In these Terms and Conditions of Commercial Sale (“Terms”), “Seller” means NXP and “Buyer” means the person or legal entity (i) purchasing Products (as defined in Section 1 below) or Services (as defined in Section 3 below) from Seller or (ii) obtaining Software (as defined in Section 1 below) from Seller. Deviations from these Terms applicable to sales by specific Seller invoicing entities are listed in Appendix A.
These Terms apply to and form an integral part of:
These Terms constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products or Services or the licensing of Software. Any terms and conditions set forth on any document issued by Buyer (including Pull Documents as defined in this Section below) either before or after issuance of any document by Seller setting forth or referring to these Terms are hereby explicitly rejected and disregarded by Seller, and any such document is wholly inapplicable to any sale or licensing made by Seller and is not binding in any way on Seller, unless explicitly agreed otherwise in writing between Seller and Buyer. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions, and Seller does not intend to enter into an agreement other than under these Terms. These Terms apply to the exclusion of any other terms that Buyer may seek to assert, or which are implied by law, statute, trade, or course of dealing. Seller’s failure to object to the terms contained in any communication from Buyer shall not be deemed a waiver of these Terms. Any Offer is expressly made conditional on Buyer's assent to all terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer's written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer's acceptance of delivery of Products, Software, or Services or payment of purchase price for the first installment of Products, Software, or Services (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
If any Offer or Confirmation is sent in response to Buyer's blanket purchase order, then the terms and conditions of that Offer or Confirmation, including these Terms, shall apply to any “pull” by Buyer or delivery by Seller, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Seller provides a Confirmation to such Pull Documents. All terms and conditions of such Pull Documents are hereby rejected.
Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to Seller’s receipt of Buyer's acceptance related thereto.
If Seller receives an order from Buyer and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance or other writing from Buyer which deviates from Seller's Offer or Confirmation, such order or acceptance or writing, respectively, shall be deemed to be a request for an Offer only.
An acceptance by Buyer of any Offer made by any third-party order gatherer, liaison, agent or sales representative for Seller shall constitute an Agreement between Seller and Buyer only upon explicit Confirmation by Seller.
In these Terms, the term “Affiliate(s)” means: any entity that Controls, is Controlled by or is under common Control with a party; where “Control” means the direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting stock, or decision-making authority in the event that there is no voting stock, in another entity. An entity may be considered an Affiliate only when such Control exists.
Prices in any Offer, Confirmation or Agreement are in United States Dollars and do not include any freight, insurance and delivery charges or any taxes, duties, tariffs, or similar levies, now or hereafter enacted, applicable to the Products, Software, or Services. Seller will add taxes, duties, tariffs, and similar levies to the sales price where Seller is required by law to pay or collect them and freight, insurance and delivery charges and these will be paid by Buyer together with the price.
The price in the Agreement will be that specified in the most recent Seller Offer (if any) for the supply of Products, Software or Services that remains valid, or, if there is no valid Seller Offer, the price published in Seller’s price list (available upon request). The price list is subject to change without notice to Buyer.
All Product prices are based on Free Carrier (FCA) (the airport in the country of dispatch or other facility designated by Seller) Incoterms 2020.
At any time prior to the delivery of Products or Services, Seller reserves the right to increase the price to reflect Seller's then current costs.
Services will be provided on a time and materials basis at Seller’s then current hourly rates or at rates mutually agreed to in writing. Seller will use commercially reasonable efforts to provide any agreed deliverables in accordance with the delivery schedule as agreed by Seller. Seller will invoice Buyer on or after the date of performance of the relevant Services. Seller owns and will continue to own all worldwide right, title and interest in any materials, documentation, and software that are used in performing the Services, as well as any deliverables created during the performance of or resulting from the Services. Title to all intellectual property rights created by or on behalf of Seller in performing Services shall vest in Seller, including without limitation intellectual property rights created by Seller in the design, development and manufacture of Custom Products (as defined in Section 7 below) or software and no transfer of title to, or license in favor of, Buyer of any intellectual property rights used by or on behalf of Seller in the provision of Services shall occur.
Unless otherwise provided in a separate license agreement between Seller and Buyer, the terms of this Section 4 shall apply to Software. Software is licensed and not sold by Seller. Seller, on behalf of itself and its Affiliates, grants Buyer a nontransferable, non-exclusive license to use internally and distribute Software in machine-readable form, only in combination with or as part of the Product for which the Software has been provided and only one copy for each unit of Product. No rights or licenses with respect to any Software source code are granted to Buyer. Buyer will maintain in original and reproduce on copies, all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the Software, and related documentation.
Seller, on behalf of itself and its Affiliates, grants Buyer a non-exclusive license to use, copy, and distribute non-confidential documentation with the Product for which the documentation has been provided and only one copy for each unit of Product.
To the extent that firmware is embedded in a Product, the sale of the Product shall not constitute the transfer of ownership rights or title in the firmware, and all references to “sale” or “sold” of any firmware shall be deemed to mean a license from Seller and its Affiliates to use the firmware with the Product.
With respect to all or portions of Products, Software, documentation, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by applicable law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; (iv) merge, link or incorporate Software into any other software; or (v) attempt to determine whether any of its patents or patent applications read on Products, Software, or documentation, or create or modify its patents or patent applications based on Products, Software, or documentation. If Buyer creates any modifications or derivative works of all or a portion of Products, Software, documentation, Buyer shall grant an irrevocable, worldwide, and perpetual license to Seller and its Affiliates to make, have made, use, sell, import, commercialize, sublicense and reproduce such modifications or derivative works without any payment to Buyer. Buyer's rights under these Terms are conditional upon Buyer not performing any actions that may require any Software, Products or any derivative works of the Software or Products, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
If Buyer is in default of any of the terms in this Agreement, Buyer’s license to Software and documentation will automatically terminate. Buyer shall indemnify Seller and its Affiliates against and hold Seller and its Affiliates harmless from any damage or costs arising from or in connection with any breach of the provisions of this Section and Buyer shall reimburse all costs and expenses incurred by Seller and its Affiliates in defending any claim, demand, suit or proceeding arising from or in connection with such breach.
Except for the rights expressly granted in this Agreement: (i) Seller and its suppliers reserve all rights, title and interest, together with all intellectual property rights thereto, in all Products, Software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark, mask work, or any other intellectual property right is granted hereunder.
Third party software (including any open source software) included in the Software is provided under different license terms if specified to the Buyer accordingly in the documentation, Software, or otherwise.
Neither the sale of any of the Products, the licensing of any Software, nor these Terms, shall be construed as conferring any right, license or immunity:
All fees and amounts payable by Buyer to Seller are exclusive of any value added tax, goods and service tax, sales tax, use tax, consumption tax or any other similar tax only (collectively referred to as “VAT”). If the transactions as described in this Agreement are subject to any applicable VAT, Seller shall provide Buyer with an invoice which specifically states this VAT. Provided Seller has stated VAT (as identified above) on an invoice Buyer will pay to Seller the VAT properly chargeable in respect of that payment. Seller will not invoice or otherwise attempt to collect from Buyer any taxes with respect to which Buyer has provided Seller with (i) a valid resale or exemption certificate, (ii) evidence of direct payment authority, or (iii) other evidence, reasonably acceptable to Seller, that such taxes do not apply.
If Buyer is required by law to withhold and remit tax relating to a purchase under this Agreement, Buyer will transmit to Seller official tax receipts or other evidence issued by the tax or other government authorities sufficient to enable Seller to support a claim for tax credit or refund in respect to such withheld taxes paid by Buyer.
Seller shall have exclusive rights to goods designed and manufactured for the unique needs of Buyer, to Buyer's specifications or requirements, such as an ASIC or ASSP (“Custom Product”). Seller shall retain title to and possession of designs, masks, database tapes and source code. Individual segments or parts of Custom Product designs, including but not limited to standard cells, megacells, base arrays or software libraries, are the property of Seller and may be used by Seller in other designs and may not be used by Buyer except as a part of Custom Product designed and manufactured by Seller. Prices and/or schedules for Custom Products are subject to change by Seller if any specifications are revised or supplemented or there are unforeseen difficulties with the design.
No order, Agreement, in whole or in part, may be rescheduled or cancelled without Seller’s prior written consent.
Seller shall not be liable for any failure or delay in performance if:
In case a failure is not attributable to Seller, the performance of the relevant part(s) of the Agreement will be suspended while the failure continues, without Seller being responsible or liable to Buyer for any damage resulting from the failure.
The expression “Force Majeure” means and includes any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. If the Force Majeure extends for a period of three (3) consecutive months (or if the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller may cancel all or any part of the Agreement without any liability of Seller towards Buyer.
In some cases, Seller or its Affiliates may promote certain Products and Software for use in the development of, or for incorporation into, products or services (a) used in applications requiring fail-safe performance or (b) in which failure could lead to death, personal injury, or severe physical or environmental damage (these products and services are referred to as “Critical Applications”). Seller’s goal is to educate customers so that they can design their own end-product solutions to meet applicable functional safety standards and requirements. Buyer makes the ultimate design decisions regarding its products and is solely responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any information or support that may be provided by Seller or its Affiliates. As such, Buyer assumes all risk related to use of any Products and Software in Critical Applications and SELLER AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SUCH USE IN CRITICAL APPLICATIONS BY BUYER. Accordingly, Buyer will indemnify and hold Seller and its Affiliates harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys’ fees) that Seller and its Affiliates may incur related to Buyer’s incorporation of any Product or Software in a Critical Application.
Only those Products and Software that Seller or its Affiliates has specifically designated as “Automotive Qualified” are designed and intended for use in automotive applications or environments. If Buyer uses any Product or Software that has not been designated as “Automotive Qualified” in an automotive application or environment, Buyer does so at its own risk.
Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product or Software, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by Seller or its Affiliates is the confidential information of Seller or its Affiliates. Buyer shall not disclose any confidential information to any third party and shall not use any of the confidential information for any purpose other than in conformance with the purchase transactions under these Terms.
Each party represents that it is duly authorized to enter into these Terms and shall comply with all applicable laws and regulations, including, but not limited to all such export and import controls or restrictions, prohibited party lists, catch-all regulations, sanctions and embargoes.
If the delivery of Products, Software, or technology (collectively, “Items”) under these Terms is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Buyer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any Agreement related to such Items, without incurring any liability towards Buyer.
If an end-user statement is required, Seller will inform Buyer immediately and Buyer shall provide Seller with required documentation upon Seller’s written request. Buyer shall inform Seller immediately if an import license is required, and Buyer shall provide Seller with the applicable document as soon as it is available. By accepting Seller’s Offer, entering into any Agreement and/or accepting any Items, Buyer agrees that it will not deal with the Items, and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
Buyer shall not assign any rights or obligations under these Terms or any Agreement without the prior written consent of Seller. Seller may assign, in whole or in part, any rights or obligations under these Terms and any Agreement (i) to its Affiliates, or (ii) in connection with a corporate reorganization or restructuring, business combination, or sale of all or a substantial portion of the assets of a division, business unit or entity, in one or a series of related transactions. Any attempted assignment in violation of this Section will be void.
Please see Appendix A.
Without prejudice to any rights or remedies Seller may have under these Terms or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement in whole or in part, without any liability, if:
Upon occurrence of any of the events referred to under Sections 18(a) through 18(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
Upon cancellation, termination or expiration of any Agreement the terms and conditions destined to survive cancellation, termination or expiration (which shall include without limitation all defined terms and Sections 5, 9 through 18, and 21 through 25 of these Terms) shall survive.
Seller reserves the right to make at any time Product and/or production changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
Seller reserves the right to discontinue manufacturing and sale of Products at any time. If during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, these regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller will use its reasonable commercial efforts to give Buyer prior written notice of the discontinuation, and to accept last-time-buy orders for the Discontinued Product in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.
Unless otherwise permitted by NXP in writing, Buyer will not resell Products, through brokers, exporters, or otherwise, except as integrated into a product sold by Buyer that contains substantial value-added circuitry, software or services unless the Product is sold to an Authorized NXP Distributor or Authorized Reseller listed at NXP.com. If Buyer breaches the terms of this Section, in addition to Seller’s cancellation rights, Buyer agrees to fully indemnify Seller, its officers, employees, Affiliates, agents, and distributors, from any liability related to the resale, including, without limitation, attorneys’ fees and costs.
If any provision(s) of the Agreement or these Terms is held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, the holding or action shall not negate the validity or enforceability of any other provisions of the Agreement or Terms.
The failure or delay by Seller to exercise any right or remedy arising from any Offer, Confirmation or Agreement, or these Terms, shall not operate as a waiver of the right or remedy; and no single or partial exercise of any right or remedy will preclude any other or future exercise of the right or remedy or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement, or these Terms or by law.
Specifically, and not derogating from the generality of the foregoing, if Buyer is in default of any Agreement or these Terms, Seller may stop further deliveries without affecting its rights under the Agreement, these Terms, or any other agreement. If Seller elects to continue to deliver despite a Buyer default, Seller’s continued delivery will not constitute a waiver of any default by Buyer or affect Seller’s legal remedies for the default.
All notices to be given under these Terms shall be in writing and shall be deemed delivered upon hand delivery, confirmed delivery by a delivery services such as UPS, FedEx, or DHL, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.
If a dispute arises relating to any Offer, Confirmation or Agreement, or these Terms, the prevailing party in any resulting litigation shall be reimbursed by the other party for all reasonable attorneys' fees and expenses incurred.
The parties intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
Seller reserves the right to modify these Terms at any time. Modifications shall have effect: (a) on all Offers, Confirmations and Agreements referring to the modified Terms from the date of the Offer, Confirmation or Agreement, and (b) on any existing Agreement thirty (30) days from notification of the modifications by Seller to Buyer, unless Buyer has notified Seller within the thirty (30) day period that it objects thereto.
NXP Terms and Conditions of Commercial Sale
Version: July 28, 2022
Depending on which NXP entity is the contracting party, note the applicability of the following terms:
Section 17 (Governing Law and Forum) is replaced with the following: These Terms, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of Japan without regard to provisions concerning conflicts of law and subject to the dispute resolution terms set forth in this Section 17 regardless of any conflicting terms in any other agreements between Buyer and Seller. All disputes arising out of or in connection with these Terms and Conditions, or any Offer, Confirmation or Agreement, shall first be attempted by Buyer and Seller 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 and finally be resolved by arbitration (hereinafter referred to as “Arbitration”) under the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”), which ICC Rules are deemed to be incorporated by reference into this clause. The seat, or legal place, of arbitration shall be Japan. One arbitrator shall be appointed in accordance with the ICC Rules and the language to be used in the Arbitration proceedings shall be English. The arbitration award shall be final and binding on the parties and be enforceable in any court of competent jurisdiction. Accordingly, the parties hereby confirm that they shall treat the performance of this award as an obligation under this Agreement and expressly agree to carry out such arbitral award without delay. The arbitrator shall determine which party shall bear the fees of such arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, or any Offer, Confirmation or Agreement. Nothing in this Section shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
Section 12(f) is replaced with the following: The limitations and exclusions set forth above in this Section shall only apply to the extent permitted by applicable mandatory law and shall not apply in case of willful misconduct.
Section 17 (Governing Law and Forum) is replaced with the following: These Terms, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of The Netherlands. All disputes arising out of or in connection with these Terms, or any Offer, Confirmation or Agreement, shall first be attempted by Buyer and Seller 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 Amsterdam, The Netherlands, provided that Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, or any Offer, Confirmation or Agreement. Nothing in this Section shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
Section 4, fourth paragraph is replaced with the following: With respect to all or portions of Products, Software, documentation, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by applicable law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; (iv) merge, link or incorporate Software into any other software; or (v) attempt to determine whether any of its patents or patent applications read on Products, Software, or documentation, or create or modify its patents or patent applications based on Products, Software, or documentation. If Buyer creates any modifications or derivative works of all or a portion of Products, Software, documentation, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller and its Affiliates. Buyer's rights under these Terms are conditional upon Buyer not performing any actions that may require any Software, Products or any derivative works of the Software or Products, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
Section 5 (Payment) is replaced with the following:
Section 17 (Governing Law and Forum) is replaced with the following: These Terms, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of the P.R.C. This Agreement shall be governed by and construed in accordance with the laws of the P.R.C. without regard to any principle of conflicts of law. Any dispute arising hereunder shall be exclusively settled by the competent court located in Shanghai, China. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, or any Offer, Confirmation or Agreement. Nothing in this Section shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
Section 4, fourth paragraph is replaced with the following: With respect to all or portions of Products, Software, documentation, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by applicable law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; (iv) merge, link or incorporate Software into any other software; or (v) attempt to determine whether any of its patents or patent applications read on Products, Software, or documentation, or create or modify its patents or patent applications based on Products, Software, or documentation. If Buyer creates any modifications or derivative works of all or a portion of Products, Software, documentation, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer's rights under these Terms are conditional upon Buyer not performing any actions that may require any Software, Products or any derivative works of the Software or Products, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
Section 17 (Governing Law and Forum) is replaced with the following: These Terms, and all Offers, Confirmations and Agreements, are governed by and construed in accordance with the laws of the State of Texas exclusive of its conflict-of-law rules. The parties agree that the exclusive jurisdiction and venue of any action between the parties arising out of these Terms, or any Offer, Confirmation or Agreement, shall be the State and Federal Courts located within Travis County, Texas, USA, and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of the action, it being understood that Seller shall always be permitted to bring any such action against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, or any Offer, Confirmation or Agreement. Nothing in this Section shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.