CONSULTING AGREEMENT TERMS AND CONDITIONS
These CONSULTING AGREEMENT TERMS AND CONDITIONS are incorporated by reference into that certain Consulting Agreement (these Terms and Conditions, together with the Consulting Agreement, the “Agreement”) entered into by and between Consultant and Company, as defined therein.
WHEREAS, Consultant is engaged as an independently operating consultant, wholly separate from Company;
WHEREAS, Consultant is customarily engaged in an independently established trade, occupation, or business, and holds out consulting services for engagement, to those who wish to engage Consultant for such services;
WHEREAS, Consultant has the skills required to perform such independent trade, occupation or business, and provide such consulting services without the need for any training from Company; and
WHEREAS, Company desires to retain Consultant to provide the consulting services specified in the Agreement (the “Services”) to Company, and Consultant is willing to provide the Services to Company.
NOW, THEREFORE, the Parties agree as follows:
1. Independent Contractor.
(a) The Services shall be provided by Consultant. Except as specified in Section 1(d), none of the Services to be provided by Consultant may be delegated, assigned, or subcontracted by Consultant to others without the prior written consent of Company.
(b) Consultant is an independent contractor and non-exclusive provider of the Services for Company. Consultant is not engaged as an employee of Company. Nothing herein shall in any way be construed to establish that Consultant is an agent, employee, partner, joint venturer, co-employer, or representative of Company. Without limiting the generality of the forgoing, Consultant is not authorized to bind Company to any liability or obligation or to represent that Consultant has any such authority. Consultant waives any rights arising under any guild or union agreement, California Unemployment Insurance Code Sections 621(b) or 686, or any similar provision arising under the laws of any other jurisdiction.
(c) Consultant is not and shall not be eligible for any Company employee benefits, such as group insurance, separation pay, participation in the pension plan, vacation or holiday pay, long-term or short-term disability insurance, or any other similar employee plan or benefit. Consultant is solely responsible for any income, self-employment or payroll taxes, interest, interest, assessments and penalties, if any, that are or will become due in connection with the performance of the Services. Company shall not make deductions or withhold funds from compensation paid hereunder, either for the purpose of Social Security or federal, state, or local income taxes. Company makes no representations or warranties regarding Consultant’s tax obligations and assumes no liabilities concerning such obligations.
(d) With prior written consent from Company, Consultant may engage Consultant’s employees (if any) to perform the Services. Consultant agrees that it shall be liable for, and shall withhold, all federal, state and local income, social security, unemployment, excise, payroll or other taxes or charges required by law to be withheld from compensation it pays to any of its employees in connection with the performance of the Services. Company is not the employer, co-employer or joint employer of any employee of Consultant, regardless of whether any such employees are performing any Services for which Consultant is responsible under a Statement of Work. If Consultant engages its employees to perform the Services, Consultant represents and warrants that Consultant has all required and customary workers’ compensation insurance. Consultant agrees to provide Company with proof of such insurance upon request. Consultant also agrees that any such insurance shall not be cancelled or materially altered without having provided Company 30 days’ advance notice of such cancellation or material alteration.
2. Compensation. Company shall pay Consultant for the Services as specified in the Consulting Agreement. If Consultant has not previously done so, within 14 days of executing the Consulting Agreement, Consultant shall provide Company with a completed IRS Form W-9 or Form W-8BEN-E, as applicable, and a completed Authorization for Electronic ACH / Wire Payment. Any expenses incurred by Consultant at Company’s request shall be reimbursable only if they are pre-approved in writing by Company. Consultant shall submit invoices at the end of each calendar month in which the Services are performed, with supporting documentation for authorized expenses. All invoices must be submitted to ap@xperi.com. Payments for all Services and authorized expenses shall be made within 60 days following Company’s receipt of the invoice, subject to Company’s approval of the invoice.
3. Confidentiality.
(a) Definitions.
“Information” means all technical, financial, business information, regardless of form and regardless of how disclosed, exchanged between Consultant and Company in connection with the Services.
“Confidential Information” means any non-public Information, know-how, or trade secrets, in any form, disclosed by Company to Consultant, designated “confidential,” or information that a reasonable person knows or should understand to be confidential or proprietary from the nature of the Information or the circumstances of the disclosure. Confidential Information does not include information that Consultant can conclusively establish (i) was or became publicly known or available without Consultant’s breach of any obligation owed to Company; (ii) is rightfully received by Consultant from a third party without any confidentiality restrictions; (iii) is known to Consultant without any restriction on its use or disclosure prior to its first receipt by Consultant from Company; or (iv) was independently developed by Consultant without using Confidential Information.
“Personal Information” means any information relating to an identified or identifiable Company employee, contractor, or customer. All Personal Information shall also be considered Confidential Information.
(b) Permitted Use and Protection of Confidential Information. Consultant will use Confidential Information only to perform the Services and will not use Confidential Information for any other purpose. Consultant will protect Confidential Information using the same degree of care that Consultant uses to protect its, his, or her own confidential information of a similar nature, but not less than a reasonable degree of care. If a Source Code Handling Annex is incorporated into the Consulting Agreement, Consultant shall comply with its terms.
(c) Non-Disclosure of Confidential Information. Consultant shall not disclose Confidential Information to any third party, except as provided herein. Consultant may disclose Confidential Information to its employees, independent contractors, and legal or financial advisors (“Representatives”) provided such Representatives (i) have a need to know such Confidential Information to accomplish the Services, (ii) are informed of the confidential nature of the information, and (iii) are bound in writing by obligations of confidentiality with respect to such information that are no less protective than the terms set forth herein. Consultant will be responsible for any breach of these obligations by any of its Representatives. Consultant may disclose Confidential Information, only to the minimum extent possible, if required by any court or government authority, court order, or subpoena (“Requested Information”). Consultant must, when permissible under applicable law, promptly notify Company in writing of such request. Consultant will continue to treat the Requested Information as Confidential Information following any permitted disclosure.
4. Data Protection. Consultant shall comply with all applicable laws and regulations concerning privacy, data protection, confidentiality or/and information security, as well as applicable Company privacy policies, privacy statements or notices that are provided to Consultant in writing. In the course of providing Services, Company may provide to Consultant and/or Consultant may obtain access to or otherwise process, personal data or protected health information (”Personal Data”). The parties agree to abide by applicable privacy laws (“Data Protection Laws”) as defined in the Data Processing Agreement (“DPA”) available at https://xperi.com/dpa, which may be updated from time to time, with respect to Personal Data provided or made available to, or otherwise processed by, Consultant. The DPA is incorporated herein by reference and forms a part of this Agreement and applies to all agreements, including SOWs, Work Orders, and Order Forms between the Parties. The privacy contacts for the Company are as follows: Data Protection Officer (dataprotectionofficer@xperi.com or privacyrequest@xperi.com); Xperi Inc., Attn: Data Protection Officer, 2190 Gold Street, San Jose, CA 95002; or if in the EU/EEA, DTS International Services GmbH, Maximiliansplatz 22 80333 München, Germany. The privacy contacts for the Consultant, as well as the nature and purposes of the processing, categories of data subjects and personal data, frequency and duration of the processing, applicable subcontractors (if any), and countries other than the United States to which Personal Data may be transferred, are listed in the Consulting Agreement. If such applicable details have not been provided at the time the Consulting Agreement is executed, then before providing any Personal Data, a party must notify the other, in writing, of the applicable details. Consultant further agrees that it shall comply with all opt-out or other similar privacy rights requests received from subjects of Personal Data or that are forwarded to Consultant by Company or that are otherwise received by Consultant in connection with its performance of the Services, and that Consultant will not retain, use, disclose, sell, further collect or otherwise process any Personal Data for its own commercial purposes or for any purpose and will take appropriate technical and organizational measures against any unauthorized or unlawful processing. Consultant shall not acquire any rights, title or interests in and to the Personal Data. Consultant shall make available to Company all information necessary to demonstrate compliance with obligations provided in this Section and allow for and contribute to data protection compliance auditing, including inspections, conducted by Company or another auditor mandated by Company upon Company’s request. Consultant shall delete all records of Personal Data no later than thirty (30) days after the earlier of the Effective Date of the Agreement or the completion of Services for which any Personal Data was collected.
5. Defend Trade Secrets Act Immunity Notice. Pursuant to the Defend Trade Secrets Act of 2016, if Consultant is an individual, non-compliance with the disclosure provisions herein shall not subject Consultant to criminal or civil liability under any federal or state trade secret law for the disclosure of a Company trade secret: (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney in confidence solely for the purpose of reporting or investigating a suspected violation of law; (ii) in a complaint or other document filed in a lawsuit or other proceeding, provided that any complaint or document containing the trade secret is filed under seal; or (iii) to an attorney representing Consultant in a lawsuit for retaliation by the Company for reporting a suspected violation of law or to use the trade secret information in that court proceeding, provided that any document containing the trade secret is filed under seal and Consultant does not disclose the trade secret, except pursuant to court order.
6. No License; No Warranty. Company retains all rights to its Confidential Information. Consultant is not granted any express or implied license to any Company patent, copyright, trademark, trade secret, or other proprietary right. All Company Information is provided “AS-IS” without any warranty, express or implied, including those with respect to the infringement of intellectual property, privacy, or third party rights. Company is not liable for the accuracy or completeness of the Information.
7. No Use of Consultant or Third-Party Confidential Information. Consultant agrees that all Intellectual Property (as defined in Section 9 below) and any information disclosed to Company or used by Consultant in connection with performing the Services shall not include any confidential or proprietary information or intellectual property of Consultant or of others, nor shall any such disclosure or use be construed to create or imply an obligation of confidentiality or non-use on Company’s part.
8. No Conflict; Compliance with Laws.
(a) Consultant represents and warrants that it, he, or she (i) has no conflict of interest with respect to the Services to be performed; (ii) has not previously entered into any contract or agreement, or executed any documents with any other person, firm, association, corporation, or other entity that will in any manner prevent it from performing any Services or obligations hereunder; and (iii) will not enter into any such contract or agreement, or execute any such documents, which would create a conflict of interest or which would prevent the performance of the Services or any obligations hereunder.
(b) Consultant shall abide by all applicable laws and regulations, including federal and state criminal and civil laws, as well as regulations, orders, decisions, permits, and guidelines of any relevant agencies, including but not limited to the U.S. Securities and Exchange Commission’s rules and regulations on insider trading, the U.S. Equal Employment Opportunity Commission’s regulations on sexual harassment, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) regulations, the Fair Labor Standards Act, the Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.), and the Export Controls Act. Consultant is hereby notified that Company has a zero-tolerance policy with respect to harassment of any kind in or about its premises. Copies of Company’s harassment policy will be provided upon request.
9. Intellectual Property.
(a) Work for Hire. All material, notes, records, drawings, designs, inventions, reports, data compilations, formulations, processes, prototypes, models, technical and business data, deliverables, improvements, developments, discoveries, and trade secrets, as well as all derivatives and modifications thereof and thereto conceived, made, or discovered by Consultant, solely or in collaboration with others, which relate in any manner to the business of Company or the Services provided hereunder, as well as all patent, copyright, trademark, trade secret, and other intellectual property rights therein and thereto (collectively, “Work Product”), are “works made for hire” and are the sole and exclusive property of Company. Company shall have the right to use the Work Product for any purpose without any additional compensation to Consultant. The Work Product will be included in the definition of “Information.” Consultant agrees to safeguard the Work Product at all times and shall return all Information to Company after completion of Consultant’s services, or upon Company’s request, and shall retain no copies thereof without the express written permission of Company. To the extent that the “works made for hire” doctrine does not vest in Company all ownership in the Work Product, then Consultant agrees to assign (or cause to be assigned) and does hereby assign fully to Company all ownership of the Work Product. Consultant and Company acknowledge that such assignment shall not apply to any invention which (i) is unrelated to Company’s business or research and development activities; (ii) is conceived or reduced to practice by Consultant entirely on Consultant’s own time and without the use of Company’s equipment, supplies, facilities, trade secrets, or Confidential Information; or (iii) is expressly disclosed in a Prior Inventions schedule attached to the Consulting Agreement.
(b) Assignment. Consultant shall make prompt written disclosure to Company of all inventions, improvements and discoveries (whether patentable or not), copyrightable works (including computer software), trade secrets or other intellectual property that are made, conceived, reduced to practice, or developed by Consultant, whether solely or jointly with others, during the term of the Agreement. Consultant shall assign and hereby assigns (and shall cause such employees or other individuals as may enjoy ownership rights under applicable law to assign) to Company all of Consultant’s right, title, and interest (including, without limitation, all community property rights and moral and artist rights) in and to all inventions, improvements and discoveries (whether patentable or not), copyrightable works (including computer software), trade secrets and other intellectual property (including all corresponding patent rights and copyrights) created or developed by Consultant during the course of performing the Services (collectively, “Intellectual Property”). At the request and expense of Company, Consultant shall assist Company in every proper way to protect such Intellectual Property by performing every reasonable task requested by Company including, without limitation, signing patent or other applications and making oaths, declarations and/or assignments in favor of Company relating to such Intellectual Property, both in the United States and in any and all foreign countries. To carry out the provisions of this Section, Consultant hereby irrevocably appoints Company as its attorney-in-fact with full authority to execute, verify, acknowledge, and/or deliver any such instruments that Consultant may fail to execute, verify, acknowledge, and/or deliver after being furnished a reasonable opportunity to do so. To the maximum extent permitted under applicable law, Consultant also waives any and all so-called “moral rights” and any similar rights of authors with respect to Intellectual Property.
(c) License. If the above assignment is not permitted under applicable law, or not enforced for any other reason, Consultant shall grant and hereby grants (and shall cause such employees or other individuals as may enjoy ownership rights under applicable law to grant) Company an irrevocable, perpetual, nonexclusive, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, fully paid-up license in and to the Intellectual Property to engage in any and all actions (including but not limited to making, having made, using, selling, copying, distributing, displaying, performing, creating derivative works, etc.) in which the owner of such Intellectual Property could lawfully engage by virtue of such ownership by any means and technologies now known or later developed (as if Company were the owner of such Intellectual Property).
(d) Covenant Not to Sue. Where the above license is not permitted under applicable law, or not enforced for any other reason, Consultant hereby agrees (and shall cause any employees or other individuals as may enjoy ownership rights under applicable law to agree) not to sue or take any other action to prohibit or impede (1) Company or its affiliates; or (2) the customers, distributors and licensees of Company or its affiliates; or (3) other third parties from engaging in any and all actions in which the owner of the Intellectual Property could lawfully engage.
10. Termination. The Agreement may be terminated by Company for any reason upon 14 days’ written notice. Consultant may terminate the Agreement if Company materially breaches the Agreement if Consultant provides 30 days’ written notice to Company of such breach and provides Company with at least 30 days to cure such breach. In the event of termination or expiration of the Agreement, Company will be obligated to pay Consultant only for that portion of such Services as were actually and satisfactorily performed by Consultant prior to the termination or expiration of the Agreement. The provisions contained in Sections 1 and 3 through 11 hereof shall survive the termination or expiration of the Agreement or any amendment or extension thereof.
11. Miscellaneous
(a) Integration. The Agreement and all schedules, exhibits, and annexes thereto, constitute the entire agreement between the Parties respecting the subject matter thereof, and supersedes any and all previous written or oral agreements between the Parties respecting such subject matter and may only be extended or amended upon mutual written agreement of the Parties. In the event of any inconsistencies, differences, or ambiguities between the provisions herein and the terms and conditions of any purchase order, order acceptance, confirmation, invoice or similar document issued by either Party, these provisions shall govern. The Agreement may be executed electronically or in counterparts exchanged via scanned copies, which shall have the same force and effect as an original.
(b) Governing Law; Jurisdiction. Applicable Law, Consent and Jurisdiction: This Order shall be interpreted, construed and enforced under the Governing Law, irrespective of choice of law provisions, and is subject to the exclusive jurisdiction and venue of the Governing Courts, where “Governing Law” and “Governing Courts” mean respectively: (1) the law of England and Wales and the courts in London, United Kingdom, if Seller’s address is located in the European Economic Area or the United Kingdom; (2) the laws of the State of California, United States and the courts in Santa Clara County, State of California, United States, if Seller’s address is located in North or South America; (3) the laws and courts of Hong Kong, if Seller’s address is located in the People’s Republic of China; or (4) the laws and courts of Singapore, otherwise. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties, and it shall not apply to the terms and conditions of this Order.
(c) Severability. Should any provision herein be determined null, void or unenforceable, such provision will be curtailed only to the extent necessary to bring it into compliance with applicable law such that the remainder shall remain in full force and effect.
(d) Indemnity. Consultant shall defend, indemnify and hold harmless Company and its officers, directors, employees, agents, parent, subsidiaries and other affiliates (“Company Representatives”) from and against any and all liabilities, losses, damages, judgments, costs, expenses, interest, payments and penalties (including reasonable attorney’s fees) arising out of, or relating to, Consultant’s performance of the Services or other duties set forth herein. Consultant agrees to indemnify and hold harmless Company and Company Representatives from any and all losses, penalties, damages, or other liabilities resulting from, or arising out of, in whole or in part, from any claim or allegation that any employee of Consultant is employed, co-employed or jointly employed by Company or any of its affiliates. Consultant hereby fully and completely releases Company and Company Representatives from any or all liability related either to Consultant’s or its employees’ presence on any property owned, leased, or otherwise possessed by Company, except for liability resulting from any intentional or deliberate acts of Company or that is caused by the gross negligence of Company.
