General Terms and Conditions

1. Validity of these general terms and conditions (GTC)

These conditions apply to all business relationships with HMT microelectronic AG (HMT), even if they are no longer referred to in subsequent transactions.

Deviating conditions of the customer are only valid if HMT has agreed to them in writing.

The submission by the customer does not constitute approval by HMT.

If individual provisions of these conditions are or become ineffective, this does not affect the effectiveness of the remaining contractual conditions. Ineffective conditions are to be supplemented in such a way that the economic purpose intended by the contracting parties is achieved as far as possible.

Deviations from the present conditions can only be agreed by the parties by written agreement.

2. Quotation and Orders

Offers are non-binding. Contracts with HMT are only valid if the orders are subsequently confirmed in writing. The same applies to changes and additions to orders.

HMT reserves the right of ownership and copyright to cost estimates, samples, drawings, and other documents provided with the offer; they may not be made accessible to third parties and must be returned to HMT immediately upon request if a contract with the customer has not been concluded.

3. Development Orders

HMT develops and manufactures customer-specific (ASIC), application-specific (ASSP) and microelectronic products and systems. All documents received by HMT in connection with the development from the customer are treated with absolute confidentiality and are only made accessible to third parties or used further if the customer has given their written consent.

By paying for a development order, the customer exclusively acquires the right to the entire work. Partial solutions, IP blocks, individual mask sets, design tapes, test programs, test hardware, processing documents and any other internal information remain the sole property of HMT or its subcontractors and are used exclusively for the series production of the modules, regardless of whether the customer bears the costs for this in part or in full.

Within 8 weeks after delivery of the prototypes, the customer must inform HMT in writing whether the prototypes delivered correspond to the valid specification. If the prototypes do not meet the specification, the customer creates a list of defects that is used for the revision. It is up to HMT to produce further prototypes or to incorporate the corrections directly into the series product.

If for any reason this notification is not received within the stipulated time, the prototypes are considered released by the customer.

4. Industrialization pre-series production

In the industrialization phase that follows development, the product is made ready for series production. The products delivered during the industrialization phase are called 'pre-series' and correspond to the current status of the industrialization work. Production lots 'on risk' are not yet fully tested and show yield fluctuations. The customer bears the financial risk.

The industrialization phase is completed with the approval of the customer. At this point, development is complete, the specification is frozen, and the product moves to the series production phase. From this point on, HMT only guarantees the properties that are electrically measurable and recorded in the test specification. Modifications from this point in time are processed via the change management.

5. Serial Deliveries

For technical production reasons in ASIC manufacture, microelectronic modules and systems, HMT is entitled to exceed or fall short of the confirmed quantities by up to 10% without prior notice. Partial deliveries are permitted in any case.

If a delivery period in weeks has been agreed, this begins on the date of the order confirmation. Adherence to the delivery period presupposes that the customer fulfills his contractual obligations, in particular payment terms and information obligations, in good time. The delivery date is met if the goods have written the HMT by the specified date, or the customer has been informed that the goods are ready for dispatch.

6. Prices

All prices are fixed prices in the currency offered, net from the Biel site (FCA Biel). All prices are based on the costs at the time of order confirmation.

The customer must also bear the costs for customs, freight, packaging, loading, insurance, etc., even if these are not specifically shown.

7. Price Changes

Pricing in the written confirmation is fixed for the duration of the contract and corresponds to the number of items ordered. For subsequent orders, HMT is entitled to recalculate and adjust pricing if necessary.

Reasons for price adjustments can be, for example, changes in material, wages, or production costs as well as currency exchange rates.

8. Change management

Each party has the right to propose changes at any time. The receiving party shall give favorable consideration to such proposal and provide comments to the requesting party. HMT reserves the right to recalculate prices and adjust pricing accordingly. The costs of such modification or adjustment work will normally be reconfirmed (see Section 2) or, if this is not possible, will be invoiced at cost (time and material).

9. Delivery Dates

If a confirmed delivery date is exceeded, the customer can withdraw from the contract after given HMT a grace period in writing. Due to the nature of the business with ASICs, the additional period granted is same as the original delivery period. Costs incurred by HMT prior to withdrawal will be charged to customer at cost.

If HMT is prevented from making the delivery due to force majeure, the delivery date is automatically extended by the duration. Unforeseen circumstances which make the delivery unreasonably difficult or impossible for HMT, such as labor disputes, operational disruptions due to water, fire, equipment failure, pandemics, war, etc., are equivalent to force majeure, regardless of whether they occur at HMT or its sub-suppliers.

In these cases, HMT has the right to withdraw from the contract. At the request of the customer, it must declare whether it is withdrawing or will deliver within a reasonable period specified by it. Costs incurred by HMT prior to withdrawal will be charged to customer at cost.

The customer is not entitled to any further claims, in particular claims for damages.

10. Passing of Risk

The benefit and risk of the goods are transferred to the customer upon dispatch. Unless otherwise agreed with the customer, the type of shipment and means of shipment are determined by HMT based on expediency. This without being responsible for choosing the fastest and cheapest option.

The costs of packaging, postage and insurance will be invoiced separately. If the customer does not accept the goods without authorization or if the delivery is delayed for reasons for which the customer is responsible, the risk is nevertheless transferred to the customer. HMT is entitled to charge the customer the storage fee.

11. Terms of Payment

The terms of payment are specified in the offers, the term of payment is generally 30 days net from the invoice date.

In the case of partial payments, the customer must pay for each partial delivery in accordance with the above conditions. All payments are to be made regardless of whether the customer has inspected the goods or not.

Partial payments based on the delivery of prototypes are to be made regardless of the quantity of prototypes or compliance with specification.

If the customer fails on payment, HMT is entitled to charge default interest of 4% to the agreed price. Further to that, HMT is entitled to demand payment of all outstanding invoices, regardless of if these are due or non-due.

HMT also reserves the right to withdraw from the contract without setting a deadline or grace period if the customer is in late in payment. The same applies if the customer is insolvent, in settlement- or bankruptcy-procedure against his assets.

The customer can neither withhold nor offset payments because of a counterclaim disputed by HMT which is not legally binding. Otherwise, the assignment of contractual claims by the customer requires the written consent of HMT.

12. Retention of Title

The goods delivered by HMT remain their property until the customer has paid all claims arising from the contract.

13. Warranty and Liability

For a period of 12 months, HMT guarantees that the goods delivered are free from material and manufacturing defects, that they correspond to the data specified in the documentation and in the mutually agreed technical specifications as well as the information specified in the order confirmation. For modules, systems, etc. the warranty extends only within the framework of the guarantees granted by HMT's suppliers and sub-suppliers. However, the guarantee expires if the goods are modified in any way or if the goods are sold to a third party before the end of 12 months. In the case of obvious defects, HMT's liability requires a written and specified notification of defects by the customer within four weeks of receipt of the goods at the latest and in the case of hidden defects at the latest within two weeks of their discovery and at the same time the defective goods have been sent. If the notice of defects and the return delivery are not made within the period, the goods complained about are free of defects and in accordance with the contractual agreements.

If an inspection by HMT gives evidence that the defects reported within the deadline are not based on changes and repair work by the customer or a third party, on improper tests, natural wear and tear, improper treatment, excessive stress, or other damage not caused by HMT, the Customer is entitled to a free replacement of the defective goods or to a corresponding credit note. It is at the discretion of HMT to select the respective remedy of the defect.

The customer is not entitled to any further claims, in particular compensation for direct or indirect damage or consequential damage. This applies both to the sample components to be supplied as part of the development orders as well as to the pre-series and series components.

If an examination shows that the defects are not due to HMT's fault, the packaging and shipping costs for the return shipment will be borne by the customer. Any inspection costs will be invoiced to the customer separately.

For buy and resell material, HMT assumes liability only within the framework of the guarantee-obligations of the sub-suppliers; these warranty claims can be assigned to the customer.

HMT expressly rejects any liability for the use of the goods in life-supporting elements or systems derived from them. The responsibility lies solely with the customer, even if HMT has been informed of this in advance.

14. Other Customer Claims

Any further liability for any damage not provided for in the present conditions is excluded.

15. Place of performance Jurisdiction and applicable law

Place of performance and place of jurisdiction is Biel, CH. The legal relationship is subject to Swiss law, with the provisions of the Swiss Code of Obligations applying to the purchase contract being subsidiary to the present conditions.