Subscription Agreement

Fabless Labs Subscription Terms and Conditions

 

These Fabless Labs Subscription Terms and Conditions, along with any Order Schedules (as defined below) entered into by and between the parties hereto, form the agreement (the “Agreement”) entered into by and between Fabless Labs Inc. a Delaware corporation with its principal place of business at 826 Gail Avenue, Sunnyvale, CA 94086, U.S.A. (“Fabless Labs”) and the party executing this Agreement as “Client” (on behalf of its Affiliates, for whom Client will be responsible hereunder).

1.  Definitions.

1.1  “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).

1.2  “Agreement” means the terms set forth below, and the attached exhibits, schedules, and amendments hereto, as well as any SOW and Order Schedule agreed to by the parties, each of which are incorporated herein by this reference.

1.3  “Client Content” means any Client logos, trademarks, trade names, service marks, and all other content transmitted by Client or its Users to or through the Service, or otherwise provided to Fabless Labs for use in providing the Service.

1.4  “Client Data” means any Client-specific data provided or submitted by Client or Users to or through the Service.

1.5  “Client Materials” means Client Content and Client Data, collectively.

1.6  “Confidential Information” means this Agreement, the Fabless Labs Technology, Fabless Labs pricing information, and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) in connection with this Agreement.

1.7  “Documentation” means the manuals and online help Fabless Labs provides for use in connection with the Service.

1.8   “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.

1.9   “Fabless Labs Technology” means Fabless Labs’ proprietary software and other technology provided via the Service, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.

1.10  “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.

1.11  “Order Schedule” means a document detailing the Service(s) to be provided by Fabless Labs, the fees associated therewith, and any other transaction-specific terms and conditions.  If the parties agree, an Order Schedule may be used in connection with, or in lieu of, an SOW.   In the event that multiple Order Schedules will apply to this Agreement, such Order Schedules will be numbered sequentially.  Any and all mutually executed Order Schedule(s) are deemed incorporated herein by this reference.  Each Order Schedule is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement.  An Order Schedule may also contain other terms or conditions, mutually agreed upon by Fabless Labs and Client, which apply specifically to that particular order/contract.  Client agrees that each Order Schedule will be signed by a representative having the authority to bind Client, and that Fabless Labs may presume that such representative has such authority.  A binding order is created when Fabless Labs accepts and executes the Client-executed Order Schedule.

1.12  “Service(s)” means Fabless Labs’ hosted service described in an SOW or an Order Schedule, and/or ancillary Fabless Labs-proprietary products and/or services provided to Client by Fabless Labs.

1.13  “Service Term(s)” means the SOW- or Order Schedule-specified period(s) during which Users may use the Service.

1.14   “Statement(s) of Work” or “SOW” means the form describing the Service subscription(s), the number and type of other Service(s) contracted for, the applicable fees, the billing period, and other related terms and conditions.  Upon execution by the parties of the Order Schedule governing the applicable SOW, such SOW will be incorporated into this Agreement by reference.

1.15   “User” means Client’s employees, representatives, consultants, contractors, or agents who are authorized to use the hosted Service and have been supplied user identifications and passwords by Client (or by Fabless Labs at Client’s request)

2.  Provision of Service and Fabless Labs Technology.

2.1  Sales Terms.  Client will purchase from Fabless Labs the Service(s) indicated in the applicable Order Schedule.  Client acknowledges and agrees that Fabless Labs does not sell the Fabless Labs Technology outright; instead, Fabless Labs clients purchase the right to use the Fabless Labs Technology to access the client-specific portions of the Service.  The subscription fees are based upon the specific features that are provided in the hosted production system and in use by a given client’s system as listed in the applicable client’s Order Schedule.  The support fees cover basic system technical support.

2.2  Provision of Service; Access Right.  Subject to Client’s payment of the applicable fees, during the applicable Service Term, Fabless Labs will provide Client with the Service described on one or more Order Schedule(s).  The Service includes the standard features and functionality applicable to the Service, and any new features that augment or enhance such Service, excluding any new modules that Fabless Labs markets and sells as a separate product.  Fabless Labs will host the Service and may update the content, functionality, and user interface of the Service from time to time.  Unless otherwise specified in the applicable Order Schedule, the hosted Services are purchased on a subscription basis.  Client has a non-exclusive, non-sublicenseable, nontransferable right to access and use the hosted Service and display the Fabless Labs Technology during the applicable Service Term, solely for Client’s internal business purposes in connection with the use case(s) (if any) set forth in the Order Schedule.  Fabless Labs reserves all rights not expressly granted hereunder.  Fabless Labs may create and maintain administrative, support, system, and maintenance accounts within the hosted Service, all with Client Data access for Fabless Labs and its assigned operators and/or other service providers, in order to deliver the Service.  Client acknowledges that the Service is a hosted service; accordingly, in order to use the Service, Client understands that: (a) Client must independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by Fabless Labs; (b) Client must follow logon procedures for the services that support such protocols; and (c)  Fabless Labs assumes no responsibility for the foregoing

2.3  Access and License Restrictions.  Client will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service or Fabless Labs Technology; (ii) modify or create derivative works based on the hosted Service or Fabless Labs Technology; (iii) create Internet “links” to the hosted Service or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer or access the hosted Service or Fabless Labs Technology in order to build a product using features, functions or graphics similar to the hosted Service or Fabless Labs Technology; (v) copy any features, functions or graphics of the hosted Service or Fabless Labs Technology; (vi) allow User subscriptions to be shared or used by more than one individual User (except that User subscriptions may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Service for the purposes described in Section 2.1);  (vii) use the Service to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (e) attempt to gain unauthorized access to the hosted Service or its related systems or networks; or (viii) provide or disclose to, or permit use of the hosted Service or Fabless Labs Technology by, persons other than Users.

2.4  Service Level.  During the Service Term, Fabless Labs will use commercially reasonable efforts to maintain an availability for the hosted Service platform (production site) of at least 95%. System availability percentage means percentage of minutes measured over the course of a calendar quarter that the Service loads upon User request, excluding periods of scheduled maintenance, general or emergency Service updates, or general failures of the Internet beyond Fabless Labs’ control.  Fabless Labs will independently measure and validate system availability.  Upon Client’s written request, Fabless Labs will provide Client with system availability reports.  Client acknowledges and agrees that Fabless Labs’ services may be subject to limitations, performance issues, delays, and other problems inherent in the use of personal computers and the internet and electronic communications.  Fabless Labs is not responsible for any nonperformance, delays, delivery failures, or other damages resulting from such problems.  Fabless Labs reserves the right to update this service level commitment or any support policies from time to time, provided that no such update will materially and adversely affect Client’s rights as provided under the preceding service level commitment or support policy.

2.5   Security/Data Integrity.  During the Service Term, Fabless Labs will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Client Data (at least as rigorous as the safeguards Fabless Labs employs to protect its own data).  These include physical access controls, encryption, Internet firewalls, intrusion detection, and network monitoring.  In addition, Fabless Labs will not: (a) modify Client Data, (b) disclose Client Data except as compelled by law or as Client expressly permits in writing, or (c) access Client Data except to provide the Services or prevent or address service or technical problems, or at Client’s request in connection with customer support matters.  In the event of a breach of this provision, as Client’s sole and exclusive remedy, Fabless Labs will use commercially reasonable efforts to restore Client’s Data as quickly as possible.  Client acknowledges that it is not feasible for Fabless Labs to accommodate conflicting data security requirements from multiple Fabless Labs clients; accordingly, Fabless Labs will use good faith efforts to accommodate Client’s request as and where feasible; however, failure to accommodate Client’s request will not be deemed a breach of this Agreement.  For the avoidance of doubt, Fabless Labs does not warrant that Client’s use of the Services is risk-free.  Fabless Labs does not provide representations, warranties, or assurances against interception or access and, provided Fabless Labs complies with the other provisions of this Section 2.4, Fabless Labs will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to Client and/or Client’s computer, data or other property in connection with Client’s use of the Services.

2.6  Storage Limits.  In the event that the Order Schedule specifies a database storage limit for the applicable Service, Client agrees not to exceed such limit, and that if Client does exceed such limit, Fabless Labs reserves the right to charge and Client agrees to pay for such additional access, as set forth in the Order Schedule.

2.7  Professional Services.  Fabless Labs will provide such resources and utilize such Fabless Labs employees and/or consultants as Fabless Labs deems necessary to perform any implementation, training, consultation or other professional services described in an SOW or Order Schedule.  The manner and methods used by Fabless Labs to perform such professional services are subject to Fabless Labs’ sole discretion.  Client agrees to provide Fabless Labs with any required Client materials needed for Fabless Labs to perform the professional services, and hereby grants Fabless Labs a royalty-free, non-exclusive, worldwide license to use such materials for the sole purpose of enabling Fabless Labs to perform the professional services described herein.  Fabless Labs will use commercially reasonable efforts to meet the schedules set forth in the SOW, and Client agrees to cooperate in good faith to allow Fabless Labs to achieve completion of such professional services in a timely and professional manner.  If achievement of any particular milestone is dependent upon performance of tasks by Client or by a third party outside of Fabless Labs’ control, the projected dates for accomplishing such milestones will be approximately adjusted to reflect any changes in such tasks.  Unless otherwise expressly set forth in this Agreement, Fabless Labs is not providing to Client any Fabless Labs Technology pursuant to this Section 2.6; such Fabless Labs Technology (and the associated hosted Service) is being provided, if at all, pursuant to the terms of Section 2.1 (“Provision of Service; Access Right”) and subject to the restrictions set forth in Section 2.2 (“Access and License Restrictions”).

3.  Client Responsibilities.  Client will abide by all applicable laws, treaties and regulations in connection with use of the Service. Client represents and warrants that each User will be deemed an authorized Client agent. Client will be responsible and liable for the acts and omissions of all Users in connection with this Agreement (such that any act or omission committed by a User that would, if committed by Client as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not a User is a signatory to this Agreement), as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Client’s account or providing and/or receiving Client Data or other information through the Service. Client acknowledges that Client’s access information, including User IDs and passwords of its Users, will be Client’s “key” to the Service and, accordingly, Client will be responsible for maintaining the confidentiality of such access information (including each User ID and password). Client will: (i) notify Fabless Labs immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Fabless Labs immediately and use reasonable efforts to stop immediately any copying or distribution of Fabless Labs Technology that is known or suspected by Client or Client’s Users; and (iii) not impersonate another Fabless Labs user or provide false identity information to gain access to or use the Service.

4.  Intellectual Property Ownership.

4.1  By Client.  As between Fabless Labs and Client, Client owns all right, title and interest, including all related Intellectual Property Rights, in and to the Client Materials.

4.2  By Fabless Labs.  Fabless Labs owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Service and the Fabless Labs Technology.  Client acknowledges that the Fabless Labs name, the Fabless Labs logo, and the product names associated with the Service are trademarks of Fabless Labs or third parties, and no license to such marks is granted herein.

5.  Billing and Payment. 

5.1  Fees; Payment.  Client will pay all fees or charges to Client’s account pursuant to the SOW or Order Schedule. Unless otherwise set forth in an SOW or Order Schedule, amounts are due and payable within thirty (30) days following the date of the invoice therefor. Except as otherwise specified herein or in an Order Schedule, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Schedule.

5.2  Taxes.  All fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on Fabless Labs’ income.  Client will pay all fees to free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Client’s responsibility, and Client will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.

5.3  Effect of Nonpayment.  This Agreement and Client’s access to the Service may be suspended or terminated if Client’s account falls into arrears. Unpaid amounts are subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all collection costs. Client will continue to be charged for Services during any period of suspension. Upon termination of this Agreement, Client will pay the balance due on Client’s account.

6.  Term; Termination.

6.1  Term; Termination.  This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for so long as there is an Order Schedule in effect between the parties.  With regard to each Order Schedule, if this Agreement has not terminated early, at least thirty (30) days prior to the expiration of a Service Term, Client will, subject to this section, either: (a) renew the Service Term for a renewal Service Term equal in duration to the then-current Service Term, at Fabless Labs’ then-current fees or such other fees as the parties may mutually agree (provided that Fabless Labs continues to make the applicable Service modules available); or (b) allow the Service Term to expire.   In the event that Client fails to elect either (a) or (b), then (b) will apply.  Either party may terminate this Agreement (or any SOW or Order Schedule) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that in the event of a breach of Section 2.2 (“Access and License Restrictions”) or 10 (“Confidentiality”), the cure period is five (5) days.  Client agrees that Fabless Labs reserves the right to modify, or discontinue offering, any Service module effective as of the conclusion of Client’s then-current Service Term, and that Fabless Labs will not be liable to Client or to any third party of any modification of the Service as described in this Section 6.1.

6.2   Treatment of Client Data Following Expiration or Termination.  Client agrees that following termination of Client’s account and/or use of the Service, Fabless Labs may immediately deactivate Client’s account and that following a reasonable period of not less than thirty (30) days, Fabless Labs will be entitled to delete Client’s account from Fabless Labs’ “live” site. During this thirty (30) day period and upon Client’s request, Fabless Labs will grant Client limited access to the Service for several days for the sole purpose of permitting Client to retrieve Client Materials, provided that Client has paid in full all amounts owed to Fabless Labs.  Client further agrees that Fabless Labs shall not be liable to Client nor to any third party for any termination of Client access to the Service or deletion of Client Materials, provided that Fabless Labs is in compliance with the terms of this Section 6.2.

6.3  Effect of Termination; Survival.  Upon the expiration or early termination of this Agreement: (a) any amounts (including expenses) owed to Fabless Labs for completed Services and work in progress, as well as fees applicable to the duration of the terminated subscription, will be immediately due and payable; (b) all subscriptions granted under this Agreement and Fabless Labs’ obligation to provide the Service and Fabless Labs Technology, and Client’s right to access the foregoing, will terminate; (c) Client Data will be returned or deleted pursuant to Section 6.2 (“Treatment of Client Data Following Expiration or Termination”); and (d) Sections 1 (“Definitions”), 2.2 (“Access and License Restrictions”), 3 (“Client Responsibilities”), 4 (“Intellectual Property Ownership”), 6 (“Billing and Payment”), 6.2 (“Treatment of Client Data Following Expiration or Termination”), 6.3 (“Effect of Termination; Survival”), 7 (“Representations and Warranties”), 8 (“Indemnification”), 9 (“Limitation of Liability”), 10 (“Confidentiality”), and 11 (“General”) will survive.

7.  Representations and Warranties.

7.1  Representations and Warranties.

(a)  By Each Party.  Each party represents and warrants that it has the power and authority to enter into this Agreement.

(b)  By Fabless Labs.

(i)  Conformity with Specifications.  Fabless Labs warrants that the applicable hosted Service platform, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the specifications for such platform expressly set forth in the applicable SOW and applicable Documentation.  Client will have thirty (30) days following the completion of the initial provision or implementation of the Service (as described in the SOW) to notify Fabless Labs of a breach of the foregoing warranty, in which event, Fabless Labs’ entire liability and Client’s sole and exclusive remedy will be, at Fabless Labs’ election, to either: (A) reperform, modify, or replace the Service so that it so conforms to such warranty; or (B) provide a refund of the fees paid for the affected Service, and solely as to the refunded Service, this Agreement, and Client’s right to access such Service will immediately terminate.  Any remedy provided by Fabless Labs will not extend the original warranty period.  Fabless Labs will have no obligation under this Agreement to correct, and Fabless Labs makes no warranty with respect to, errors caused by or relating to: (1) use of the Service in a manner inconsistent with the Documentation or this Agreement; or (2) third party hardware or software misuse, modification, or malfunction.

(ii)  Noninfringement.  Fabless Labs represents and warrants that the Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s copyright, trademark, or trade secret rights.  As Fabless Labs’ sole and exclusive obligation and Client’s sole and exclusive remedy for breach of the foregoing warranty, Fabless Labs will indemnify Client as set forth in Section 8 (“Indemnification”).

(c)  By Client.  Client represents and warrants that the Client Materials do not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate any third party’s copyright, trademark, trade secret, or privacy rights.  As Client’s sole and exclusive obligation and Fabless Labs’ sole and exclusive remedy for breach of the foregoing warranty, Client will indemnify Fabless Labs as set forth in Section 8 (“Indemnification”).

7.2   WARRANTY DISCLAIMERS.  EXCEPT AS WARRANTED IN SECTION 7.1, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  FABLESS LABS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. FABLESS LABS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT UNDERSTANDS THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO CLIENT’S USE OF THE SERVICE.  CLIENT CONSENTS TO FABLESS LABS’ INTERCEPTION AND STORAGE OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT CONTENT, AND UNDERSTANDS THAT SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT MAY NOT BE OWNED, OPERATED, OR CONTROLLED BY FABLESS LABS.  CLIENT ACKNOWLEDGES THAT CHANGES TO CLIENT MATERIALS MAY OCCUR (INCLUDING ENCRYPTION AND COMPRESSION) IN ORDER TO CONFORM AND ADAPT CLIENT MATERIALS TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES.  CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES.  ACCORDINGLY, ALTHOUGH FABLESS LABS AGREES TO EMPLOY CURRENT ENCRYPTION STANDARDS IN AN EFFORT TO MAINTAIN CLIENT DATA AS SECURE, CLIENT AGREES THAT FABLESS LABS IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CLIENT MATERIALS.  CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY OR WRITTEN STATEMENTS MADE BY FABLESS LABS REGARDING FUTURE FUNCTIONALITY OR FEATURES.  CLIENT ACKNOWLEDGES AND AGREES THAT FABLESS LABS MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CLIENT WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND THAT FABLESS LABS SHALL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION IN PERFORMING THE SERVICES.  IN PERFORMING THE SERVICES, FABLESS LABS MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS SHALL BE MADE BY AND SHALL BE THE SOLE RESPONSIBILITY OF CLIENT; FABLESS LABS SHALL NOT BE LIABLE TO CLIENT FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF CLIENT’S IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.

8.  Indemnification. 

8.1  By Fabless Labs.  Fabless Labs will indemnify and hold Client harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that the hosted Service directly infringes or misappropriates a copyright, trademark, or trade secret of a third party; (b) a claim arising from breach of this Agreement by Fabless Labs.  Fabless Labs will have no indemnification obligation, and Client will indemnify Fabless Labs pursuant to this Agreement, for claims arising from any infringement or misappropriation to the extent arising from: (i) Client’s or any User’s use of the Service other than as permitted under this Agreement; (ii) the combination of the Service with any Client Materials or any Client or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Service or any Fabless Labs Technology by any party other than Fabless Labs or Fabless Labs’ agents.  The foregoing is Fabless Labs’ sole and exclusive obligation for infringement claims.

8.2  By Client.  Client will indemnify and hold Fabless Labs harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that use of the Client Materials infringes a copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (b) a claim arising from the breach of this Agreement by Client or Client’s Users.

8.3  Indemnity Process.  Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim.  The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).

9.  Limitation of Liability.

9.1  Liability Cap.  EXCEPT AS OTHERWISE SET FORTH BELOW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT FOR THE THEN-CURRENT ANNUAL SUBSCRIPTION TERM, UNDER THE APPLICABLE ORDER SCHEDULE(S) RELATING TO THE CLAIM.  THE FOREGOING LIMITATIONS OF LIABILITY ARE SUBJECT TO THE FOLLOWING: (A) FOR A BREACH OF SECTION 2.1, 2.2, or 3 BY CLIENT, NO LIMIT WILL APPLY; OR (B) FOR A BREACH BY EITHER PARTY OF SECTION 10 (“CONFIDENTIALITY”) AND WITH REGARD TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, THE LIABILITY LIMITATION WILL BE 1.5X THE AMOUNT SET FORTH IN THE PRECEDING SENTENCE.

9.2  Liability Exclusions.  NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, SUBJECT TO SECTION 9.1. CLIENT ACKNOWLEDGES AND AGREES THAT FABLESS LABS’ LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT.

9.3  Limitations Fair and Reasonable.  EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.

10.  Confidentiality. 

10.1  Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder.  Recipient may not will knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use.  The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.

10.2  Personal Data. If Directive 95/46/EC applies to any Personal Data processed by Fabless Labs hereunder, Client represents and warrants that: (i) it has obtained all consents necessary to transfer the Personal Data to Fabless Labs, as a data processor, in the U.S., (ii) the transfer of Personal Data to the U.S. does not violate applicable law or Client’s privacy policy, (iii) any instructions given by Client to Fabless Labs for the processing of Personal Data do not violate applicable law or Client’s privacy policy. Client will be responsible for all inquiries and complaints regarding Personal Data from Data Subjects or Supervisory Authorities (as those terms are defined by Directive 95/46/EC or applicable member state law implementing that Directive).  Fabless Labs has joined the US-EU data privacy safe harbor as a data processor and, to the extent required, will maintain its certification under safe harbor on an annual basis and Fabless Labs agrees: (i) to process any Personal Data transferred to or collected by Fabless Labs only as a Data Processor (as defined in the EU Data Privacy Directive) on behalf of Client, (ii) to maintain appropriate security measures, and (iii) to comply with Client’s instructions regarding processing of Personal Data.

11.  General.

11.1  Notices.  Notices will be sent by first-class mail, overnight courier, or prepaid post, and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Client’s notices will be addressed to Fabless Labs’ Chief Executive Officer or Chief Financial Officer.

11.2  Assignment.  Client may not assign this Agreement without Fabless Labs’ prior written approval.  Any attempted assignment in violation of the foregoing will be null and void.

11.3  Governing Law; Venue.  This Agreement will be governed by California law, without regard to the conflicts of law provisions of any jurisdiction.  Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.

11.4  Remedies.  Except as provided in Sections 7 (“Representations and Warranties”) and 10 (“Indemnification”), the parties’ rights and remedies hereunder are cumulative.  Client acknowledges that the Service and Fabless Labs Technology contain Fabless Labs’ valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Fabless Labs for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.

11.5  Independent Contractors.  The parties are independent contractors.  No joint venture, partnership, employment, or agency relationship exists between Client and Fabless Labs as a result of this Agreement or use of the Service.

11.6  U.S. Government End Users.  If Client is a branch agency or instrumentality of the United States Government, the following provision applies.  If Client is the US federal government, Fabless Labs provides the Service, including related software and technology, in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided  in accordance with  FAR  12.211  (Technical  Data)  and  FAR  12.212  (Software)  and,  for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Fabless Labs to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written amendment specifically conveying such rights, must be included in any applicable contract or agreement.

11.7  Waiver.  The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.

11.8  Amendments Must be in Writing.  No modification hereof will be effective unless in writing and signed by both parties.

11.9  Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.  Without limiting the generality of the foregoing, Client agrees that Section 9 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (“Representations and Warranties”).

11.10  Contract Interpretation.  Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.  As used in this Agreement, the word “including” means “including but not limited to.”

11.11  Entire Agreement.  This Agreement comprises the entire agreement between Client and Fabless Labs and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter.  In the event of a conflict between the terms of this Agreement and the terms of any SOW, any Order Schedule, or other exhibit hereto, such conflict will be resolved in the following order: (a) any Order Schedule; (b) any exhibits to this Agreement; (c) these Terms and Conditions, exclusive of any exhibits; and (c) any SOW.  Any preprinted terms on any Client ordering documents will have no effect on the terms of this Agreement and are hereby rejected.