Purchase Order Terms & Conditions
Article 1. Acceptance and Modifications: Xperi Inc. and its subsidiaries and affiliates (“Buyer”) and the party named on the face hereof (“Seller”) agree that the terms and conditions on the face of this Purchase Order (“Order”) and those contained herein, in that order, become the exclusive binding agreement between the parties covering the purchase of the goods and services ordered herein upon acknowledgment or commencement of performance. No changes, modifications or revisions to this Order shall be effective unless in writing and signed by Buyer’s duly authorized representative. Seller will not perform any services or produce any goods or materials without receipt of an Order from Buyer. The terms and conditions of this Order supersede any prior communications and agreements between the parties concerning the subject matter hereof and any course of dealing or usage of trade.
Article 2. Conflicting Terms and Conditions: THIS ORDER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS STATED IN THIS ORDER. ANY ADDITIONAL TERMS PROPOSED BY SELLER’S ACKNOWLEDGMENT, QUOTATION, ORDER FORM, OR ANY OTHER WRITING WHICH CONFLICTS WITH, OR ADDS TO THE TERMS AND CONDITIONS SET FORTH IN THIS ORDER ARE HEREBY REJECTED BY BUYER IN THEIR ENTIRETY AND SHALL NOT MODIFY OR AFFECT THE TERMS CONTAINED HEREIN REGARDLESS OF WHEN SUCH TERMS WERE PROVIDED OR SUBMITTED BY SELLER.
Article 3. Order of Precedence: In the event of any conflicts, discrepancies, inconsistencies or ambiguities among the provisions of this Order, the inconsistency shall be resolved by giving precedence in the following order: (i) this Order; (ii) these terms and conditions; and (iii) Buyer’s master services agreement signed by the parties.
Article 4. Term: The term of this Order shall begin and end on the dates specified on the face of this Order.
Article 5. Price and Payment: The price for goods and services is set forth on the face of this Order. Seller represents and warrants that all prices are final and that no additional charges, fees, or markups of any kind shall be added to this Order without Buyer’s prior written consent. Unless otherwise stated in this Order, payments for undisputed invoices shall be paid within thirty (30) days. If any portion of the goods or services provided by Seller do not conform to the requirements of this Order, a corresponding portion of the price may be withheld by Buyer until the nonconformity is corrected.
Article 6. Invoicing: All invoices shall include, without limitation, the purchase order number, a description of the items, quantities, unit prices for all goods and services invoiced, term of performance, reference to the correct purchasing Xperi affiliate, and otherwise contain clear information to permit Buyer to identify the specific goods and services to be paid for under such invoice. Buyer reserves the right to return all incorrect invoices.
Article 7. Taxes and Charges: Prices shall not include sales, excise, use, value added or any other applicable taxes. Any and all such applicable taxes and charges, however designated, shall be stated as a separate line item on Seller’s invoice. Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of payment under this Order. Seller further agrees to provide Buyer with reasonable assistance in the event of a government audit. Buyer shall have no responsibility to pay or withhold any taxes or fees from any payment to Seller under this Order. Buyer will regularly report amounts paid to Seller by filing Form 1099-MISC with the United States Internal Revenue Service.
Article 8. Equipment Inspection: Buyer reserves the right, prior to and during equipment checkout at Seller’s facility, to inspect the equipment ordered by Buyer, to evaluate whether the equipment is capable of meeting the applicable specifications set forth herein prior to shipment. Inspection prior to shipment does not constitute acceptance of goods or services.
Article 9. Packing, Shipment and Title: Unless otherwise specified no charge will be allowed for boxing, crating, drayage, storage or other packing requirements or any allowance for damage in connection with the foregoing. All goods shall be packed, packaged, marked, and otherwise prepared for shipment in a manner that is (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with Government regulations, and (c) adequate to ensure safe arrival of the goods at the named destination and for storage and protection against weather. Seller shall comply with all industry safety and labeling requirements and mark all containers and shipping documents with necessary lifting, handling, and shipping information. Buyer’s purchase order number must appear on all shipping documents and containers and each delivered container with goods must be labeled and marked on the outside to identify contents and must contain packing sheets listing its contents, including the name of the consignee and consignor. Seller shall be responsible for additional costs incurred by Buyer resulting in Seller’s failure to comply with this Article 9. Unless otherwise specified on the face the Order, all shipments shall be DDP (Incoterms 2020 version). Notwithstanding any other inspections, title and risk of loss to goods shall remain with Seller and shall not pass to Buyer until delivery of the goods to the location designated on the face of this Order is received and accepted by Buyer. If Buyer rightfully rejects goods, revokes acceptance, or receives non-conforming goods, title and risk of loss shall remain with Seller. The responsibility for freight for damaged goods will be assumed by Seller.
Article 10. Delivery/Shipment: Time is of the essence for delivery of goods and performance of services ordered hereunder. Delivery shall be strictly in accordance with the schedule, and via the carrier and to the place set forth in this Order. Any delays in shipment or delivery shall be reported immediately by Seller. No partial deliveries or deliveries of additional items shall be made without Buyer’s prior written consent. If Seller fails to deliver the goods or services within the time specified, Buyer may (A) with respect to the delivery of goods (i) decline to accept the goods and services and terminate the Order, (ii) demand its allocable fair share of Seller’s available goods, or (iii) terminate the balance of the Order; or (B) with respect to the performance of services (i) request the reperformance of such services, at no additional cost to Buyer, or (ii) immediately terminate any further performance of such services by Seller and Buyer shall only be liable to Seller for a prorated amount, less appropriate offsets (including any additional costs to be incurred by Buyer in completing the services), attributable to those services satisfactorily performed by Seller, in Buyer’s sole discretion. Failure of Seller to ship on or before the date specified on this Order shall be considered by Buyer as grounds for default by Seller. Seller may make partial shipments, with the prior written consent of Buyer.
Article 11. Inspection: Payment shall not constitute acceptance and will not relieve Seller of its obligations or warranties in accordance with Article 21 (“Warranty”). All goods and services furnished hereunder shall be subject to inspection, acceptance or rejection by Buyer after delivery or performance to Buyer notwithstanding any prior payment for inspection and acceptance. No inspection or test made by Buyer shall relieve Seller from responsibility for defects or other failure to meet the requirements of this Order. In case any goods are defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Buyer shall have the right either to reject it, require its correction or replacement, or conditionally accept it at no additional cost to Buyer. Any goods which have been rejected or required to be corrected shall be replaced or corrected by and at the expense of Seller promptly after notice. If, after being requested by Buyer, Seller fails to promptly replace or correct any defective goods within the agreed upon schedule, Buyer may, at its option, by contract or otherwise (a) replace or correct such product and charge to Seller the cost occasioned thereby, or (b) without further notice terminate this Order for default in accordance with Article 13 (“Termination for Default”), or may (c) utilize the defective product and require an appropriate reduction in price. Buyer reserves the right to return non-conforming product for full credit. Notwithstanding any prior inspections or payments hereunder, all goods shall be subject to final inspection and acceptance at Buyer’s facility within a reasonable time after delivery. In no event shall Buyer’s failure to inspect, test or discover any defects or non-conformities, waive or limit any rights or remedies available to Buyer with respect to Seller’s performance.
Article 12. Changes: Buyer may, at any time, by a written order, and without notice to sureties or assignees, suspend performance hereunder, increase or decrease the ordered quantities, or make changes in any one or more of the following (a) time of delivery or performance of services, (b) method shipment or packing, (c) place of delivery, (d) applicable drawings, design, or specifications, and (e) quantities. If any such change causes an increase or decrease in the cost of, or the time required for performance of this Order, an equitable adjustment shall be made to the price or delivery or performance schedule, or both, and the Order shall be modified in writing accordingly. No claim by Seller for adjustment shall be valid unless asserted in writing accompanied by an estimate of costs, within twenty (20) days from the date of receipt by Seller of the notification of change. Failure of Seller to assert a claim within twenty (20) days, as provided above, shall constitute an unconditional and absolute waiver by Seller of any right to make a claim for adjustment. However, nothing in this Article 12 shall excuse Seller from proceeding with the Order as changed or amended. Buyer reserves the right to verify claims hereunder and Seller shall make available to Buyer, upon its request, all relevant books, records, inventories and facilities for its inspection and audit.
Article 13. Termination for Default: (a) The parties understand and agree that time is of the essence and that Buyer may, by written notice, terminate this Order, at any time. in whole or in part if Seller (i) fails (1) to make delivery of the goods or to perform the services within the time specified herein, (2) to replace or correct defective goods in accordance with the provisions of Article 11 (“Inspection”) and 21 (“Warranty”), (3) to perform any of the other provisions of this Order, or (4) to make progress as to the provisions of this Order in a way that endangers performance in accordance with the terms of this Order, including delivery schedules; or (ii) becomes insolvent, admits in writing of its inability to pay its debts as they mature, files a voluntary petition to bankruptcy, makes an assignment for the benefit of creditors or has a petition under bankruptcy laws filed against it. (b) In the event of termination pursuant to this Article 13, Buyer may procure upon such and in such manner as Buyer may deem appropriate, goods or services similar or substantially similar to those so terminated and Seller shall be liable to Buyer for any excess costs to Buyer occasioned thereby, provided that in the event Buyer elects to terminate only a portion of this Order, then in such event Seller shall continue performance of this Order to the extent not terminated. (c) If this Order is terminated pursuant to this Article 13(a), Buyer, in addition to any other rights provided herein, may require Seller to transfer title and deliver to Buyer in the manner, time and to the extent directed by Buyer (i) any completed goods, and (ii) such partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as Seller has produced or acquired for the performance of the terminated portion of this Order. Buyer may further require Seller to protect and preserve property in Seller’s possession that is encompassed by this Article 13(c) and grant Buyer a royalty free, assignable, non-exclusive license to use and license others to use, Seller’s design, processes, drawings, and technical data required to produce the quantity of the goods terminated hereunder. Payment for completed goods delivered to and accepted by Buyer shall be in an amount agreed upon by Seller and Buyer, however, such amount shall not exceed the Order price per unit and Seller’s obligation hereunder to carry out Buyer’s direction as to delivery protection and preservation shall not be contingent upon prior agreement as to such amount. (d) Failure of Buyer to enforce any right under this Article 13 shall not be deemed a waiver of any other right hereunder. The rights and remedies of Buyer under this Article 13 shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Order. (e) Seller, however, shall not be in default by reason of any delay in delivery hereunder, if such delay arises out of causes beyond the control and without fault or negligence of Seller. To the extent the uncompleted portion of this Order is not terminated, Seller shall allocate goods covered by this Order in quantities not less than the ratio this Order bears to the total orders of Seller for the same or similar goods at the time of the excusable delay. Seller will reasonably notify Buyer of any delay and the estimated quantity of goods available for Buyer. In the event of any excused delay, Buyer shall have the option of extending the time of performance.
Article 14. Termination for Convenience: (a) Buyer may terminate work under this Order, in whole or in part, at any time, by giving written notice or telegraphic notice. (b) Upon receipt of such notice, Seller shall, to the extent and at the times specified by Buyer, stop all work on this Order, place no further orders hereunder, terminate work under orders outstanding hereunder, assign to Buyer all Seller’s interests under terminated subcontracts and orders, settle all claims thereunder after obtaining Buyer’s approval, protect all property in which Buyer has or may acquire an interest, and transfer title and make delivery to Buyer of all goods, materials, work in process, or other goods held or acquired by Seller in connection with the terminated portion of this Order. Seller shall proceed promptly to comply with Buyer’s directions respecting each of the foregoing without awaiting settlement or payment of its termination claim. (c) Within forty-five (45) days after receipt of the notice of termination, Seller shall submit to Buyer its written termination claim in the form and with the certification prescribed by Buyer, it being understood and agreed that no profit shall be allowed if it appears Seller would have sustained a loss on the Order. Failure of Seller to submit its termination claim as provided hereunder shall constitute an unconditional and absolute waiver by Seller of any claim arising from Buyer’s notice of termination. (d) Seller shall reasonably assess costs for raw material, work in progress and subassemblies as may be included within its termination claim to determine whether or not such items may be used by Seller for the manufacture of associated goods or diverted for any other purpose and to correspondingly reduce its termination claim by the value of such items. When settlement has been made, title to any such items determined not usable by Seller and charged to Buyer in the termination claim shall vest in Buyer upon payment of the claim and shall forthwith be delivered to Buyer, at Buyer’s expense, under Buyer’s shipping instructions. (e) In no event shall Seller be entitled to indirect, incidental, special, or consequential damages (regardless of whether such damages were foreseen or foreseeable on the part of Buyer), costs of preparing claims, attorney’s fees, cost of tooling or equipment, sales, or agent’s commissions.
(f) Buyer reserves the right to verify claims hereunder and Seller shall make available to Buyer, upon request, all relevant books, records, and inventories and facilities for inspection and audit. In the event Seller fails to reasonably afford Buyer its rights hereunder then Seller shall be deemed to have relinquished its claim asserted under the provision of this Article 14.
Article 15. Waiver: The failure of Buyer to enforce, at any time, any of the provisions of this Order, or to excuse any election or option provided herein, or to require, at any time, performance by Seller of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this agreement or any part thereof, or the right of Buyer thereafter to enforce each and every such provision.
Article 16. Indemnification: Seller, at its sole cost and expense, shall indemnify, hold harmless, and at Buyer’s request, defend or allow Buyer to control the defense of, Buyer, its directors, officers, affiliates, subsidiaries, agents, employees, successors, assigns, and customers from and against all claims, losses, expenses, damages, causes of action, and liabilities, including attorneys’ fees and court costs (a) arising from, related to, or out of any actual or alleged breach of any of Seller’s obligations, warranties, and performance hereunder; (b) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean-up costs; (c) any claim based on the negligence, omissions or willful misconduct of Seller, including its employees or employees of any of Seller’s subcontractors (“Seller Representatives”); (d) any claim by a third party against Buyer alleging that the goods or the performance or results of such services, or any other products or processes provided under this Order, infringe a patent, copyright, and trademark or misappropriate a trade secret or other intellectual property right, including but not limited to any other proprietary right, privacy right or right of publicity of a third party, whether such are provided alone or in combination with other products, software or processes; (e) any third party claims and/or government agency actions arising directly or indirectly out of or in connection with Seller’s data processing activities under or in connection with this Order, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any data protection laws and regulations; (f) any violation of law by Seller or Seller’s Representatives; and (g) any breach of this Order by Seller or Seller’s Representatives. Seller shall not settle any such suit or claim without Buyer’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Buyer in enforcing this indemnity, including attorneys’ fees. Should Buyer’s use, or use by its distributors, subcontractors or customers, of any goods purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either: (i) substitute fully equivalent non-infringing goods; (ii) modify the goods so that they no longer infringe but remain fully equivalent in functionality; (iii) obtain for Buyer, its distributors, subcontractors and customers the right to continue using the goods; or (iv) if none of the foregoing is possible, refund all amounts paid for the infringing goods.
Article 17. Insurance: Seller acknowledges that Buyer will not cover Seller or its personnel under any worker’s compensation insurance, unemployment insurance, retirement plan, health care plan, disability or life insurance plan or any other benefit plan which Buyer provides for its employees. Seller shall maintain General Liability coverage at Seller’s own expense of limits of at least one-million dollars per occurrence and two-million dollars in the aggregate. Buyer shall be listed as an Additional Insured on Seller’s policy, with a Waiver of Subrogation in Buyer’s favor. Seller shall further maintain cyber liability coverage (including coverage for data breach, failure of security, restoring lost data, breach of privacy perils, as well as notification costs and regulatory defenses) in an amount of not less than one-million dollars per occurrence and two million dollars in the aggregate. Seller hereby expressly waives any claim on, to, or against Buyer and any of its insurance or benefit plans or policies and agrees that Seller is solely responsible for payment of any and all damages, claims, and expenses that arise while Seller is performing services for Buyer or arise as a result of Seller’s failure to purchase or maintain adequate personal liability insurance. Seller further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Seller in the jurisdiction or jurisdictions in which Sellers’s operations take place and shall be required to provide Buyer with a Certificate of Insurance upon Buyer’s request. Failure of Seller or Seller Representatives to maintain the required insurance shall not relieve Seller from any liability under this Order, nor shall these insurance requirements be construed to conflict with Seller’s indemnification obligations.
Article 18. Limitation of Liability: IN NO EVENT SHALL BUYER’S LIABILITY FOR ANY ALLEGED BREACH OR BREACH OF THIS ORDER EXCEED THE TOTAL PRICE OF THIS ORDER. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER NOR SELLER’S REPRESENTATIVES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Article 19. Buyer’s Protection in Connection with Work Done at Buyer’s Facilities: Seller shall take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents or subcontractors of Seller at Buyer’s facilities. Seller shall indemnify, hold harmless and defend Buyer, its directors, officers, affiliates, subsidiaries, agents, employees, successors and assigns from and against all loss, liability, liens, claims and damages arising from or caused directly or indirectly by any act or omission of such agents, employees or subcontractors of Seller.
Article 20. Confidentiality: During the course of fulfilling Sellers’s obligations hereunder, Seller may be given or observe certain trade secrets, specifications, drawings, technical know-how and other confidential and proprietary information of Buyer (“Confidential Information”). Seller agrees (a) to hold all Confidential Information in confidence, (b) not to disclose Confidential Information to others, and (c) not to use Confidential Information for any purpose other than to fulfill Sellers’s obligations under this Order. Seller agrees to limit dissemination of and access to Confidential Information to those individuals in Sellers’s organization who have a need-to-know Confidential Information for the above-described purpose. Seller’s confidentiality obligations shall survive the termination or completion date of this Order for a period of five (5) years from such date (“Protection Period”); provided, however, that the Protection Period for Confidential Information marked or otherwise classified as a trade secret shall continue for so long as such information remains a trade secret by law. Buyer shall be required to execute a confidentiality agreement as required by Buyer.
Article 21. Warranty: Seller represents and warrants that (a) it has the full power and authority to perform its obligations under this Order; (b) all goods shall be (i) free from defects in materials, workmanship and design, (ii) conform to all operational and functional capabilities and features as required by Buyer, (iii) be of merchantable quality and fit and sufficient for the purpose intended, (iv) comply with all industry safety standards and labeling requirements, and (v) comply with all Buyer instructions, specifications, drawings and samples for a period of fifteen (15) months from the date of delivery or performance; (c) all services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current and sound professional procedures; (d) all goods will be new and will not be used or refurbished, unless otherwise authorized in advance by Buyer in writing; (e) the Deliverables and/or goods specified in this Order, and Buyer’s use of the same, shall not and will not infringe upon or misappropriate any third party’s intellectual property rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory, or common law; (f) it will not disclose to Buyer, bring onto Buyer’s premises, or induce Buyer to use any confidential or proprietary information that belongs to anyone other than Buyer or Seller; (g) Seller’s deliverables and goods conform to Buyer’s specifications, Seller’s quotation or proposal, and Seller’s brochures or catalogs, or if none of the foregoing is applicable, then such Deliverables or goods are suitable for the intended use; (h) no goods include components containing PCB (polychlorinated biphenyls) chemical substances or are manufactured using a cadmium plating process or contain a chemical substance or mixture that is or becomes subject to a reporting requirement under Section 8(e) of the United States Toxic Substances Control Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment; and (i) if the goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials and has properly communicated, in advance, in writing, such risks to the proper Buyer personnel prior to delivery of the goods, including the appropriate handling and transportation of such hazardous materials. All warranties shall be construed as conditions for the sale and shall not be exclusive as to any other warranties or representations. Seller shall additionally furnish to Buyer Seller’s standard warranty and service guaranty applicable to the goods. All warranties and service guaranties shall run both to Buyer and to Buyer’s customers. Seller shall make spare parts available to Buyer for five (5) years from the date of shipment at Seller’s then-current price, less applicable discounts. In addition to the representations and warranties contained in this Order, goods purchased shall be subject to all written and oral express warranties made by Seller’s agents, and to all express and implied warranties provided for by the California Commercial Code. The warranties (a) shall be in addition to all other remedies at law or equity under this Order, (b) shall not limit or affect the rights of Buyer under Article 11 (“Inspection”), and (c) shall survive delivery, inspection and acceptance of product or service or payment therefore.
Article 22. Work Product: Any drawings, designs, processes, software, inventions, specifications, and other technical information in any form (“Work Product”) that Seller delivers to Buyer with respect to the design, manufacture, sale or use of the goods or services ordered herein shall be deemed to have been disclosed as part of the consideration for this Order and Seller shall not assert any claim against Buyer by reason of any use thereof by Buyer for any purpose. All Work Product generated or developed in the course of this Order or delivered to Buyer shall be the sole property of Buyer, and Seller shall not use, duplicate, or disclose such data for any purpose other than the performance of work under such Order.
Article 23. Intellectual Property Rights: All works of authorship, inventions, improvements, developments and discoveries (collectively, “Developments”) authored, conceived, made, designed, or discovered by Seller, solely or in collaboration with others, in the course of providing goods or services hereunder, to the extent that such Developments are at Buyer’s expense are the sole and exclusive property of Buyer. Seller hereby assigns and agrees to assign to Buyer all rights, title and interest in and to any such Developments and any copyright, patent, trade secret and other intellectual property rights (collectively, “Intellectual Property Rights”) relating thereto and shall disclose to Buyer all pertinent information and data with respect thereto. Seller agrees to assist Buyer, or its designee, in every proper way, including following the completion or termination of this Order, to secure Buyer’s rights in the Developments and any Intellectual Property Rights relating thereto in all countries, including, without limitation, the execution of all instruments that Buyer deems necessary to apply for and obtain such rights. Seller shall cause every person employed by Seller or otherwise associated with Seller in the provision of services or goods that may lead to Developments to enter into an agreement under which such person shall disclose and assign to Seller all Developments and Intellectual Property Rights related thereto and execute all instruments and do all acts deemed necessary by Seller to secure Seller’s rights therein. This Order does not grant to Seller a license under any patent, copyright, trade secret or any other intellectual property right owned or controlled by Buyer or its affiliates and subsidiaries. Seller hereby irrevocably waives any moral rights it has in any such intellectual property.
Article 24. No Open Source Code: Seller represents and warrants that its software product and/or software/hardware product (“Software”) to be provided to Buyer for use or distribution by Buyer (including in Buyer’s product packages or through a download or otherwise) does not include Open Source Code. Seller agrees that it will defend, indemnify and hold harmless Buyer and its customers against any and all losses, damages, costs and expenses arising from a breach by Seller of any of its obligations or representations hereunder, including, without limitation, any third-party claims in connection with any such breach. The term “Open Source Code” shall mean any Software that is distributed under “open source” or “free software” terms, including any Software distributed under the GPL, LGPL, Mozilla License, Apache License, Common Public License, BSD license or similar terms, and including any Software distributed with any license term or condition that: (a) requires or could require, or conditions or could condition, the use or distribution of such Software on the disclosure, licensing, or distribution of any source code for any portion of such Software or any derivative work of such Software; or (b) otherwise imposes or could impose any limitation, restriction, or condition on the right or ability of the licensee of such Software to use or distribute such Software or any derivative work of such Software.
Article 25. Prohibition of Use of Buyer’s Trademarks: Seller shall not use the name of Xperi, Inc. or any of its affiliates and subsidiaries trademarks, trade dress, or logos (“Trademarks”) in any advertising or sales materials or in any other manner without the prior written consent of Buyer. In the event that Buyer provides Seller with consent to use its Trademarks, Seller shall comply with Buyer’s Trademark and Usage Guidelines, which shall be available to Seller upon request. Buyer reserves the right to revoke such use of its Trademarks, at any time.
Article 26. Data Privacy and Security: Seller represents, warrants that (a) it will comply with all applicable U.S and foreign data protection laws and regulations related to the protection, security and privacy of Personal Data in connection with performing its obligations under this Order; (b) it will maintain appropriate administrative, physical, and technical safeguards to protect the confidentiality, integrity and security of Buyer’s data, including without limitation Personal Data or any other sensitive data; (c) it shall promptly respond and provide information as required to complete Buyer’s privacy and data security compliance vetting process; (d) attend Buyer’s mandated security and privacy awareness training; (e) it will commit itself and Seller’s Representatives to maintain the strict confidentiality and security of Personal Data; and (f) it will take appropriate technical and organizational measures against unauthorized or unlawful processing, use or disclosure of Personal Data or its accidental loss, destruction, alteration or damage. Seller further acknowledges that: (a) Buyer’s Data Processing Agreement (“DPA”) available at https://xperi.com/dpa/ is hereby incorporated herein by reference, (b) that the DPA shall apply if Seller accesses or processes Personal Data, and (c) that Seller will be bound by the terms of the DPA. For the purpose of this Order, “Personal Data” is defined as any information related to an identified or identifiable natural person or is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a household, provided by or on behalf of Buyer by Seller. If there is any unauthorized release, accidental loss, theft, damage, unauthorized alteration or destruction of any Personal Data or Seller believes the security of any Personal Data has been compromised and/or breached by a third party, it will immediately notify Buyer, and not later than 48 (forty-eight) hours of becoming aware of the breach or incident, provide all details of the incident or security breach including, but not limited to, the nature of the breach or incident, the level or amount of Personal Data compromised or subject to a breach by a third party, the likely consequences of the Personal Data breach and the measures taken or proposed to be taken by Seller to address the Personal Data breach including measures to mitigate its possible adverse effects. Seller will provide all assistance and cooperation to Buyer to investigate and remedy the situation and respond to all information requests from Buyer in a prompt manner. Seller shall not respond to any subject matter requests or information requests from any privacy regulatory authorities or individual in relation to Personal Data but shall immediately notify Buyer of the request and comply with Buyer’s instructions. Seller shall not transfer any Personal Data to any country other than in accordance with Buyer’s written instructions. Seller shall not own any rights, title and interest in the Personal Data. Upon notification by Buyer, Seller shall delete or return all Personal Data to Buyer at the end of the provision of services of this Order and delete existing copies unless required otherwise by privacy legislation or regulation. Seller shall make available to Buyer all information necessary to demonstrate compliance with obligations laid down in this Article 26 and allow for and contribute to audits in accordance with Article 27 (“Right to Audit”), including inspections, conducted by Buyer or another auditor mandated by Buyer.
Article 27. Right to Audit: Buyer may review the goods and services being performed by Seller as specified in this Order, and Seller shall cooperate with Buyer to complete any such review. Buyer shall further have the right, at its own expense, during Seller’s normal business hours and upon reasonable prior written notice, to audit Seller’s books, records, documents, invoices, and business processes to verify Seller’s compliance with laws, regulations, and the terms and conditions of this Order. Seller shall maintain complete and accurate books and records related to the performance of services for three (3) years following the expiration or termination of this Order.
Article 28. Bailment: Seller hereby acknowledges and agrees that all equipment, tools, assemblies, data, materials, jigs, dies, patterns, test equipment, drawings, specifications, supplies, and samples, including any replacements thereof, or any other materials furnished (“Tooling”) provided by Buyer to Seller or specifically paid for, in whole or in part, by Buyer under this Order shall be held by Seller and remain the property of Buyer. All Tooling shall be (a) be kept confidential; (b) remain or become Buyer’s property; (c) be used exclusively to manufacture goods or perform services for Buyer; (d) be clearly marked as Buyer’s property, (e) be segregated from Seller’s other tooling and materials when not in use; and (f) be kept in good working condition at Seller’s expense. Upon the completion of this Order, all Tooling shall be accounted for by Seller and returned to Buyer. Seller, at its sole expense, shall obtain insurance coverage against any loss, theft, or damage to the Tooling while Buyer’s Tooling is in Seller’s possession or control, ordinary wear and tear excepted.
Article 29. Supplier’s Equipment: Unless otherwise states in this Order, any special equipment, tools, dies, jigs, patterns, machinery, supplies, or samples needed by Seller for the performance of this Order shall be obtained by Seller, at its sole expense, and shall be the property of Seller.
Article 30. Independent Contractor: Nothing herein is intended or shall be construed to create a joint venture, employer-employee, agency, or partnership relationship between the parties. Seller is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Neither party may enter into any contracts or commitments in the name of, or on behalf of, the other party, or bind the other party in any respect. Seller will not be entitled to any of the benefits that Buyer may make available to its employees including, but not limited to, group health or life insurance, stock options, profit sharing, or retirement benefits. At Buyer’s sole direction, Seller will remove any Seller personnel or subcontractor from performance of services.
Article 31. Nonexclusive Agreement: This is not an exclusive agreement. Buyer is free to engage others to perform services or provide goods that are the same as or similar to Seller’s. Seller is free to, and is encouraged to, advertise, offer and provide Seller’s services and/or goods to others; provided however, that Seller does not breach this Order.
Article 32. Compliance with Laws: Seller represents and warrants that it will comply with all applicable international and U.S. Federal, State, Provincial and local laws, statutes, regulations, and orders pertaining to its performance obligations under this Order, including, but not limited to, all applicable employment, tax, environment, export and import laws, anti-corruption laws, regulations, orders, and policies. Upon Buyer’s request, Seller will promptly provide Buyer with a statement of origin for all good and United States Customs documentation for goods wholly or partially manufactured outside of the United States.
Article 33. Ethical Compliance: In the course of providing goods or services under this Order, Seller and Seller’s Representatives shall adhere to Buyer’s Code of Business Conduct and Ethics Policy available at https://investor.xperi.com/governance/governance-documents/code-of-business-conduct-and-ethics-policy.html and Supplier Code of Conduct available at https://investor.xperi.com/governance/governance-documents/supplier-code-of-conduct.html (“Policies”). If Seller becomes aware of conduct inconsistent with such Policies, Seller will promptly notify Buyer’s Compliance Hotline at 1-855-477-4506 or file a report at www.xperi.ethicspoint.com.
Article 34. Remedies: Seller acknowledges and agrees that the obligations and promises of Seller under this Order are of a unique, intellectual nature giving them particular value. Seller’s breach of any of the promises contained in this Order will result in irreparable and continuing damage to Buyer for which there will be no adequate remedy at law, and in the event of such breach, Buyer will be entitled to seek injunctive relief, without the requirement to post a monetary bond, or a decree of specific performance. For the purchase of goods, Seller’s sole remedy in the event of breach of this Order by Buyer shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Order. No alternative method of measuring damages shall apply. Seller shall have no right to resell goods for Buyer’s account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Buyer and any resale so made shall be for the account of Seller.
Article 35. Assignment: No rights or obligations under this Order shall be assigned by Seller without Buyer’s written consent. Any purported assignment without such consent shall be void. Buyer may assign this Order, at any time, without Seller’s consent.
Article 36. Survival: Any obligations and duties which by their nature extend beyond the expiration or termination of this Order shall survive the expiration or termination of this Order.
Article 37. Setoff: All claims for money due or to become due from Buyer hereunder shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other of Buyer’s transactions with Seller.
Article 38. Applicable Law, Consent and Jurisdiction: This Order shall be governed by and be construed in accordance with the laws of the State of California, irrespective of choice of laws provisions, and both parties hereto expressly and irrevocably submit to personal jurisdiction and venue in the state and federal courts of Santa Clara Country, California. The applicability of the UN 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.