has explicitly designated an individual Product as meeting the requirements of a particular industry standard, Astera Labs is not responsible for any failure to meet such industry standard requirements.
10.3 Life-Critical Medical. Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death (e.g., life support, pacemakers, defibrillators, heart pumps, neurostimulators, and implantables). Such equipment includes, without limitation, all medical devices identified by the U.S. Food and Drug Administration as Class III devices and equivalent classifications outside the U.S.
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. Intellectual Property Indemnification.
11.1 Subject to Sections 9, 10, 11.2 through 11.5, and 12, Astera Labs will defend 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 Labs to Buyer directly infringe any United States, Canadian, Japanese, or European Union member country patent (excluding utility models), copyright, or trade secret (“Covered Claim”), and Astera Labs 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 Labs as settlement or compromise of a Covered Claim.
Astera Labs has no obligation to defend or indemnify 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.
11.2 If Astera Labs is obligated to defend Buyer pursuant to this Section 11, Astera Labs may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, 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) if neither (a) nor (b) is available to Astera Labs at a commercially reasonable expense, then Astera Labs may stop selling the Products to Buyer without being in breach of this contract.
If Astera Labs elects to provide either of the options set forth in clauses (a) and (b) above, Astera Labs’ obligation pursuant to Section 11.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to Astera Labs taking such action. If Astera Labs elects the option set forth in clause (c) above, Astera Labs’ indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to Astera Labs any and all Products remaining in Buyer’s possession, custody, or control.
11.3 Astera Labs will have no liability or obligation under Sections 11.1 or 11.2:
(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,
- Buyer’s use of the Products in a process, including a manufacturing process
iii. Buyer’s modifications to the Products,
- Astera Labs’ compliance with Buyer’s particular design, instructions, or specifications, or
- Astera Labs’ 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 – i.e., those set forth in (i) through (v) above – are individually and collectively referred to herein as “Other Claims”).
11.4 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.
11.5 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.
12. Limitations and Damages Disclaimer.
12.1 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.
12.2 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.
12.3 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.
13. 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.
14. 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.
15. Export Control.
15.1 Exports, re-exports, and transfers of Products are subject to U.S. export controls and sanctions, the most important of which are administered by the Commerce Department’s Bureau of Industry and Security (“BIS”) under its Export Administration Regulations (“EAR”) (15 Code of Federal Regulations Parts 730-774) and the Treasury Department’s Office of Foreign Assets Control (“OFAC”) under its Foreign Assets Control Regulations (31 Code of Federal Regulations Part 500). Buyer acknowledges and agrees that it will comply, and will ensure that its subsidiaries comply, with all applicable laws and regulations whenever it exports, re-exports, or transfers Products.
15.2 Buyer acknowledges and agrees that Products may not be sold, exported, re-exported, transferred, or resold to any U.S. embargoed, sanctioned, or restricted destinations as defined in EAR Supplement No. 1 to Part 740, Country Group E, or to any entities or enterprises listed in EAR Supplement No. 4 to Part 744, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold to a person or entity barred by the U.S. Government (collectively, “Denied Persons”) from participating in export activities. Denied Persons include, but are not limited to, those individuals or entities listed on the Commerce Department’s Denied Persons List, the Commerce Department’s Entity List, the Directorate of Defense Trade Controls’ List of Statutorily Debarred Parties, and the Treasury Department’s List of Specially Designated Nationals. Buyer further agrees that it will not export, re-export, or transfer to the United States on Astera Labs’ behalf or for Astera Labs’ benefit any goods, services, or technology from any embargoed/sanctioned country or from any Denied Person that will be imported into the United States, directly or indirectly, without a required authorization from OFAC. The above lists of U.S. embargoed/sanctioned or restricted destinations, entities, or Denied Persons are subject to change.
Buyer also acknowledges and agrees to observe all other applicable restrictions concerning other end-uses/end-users according to other laws and regulations (e.g., European Commission regulations or any other national regulations).
To the extent applicable, Buyer undertakes to refrain from the following transactions under all circumstances: (a) transactions involving persons, organizations, or institutions listed in any applicable sanctions list, (b) prohibited transactions involving embargoed countries, and (c) transactions subject to any license requirement for which the necessary export license has not been granted.
15.3 Buyer further agrees to obtain any necessary export authorization prior to the exportation, re-exportation, or transfer of any Product acquired from Astera Labs under this contract. Each party will secure, at its own expense, such authorization and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. Further, Buyer will give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Product from Buyer with the intention of exportation. If government approvals cannot be obtained by Astera Labs, Astera Labs may terminate, cancel, or otherwise be excused from performing any obligations it may have under these terms.
15.4 Without limiting the generality of the foregoing, Buyer further agrees that Products may not be exported, re-exported, transferred, purchased, or resold for a military end-use or to a military end-user in a country listed in EAR Supplement No. 1 to Part 740, Country Group D1, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. The term “military end-use” means incorporation into a military item described on the U.S. Munitions List (“USML”) (22 Code of Federal Regulations Part 121, International Traffic in Arms Regulations) or the International Munitions List (“IML”) (as set out on the Wassenaar Arrangement website at www.wassenaar.org); or commodities classified under Export Control Classification Numbers (“ECCNs”) ending in “A018” or under “600 series” ECCNs. The term “military end-user” means the national armed services (e.g., army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support a military end-use. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold, directly or indirectly, for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology without U.S. Government authorization.
15.5 Requests by Buyer for Astera Labs to provide assistance or services in connection with the integration of Products into any military end-use item must be approved in advance by Astera Labs in writing for export control purposes and Astera Labs’ ability to provide any such assistance to Buyer is conditioned upon obtaining any U.S. government export authorization that may be required. Astera Labs is not obligated to provide such assistance or services.
15.6 Any Product export classification made by Astera Labs shall be for Astera Labs’ internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such Product or whether an export authorization is required for the exportation of such Product.
15.7 If Buyer violates any of its obligations and commitments under Section 15, Astera Labs may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. 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 Section 15. Section 15 will survive termination of this contract.
16. U.S. Government Contracts.
If Buyer intends to use Products in the performance of a U.S. Government contract or subcontract where Federal Acquisition Regulations, Defense Federal Acquisition Regulations Supplements, or other applicable government procurement rules or regulations (collectively, “Government Procurement Regulations”) will apply, Buyer will inform Astera Labs in writing of each applicable Government Procurement Regulation before Buyer submits an applicable purchase order for the Product. Unless otherwise agreed upon in writing and signed by Astera Labs, (i) no Government Procurement Regulations will apply, (ii) Astera Labs will not provide certified cost or pricing data, and (iii) Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
17. Assignment and Third-Party Beneficiaries.
This contract is not assignable by Buyer without Astera Labs’ prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or Astera Labs. Astera Labs’ affiliates and subsidiaries may perform all or any part of Astera Labs’ obligations under this contract.
This contract 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 contract will be binding upon Astera Labs unless made in writing and signed by a duly authorized Astera Labs 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 contract. 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 this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.
Purchases from Unauthorized Sources
For full warranty and support, customers must purchase Astera Labs products through Astera Labs’ authorized sources. Astera Labs does not provide device authentication or support for products purchased outside of Astera Labs’ authorized sources due to uncertainty regarding authenticity, storage and handling.