Sales and Delivery Terms

Sales and Delivery Terms 2022v2, Silvaco A/S

1. Application

1.1. The following Sales and Delivery Terms shall apply to sales by Silvaco A/S (hereinafter the “Seller”) to the customer (hereinafter the “Buyer”). This applies even though the Buyer has stated other terms and conditions for the purchase during the purchase negotiations or in the Buyer’s tender documents or in the Buyer’s confirmation of the purchase vis-à-vis the Seller, as all such terms and conditions shall be deemed to have been waived on the Seller’s final acceptance of the purchase, unless the Seller herein explicitly and in writing states the individual terms and conditions which are imposed upon the Seller and which differ from or are of a different wording than those stated in these Sales and Delivery Terms.

2. Offer and Acceptance

2.1. Offers and requests to make offers shall not be deemed to be binding and accepted until the Seller has forwarded an order confirmation to the Buyer.

3. Prices

3.1. The Seller reserves the right to change his prices in the event of significant changes in purchase prices, production costs, wages, raw materials, sub-supplies, exchange rates, freight, discount rate, customs duties, direct and indirect taxes and similar and in connection with events comprised by clause 9.

4. Payment

4.1. Unless otherwise agreed, the invoice amounts shall be paid by means of a bank debit entry and pursuant to the conditions of the seller in the confirmation of the order and/or in the invoice.

4.2. Non-observance of the Seller’s payment terms shall be deemed to be a fundamental breach, entitling the Seller to discontinue existing contract and/or any further deliveries and to demand immediate payment of any claims, whether or not they have fallen due.

4.3. If the Buyer does not pay on time, the Seller is from the due date entitled to charge default interest of 1,5 % for each month or part of a month after the due date and to charge reminder and collection fees in accordance with current legislation.

4.4. The Buyer is neither entitled to withhold any part of the invoiced amount nor to offset any part of the invoiced amount against any counterclaims against the Seller, if these counterclaims have not been acknowledged and accepted in writing by the Seller.

4.5. Irrespective of any other payment terms previously agreed upon with the Seller, the Seller is entitled to make future deliveries conditional upon the Buyer making advanced payment or providing the necessary security if the Buyer’s payment of the purchase sum is delayed.

5. Delivery and Delivery Time

5.1. Delivery terms shall be separately agreed for each sale and is stated in the offer/order confirmation in standard packaging according to the current INCOTERMS.

5.2. The time of delivery stated in the offer is for guidance only, and the delivery time is not final until stated in the order confirmation. The delivery time in the order confirmation is fixed by the Seller according to his best estimate, considering the circumstances existing at the time of the dispatch of the order confirmation.

Unless otherwise agreed, postponement of the delivery time by up to 7 days due to the Seller’s circumstances are in all respects deemed to be timely delivery. Similarly, delivery prior to the delivery time is always in all respects deemed to be timely delivery.

5.3. If the Seller becomes aware of a significant delay of the delivery time, the Seller must inform the Buyer thereof, and if possible, state the expected delivery time.

5.4. The Buyer is not entitled to postpone the agreed delivery time without prior agreement with the Seller.

6. Receipt and Notice of Defect

6.1. Immediately upon receipt at the agreed address, the Buyer must observe the Buyer’s duty of inspection and examine the received.

6.2. The Buyer is obliged to make available to the Seller any information, materials and resources necessary for the performance of the work.

6.3. If the Buyer discovers defects in the goods delivered, the Buyer must give the Seller written notice of defect immediately after having made this discovery and not later than 15 working days after receipt. In the notice of defect, the Buyer must describe and document (e.g. through drawings, photos, calculations and measurements) the nature of the defect.

6.4. If the Buyer’s documentation does not provide undisputable evidence of the defect, and the Seller as a result of the lacking documentation cannot determine whether the delivered goods are defective or not, the Buyer is required to keep the goods stocked, until the Seller has had the opportunity to examine the goods. The Buyer must offer the Seller access to the goods at least 15 working days from haven given notice to the Buyer of the defects.

6.5. The Buyer is under no circumstances entitled to resell, destroy or by any other means dispose of the goods, until the Seller has had the opportunity to examine the goods or without the prior written consent of the Seller.

6.6. If the Buyer’s notice of defect in respect of the delivered goods is justified, the Seller is entitled to choose either to remedy the defect or to cancel the order by crediting the purchase price to the Buyer.

6.7. Irrespective of the justification of any notice of defect, the Buyer must pay for the delivery and hence may not withhold payment for deliveries made.

6.8. If the Buyer fails to give notice of defect within the said 15 working days from receipt, the Buyer forfeits the right to give the Seller notice of defect.

7. Ownership and other Rights

7.1. The Seller reserves ownership of the delivery until the purchase sum has been paid in full by the Buyer. Upon payment by cheque or bill of exchange, payment is not deemed final until payment in full has taken place and the objection period of the bank, if any, has expired. The ownership reservation does not affect the transfer of the risk to the Buyer upon delivery, cf. clause 5.1.

7.2. The Buyer cannot transfer the rights or obligations according to the agreement with the Seller to any third party without the prior written consent of the Seller.

7.3. The Seller is not restricted from selling identical services or products delivered to the Buyer to any third party.

7.4. The Seller does not warrant that the delivery does not infringe any third-party rights according to the Danish Marketing Practices Act or The Danish Consolidation Act on Copyright.

8. Confidentiality

8.1. The Buyer is obliged to keep confidential the business secrets, which the Buyer will receive or learn regarding the Seller’s business. This obligation comprises any information of a commercial or technical nature.

8.2. Furthermore, the Buyer undertakes to transfer a corresponding obligation of confidentiality to any of the Buyer’s employees who may take part in the performance of the tasks.

8.3. This obligation applies as long as the information may be considered business secrets.

9. Force Majeure

9.1. The Seller is not liable for any delays in the event of force majeure, including, but not limited to, industrial conflict and any other circumstances beyond the control of the parties, such as fire, war, seizure, official and unofficial strikes, epidemics, pandemics, currency restrictions, rebellion and unrest, lack of means of transport, general scarcity of goods, delays, discarding of large consignments of goods, restrictions on motive power and also in the event of defective delivery or non-delivery from sub-suppliers, irrespective of the reason for this.

9.2. Should one of the above conditions prevent or significantly impede delivery, the Seller is entitled to cancel orders vis-à-vis the Buyer to the same extent as the Seller.

10. Limitation of Liability

10.1. For claims concerning the Seller’s performance or non-performance of his obligations, the Buyer is entitled to compensation for direct losses with the following limitations:

10.2. The Seller’s liability for damages shall never exceed the invoice amount for the services and/or goods sold.

10.3. The Seller’s liability for damages as a result of Seller’s faults or neglect are limited to direct damage/loss that can be attributed to him as intentional or gross negligence. The liability for damages is – irrespective of the reason and irrespective of the size of the claim – limited to the amount invoiced for the service or goods causing the damage/loss, caused by, or directly linked to the claim for damages.

10.4. No claims can be made against the Seller for losses, expenses or costs connected to purchase, re-ordering, repair, wage costs, removal, exchange, freight or similar measures regarding a defective delivery or products of which the Seller’s deliveries have been made part.

The Seller assumes no responsibility as a result of the Buyer’s relations with third parties and/or use of the Seller’s delivery and the Seller is not responsible for consequential loss, loss of profit or other indirect loss.

The Seller is not directly or indirectly responsible for the Buyer’s direct loss or consequential loss, loss of earnings, day fines, loss of saving or other indirect loss or consequential damage resulting from the use or non-utilization of the goods sold, notwithstanding that the Seller has been informed of the possibility of such claims.

10.5. In the event of late or defective delivery, the Seller is not liable vis-à-vis the Buyer for any claim for damages for subsequent loss.

10.6. Bankruptcy proceedings, suspension of payments, moratorium, voluntary composition or compulsory composition scheme in relation to the Buyer are considered a fundamental breach, and in such cases, the Seller is entitled to cancel this agreement and claim compensation.

11. Product Liability

11.1. The full and final responsibility for the merchantable quality and durability of the delivery lies with the Buyer and the Seller is not liable for any tortious act caused by the delivery.

Any liability for damages and claims to pay damages to any third party is solely borne by the Buyer.

11.2. Unless otherwise stated in the mandatory provisions, the Seller is not responsible for consequential loss, loss of profit or other indirect loss.

If the Seller is sued for product liability by a third party, the Buyer accepts to be joined during the case or sued at the court or arbitration tribunal hearing the case.

11.3. The Buyer must immediately inform the Seller if a third party makes a product liability claim against the Buyer.

11.4. The Seller’s oral and written advice in application techniques shall be given without any obligations and shall not release the Buyer from his own examination of the products for their suitability. The foregoing shall also apply when the delivered goods are generally recommended for a specific purpose.

12. Disputes

12.1. Any disagreement between the parties which cannot be resolved by negotiation shall be brought before the Maritime and Commercial Court of Copenhagen and the CISG shall apply. The English version of the CISG text shall apply to the agreement.

12.2. Danish law and Danish interpretational rules shall apply to claims and/or any other disputes which are not governed by the CISG.

12.3. If one or more of the provisions in these Sales and Delivery Terms are subsequently declared invalid, this shall not affect the validity of the agreement and the other provisions, which shall remain in force. The court will imply the necessary terms into the agreement thereby giving effect to the presumed intentions of the parties.