In these general terms and conditions of service, the following terms shall have the respective meanings ascribed thereto below:
Buyer : NXP Semiconductors Netherlands B.V.
Supplier : the person or legal entity with whom Buyer enters into an Agreement
Agreement : separate agreement between Supplier and Buyer for the supply of Services
Services : services, which may include but are not limited to consultancy, advice, valuation, reports, design and/or photography as specified in the Agreement
Deliverables : all documentation, results and/or materials to be delivered as part of the performance of Supplier's Services under the Agreement
Specifications : the requirements of the Deliverables and Services as listed in article 3.1, which may be further specified in the Agreement
Affiliate : any entity or person which Buyer controls, controls Buyer, or is under common control with Buyer, directly or indirectly, but only so long as such control exists
Terms and Conditions: the general terms and conditions of service as set forth in this document
2.1 These Terms and Conditions shall govern and form an integral part of the Agreement.
2.2 Buyer explicitly rejects any terms and conditions from Supplier. Supplier agrees that its terms and conditions shall not be applicable to any Services and Deliverables supplied by Supplier to Buyer and shall not be binding in any way on Buyer.
2.3 In the event of a term that deviates from the Terms and Conditions, Supplier shall only be allowed to invoke such deviating term if and only so far as such deviating term is stated in the Agreement and Buyer has agreed in writing to the Agreement.
2.4 In the event Supplier gives a quotation and starts the performance of the Services based on Buyer's request for quotation, whereas Buyer has not yet accepted Supplier's quotation, the performance of the Services shall be solely Supplier's responsibility and liability and Buyer shall not be liable in any way until Buyer has accepted the quotation in writing. In the event Supplier gives a quotation and starts the performance of the Services based on Buyer's request for quotation, Supplier shall be deemed to have accepted the Terms and Conditions. In such event the Agreement shall consist of the request for quotation, the accepted quotation and the Terms and Conditions.
2.5 Buyer has the right to change the Terms and Conditions. Any changes to the Terms and Conditions shall take effect upon 14 days' written notice to Supplier, unless Supplier informs Buyer in writing within 14 days that he does not agree to the change and therefore terminates the Agreement.
3. SUBJECT OF THE AGREEMENT
3.1 The Agreement shall specify the Services and/or Deliverables to be supplied by Supplier to Buyer. The Agreement shall include the Specifications, if any.
3.2 The Agreement shall include a timeschedule. Supplier shall supply the Services and Deliverables within this timeschedule. Parties shall inform each other regularly about the progress of the Services and Deliverables. Upon Buyer's request Supplier shall without delay provide information in writing concerning the status of the Deliverables, Services, due delivery date, payments and such other items relating to the business flow between Supplier and Buyer as Buyer may request. Supplier undertakes to inform Buyer immediately when it anticipates constraints on its capacity to supply the Services or Deliverables, in which case Supplier will provide suitable assurances to Buyer that its requirements will be adequately serviced.
3.3 Supplier shall not subcontract any of its obligations to any third party without (i) entering into a written agreement with such party by which Buyer's rights are fully extended to such third party and (ii) Buyer's prior written consent. Notwithstanding Buyer's consent to a subcontractor, Supplier shall remain fully responsible and liable for the performance of its obligations under the Agreement.
4. PRICES AND PAYMENT
4.1 Parties shall agree the price for the Services and Deliverables in the Agreement. Unless stated differently in the Agreement, the price includes all Services, Deliverables, costs, expenses, taxes and duties.
4.2 If Buyer accepts the Services and Deliverables, Buyer shall inform Supplier in writing of its acceptance. Supplier will send Buyer an invoice upon receipt of such acceptance. Such invoice will contain the price as agreed in the Agreement. Buyer shall pay such invoice within ninety (90) days from the invoice date.
4.3 Supplier shall keep accurate records and books of accounting showing all charges and related expenses incurred in relation to the performance of the Services. Supplier shall maintain its records in accordance with generally accepted accounting principles and procedures. Buyer shall have the right to inspect such records and perform audits (i) in a period of three (3) years from the date of supply of the Services and/or Deliverables, (ii) on Supplier's premises during business hours, (iii) and to assign such audits to outside parties.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Supplier agrees that any information, drawings, know-how, specifications, designs, concepts, techniques, developments, inventions, technologies, works, software and other work products generated or developed in the course of work performed under the Agreement by Supplier and any intellectual property and other proprietary rights therein or thereto shall vest in Buyer.
5.2 Supplier assigns or shall cause to be assigned to Buyer all right, title and interest to any and all such items and rights and to do everything necessary to perfect such rights and to protect Buyer's interest therein. Supplier shall inform any third parties who might seek recourse thereon of Buyer's proprietary rights; Supplier shall immediately inform Buyer of such an event.
5.3 Supplier shall use any trademark, tradename or other indication in relation to the Services and Deliverables, whether owned by Buyer, Affiliates, Supplier or any third party, only in accordance with Buyer's instructions or prior written approval and solely for the purposes expressly specified by Buyer in writing. Supplier shall not have nor obtain any right, title or interest in or to any Buyer's or Affiliates' owned trademarks, tradenames or other indications. All rights related to or resulting from the use by Supplier shall inure to the benefit of Buyer and its Affiliates. Supplier acknowledges all rights, title and interest of Buyer and Affiliates in respect of and to Buyer's and Affiliates' owned trademarks, tradenames and other indications.
5.4 With the exception of the rights granted under 5.3, Supplier agrees that Buyer does not grant any licenses on or other rights in any of its intellectual property rights.
6.1 Any specifications, drawings, information and other materials furnished to Supplier or funded or paid for by Buyer, in whole or in part, shall (i) remain or become as of the moment of completion thereof, Buyer's property, (ii) be clearly marked as Buyer's property, and (iii) be delivered to Buyer promptly on Buyer's demand.
7. CONFIDENTIAL INFORMATION
7.1 Parties agree to treat as confidential any information provided by the other party and to use such information only for the purposes of the Agreement.
7.2 Parties agree to give its employees and approved subcontractors access to such information only on a need to know basis and shall not transfer, publish, disclose or otherwise make available such information or any portion thereof to any third party without Buyer's prior written consent.
7.3 Supplier shall not use the name, logo, trademark, or any other reference to Buyer, either direct or indirect, in press releases, advertisements, sales literature or other publications and shall not disclose the existence or the terms and conditions of the Agreement, without the prior written consent of Buyer.
8.1 Supplier warrants and represents that:
a. all Services and Deliverables shall be new, of good quality, design, materials, construction and workmanship;
b. all Deliverables shall conform strictly to the Specifications (if applicable) and all other requirements of the Agreement,
c. all Services and Deliverables shall conform to industry standards unless specified differently in the Specifications;
d. all Services and Deliverables shall be delivered in time;
e. all Deliverables are suitable for the intended purpose;
f. all Services will have been performed and the Deliverables will and have been designed, manufactured and delivered in compliance with all applicable laws and regulations. These laws include, without limitation, environmental, health and safety laws and regulations.
g. The Services and/or Deliverables do not include any portion of any Open Source Software. Open Source Software means any software that is licensed under Open License Terms. Open License Terms means terms in any license that require as a condition of use, modification and/or distribution of a work
1. the making available of source code or other materials preferred for modification, or
2. the granting of permission for creating derivative works, or
3. the reproduction of certain notices, other than copyright notices, or license terms in derivative works or accompanying documentation, or
4. the granting of a royalty-free license to any party under intellectual property rights regarding the work and/or any work that contains, is combined with, requires or otherwise is based on the work.
8.2 Buyer may, at its discretion and without prejudice to article 9 and any other right or remedy available under the Agreement or at law, reject any Services and Deliverables that do not comply with article 8.1. In the event of such rejection or if Buyer detects any non-compliant Services or Deliverables after acceptance thereof, Buyer shall at its own option:
(i) be entitled to a full refund of the purchase price of the non-compliant Services or Deliverables, or
(ii) may require Supplier to, respectively, remedy and/or replace promptly the non-compliant Services and Deliverables.
8.3 Notwithstanding the foregoing and without prejudice to article 9 and any other right or remedy available under the Agreement or at law:
(i) In the event the Services and/or Deliverables do not comply with article 8.1, Supplier shall be responsible for and indemnify Buyer against any and all liabilities, claims, suits, losses, damages, costs and expenses (including reasonable attorney's fees), whether direct or indirect, incurred by Buyer in connection with such non-compliance;
(ii) In the event a third party claims that the Services and/or Deliverables constitute(d) infringement, violation or misappropriation of such party's intellectual property right or other proprietary right, Supplier shall indemnify and hold Buyer and its Affiliates and their successors and assigns, harmless from and against all liabilities, claims, suits, losses, damages, costs and expenses (including reasonable attorney's fees), whether direct or indirect, arising from or relating to such claim;
(iii) In the event of a third party claim as mentioned under (ii), Supplier shall procure the right for Buyer to continue to use Services and Deliverables at no extra costs to Buyer;
8.4 If Buyer for any reason anticipates any difficulty for Supplier in complying with any obligations of the Agreement, Buyer shall be entitled to require Supplier to remedy such non-compliance within a period to be set by Buyer in its discretion.
8.5 Buyer shall have the right to inspect or test the Deliverables at all times and places. Payment, inspection, testing or acceptance of any Services or Deliverables by Buyer shall not relieve Supplier of any of its obligations under the Agreement, nor shall it constitute acceptance or approval of any Services or Deliverables, or constitute or operate as a waiver of any defect, nonconformity or any rights or remedies available under the Agreement or at law.
9. SUSPENSION, RESCISSION AND TERMINATION
9.1 Buyer shall be entitled to suspend its obligations, rescind or terminate the Agreement, in whole or in part, without further notice being required, without prejudice to any other rights or remedies available to Buyer under the Agreement or at law, if: a. Supplier fails to comply with any obligation of the Agreement;
b. insolvency or bankruptcy proceedings are instituted against Supplier (including voluntary insolvency or bankruptcy proceedings);
c. Supplier is liquidated or dissolved;
d. any attachment is made over the assets of Supplier or on its behalf;
e. Supplier makes an unauthorised assignment for the benefit of creditors;
f. any other person or entity than the person or entity having control over Supplier at the date of the Agreement acquires control over Supplier; or
g. the Services or Deliverables infringe any other party's intellectual property right.
9.2 In the event of rescission or termination, Supplier shall only be entitled to a pro rata payment of the price as agreed in the Agreement, but only in so far as and to the extent Buyer has received and wishes to keep the Deliverables delivered before the date date of rescission or termination. In no event shall Supplier be entitled to loss of profits, revenue, goodwill, or indirect, special, incidental or consequential damages.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 The Agreement shall be governed by the laws of The Netherlands.
10.2 All disputes arising out of or in connection with the Agreement shall first be attempted by Supplier and Buyer to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to the courts of The Hague, The Netherlands, provided that Buyer shall always be permitted to bring any action or proceedings against Supplier in any other court of competent jurisdiction.
11.1 All provisions of the Agreement destined to survive the rescission, termination or expiration thereof shall survive such rescission, termination or expiration.
11.2 Supplier agrees that it will not export or re-export, directly or indirectly, any of Buyer's information, goods, software and/or technology, without complying with all applicable international and national export control laws, for which at the time of export or re-export, an export license or other governmental approval is required, without first obtaining such license or approval. Supplier also agrees to inform Buyer whether or not the Deliverable is US controlled and/or controlled under the export control laws of its own country, and if so, what the export control classification number (ECCN) is.