Terms & Conditions
These terms and conditions (“Terms”) apply to all quotes, orders, order acknowledgements and invoices and any sale, license or delivery of goods or services by IQE plc or any of its affiliates (“IQE”) to the exclusion of any other terms that any potential or actual customer (“Customer”) may present or seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Customer accepts these Terms by ordering, accepting delivery, keeping or using goods or services provided by IQE, or by otherwise being notified that such transactions are subject to these Terms. All orders are subject to IQE’s acceptance and any such acceptance is expressly conditioned on assent to these Terms and the exclusion of all other terms. Once IQE has accepted or confirmed an order, or otherwise taken any steps to commence production of an order, the Customer cannot change (including, without limitation, any change to the specification), cancel, terminate, reschedule, suspend or issue a hold on any order, in whole or part, without IQE’s prior written consent. A quotation for the goods and/or services given by IQE will not constitute an offer.
The Customer is responsible for ensuring that any specification or requirements for the goods and/or services, including any related plans and drawings, are agreed by the Customer and IQE and are complete and accurate in all respects. All samples, drawings, descriptive matter or marketing produced by IQE are produced for the sole purpose of giving an approximate idea of the goods and/or services referred to in them. They will not form part of the order nor have any contractual force.
Price and payment
The price of the goods and/or services will be the price set out in IQE’s quotation. IQE may invoice the Customer for the goods and/or services on or at any time after delivery. IQE may, by giving notice to the Customer at any time before delivery, increase the price of the goods and/or services to reflect any increase in the cost of the goods and/or services that is due to: (a) any factor beyond IQE's control (including, without limitation, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs), (b) any request by the Customer to change the delivery date(s), quantities or types of goods and/or services ordered, or the specification or other requirements; or (c) any delay caused by any act or omission of the Customer.
The price of the goods and/or services excludes amounts in respect of value added tax, federal, state, municipal or other governmental taxes, duties, excise taxes or tariffs (which the Customer will additionally be liable to pay to IQE at the prevailing rate, subject to the receipt of a valid invoice), and excludes the costs and charges of packaging, insurance and transport of the goods and/or services, which will be invoiced to the Customer.
Unless alternative terms are specified on IQE’s quotation, the Customer will pay each invoice submitted by IQE within 30 days of the date of the invoice in full and in cleared funds. All amounts due will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If the Customer fails to make a payment due to IQE by the due date, then, without limiting IQE's rights, the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue in the amount of 1.5% per month or the maximum rate allowed by law, whichever is less. Further, IQE shall be entitled to immediately suspend any further delivery or performance of any goods and/or services to the Customer and to require payment in advance for any subsequent performance or orders.
Goods and/or services will be shipped in IQE’s standard packaging and using IQE’s selected carrier. The carrier will not be considered IQE’s agent. All deliveries will be shipped via FCA (origin) in accordance with Incoterms 2020. Shipments are subject to IQE’S availability schedule. IQE will use reasonable efforts to meet delivery dates quoted or acknowledged but IQE will not be liable for its failure to meet such dates. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. IQE may deliver the goods and/or services by instalments, which will be invoiced and paid for separately. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
Should the Customer identify any nonconformity with the goods and/or services compared to the specification, the Customer must notify IQE within 14 days of delivery. Failure to notify IQE of any nonconformity will result in the goods and/or services being deemed accepted by the Customer. Use of the goods and/or services by the Customer or any of its agents or employees for any purpose (other than to determine that it meets specifications) after delivery thereof, will constitute acceptance. IQE may make such alterations to any goods or services as it determines to be reasonably necessary to comply with any applicable safety standards, government regulations or to make any good or service non-infringing without prior notice to or consent of the Customer and such goods or service shall be deemed to be in compliance with the Terms.
Quality & Warranty
IQE warrants that on delivery, and for a period of 6 months from the date of delivery (warranty period), the goods will conform in all material respects with the agreed specification and be free from material defects in design, material and workmanship.
IQE will, at its option, repair or replace defective goods, or refund the price of the defective goods in full if: (a) the Customer gives notice in writing to IQE during the warranty period within a reasonable time of discovery that some or all of the goods do not comply with the warranty set out in clause 4.1; (b) IQE is given a reasonable opportunity to examine such goods; and (c) the Customer (if asked to do so by IQE) returns such goods to IQE's place of business at the Customer's cost within 30 days after shipment. These Terms will apply to any repaired or replacement goods and/or services supplied by IQE.
IQE will not be liable for the goods’ failure to comply with the warranty set out in clause 4.1 if: (a) the Customer makes any further use of such goods after giving notice in accordance with clause 4.2; (b) the defect arises because the Customer failed to follow IQE's oral or written instructions as to the storage, commissioning, installation, use, testing and maintenance of the goods or good trade practice regarding the same; (c) the defect arises as a result of IQE following any drawing, design or specification supplied by the Customer; (d) the Customer alters or repairs such goods without the written consent of IQE; or (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
EXCEPT AS PROVIDED IN CLAUSE 4, IQE SHALL HAVE NO LIABILITY TO THE CUSTOMER IN RESPECT OF ANY NON-CONFORMANCE OF GOODS AND/OR SERVICES. EXCEPT AS PROVIDED IN CLAUSE 4, IQE MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY GOODS OR SERVICES. IQE DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WHETHER ARISING UNDER CONTRACT, COURSE OF DEALING, USAGE, TRADE PRACTISE OR OTHERWISE.
Title and risk
The risk to the goods will pass to the Customer on delivery by IQE to the carrier at IQE’s facility. Title to the goods will pass to the Customer when IQE has received payment in full for the goods and/or services in accordance with clause 2. The Customer will grant, and by acceptance of the goods will be deemed to have granted, to IQE a first security interest and charge in all goods to secure payment of the purchase price and other amounts owing by the Customer and performance of all the Customer’s obligations under these Terms. IQE may reclaim any goods delivered to the Customer or in transit if the Customer fails to make payments when due.
Limitation of liability
Neither party will be liable, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, for any loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of data; loss of or damage to goodwill; special damages; and indirect or consequential loss. IQE's total liability to the Customer will not exceed the total charges paid by the Customer under this order in the 12-month period prior to the claim. The restrictions on liability in this clause apply to every liability arising under or in connection with the order including, without limitation, liability in contract, tort (including, without limitation, negligence), misrepresentation, restitution or otherwise. These Terms are between the Customer and the IQE entity responsible for fulfilling the Customer’s order. No IQE entity other than the IQE entity which provides the goods/services will have any liability in connection with the order. Nothing in these Terms limits any liability for (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) any payment obligation under the order; or (d) any liability which cannot be excluded or limited by law.
Nothing in these Terms will be construed as changing the ownership or control of, or restricting established rights to, either party’s existing intellectual property rights. IQE reserves all right, title and interests in its intellectual property rights. All intellectual property rights including, without limitation, knowhow, trade secrets, inventions, techniques, technology and any other information, in or relating to the growth processes, formulations, techniques, recipes, equipment, calibration, characterisation, metrology, conditions and/or the technology involved in the development or manufacture of semiconductor wafers, whether by epitaxial growth, deposition or other method, relating to the order and/or goods and/or services will be owned by IQE.
Customer indemnifies IQE and its Affiliates and their directors, officers and employees against all liabilities, costs, expenses, damages and losses suffered or incurred by any of them arising out of or in connection with any third party claim for infringement of intellectual property rights arising out of or connection with the specification for the goods/services.
To the extent legally permissible, Customer agrees not to, and shall not, reverse engineer, translate, create derivative works of, decompile, separate, and/or disassemble, any of IQE’s goods, or portions thereof, nor allow or assist others to do so, and whether or not such goods are provided in connection with the order.
Without limiting its other rights or remedies, IQE may at its sole discretion: (i) suspend provision of goods and/or services; or (ii) terminate any order with immediate effect, by giving written notice to the Customer if the Customer (or if IQE reasonably believes that the Customer will): (a) commits a material breach of any term of the Terms and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so; (b) becomes the subject of any proceeding under state, provincial or federal law for the relief of debtors or otherwise becomes insolvent, bankrupt or makes an assignment for the benefit of creditors, or upon the appointment of a receiver for the Customer or the reorganisation of the Customer for the benefit of creditors; (c) suspends, threatens to suspend, ceases or threatens to cease, or IQE reasonably expects that Customer may suspend or cease, to carry on all or a substantial part of its business; or (d) financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the order is in jeopardy.
Without limiting its other rights or remedies, IQE may terminate the order with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under these Terms on the due date for payment. IQE will have the right to cancel any previously accepted order placed by the Customer, change the credit terms, or refuse or delay shipment if IQE reasonably suspects that Customer will fail to meet payment schedules or other credit or financial requirements established by IQE (or fail to submit necessary financial materials under such requirements), or if in IQE’s opinion the credit or financial ability of the Customer will become impaired. The cancellation of such orders or the withholding of shipment by IQE under the provisions set forth above will not be construed as a breach of the Terms by IQE.
On termination of the order for any reason the Customer will immediately pay to IQE all of IQE's outstanding unpaid invoices and interest and, in respect of goods and/or services supplied but for which no invoice has been submitted, IQE will submit an invoice, which will be payable by the Customer immediately on receipt.
Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the order will remain in full force and effect.
Neither party will be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms (except for any payment obligations), including, without limitation, any necessary export licenses for the export of the goods and/or services if such delay or failure result from an event, circumstance or cause beyond a party's reasonable control. In such circumstances the affected party will be entitled to a reasonable extension of the time for performing such obligations.
Customer shall obtain all licences, permits and approvals required by any government, regulatory body or other competent authority and shall comply with all applicable laws, rules, policies and procedures of them, including, without limitation, the United States Export Administration Regulations and the UK Export Control Joint Unit. Customer will indemnify and hold IQE harmless for any violation or alleged violation by Customer of such laws, rules, policies or procedures. Customer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, any goods or technical data received from IQE without first obtaining any license required by the applicable government, regulatory or other competent body. Customer certifies that: (i) none of the goods or technical data supplied by IQE will be sold or otherwise transferred to, or made available for use by, any entity that is: (a) located in an ‘embargoed’ country in accordance with any applicable government, regulatory body or other competent authority; (b) a ‘denied’ or ‘restricted’ party on any applicable government, regulatory body or other competent authority list; and/or (c) engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology; (ii) no relevant agency or authority has suspended, revoked or denied the Customer’s export and/or import privileges; and/or (iii) the Customer is not located in or under the control of a national or resident of a jurisdiction where this transaction is prohibited.
Use Applications. Products sold by IQE are not designed or intended for use in applications where failure may reasonably be expected to result in personal injury or death including, without limitation, nuclear, aircraft, navigation, safety equipment, surgical implant, rescue of persons or to support, protect or sustain life. Any use, marketing or sale of products by the Customer for such applications is done so at the Customer’s sole risk and expense and the Customer indemnifies IQE from any and all damages, costs or expenses arising from any claim or action of any third party based on the actual or alleged failure of a product to perform in any such application. The Customer agrees that any warranties provided by IQE do not apply to any such applications.
Assignment and other dealings. Customer may not assign or transfer any right or obligations hereunder without the prior written consent of IQE, such consent to not be unreasonably withheld or delayed. IQE may assign its rights and delegate its obligations.
Confidentiality. Each party will not disclose to any person any Confidential Information concerning the other party. Each party may disclose the other party's Confidential Information: (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such Confidential Information for the purposes of exercising the party's rights or carrying out its obligations under these Terms; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither party will use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the order. ‘Confidential Information’ means, in relation to each party, all information of commercial value, in whatever form relating to the business of that party including price sensitive information, trade secrets, business plans, know how, financial data, specifications, technical information, device results, drawings, agreements, techniques, technology, operations and products.
Entire agreement. These Terms express the entire understanding and agreement between the parties with respect to the goods and/or services specified in the order and supersede any and all previous agreements with reference to such subject matter, save for: (i) any previously signed non-disclosure or confidentiality agreement which cover the goods and/or services; and (ii) any other written agreement between the parties that specifically covers the same goods or services (“Separate Agreement”), where the terms of the Separate Agreement shall prevail over these Terms.
Variation. No variation of these Terms will be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. No failure or delay by a party to exercise any right or remedy provided under these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of these Terms.
Notices. Any notice required to be sent pursuant to these Terms will be in writing and will be deemed to be validly given by the delivery to its recipient, either personally, by registered mail, prepaid mail or prepaid courier. Notices to IQE must be sent to firstname.lastname@example.org, for the attention of General Counsel & Company Secretary unless otherwise notified in writing.
Third party rights. A person who is not a party to these Terms shall have no rights to enforce any of the provisions of these Terms pursuant to any enactment or other rule of law, except that an IQE Affiliate who has proprietary rights in any Confidential Information disclosed in connection with these Terms may enforce these Terms as if it were a party hereto.
Governing law and Jurisdiction. These Terms, and any dispute or claim (including, without limitation, non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of London, England will have exclusive jurisdiction to settle any dispute or claim.