IMPORTANT. Read the following NXP Professional Service Agreement (“Agreement”) completely. By selecting the “Buy” button on NXP Professional Service Payment page, you indicate that you accept the terms of this Agreement.
This Agreement is a legal contract between you (either as an individual or as an authorized representative of your employer) and NXP Semiconductors, a Delaware corporation, with offices located at 6501 William Cannon Drive West, Austin, Texas 78735-8598 (“NXP”) whereas, NXP is a direct or indirect Subsidiary or affiliate of NXP Semiconductors Inc., for acquisition of services from NXP. You and NXP are sometimes referred to in this Agreement collectively as the “Parties” and individually as “Party”.
You and NXP agree as follows:
1.1. “Customer Deliverables” means any specific Customer Deliverables identified in the Service Request, or otherwise provided by Customer to enable NXP to perform the Services.
1.2. “Customer Project” means the specific project identified in the Service Request.
1.3. “Effective Date” means the date the Agreement was accepted by you.
1.4. “NXP Deliverables” means any work created by NXP, and all Intellectual Property Rights associated with the work created in the performance of the Services.
1.5. “NXP Technology” means any materials, documentation, Object Code, or Source Code owned by NXP or its licensors that are used in performing the Services. NXP Technology does not include Open Source Software.
1.6. “Intellectual Property Rights” means copyrights, know-how or trade secret rights and patent and patent application rights.
1.7. “Object Code” means computer programming code in a form not readily comprehensible by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
1.8. “Open Source Software” means that software included with the NXP’s Deliverables and Software provided to Customer that is identified by tags associated with portions of the code, or in the Source Code for same, or otherwise, as being licensed under various open source community licenses, including but not limited to the GNU General Public License, version 2, and the Lesser GNU General Public License (collectively, “Open Source Community Licenses”).
1.9. “Service Request” means a written description of the Services to be provided by NXP, to which these terms are attached, that 1) identifies the Customer Project, 2) lists specific deliverables, if any, to be provided by NXP or Customer 3) identifies the expected performance schedule and 4) identifies fees to be paid by Customer.
1.10. “Services” means the services described in the Service Request to be provided by NXP.
1.11. “Source Code” means computer programming code in human-readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
2.1. NXP will use commercially reasonable efforts to perform the Services identified in an accepted Service Request. NXP may in its sole discretion use third party contractors to perform the Services. Customer will provide timely input to NXP for all reasonably requested assistance in performing the Services.
2.2. Services will be limited in scope and duration those identified in the Service Request. Customer may request that NXP perform additional or different services than specified in the Service Request which will be subject to a new agreement. Customer acknowledges and agrees that NXP will have no obligation to accept a request for additional or different services.
3.1. NXP Ownership. NXP and its licensors presently own and will continue to own all worldwide right, title and interest in and to the NXP Technology and NXP Deliverables, and all Intellectual Property Rights therein, whether the NXP Technology or NXP Deliverables are separate or combined with any other products, programs, or data, including without limitation, any Customer Deliverable.
3.2. Customer Ownership. Customer and its licensors presently own and will continue to own all worldwide right, title and interest in and to the Customer Deliverables and all worldwide Intellectual Property Rights therein, whether the same are separate or combined with any other products, programs, or data, including without limitation, any NXP Deliverable.
4.1. Grant By NXP. NXP grants to Customer a world-wide, non-exclusive, perpetual, royalty-free license to (i) reproduce the NXP Deliverables in connection with the Customer Project and (ii) to distribute the NXP Deliverables in Object Code form only and only in connection with the Customer Project.
4.2. License by Customer. Customer grants to NXP a worldwide, non-exclusive, non-transferable royalty-free license to reproduce and prepare derivative works of the Customer’s Deliverables solely to develop the NXP Deliverables for Customer.
4.3. Open Source Software. Open Source Software is provided as a service to Customer and is licensed pursuant to the applicable Open Source Community License agreements, including Software developed by NXP that becomes subject to an Open Source Community License.
5.1. Notices on Deliverables. Neither Party may delete or alter the copyright, trademark, or other proprietary rights notices of the other Party, including the other Party’s suppliers if any, appearing on the Deliverables including, where applicable, any Derivative Works of the Deliverables.
5.2. Prohibited Acts Concerning Deliverables. Neither Party has any right to use, transfer, sublicense or otherwise distribute the other Party’s Deliverables except as expressly provided in this Agreement. Neither Party may itself, nor may it knowingly permit third parties to: (i) copy or modify the other Party’s Deliverables except as expressly permitted by this Agreement; or (ii) reverse engineer, decompile, or disassemble the Object Code of the other Party’s Deliverables.
5.3. No Other Licenses to Deliverables. Neither Party will have any other rights in the other Party’s Deliverables. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any products other than as set forth in this Agreement. Both Parties and their suppliers reserve all rights and licenses to their respective Deliverables not expressly granted under this Agreement.
5.4. Any software delivered to Customer (including any written materials therein) are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the software (including any written materials therein) are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the software (including any written materials therein) will be only those specified in this Agreement.
6.1. Fees. The Service Request will specify the fee to be paid by Customer for the Services.
6.2. Expenses. Customer agrees to reimburse NXP for its reasonable, out-of-pocket expenses incurred in connection with the Services described in the Service Request.
6.3. Payments. Customer will pay each invoice within 30 days of the date of invoice (the “Due Date”). For any overdue payments, Customer will pay NXP an interest charge calculated from the Due Date at the prime rate, as set forth in the Wall Street Journal, East Coast Edition on the first day such payment is overdue, plus one and one half (1½) percent, or the highest rate permitted by applicable law, whichever is lower.
7.1. “Confidential Information” is defined as any information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), if disclosed in writing or in some other tangible form, that is marked at the time of disclosure as being "Confidential" or "Proprietary" or with words of similar import, or if disclosed orally or by inspection, is identified at the time of disclosure as confidential and is summarized in a written memorandum transmitted to the Receiving Party within 30 days after such disclosure with enough specificity for identification purpose. The terms of this Agreement are NXP Confidential Information.
7.2. The Receiving Party agrees to retain the Confidential Information in confidence for a period of three (3) years from the date of receipt of the Confidential Information or until such time as the information no longer qualifies as Confidential Information as described below. During this period the Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party, will limit distribution of Confidential Information to its employees who have a need to know of the Confidential Information and will not use the Disclosing Party’s Confidential Information for any purpose other than for purposes of this Agreement. The Receiving Party further agrees to use the same degree of care, but no less than a reasonable degree of care, with the Disclosing Party’s Confidential Information as it would with its own confidential information.
7.3. Notwithstanding any other provisions of this Agreement, each Party acknowledges that Confidential Information will not include any information that: (a) is, or becomes, publicly known through no wrongful act on the Receiving Party’s part; (b) is already known to the Receiving Party, or becomes known to the Receiving Party without restriction on disclosure; (c) is independently developed by the Receiving Party; (d) is furnished by the Disclosing Party to a third party without an obligation of confidentiality; and (e) is required to be disclosed by a court or under operation of law provided that the Receiving Party notifies the Disclosing Party of such requirement prior to disclosure, that the Receiving Party discloses only that information required, and that the Receiving Party allows the Disclosing Party the opportunity to object to such court or other legal body requiring such disclosure.
8.1. NXP and Customer warrant to each other that: (i) it has full power and authority to enter into this Agreement; and (ii) it has sufficient right and authority to carry out its obligations hereunder.
8.2. NXP warrants that the Services will be performed in accordance with generally accepted industry standards. As Customer’s sole and exclusive remedy for any breach of the foregoing warranty, NXP will, at its option either refund the fee associated with the Services or will, at ts expense, use reasonable efforts to re-perform the Services so long as the nonconformance was reported to NXP by Customer within 10 days after the conclusion of the Services.
8.3. THIS WARRANTY EXTENDS TO CUSTOMER ONLY. EXCEPT AS PROVIDED IN SECTIONS 10.1 AND 10.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NXP PROVIDES THE SERVICES AND ANY FREESALE DELIVERABLES “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, LACK OF VIRUSES AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT.
9.1. EXCEPT FOR NXP’S OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NXP OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, OR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE RESULTS OF SERVICES OR NXP DELIVERABLES, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR BREACH OF CONTRACT OF NXP OR ANY SUPPLIER, AND EVEN IF NXP OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. EXCEPT FOR YOUR OBLIGATIONS UNDER SECTIONS 7(CONFIDENTIALITY), 8 (ANTI-PERSONNEL LANDMINES) AND 9 (DISCLAIMER FOR CRITICAL APPLICATIONS), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, OR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE) UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR BREACH OF CONTRACT BY YOU, AND EVEN YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of NXP and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing will be limited to the amount, if any, actually paid by you for the Services. The foregoing limitations, exclusions, and disclaimers (including the preceding sections) will apply to the maximum extent permitted by applicable law.
This Agreement is effective from the Effective Date until the Services are complete. Either Party may terminate this Agreement without cause upon giving 5 days notice. Customer will be responsible for payment of fees incurred through the effective date of any termination. Without prejudice to any other rights, NXP may terminate this Agreement upon notice to you if you do not abide by the terms and conditions of this Agreement and do not cure the breach within 5 days of notice of such breach. Upon termination or expiration of this Agreement, you must destroy (or return to NXP if NXP so designates) all copies of any Confidential Information. The provisions of Sections 3 (Intellectual Property Ownership), 4 (License Grants), 5 (Restrictions) 7(Confidentiality), 9 (Limitation of Liability), 10 (Term and Termination) and 14(General) will survive any termination of the Agreement.
Notices to NXP under this Agreement will be made in writing electronically or by facsimile or first-class U.S. Mail at the appropriate email address, facsimile number, or physical address designated below (or substitute provided by notice) and will be effective upon receipt.
For notices to NXP notice should be sent to the address below where Services were provided:
FAE Director FSL EMEA
NXP France Parc les Algorithmes – Saint Aubin 91193 Gif sur Yvette Cedex FranceFAE Director FSL Asia
NXP Semi. China Ltd. Fuchun Tong Fang Building 7006 Shennan Boulevard 10th Floor Futian District 518040 Shenzhen ChinaFAE Director FSL Americas
NXP Semiconductors Inc. 6501 William Cannon Drive West 78735 Austin TX USAFAE Director FSL Japan
NXP Semiconductors Japan Arco Tower 15F 1-8-1 Shimo Meguro, Meguro-Ku 153-0064 Tokyo JapanAll notices to NXP must also be copied to:
NXP Law Department
6501 William Cannon Drive West Austin, Texas 78735 Fax: 512-895-6895Notices to you under this Agreement will be made in writing electronically or by facsimile or first-class U.S. Mail at the email address, facsimile number, or physical address provided by you when you placed the Service Request or that is maintained on your website, and will be effective upon receipt.
12.1. Entire Agreement; Amendment
This Agreement, including the Service Request is the entire agreement between you and NXP relating to its subject and supersedes all prior or contemporaneous oral or written communications, proposals, and representations. This Agreement may be amended, altered or modified only in writing signed by the authorized representatives of both Parties.12.2. Severability
If at any time during the term of this Agreement any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the provision will be modified as necessary to conform to such laws or if such modification would materially interfere with the intent of the Parties, the provision will be severed and this Agreement will be interpreted without reference to the provision.12.3. Assignment/Transfer/Sublicense
You may not transfer or assign or sublicense any of your rights under this Agreement without obtaining prior written consent of NXP. Where you desire to transfer all of your rights under this Agreement to an entity that 100% controls you (“Parent”), that is 100% controlled by you or that is 100% controlled by your Parent, such consent will not be unreasonably withheld or delayed. Any other attempt to transfer or assign or sublicense will be null and void, and will cause immediate termination of this Agreement.12.4. Force Majeure
NXP shall not be liable for any delay or failure to perform due to force majeure or any other cause beyond its control.12.5. Governing Law
This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Texas. Any litigation will be subject to the exclusive jurisdiction of the state or federal courts in Texas, USA. Both Parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to transactions under this Agreement or to this Agreement.12.6. Compliance with Laws
In the actions necessary to complete this transaction, Customer will (a) use only legitimate and ethical business practices, (b) comply fully with all applicable laws, including but not limited to the U.S. Foreign Corrupt Practices Act and other anti-corruption laws, (c) never pay, offer, promise, or authorize the payment, directly or indirectly, of any bribe or corrupt payment (in the form of money or anything of value) to anyone for the purpose of inducing or rewarding any favorable action or obtaining any improper advantage.12.7. Export
NXP and Customer each agree they will not sell, resell, export, re-export, transfer, access, or otherwise provide, directly or indirectly, any commodities or technical data in any form unless permissible in accordance with the regulations of the United States, the country where an export originates and any other country that may lawfully control such exports. If an export license, permit or other government required authority (collectively referred to as “government authorization”) is required to transfer commodities, technology, or software in furtherance of this Agreement and is not approved, then the Parties will not proceed with the transfer of the affected commodities, technology, or software until such “government authorization” is granted. Customer will provide NXP with information and assistance as may be reasonably required in connection with executing import, export, sales, and trade programs, including but not limited to, manufacturer’s affidavits, harmonized tariff schedule, export control classification number, qualification information (e.g. origin), and U.S. Federal Communications Commission’s identifier when applicable.12.8. Relationship of the Parties
The Parties remain independent contractors. This Agreement does not create any partnership, joint venture, or agency relationship between them and does not give rise to any fiduciary obligation between them and does not create any obligation between them other than those defined herein. Neither Party has any right or authority to create any obligation on behalf of or to bind the other Party. The use of the word “partner” or “partnership” herein does not imply or create a legal partner or legal partnership.12.9. Waiver
Any waiver by either Party of any failure or breach of the other Party will be effective only if in writing, will extend only to the particular failure or breach so waived, and will not operate as a waiver of any other failure or breach whether in the past or future.12.10. Captions and Titles
Captions and titles are for the convenience of the Parties for reference only and are not to be used in the interpretation of this Agreement. Professional Service Agreement: February 2013