Technology License Agreement

Rulebook

TECHNOLOGY LICENSE AGREEMENT

Last updated 03/28/2016

This Technology License Agreement (the “Agreement”) governs the use by you, a semiconductor integrated circuit designer (“Licensee”) of certain semiconductor circuit designs made available by applicable independent designer (“Licensor”) through the efabless semiconductor circuit design marketplace (the “Service”), and purchased by Licensee by executing an order through the Service (an “Order”). By executing an Order, Licensee and Licensor agree as follows:

  1. Definitions.
    1. “Authorized Foundry” means the third party foundry for which the Licensed IP has been targeted for manufacturing.
    2. “efabless” means efabless corporation, the owner and operator of the Service.
    3. “Intellectual Property” means patents, copyrights, mask work rights, trademarks, trade secret rights, design rights, and any other similar rights worldwide, including any registrations and applications therefor.
    4. “Licensed IP” means all Intellectual Property owned by Licensor that would be infringed by the implementation of the Licensed Technology in a Licensed Product, but expressly excluding any other technology implemented in a Licensed Product, or the combination of the Licensed Technology therewith.
    5. “Licensed Product” means a single unique chip implementing the Licensed Technology, that is designed and developed by Licensee and sold under Licensee’s brand (including re-spins made for the purpose of fixing defects in the design, but not adding or removing features or functionality, and only to the extent such new chip is sold under the same part number).
    6. “Licensed Technology” means the downloadable RTL form of the specific Licensor technology identified in an applicable Order.
  2. License.
    Technology License. Subject to the terms and conditions of this Agreement, including payment of all applicable Fees and the restrictions set forth in Section 2.b, Licensor grants to Licensee, under the Licensed IP, a nonexclusive, nontransferable license to (i) use the Licensed Technology internally solely for the purpose of developing a Licensed Product implementing the Licensed Technology, and (ii) have Licensed Products manufactured by the Authorized Foundry, and (iii) use, offer for sale, and sell Licensed Products so manufactured.
    Restrictions. The foregoing license does not include, and you may not use the Licensed Technology in any product that is designed, marketed, or used for any life-saving, aerospace, military, or other use in which any failure to operate in accordance with specifications or documentation would result in any increased risk of property damage, environmental damage, personal injury, or death. You may not modify, reverse engineer, decompile, or otherwise attempt to access the underlying source material to any Licensed Technology.
    Reservation of Rights. Except for the licenses expressly granted in Section 2.a, Licensee acquires no right, title or interest in any Licensed Technology or any Licensed IP. In no event shall this Agreement be deemed or interpreted to grant Licensee, by implication, estoppel or otherwise, any license to use any technology other than the Licensed Technology, or under any rights other than the Licensed IP. All rights not expressly granted to Licensee pursuant to this Agreement are reserved by Licensor. No right is granted to Licensee, and Licensee agrees not, to modify any Licensed Technology.
  3. Fees and Payment.
    Fees and Payment. In consideration of, as a condition of, the licenses granted herein, Licensee shall pay to Licensor the license fees specified in the applicable Order (the “Fees“). Fees are payable as follows:
    to the extent the applicable Licensed IP is implemented in a Licensed Product design and manufacturing of Licensed Products is initiated solely through the Service (i.e. designs are not downloaded from or otherwise accessed outside of the Service), 10% of the Fees are due upon manufacture of a test chip (limited to 10 units), and balance upon manufacture of Licensed Products in excess of 10 units; and
    to the extent Licensed IP is downloaded from or otherwise accessed outside of the Service, Fees are due and payable 100% upon such download or access.
    Payment Processing. Licensor shall keep accurate and current payment instrument information on file with efabless, and authorizes efabless to charge any applicable Fees directly to Licensor’s payment instrument through efabless’s third party payment processor, which will deliver all applicable Fees, less any revenue share amounts owed to efabless.
    Records and Reporting. Licensee shall keep copies of all books and records as may be reasonably necessary to demonstrate compliance with its payment obligations hereunder for a period of at least six (6) years following their creation. Within forty five (45) days after the end of each calendar quarter, Company shall deliver a written report (“Report“) to Licensor (with a copy to efabless) identifying all Licensed Products manufactured during the applicable reporting period, and all royalties payable in respect thereof.
    Audit. Licensor and efabless shall each have the right, directly or through its independent auditors (the “Auditors“), to make an examination and audit, by prior appointment during normal business hours and not more than once in any twelve (12) month period (except as provided below), of all records and accounts as may, under recognized accounting practices, contain information relating to the Fees due to Licensor by Licensee under the terms of this Agreement. The Auditors report shall (in the absence of clerical or manifest error) be final and binding on the parties. Such audit shall be at Licensor’s expense unless it reveals an underpayment of fees of ten per cent (10%) or more, in which case Company shall reimburse Licensor for the costs of such audit and Licensor may thereafter perform subsequent audits no once in each subsequent six (6) month period. Company shall make good any underpayment of fees immediately. If the audit identifies that Company has made an overpayment, then such overpayment shall be credited against any future fees due to Licensor from Company.
  4. Confidentiality. The Licensed Technology is the confidential and proprietary information of Licensor, and Licensee may not, during the term or thereafter, disclose the Licensed Technology to any third party (other than an Authorized Foundry), or to use the Licensed Technology for any purpose other than as expressly provided herein. Licensor will not disclose any reports provided by Licensee to any third party (other than its financial and other advisors), or use such reports for any purpose other than as provided herein, or generally understanding the scope of use of the Licensed Technology. Without limiting the generality of the foregoing, to the extent that Licensee provides Licensor with any feedback, input, suggestions, modifications, enhancements, or revisions to the Licensed Technology (“Feedback”), then such Feedback is provided on a non-confidential basis, and Licensee hereby grants Licensor an unrestricted right and license to utilize such Feedback in any manner in Licensor’s products and services.
  5. DISCLAIMER. LICENSOR PROVIDES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITH RESPECT TO THE LICENSED TECHNOLOGY, OR ANY OTHER TECHNOLOGY OR SERVICE, ALL OF WHICH ARE PROVIDED “AS IS.”
  6. Limitation of Liability.
    1. Limitation of Scope. SUBJECT TO SECTION 7.c, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, COSTS OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, OR SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES (INCUDING WITHOUT LIMITATION COST OF REPLACEMENT SILICON), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    2. Limitation of Amount. SUBJECT TO SECTION 7.c, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT, PROVIDED THAT, AS TO LICENSEE, THIS SHALL BE IN ADDITION TO LICENSEE’S OBLIGATION TO PAY SUCH AMOUNTS TO LICENSOR AND FAILURE TO PAY AMOUNTS DUE SHALL NOT RELIEVE LICENSEE OF THE OBLIGATION TO PAY SUCH AMOUNTS AS AND WHEN DUE.
    3. Exceptions to Limitations of Liability. The limitations in Sections 7.a and 7.b shall not apply to liability with respect to (i) breach by Licensee of Section 2 (License), or (ii) third party claims for personal injury, death, or property damage caused by the other party, to the extent such liability is not permitted to be limited pursuant to applicable law.
  7. Term and Termination.
    1. Agreement Term. This Agreement shall commence on the Effective Date and shall continue in force until terminated in accordance with this Agreement.
    2. Termination for Cause. Without prejudice to any other right or remedy which may be available to it, either party shall be entitled immediately to terminate this Agreement by giving written notice to the other, if the other party (i) breaches any of its obligations and does not remedy such breach within thirty (30) days following receipt of written notice of the breach, or (ii) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, or composition for the benefit of creditors, or in the event of an involuntary such petition or proceeding if that petition or proceeding is not dismissed within sixty (60) days after filing.
    3. Effect of Termination. Upon any termination or expiration of this Agreement Licensee will (i) immediately discontinue use of Licensed Technology and any products or items embodying such technology or information; no additional Licensed Products may be designed or manufactured, and (ii) either destroy or return to Licensor all Licensor Technology, including any copies thereof, in its possession or control, or derivatives thereof in its possession or control. Licensee will promptly furnish to Licensor a certificate signed by a duly authorized representative of Licensee that Licensee has complied with provisions of this section. The provisions of Sections 1, 3, 4, 5, 6, 8, and 9 shall survive any termination or expiration of this Agreement.
  8. Third Party Beneficiary. The parties agree and acknowledge that efabless, as the operator of the Service, entitled to a share of the fees payable by Licensor to Licensee hereunder, is a direct and intended third party beneficiary of this Agreement, entitled to enforce all the terms and conditions of this agreement directly against the parties, including without limitation the right to payment and to audit Licensee to ensure the propriety of reports and payments issued hereunder.
  9. Miscellaneous. All notices shall be sent in writing through the Service. Licensee may not transfer, assign or delegate this Agreement or any of its licenses, rights or duties under this Agreement, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, except that Licensee may transfer and assign this Agreement to, or the Agreement may be assumed by, any person or entity that has otherwise succeeded to all or substantially all of its business related to the design, manufacture, and sale of such Licensed Product. No government procurement regulation or contract clauses or provision shall be deemed a part of any transaction between the parties under this Agreement unless agreed in writing by the parties. Licensor and Licensee are independent parties. Neither company nor its employees, consultants, contractors or agents are agents, employees or joint venturers of the other party, nor do they have the authority to bind the other party by contract or otherwise to any obligation. Neither party will represent to the contrary, either expressly, implicitly, by appearance or otherwise. Failure or delay by either party to enforce any provision of this Agreement shall not be deemed a waiver of enforcement of that or any other provision. If any provision in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision that most nearly effects the parties’ intent in entering into this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof regarding the subject matter hereof. No amendment to or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party. The Licensed Technology provided under this Agreement may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply fully with all such applicable laws and regulations of the United States and other countries. The validity, construction and performance of this Agreement shall be governed by laws of the State of California, U.S.A. without reference to conflict of laws principles. Any legal action between the parties with respect to this Agreement (including disputes arising out of or in connection with this Agreement, and any question regarding its existence, validity or termination), shall be brought only in the California state or U.S. federal courts located in Santa Clara County, California, and each party consents to the personal and exclusive jurisdiction and venue of these courts.
I have read and agreed.


Terms and Conditions

RULEBOOK

TERMS OF SERVICE

Last updated 11/15/2016

Thank you for your interest in efabless corporation having its principal place of business at 2570 N 1st St, Suite 200, San Jose, California 95131 (“efabless”) and efabless’s online semiconductor design tool suite and marketplace (the “Tools” and “Marketplace” and collectively, the “Service”).  These Terms of Service (the “Terms” or the “Agreement”) governs your access and use of the Service.  By clicking “I ACCEPT,” or otherwise accessing, or using the Service, you are acknowledging that you have read, understand and agree to accept and be bound by the terms and conditions of this Agreement.  If you do not agree you may not use the Service.

  1. Additional Terms and Policies. The following terms and policies are incorporated by reference into, and made part of, the Terms.  By registering for, accessing, browsing, downloading, or using the Service, you acknowledge that you have read, understood and agree to be bound by these linked policies, as well as the terms set forth herein.
    1. Privacy. The efabless Privacy Policy, which describes efabless’s policies related to the collection, use, and disclosure of your information is hereby incorporated into these Terms by reference.
    2. Design Challenge Rules.  efabless may, from time to time, conduct certain design challenges (each, a “Challenge”), in which users are asked to use the Service to create and submit IPs (defined below) that meet certain requirements, and which are evaluated on certain objective criteria.  Participation in such Challenges is subject to these Terms and the Design Challenge Terms , which are incorporated by reference herein.  Without limiting the generality of the foregoing, you acknowledge that any IPs submitted in response to any Challenge are IPs for all purposes under these Terms, including without limitation the licenses you grant and offer to grant in connection with submission of IPs to the Service, and the representations of originality and non-infringement you make with respect to such IPs.
    3. Additional Policies.  When using the Service, you will be subject to any additional posted policies, guidelines or rules applicable to specific services and features which may be posted from time to time (the “Policies“).  All such Policies are hereby incorporated by reference into these Terms.
    4. Modifications.  efabless reserves the right to update or modify the Terms on a going forward basis at any time.  Your use of the Service following any such change becoming effective constitutes your agreement to be bound by the modified Terms.  In the case of material changes to the Terms, efabless will make reasonable efforts to notify you of the change.  Changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from efabless’s publication of such modified Terms.  Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.  We encourage you to review these Terms frequently to stay informed of the latest modifications.
  2. Service.
    1. Eligibility.  You must be at least 18 years old to use the Service.  If you are using the Service on behalf of a company, entity, or organization, then you represent and warrant that you are an authorized representative of that organization with the authority to bind such organization to these Terms, and that you agree to these Terms on behalf of such organization.  “You” or “your” in these Terms refers to (i) such organization, (ii) you, an individual user, and (iii) any other personnel accessing and using the Service on your organization’s behalf.  The Service is not for use by any entity that is restricted from using the Service (or that efabless is restricted from providing the Service to) by applicable law, and you may not use the Service if such use would violate any applicable law, including without limitation U.S. and foreign export control laws.
    2. Service Features; IPs, Vendors, and Designs. The Service enables users to design on the Service, and/or import to the Service, semiconductor circuit component IPs (“IPs”), and make them available to other users to license for incorporation in other IPs or, into integrated circuit designs (each unique design, a “Design”).  The designer of any IP that offers to sell licenses to such IP to other users is referred to herein as the applicable “Vendor”, with respect to such IP.  To the extent an IP offered for license hereunder incorporates component IPs from multiple Vendors, each such subcomponent designer will be deemed to be a Vendor with respect to such integrated IP.
  3. Permission to Access the Service; Accounts.
    1. Access to the Service. Subject to your ongoing compliance with this Agreement, efabless hereby grants to you limited permission during the Term to access and use those features of the Service intended for the type of account for which you have registered.
    2. Restrictions. efabless may add, change, or remove features or functionalities of the Service at any time without notice.  You may not modify, copy, or make derivative works based on the Service or any materials accessed through the Service (including the Foundry Materials, as defined in Section 7(b)); disassemble, reverse engineer, or decompile the Service or any materials accessed through the Service (including the Foundry Materials); create “links” to the Service, or “frame” or “mirror” any of efabless’s or its partners’ content or the Service for any purpose; reproduce any features or content of the Service; resell the Service.inks” to the Service, or “frame” or “mirror” any of efabless’s or its partners’ content or the Service for any purpose; reproduce any features or content of the Service or resell the Service.
    3. Account. In order to access the Service, you will have to create an account.  You hereby represent and warrant that the information you provide upon registration, and at all other times, will be true, accurate, current, and complete.  You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
    4. Tax Info. You are solely responsible for providing and maintaining with efabless accurate address and other contact information as well as payment information associated with the account.  For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9.  For non-U.S. taxpayers, this information includes without limitation a fully-completed Form W-8 or other applicable form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities.  Please note that efabless may prevent you from offering IPs for sale or entry of IPs into any Challenge, or may withhold payments of any amounts due (including any amounts awarded in connection with any Challenge) until we have tax information on file.
    5. Payment Processing. In order to purchase licenses on the Service, you must keep accurate and current payment instrument information on file with efabless, and you hereby authorize efabless to charge any applicable fees due under any license purchased through the Service directly to your payment instrument, which payments will be processed through efabless’s third party payment processor, and delivered directly to the applicable Vendor, less any revenue share amounts owed to efabless.
    6. Password. As a registered user, you will have login information, including a username and password.  Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party.  As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password.  If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify efabless by e-mail to legal@efabless.com.  You are solely responsible for your own losses or losses incurred by efabless and others (including Vendors and other users) due to any unauthorized use of your account that occur prior to notifying efabless that your account was compromised.
  4. Terms of Purchase and Sale.
    1. Licenses to IPs.  By making an IP available for purchase through the Marketplace:
      1. you agree to grant and do hereby grant to other users the right to use such IP within the Service in connection with developing semiconductor chip designs implementing the IP, and
      2. you are making an irrevocable (except as provided in Section 4(b)) offer to license such IPs to other users for the purpose of incorporating into chip designs for manufacture (including as may have been embodied in other users’ IPs deployed in the marketplace) for the price that you set through the Marketplace, and on the terms and conditions of the [Technology License Agreement], which other users may accept by submitting an order through the Service, or which efabless may grant directly to third parties on the same or substantially similar terms as the Technology License Agreement (and subject to the revenue sharing provisions set forth in Section 5); and
      3. you agree to share a portion of revenues generated through sales of licenses to your IPs, as provided in Section 5, below, and you authorize efabless to process payments for such purchases using its third party processor, which will remit payment directly to you, less efabless’s share.
    2. Un-listing IPs. If you remove an IP from listing in the Marketplace, users that have incorporated such IPs into Designs prior to such removal will have six months from the effective date of such removal to decide whether to accept your offer to license, and to submit an order and conclude a purchase of that license.
    3. Purchase of IP Licenses. The IPs offered through the Marketplace are made available directly by the applicable Vendor(s), and as such, you agree that efabless has no liability to you for such IPs, including any use of such IPs by you or your customers, or any support with respect to such IPs, and that by submitting an order through the Service, you are concluding a license directly between you and the applicable Vendor(s) at the price established by the Vendor(s) through the Marketplace, and pursuant to the terms of the [Technology License Agreement].  To the extent any applicable Vendor now or in the future charges for the right to incorporate the IP in a Design, such purchase may be subject to additional terms and conditions, and any fees that efabless may charge in connection with such transaction will be charged directly to the applicable Vendor.  Currently, IPs available on the Service may be incorporated into other IPs without any payment, provided that upon inclusion in a Design, the creator of the Design will be responsible for payment of applicable fees to all Vendors whose IPs are incorporated into the applicable Design, in accordance with this Agreement.  Without limiting the foregoing, to the extent any foundry information is made available to you in connection with any export or download of materials from the Service, you may be required to agree to a nondisclosure and/or license agreement with the applicable foundry.
    4. Custom Development Request. efabless may now or in the future support the ability for users to request custom development of IPs matching particular specifications, in which case, the associated services, payments (including any applicable revenue share with efabless), and licenses may be subject to separate or additional terms.
    5. Transaction Processing. To the extent any fees are charged in connection with the purchases of licenses for IPs available on the Service, such transactions will be processed (and applicable fees are collected) by efabless’s third party payment processor(s).  You agree to pay for all purchases you initiate through the Service in accordance with the Terms, and we (or our third party payment processors) may charge your payment instrument for any such payments.  You are required to keep your payment instrument information on file with efabless’s current, complete and accurate.  You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your employees, contractors, agents, or other personnel).  If your payment instrument fails or your account is past due, we may collect fees owed using other collection mechanisms.  Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount.
    6. Customer Service. efabless does not provide support with respect to IPs and Designs.  SUPPORT QUESTIONS RELATED TO IPs AND DESIGNS SHOULD BE REFERRED DIRECTLY TO THE APPLICABLE VENDOR(S).
    7. Fees and Payments. Any fees for IPs made available to you for purchase on the Service are set by the applicable Vendor(s) (the “License Fees”), and are payable in accordance with the payment terms established in the [Technology License Agreement].  Unless otherwise stated, all fees on the Service are quoted in U.S. Dollars.
    8. Taxes. You are responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use or value-added taxes.  To the extent efabless is obligated to collect such taxes, the applicable tax will be added to your billing account.
    9. Refund Policy. As between you and efabless, all fees relating to services, IPs, and other downloadable materials are final and nonrefundable.
    10. Availability of Content. efabless may make changes to or discontinue any of the products or services available within the Service, including IPs (which may be removed by the applicable Vendor), at any time, and without notice.
  5. Revenue Sharing. In consideration of providing the Tools and Marketplace to you, efabless will retain a fifty percent (50%) share (the “efabless Share”) of fees actually collected by efabless from users or direct licenses in connection with purchases of licenses to your IPs, less deductions for any fraud, charge backs, bad debt, refunds, uncollected amounts, transaction processing fees and other reasonable deductions (“Net Revenue”), and our transaction processor will remit the remaining fifty percent (50%) balance of the Net Revenue (the “Designer Share”).  You are responsible for all taxes (if any) associated with your sales on the Service (other than taxes on efabless’s net income), and efabless may deduct or withhold any withholding taxes that efabless may be legally obligated to deduct or withhold from any amounts due to you hereunder. If a tax authority subsequently finds that efabless’s withholding tax payment insufficient and requires additional payments, efabless will make such payments and you will reimburse efabless for such additional withholding tax payments, or efabless may, at its election, deduct such amounts from amounts due to you hereunder.
  6. Intellectual Property Rights.
    1. Reservation. Except for the limited rights expressly granted herein, as between you and efabless, efabless and its suppliers, partners, and licensors retain all rights, title and interest, including all intellectual property rights in and to, the Service (as may be modified by efabless from time to time in its sole discretion), including without limitation the software, processes, algorithms, look and feel, branding and other technology used in connection with or that constitutes the Service (collectively, “efabless Technology”). All rights not expressly granted hereunder are reserved to efabless.
    2. User Content. You retain all your rights in and to any design materials you upload to or create in connection with the use of the Service (the “Design Materials”).  You hereby grant efabless a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, right and license to use and exploit the Design Materials in connection with efabless’s design, development, provision, maintenance, and support of the Service, provided that efabless shall have no obligation to maintain any such materials on the Service.
    3. Feedback. To the extent that you provide any feedback to efabless concerning the functionality and performance of the Service, including, without limitation, identifying potential errors and improvements (“Feedback”), you hereby grants efabless an unlimited, non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise commercially exploit such Feedback without attribution, consideration, or restriction.
  7. Confidentiality
    1. Confidential Information. During and after the Term, you will maintain the confidentiality of and not use for any purpose other than your use of the Service or disclose to any third party any non-public information, including third party information, disclosed or made available by efabless to you in connection with this this Agreement, or any Feedback you may provide to efabless (collectively, the “Confidential Information”).
    2. Foundry Materials.   As part of the Service, efabless may disclose or make available to you certain information and materials related to the design rules, process technology, and manufacturing compatibility requirements of efabless’s supported semiconductor foundry partner(s) (such foundry, the “Foundry”, such materials, the “Foundry Materials”).  Without limiting the foregoing obligations, you shall treat the Foundry Materials and any other information received directly or indirectly from or relating to Foundry as Confidential Information and shall not disclose such information or use such information for any purpose other than use of the Service hereunder.  To the extent you purchase an IP license hereunder, you are permitted to use such Foundry Materials, solely for the purpose of designing semiconductor products solely for manufacture at the Foundry.
  8. Ratings. Users may submit ratings and feedback information regarding other users in connection with their activities on the Service.  You may only use the rating and feedback features for the bona-fide purpose of submitting feedback regarding the experience that you had with the recipient of your review.  Any other use, misuse, or abuse of the rating and feedback systems is strictly prohibited.  Without limiting the generality of the foregoing, (i) you may not threaten to submit negative feedback or withhold positive feedback in order to receive benefits beyond those to which you are entitled (such as goods, services, or rights beyond those listed and purchased), (ii)  You may not condition performance of any obligation you incur through your use of the Service (such as the completion of any sale) on submission of positive feedback, and (iii) you may not submit feedback or ratings for the purpose of manipulating another user’s rating. Rating and feedback information submitted by a user may be made available through the Service to other users.
  9. WARRANTIES AND LIABILITY.
    1. Warranty. You represent, warrant, and covenant to efabless that (i) all information you provide to efabless hereunder, including in any registration or similar capacity, will be true, accurate, and up to date; (ii) you have the full power and authority to enter into this Agreement, and to use the Service, including the right to grant the rights and licenses set forth herein (and in any Technology License Agreement) without violating or conflicting with any rights of or obligations to any other party, including without limitation any current or former employer, academic institution, or licensor; and (iii) the Design Materials do not and will not infringe the intellectual property rights of any third party.
    2. DISCLAIMER. THE SERVICE IS PROVIDED BY EFABLESS “AS IS”, WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EFABLESS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICE OR ANY IPS, DESIGNS, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE SHALL BE ERROR-FREE OR UNINTERRUPTED, OR SUITABLE TO ACHIEVE ANY PARTICULAR RESULT.
    3. LIMITATION ON LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL EFABLESS OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE TO DESIGNER HEREUNDER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOSS OF USE, LOST PROFIT, LOSS OF DATA, OR DAMAGE TO NETWORKS OR EQUIPMENT.  THE FOREGOING LIMITATION APPLIES WHETHER OR NOT DESIGNER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.  IN NO EVENT WILL EFABLESS’S LIABILITY TO YOU EXCEED AN AGGREGATE TOTAL OF THE AMOUNT OF REVENUE SHARE ACTUALLY COLLECTED EITHER FROM YOU (IN THE CASE OF AN IP DESIGNER) OR IN RESPECT OF YOUR PURCHASES (IN THE CASE OF A CHIP DESIGNER) HEREUNDER.  You acknowledge that efabless’s ability to offer the Service to you hereunder is based on the above limitations, and that the limitations in this Section represent a reasonable allocation of risk for the parties, and that efabless would be unable to offer such an opportunity without allocating such risk as provided herein.
  10. Indemnification. You agree to indemnify and hold efabless, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from and against any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use of the Service (including any IPs or Designs you may create in connection with your use of the Service, or any products you may manufacture that are based thereon) or any violation of this Agreement (including any breach of representations, warranties).  efabless reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify efabless, and you agree to cooperate with efabless’s defense of these claims.  efabless will use reasonable efforts to provide notice of any such claim, action, or proceeding upon becoming aware of it.
  11. Disputes with Other Users. efabless is not an IP designer or licensor hereunder, and does not have any control over the IPs or Designs created or licensed through the Service, nor can we make any representations, warranties, or agree to any terms on behalf of any user of the Service.  YOU AGREE AND UNDERSTAND THAT ALL IPS AND DESIGNS MADE AVAILABLE THROUGH THE SERVICE ARE MADE AVAILABLE BY THE APPLICABLE USER, NOT BY EFABLESS, AND ACCORDINGLY, YOU AGREE TO WAIVE, AND DO HEREBY WAIVE, ANY LEGAL OR EQUITABLE RIGHT OR REMEDY YOU MAY HAVE AGAINST EFABLESS WITH RESPECT TO SUCH MATERIALS, AND/OR ANY INTERACTIONS, TRANSACTIONS, OR DISPUTES YOU MAY HAVE WITH OTHER USERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE.  YOU EXPRESSLY WAIVE ANY RIGHTS OR BENEFITS AVAILABLE TO TYOU UNDER THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAW OR PRINCIPLE UNDER THE LAWS OF ANY OTHER JURISDICTION.  SECTION 1542 PROVIDES:
    A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
  12. Term and Termination
    1. Term. The term of this Agreement starts on the Effective Date and continues until terminated as described below (the “Term”).  efabless may terminate this Agreement with our without cause upon notice to you.  You may terminate this Agreement by terminating your account on the Service, and ceasing use of the Service.
    2. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) efabless may immediately cease providing the Service hereunder; (b) you will discontinue all use of the Service; and (b) within thirty (30) days after such expiration or termination, you shall return the tangible embodiments of efabless’s or the Foundry’s confidential information in its possession and shall not retain any copies of such confidential information except as required to comply with any applicable legal or accounting record keeping requirement.
    3. Survival. The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of the Agreement:  Sections 4(c), 4(e), 4(g), 4(h), 5, 6, 7, 9, 10, 11, 12, 14, 16, and 17.
  13. Digital Millennium Copyright Act.
    1. Compliance. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended).  If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
      efabless corporation
      ATTN: Copyright Agent
      2570 N 1st St – Suite 200
      San Jose CA 95131
      Email: copyright@efabless.com
    2. Notices. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
    3. Repeat Infringers. It is efabless’s policy to terminate the accounts of users that are determined by us to be repeat infringers.  If we receive multiple notices that your Design Materials infringe, your account may be subject to termination.
  14. Export Control. You understand that use of the Service and the IPs and Designs available through the Service may be subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR“) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR“) maintained by the Department of State (collectively “Export Rules“).  The Export Rules prohibit the export, re-export, transfer, or diversion of certain technologies and products to certain countries without prior government approval.  Any and all provision of software, materials, and/or information by efabless to you hereunder, including technical assistance, any media in which any of the foregoing is contained, training, technical assistance, and related technical data (collectively, “Data“) may be subject to these Export Rules.  To the extent that the Service enables you to export any Data out of the Service to any foreign jurisdiction, you understand and agree that (i) it is your sole responsibility to ensure that such access complies with all applicable Export Rules, including obtaining any applicable export licenses, (ii) efabless may require you to provide information related to, or evidence of, such compliance and/or licenses prior to or in connection with such export, (iii) you agree to indemnify and hold harmless efabless and its partners, suppliers, and licensees from and against any and all harms, damages, losses, and liabilities arising as a result of any failure to ensure that such export complies with all applicable Export Rules.  You hereby represent, warrant, and certify that (i) any materials you make available through the Service can be exported without a license or other approval to all countries other than Cuba, Iran, North Korea, Sudan, Syria or the Crimea Region of the Ukraine or any other entity or jurisdiction that may be a restricted entity or jurisdiction pursuant to applicable Export Rules, or (ii) that you have obtained all applicable licenses and provided all applicable supporting documentation to efabless.  You understand and agree that efabless is entitled to rely on the foregoing representation, warranty, and certification.  You agree that you will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any Data disclosed to you (or the direct product of such Data) to any person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
  15. Amendments. efabless reserves the right to amend the terms of this Agreement on a going-forward basis, in which case we will publish the revised Agreement to the Service, and we will use reasonable efforts to notify you of any material changes.  The revised terms shall become effective on the earlier of (a) your use of the Service with actual knowledge of the revised terms, or (b) 30 days following the date of their publication.  Any disputes arising under these Terms will be resolved in accordance with the version that was effective at the time the dispute arose.
  16. Dispute Resolution.
    1. Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled in our individual capacities by binding arbitration in Santa Clara County, California, U.S.A. under the rules of the American Arbitration Association (the “Rules”) by a single arbitrator appointed in accordance with the Rules.  If there is a conflict between the Rules and the terms of this Agreement, the terms of this Agreement will prevail.  Judgment upon the decision or award rendered by the arbitrators may be entered in any court of competent jurisdiction.  You understand and agree that, by entering into these Terms, you and Company are each waiving the right to a trial by jury or to participate in a class action.
    2. No Class Actions. YOU AND EFABLESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER WITH REGARD TO DISPUTES ARISING HEREUNDER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both you and efabless agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    3. Small Claims. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
    4. Modifications. In the event that efabless makes any future change to this arbitration provision (other than a change to the efabless’s address for notice), you may reject any such change by sending us written notice within 30 days of the change to efabless’s address for notice, in which case your account with efabless shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
    5. Enforceability. If this Section 15, or any portion thereof, is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 16 shall govern any action arising out of or related to these Terms.
  17. Miscellaneous Provisions. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law principles, and the application of the CISG is expressly disclaimed.  Any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts located in Santa Clara County, California and the federal courts of the United States in the Northern District of California, and each party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the appropriateness of such forums.  If any provision of this Agreement is held to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.  You shall not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of efabless.  Any attempted assignment or delegation without such consent will be void.  efabless may assign this Agreement in whole or part without restriction.  This Agreement shall bind and inure to the benefit of each of our successors and permitted assigns.  Any notice or communication required or permitted to be given hereunder may be delivered by registered or certified mail, return receipt requested, or by rapid delivery service with tracking enabled, to the address for the applicable party written here (or with respect to you, any electronic address efabless may have on file for you).  Such notice will be deemed to have been given as of the date it is delivered.  The parties are independent contractors.  This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and efabless. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.  This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes all prior understandings and agreements.
I have read and agreed.