Terms and Conditions
1. DEFINITIONS
The terms defined in this Section 1 shall have the respective meanings set forth below, and grammatical variations shall have corresponding meanings:
1.1 “Affiliate” means, with respect to a Party, any entity that controls or is controlled by such Party or is under common control with such Party. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, more than fifty percent (50%) of the voting equity of the other entity (or other comparable interest for an entity other than a corporation).
1.2 “Confidential Information” means all information and data that (a) is provided by one Party to the other Party under an Agreement, and (b) if disclosed in writing or other tangible medium is marked or identified as confidential at the time of disclosure to the recipient, is acknowledged at the time of disclosure to be confidential or otherwise should reasonably be deemed to be confidential. Notwithstanding the foregoing, Confidential Information of a Party shall not include that portion of such information and data which, and only to the extent, the recipient can establish by written documentation: (i) is known to the recipient as evidenced by its written records before receipt thereof from the disclosing Party; (ii) is disclosed to the recipient free of confidentiality obligations by a third person who has the right to make such disclosure; (iii) is or becomes part of the public domain through no fault of the recipient; or (iv) the recipient can reasonably establish is independently developed by persons on behalf of recipient without access to or use of the information disclosed by the disclosing Party.
1.3 “Derived” means acquired, obtained, conceived, reduced to practice, developed, created, synthesized, designed, derived or resulting from, based upon or otherwise generated (whether directly or indirectly, or solely or jointly with others, or in whole or in part).
1.4 “Documentation” means any Specifications, technical manuals, and other materials provided by Femtosense, whether visually or machine readable, instructing Femtosense’s licensees, partners, and customers on the use, operation, and functioning of the Products.
1.5 “Femtosense Technology” means, collectively, (a) the Products, (b) any related Documentation, and (c) any related algorithms, firmware, Femtosense technology or other technology, each as provided by Femtosense under an Agreement, together with all modifications and improvements in or to the foregoing Derived by or on behalf of Femtosense, whether Derived prior to, on or after the Effective Date.
1.6 “Intellectual Property” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including, but not limited to, copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms, and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.7 “Product” means the Femtosense hardware and chips as it may be amended from time to time in accordance with the terms hereof.
1.8 “Specifications” means Femtosense’s technical specifications for the Products as set forth or identified and as amended from time to time by Femtosense.
1.9 “Third Party” means any person or entity other than Femtosense, CUSTOMER or their respective Affiliates.
2. SUPPLY OF PRODUCTS
2.1 Manufacture and Sale. On the terms and conditions of an Agreement, Femtosense or its Affiliates shall manufacture, sell and deliver to CUSTOMER, and CUSTOMER shall purchase from Femtosense, all quantities of Products ordered by CUSTOMER hereunder.
2.2 Product Conformance. Femtosense shall manufacture, store, handle and transport all Products under an Agreement (a) in conformity with the applicable Specifications, (b) consistent with Femtosense’s standard quality assurance policies, and (c) in accordance with all applicable laws and regulations. Each shipment of Products from Femtosense to CUSTOMER will be inspected by Femtosense prior to shipment and will contain the standard Femtosense certificate of conformance stating that the Products are free of defects. Femtosense shall be solely responsible, at its sole cost, for all facilities, capital equipment and other resources therefor.
2.3 Software. In connection with the Agreement, one or both Parties may provide certain software or services requested by the other in accordance with the terms and conditions mutually agreed to.
2.4 Maintenance and Support. Except as expressly set forth in a purchase order for which Femtosense has issued a written acceptance pursuant to Section 3.5, Femtosense has no, and will have no, obligation or responsibility whatsoever to provide to CUSTOMER, CUSTOMER’s customers, or any Third Party, any maintenance, support or assistance with respect to the Products and the use thereof. Femtosense cannot and will not be held liable or responsible to CUSTOMER, CUSTOMER’s customers, or any Third Party for the failure to provide any such maintenance, support or assistance.
3. FORECASTS AND ORDERS
3.1 Guaranteed Capacity. Femtosense will exercise commercially reasonable efforts to maintain a capacity for manufacturing of Products per calendar quarter during the term (the “Guaranteed Capacity”). The Guaranteed Capacity for a calendar quarter can be consumed by CUSTOMER only during such calendar quarter and cannot be shifted to other calendar quarters. Femtosense will, as agreed to by the Parties, promptly notify CUSTOMER of any foreseen shortfalls or difficulties that have a significant possibility of jeopardizing the Guaranteed Capacity.
3.2 Lead Times. Femtosense will use commercially reasonable efforts to provide prompt notice of any lead-time or capacity changes applicable to Products. CUSTOMER acknowledges that the applicable lead-times for Products may be subject to change due to, among other things, technical considerations and supply conditions.
3.3 Forecasts. On the Effective Date, and prior to the first day of each calendar quarter during the term thereafter, CUSTOMER shall prepare and provide Femtosense with a written forecast of its good faith estimated requirements for Products for each of the following twelve (12) calendar months after the date of such forecast. The quantities estimated in each forecast shall be non-binding and for planning purposes only.
3.4 Purchase Orders. CUSTOMER shall make all purchases hereunder by submitting purchase orders to Femtosense, which may be firm purchase orders or open purchase orders, each in accordance with the terms of this Section 3.4. Each purchase order shall be in writing and shall specify the quantities of Products ordered, as well as any software or services to be provided by Femtosense to CUSTOMER, if any. Each purchase order will be for a minimum quantity of 1 unit of Products. Each firm purchase order shall additionally specify the place of delivery and the required delivery date therefor, which shall be consistent with any lead times relevant to the applicable Product(s), as specified. Each open purchase order shall additionally specify the required delivery range therefor, which shall be consistent with any applicable Product lead times as specified. CUSTOMER shall have the right to make purchases hereunder by submitting firm release orders against the undelivered amount of Product ordered under any open purchase order. In the event of a conflict between the terms and conditions of any purchase order and an Agreement, the terms and conditions of an Agreement shall prevail. No other communication (other than a purchase order) shall be a commitment by CUSTOMER to purchase Product.
3.5 Purchase Order Acceptance. Femtosense shall use commercially reasonable efforts to accept any purchase orders and shall confirm acceptance of each purchase order within seven (7) days of receipt. Notwithstanding anything to the contrary in an Agreement, Femtosense will have no obligation to accept any purchase order for any volume of Products if the aggregate volume of Products ordered by CUSTOMER in the applicable calendar month has met or exceeded the applicable Guaranteed Capacity.
4. RESCHEDULING AND CANCELLATION
4.1 Rescheduling. With Femtosense’s prior written consent, CUSTOMER may reschedule any purchase order (or any portion thereof) after Femtosense has issued a written acceptance pursuant to Section 3.5.
4.2 Cancellation. With Femtosense’s prior written consent, CUSTOMER may cancel any purchase order for Product on any date that is thirty (30) days before the scheduled delivery date for Product set forth in the applicable purchase order. To cancel a purchase order, CUSTOMER shall send a written notice to Femtosense referencing the purchase order to be cancelled. Femtosense reserves the right to cancel all or any part of a purchase order, without any liability to CUSTOMER, if CUSTOMER is in default under an Agreement.
5. DELIVERY, TITLE AND RISK OF LOSS, AND ACCEPTANCE
5.1 Delivery
5.1.1 Femtosense shall make commercially reasonable efforts to ship Product(s) to meet delivery dates specified in the purchase orders. On-time delivery will be up to seven (7) days before or seven (7) days after the agreed upon delivery date. Femtosense will provide reasonable notice to CUSTOMER of any anticipated delays in a delivery date.
5.1.2 All Products supplied under an Agreement shall be shipped FCA (Incoterms 2020), to such location as designated by CUSTOMER. Each shipment of Product shall be accompanied by (a) a packaging slip showing the applicable purchase order number and date (and number and date of any applicable firm release order), the type and quantity of Products included in the delivery (including the applicable Product batch numbers), the applicable SKU, unit of measure, unit price, and extended price, and (b) all documentation necessary for the importation, sale and/or export of such Product.
5.1.3 Notwithstanding anything to the contrary herein, in the event of a Force Majeure Event, Femtosense reserves the right to adopt an equitable plan of allocation and adjust delivery schedules accordingly. Femtosense further reserves the right to adjust inventory levels based upon business conditions, consumption rates, and on an as-needed basis.
5.2 Title and Risk of Loss. Title to and risk of loss of the Products will pass to the CUSTOMER upon delivery of such Products to CUSTOMER. At time of delivery, Femtosense will convey title to such Products to CUSTOMER free and clear of all liens and encumbrances.
5.3 Acceptance. Upon delivery of any unit of Product by Femtosense pursuant to an Agreement, CUSTOMER shall review and evaluate whether such Product conforms to the Specifications in all material respects at the time of delivery. CUSTOMER shall either accept or reject such Product within ten (10) days after Femtosense’s delivery of such Product. CUSTOMER shall only have the right to reject such Product if such Product does not conform to the Specifications in all material respects at the time of delivery. Any such rejection must be made in writing to Femtosense and must be accompanied by a reasonably detailed description of the way such Product did not conform to the Specifications in all material respects at the time of delivery. If CUSTOMER fails to accept or reject such Product within such ten (10) day period, CUSTOMER shall be deemed to have accepted such Product. With respect to any Product that CUSTOMER believes does not conform to Specifications in all material respects at the time of delivery and that CUSTOMER rejected pursuant to the foregoing provisions of this Section 5.3, CUSTOMER may, within the foregoing ten (10) day period, request an RMA for such Product pursuant to the RMA process set forth in Section 6.3 below as if such Product was Alleged Nonconforming Product. If Femtosense confirms that such Product did not conform to the Specifications in all material respects at the time of delivery, Femtosense shall provide the exclusive remedies set forth in Section 6.4 as if such Product was Nonconforming Product.
6. LIMITED WARRANTY AND DISCLAIMER
6.1 Limited Warranty. Femtosense warrants to CUSTOMER that each unit of Product delivered by Femtosense to CUSTOMER under an Agreement will conform in all material respects to the Specifications during the ninety (90) day period immediately following the date such unit of Product is delivered to CUSTOMER (the “Warranty Period”). This warranty will not be expanded, and no obligation or liability will arise, due to engineering services, technical advice or assistance, computerized data, facilities or services Femtosense may provide in connection with CUSTOMER’s purchase. Femtosense provides no warranty for Products purchased through unauthorized sales channels. Notwithstanding the foregoing, to the extent Femtosense provides any development product(s), prototype and other non-production product(s), samples of production product(s) or software under an Agreement, THEY ARE NOT WARRANTED AND ARE PROVIDED ON AN “AS IS” BASIS ONLY. THIS WARRANTY EXTENDS TO CUSTOMER ONLY AND MAY BE INVOKED ONLY BY CUSTOMER FOR ITS CUSTOMERS. FEMTOSENSE WILL NOT ACCEPT WARRANTY RETURNS FROM CUSTOMER’S CUSTOMERS OR USERS OF CUSTOMER’S PRODUCT(S).
6.2 Exclusions. Notwithstanding any other provision of an Agreement, Femtosense shall have no obligation under Section 5.3 or this Section 6 for any Product problem or defect caused, in whole or in part, by: (a) modification or corrections to such Product not made by Femtosense, (b) use or combination of the Product with non-Product hardware, software or firmware, (c) failure to use such Product in accordance with the applicable Documentation, (d) unusual physical or electrical stress, (e) misuse, improper handling or storage, modification, improper installation, or repair other than by Femtosense, or (f) if applicable, Femtosense’s compliance with CUSTOMER’s written design specifications specific to CUSTOMER’s needs, if the problem or defect would not have occurred but for Femtosense’s implementation of such specifications.
6.3 RMA Procedure. CUSTOMER shall ensure that all warranty claims related to Products are addressed to CUSTOMER and not Femtosense. Any Product units that do not conform to the express warranty in Section 6.1 (“Nonconforming Product”) may only be returned to Femtosense as provided in this Section 6.3. With respect to any Product that CUSTOMER believes does not conform to the Customere warranty in Section 6.1 (“Alleged Nonconforming Product”), CUSTOMER: (a) may request in writing that Femtosense issue a return material authorization (“RMA”) covering such Product, and (b) upon Femtosense’s request in response to a request made by CUSTOMER under subsection (a) Customere, shall send a reasonable sample of the Alleged Nonconforming Product to Femtosense pursuant to Femtosense’s direction; provided that such request by CUSTOMER for an RMA must be made within thirty (30) days after the expiration of the Warranty Period for such Product. Femtosense or its contractors shall perform failure analysis on such sample of the Alleged Nonconforming Product. After Femtosense has performed failure analysis on such sample of the Alleged Nonconforming Product, Femtosense shall either issue an RMA covering such Alleged Nonconforming Product (in whole or in part) or provide CUSTOMER notice of rejection of CUSTOMER’s request for such RMA. Only and solely if: (i) Femtosense determines that such Alleged Nonconforming Product does not conform to the express limited warranty set forth in Section 6.1, (ii) Femtosense issues an applicable RMA pursuant to this Section 6.3, and (iii) CUSTOMER has complied with the foregoing provisions of this Section 6.3 may CUSTOMER return to Femtosense or Femtosense’s designee all Nonconforming Product covered by any such RMA issued by Femtosense. Such Nonconforming Product must be returned within thirty (30) days after the issuance of such RMA by Femtosense.
6.4 Remedies. With respect to any Nonconforming Product returned to Femtosense in accordance with Section 6.3, Femtosense shall, at Femtosense’s option, either: (a) replace such Nonconforming Product within a commercially reasonable period of time with conforming Product, or (b) credit to CUSTOMER the price paid by CUSTOMER for such Nonconforming Product. Notwithstanding any other provision of an Agreement, any replacement for Nonconforming Product delivered to CUSTOMER pursuant to this Section 6.4 shall be warranted pursuant to Section 6.1 for the remainder of the original Warranty Period for the applicable Nonconforming Product or thirty (30) days after delivery to CUSTOMER of such replacement for Nonconforming Product, whichever is longer. If Femtosense determines that any Alleged Nonconforming Product returned to Femtosense pursuant to Section 6.3 conforms to the express limited warranty set forth in Section 6.1, CUSTOMER shall reimburse Femtosense for all labor and other costs incurred by Femtosense in testing, assessing and returning the Allegedly Nonconforming Product to CUSTOMER. If Femtosense reasonably determines that any Product returned to Femtosense pursuant to Section 6.3 is Nonconforming Product, Femtosense shall reimburse CUSTOMER for the reasonable shipping costs incurred by CUSTOMER in delivering such Nonconforming Product to CUSTOMER and shall pay for any shipping costs to return to CUSTOMER a replacement for such Nonconforming Product. Except for the foregoing remedies stated in this Section 6.4 with respect to the replacement or refund of fees with respect to Nonconforming Product units, in no event shall Femtosense be responsible for any rework, replacement or any costs or expenses associated with any Product (including, without limitation, any components therein) containing or otherwise related to any Nonconforming Product for any reason whatsoever.
6.5 Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 6 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF FEMTOSENSE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY NONCONFORMING PRODUCT. THE WARRANTY SET FORTH CUSTOMERE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES FOR NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. FEMTOSENSE PRODUCTS ARE NOT AUTHORIZED FOR USE BY CUSTOMER OR ANY THIRD PARTY AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR FOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY DANGEROUS APPLICATION WITHOUT THE EXPRESS WRITTEN APPROVAL OF FEMTOSENSE. LIFE SUPPORT DEVICES OR SYSTEMS ARE THOSE WHICH ARE INTENDED TO SUPPORT OR SUSTAIN LIFE AND WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A SIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS ARE THOSE COMPONENTS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE FAILURE OF A LIFE SUPPORT DEVICE OR SYSTEM OR AFFECT ITS SAFETY OR EFFECTIVENESS.
7. QUALITY
7.1 Inspections. CUSTOMER shall have the right, at its sole expense, to audit Femtosense for compliance with an Agreement on reasonable notice during normal business hours. Femtosense shall fully cooperate with CUSTOMER in connection with such audit, including by making such records and personnel available to CUSTOMER as may be reasonably necessary or useful for such audit. CUSTOMER will give Femtosense at least thirty (30) days prior written notice for any such inspection.
7.2 Recalls. In the event CUSTOMER should be required or should voluntarily decide to initiate a recall, withdrawal, or field correction of any of the Products (each, a “Recall”), CUSTOMER shall notify Femtosense and provide a copy of its recall letter, such recall letter to include the reasons for the Recall. If Femtosense independently believes that a Recall for any of the Products may be necessary or appropriate, Femtosense shall notify CUSTOMER of Femtosense’s belief, and the Parties shall fully cooperate with each other concerning the necessity and nature of such action. All coordination, and communication, of any Recall of a Product shall be handled by CUSTOMER whether such action was initially requested by Femtosense. CUSTOMER shall bear all of the reasonable costs and expenses of a Recall, including expenses related to communications and meetings with all required regulatory agencies, expenses of replacement stock, the cost of notifying customers and costs associated with shipment of recalled Product from customers and shipment of an equal amount of replacement Product to those same customers, except to the extent such Recall resulted from Femtosense’s manufacture of the Product, in which case Femtosense shall bear all the reasonable costs and expenses of such Recall.
7.3 Records Retention. Femtosense shall maintain relevant or key records used in production and quality control in accordance with Femtosense’s record retention policy. Femtosense shall maintain all such records for a period of not less than seven (7) years from the manufacturing date of Product to which such records pertain, or such longer periods as may be required by applicable laws and regulations.
7.4 Quality Information. Upon the reasonable request of CUSTOMER, Femtosense shall provide CUSTOMER with such information, including analytical and manufacturing documentation, requested by CUSTOMER regarding quality control of Products supplied under an Agreement.
7.5 Cooperation. Each Party shall cooperate with the reasonable requests of the other Party, and provide such technical assistance, as reasonably requested by the other Party, in the performance of its obligations under this Section 7.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Ownership. Except as expressly provided herein, Femtosense shall retain all right, title, and interest in the Femtosense Technology, Femtosense trademarks, Femtosense reference designs, and Femtosense Confidential Information, including all related Intellectual Property rights. CUSTOMER neither has nor shall acquire any ownership interest therein.
8.2 License Grant to CUSTOMER. On the terms and conditions of an Agreement, Femtosense hereby grants to CUSTOMER a worldwide, royalty-free, non-exclusive license under Femtosense’s Intellectual Property rights in and to the Femtosense Technology to the extent reasonably necessary or useful for CUSTOMER to use and otherwise exploit Product. CUSTOMER shall have the right to grant sublicenses under the foregoing license, through multiple tiers, to Third Parties and Affiliates.
8.3 License Restrictions. Except as set forth in Section 8.2, CUSTOMER shall not and has no right to (and shall not authorize any Affiliate or Third Party to): (a) disassemble, decompile, reverse engineer, reproduce, manufacture, copy, distribute, perform, display, modify, translate, make, use, sell, offer to sell, lease, loan, import or disclose, create derivative works of, sublicense, assign, or otherwise distribute or transfer any portions of the Femtosense Technology, (b) remove or alter any copyright other proprietary notices, legends, symbols, or labels appearing on or in copies of any Femtosense Technology, (c) distribute Femtosense Technology on a stand-alone basis, (d) extract ideas, algorithms, procedures, workflows or hierarchies from the Femtosense Technology, or otherwise use the Femtosense Technology for the purpose of creating another product or service, or (e) otherwise use the Femtosense Technology except as expressly licensed hereunder.
8.4 Embedded Software. The sale of each unit of Product to CUSTOMER and the transfer of title for each unit of Product to CUSTOMER shall not include a sale of any software, computer programs, source codes, object codes, listings or related materials in machine-readable or printed form (including firmware and all types of media), or any updates and modifications thereto, that are included in or with Product (collectively, “Embedded Software”) or a transfer of Embedded Software title to CUSTOMER. Instead, the sale of each unit of Product shall include a fully paid license for CUSTOMER to transfer the Embedded Software to its customers upon execution of an end user license agreement by CUSTOMER’s customers that is at least as protective of Femtosense as the provisions of an Agreement and which CUSTOMER generally uses in the normal course of its business for the distribution of its products and services. Femtosense shall retain full title to the Embedded Software and all copies thereof, and CUSTOMER and its customers may use the Embedded Software only in accordance with the provisions of their executed end user license agreement. Neither CUSTOMER nor its customers shall have any access to or rights in the Embedded Software source codes. Neither CUSTOMER nor its customers shall have the right to copy, modify or remanufacture any Product or part thereof.
8.5 Feedback. If CUSTOMER provides any input, suggestions or feedback to Femtosense (“Feedback”), Femtosense will have and is hereby granted an unrestricted, irrevocable, worldwide, non-terminable right and license to use and otherwise exploit such Feedback, together with all intellectual property or proprietary rights in or pertaining to Feedback, for any purpose and to authorize Third Parties to exercise the foregoing rights and licenses. CUSTOMER hereby waives any moral rights CUSTOMER may have in any such Feedback.
8.6 No Implied Licenses. Only licenses and rights expressly granted herein shall be of legal force and effect. No license or other right shall be created hereunder by implication, estoppel or otherwise.
9. CONFIDENTIALITY
9.1 Confidentiality. During the term of an Agreement and for a period of five (5) years following the expiration or earlier termination hereof, each Party shall maintain in confidence the Confidential Information of the other Party, shall not use or grant the use of the Confidential Information of the other Party except as expressly permitted hereby, and shall not disclose the Confidential Information of the other Party except on a need-to-know basis to such Party’s directors, officers, employees and consultants, to the extent such disclosure is reasonably necessary in connection with such Party’s activities as expressly authorized by an Agreement. To the extent that disclosure to any person is authorized by an Agreement, prior to disclosure, a Party shall obtain written agreement of such person to hold in confidence and not disclose, use or grant the use of the Confidential Information of the other Party except as expressly permitted under an Agreement or ensure such person is bound in writing by confidentiality obligations at least as restrictive as those set forth herein. Each Party shall notify the other Party promptly upon discovery of any unauthorized use or disclosure of the other Party’s Confidential Information.
9.2 Terms of Agreement. Neither Party shall disclose any terms or conditions of an Agreement to any Third Party without prior notice to the other Party; provided, however, that a Party may disclose the terms or conditions of an Agreement, (a) on a need-to-know basis to its legal and financial advisors to the extent such disclosure is reasonably necessary, (b) to a Third Party in connection with (i) an equity investment in such Party, (ii) a merger, consolidation or similar transaction by such Party, or (iii) the sale of all or substantially all of the assets of such Party, or (c) to any individual or entity with whom such Party has, or is proposing to enter into, a business relationship relating to Product, as long as such individual or entity has entered into a confidentiality agreement with such Party. Notwithstanding the foregoing, prior to execution of an Agreement, the Parties have agreed upon the substance of information that can be used to describe the terms and conditions of this transaction, and each Party may disclose such information, as modified by mutual written agreement of the Parties, without the consent of the other Party.
9.3 Permitted Disclosures. The confidentiality obligations contained in this Section 9 shall not apply to the extent that a Party is required to disclose the Confidential Information of the other Party by any governmental authority, provided that, to the extent practicable, such Party shall provide written notice thereof to the other Party and sufficient opportunity to object to any such disclosure or to request confidential treatment.
9.4 Use of Name; Publicity. Neither Party shall (a) authorize or permit the use of the name of the other Party, or any other trade names, trademarks or trade dress of the other Party, for any purpose, or (b) issue a press release or other public announcement or public disclosure concerning an Agreement (or any term sheet, bids, negotiations or other related information), the transactions contemplated herein. or the relationship between the Parties, without prior written notice to an authorized representative of the other Party. Without limiting the foregoing, neither Party shall use any word, name, logo, image. symbol, slogan, sample or design of the other Party or the other Party’s Products, or any quote or statement from an employee, consultant or agent of the other Party, in any written or oral advertisement, endorsement or other promotional materials without the prior written approval of an authorized representative of the other Party.
9.5 Remedies. In the event of a breach or threatened breach of the nonuse and nondisclosure provisions of this Section 9, the Parties agree that the damages to be suffered by the aggrieved Party will not be fully compensable in money damages alone, and accordingly, the aggrieved Party, in addition to other available legal or equitable remedies, will be entitled to seek an injunction against such breach or threatened breach without any requirement to post bond as a condition of such relief.
10. INDEMNIFICATION AND INSURANCE
10.1 By Femtosense. Femtosense shall defend, indemnify and hold harmless CUSTOMER, its Affiliates, and its and their respective directors, officers, employees and agents, from and against all losses, liabilities, damages and expenses, including reasonable attorneys’ fees and costs (collectively, “Liabilities”), resulting from any claim, demand, action or other proceeding by any Third Party (each a “Claim”) to the extent resulting from the actual or alleged (a) breach of any representation or warranty or covenant of Femtosense set forth in an Agreement, or (b) negligence or intentional misconduct by or on behalf of Femtosense in performing its obligations under an Agreement.
10.2 By CUSTOMER. CUSTOMER shall indemnify and hold harmless Femtosense, and its directors, officers, employees and agents, from and against all Liabilities resulting from any Claim to the extent (a) resulting from the actual or alleged (i) breach of any representation or warranty or covenant of CUSTOMER set forth in an Agreement, or (ii) negligence or intentional misconduct by or on behalf of CUSTOMER in performing its obligations under an Agreement, or (b) resulting from, arising out of or related to any article furnished hereunder by CUSTOMER to Femtosense or any Product furnished to CUSTOMER hereunder, except to the extent that Femtosense is obligated to indemnify CUSTOMER for such Losses pursuant to Section 10.1.
10.3 Procedure. If a Party (the “Indemnitee”) intends to claim indemnification under this Section 10, it shall promptly notify the other Party (the “Indemnitor”) in writing of any Claim for which the Indemnitee intends to claim such indemnification, and the Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume the defense thereof with counsel mutually satisfactory to the Parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnitor, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between the Indemnitee and any other Party represented by such counsel in such Claim. The obligations of this Section 10 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld or delayed unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such Claim, if prejudicial to its ability to defend such action, shall relieve the Indemnitor of any obligation to the Indemnitee under this Section 10, but the omission so to deliver written notice to the Indemnitor shall not relieve it of any obligation that it may have to any Party claiming indemnification otherwise than under this Section 10. The Indemnitee, its employees and agents, shall reasonably cooperate with the Indemnitor and its legal representatives in the investigation of any Claim covered by this Section 10.
10.4 Insurance. Each Party shall maintain insurance, including product liability insurance, with respect to its activities under an Agreement in such amount as such Party customarily maintains with respect to similar activities, but not less than such amount as is reasonable and customary in the industry. Each Party shall maintain such insurance for so long as it continues its activities under an Agreement, and thereafter for so long as such Party customarily maintains insurance for itself covering similar activities.
11. TERM AND TERMINATION
11.1 Term. An Agreement shall commence on the Effective Date and, unless earlier terminated pursuant to this Section 11. An Agreement may be extended by mutual written agreement of the Parties.
11.2 Termination for Breach. If a Party has materially breached an Agreement, and such material breach continues for a period of thirty (30) days after written notice of such breach was provided to the breaching Party by the nonbreaching Party, the nonbreaching Party shall have the right at its option to terminate an Agreement (including any pending purchase orders) effective at the end of such thirty (30)-day period.
11.3 Termination for Insolvency. Either Party may terminate an Agreement (including any pending purchase orders) if the other Party becomes insolvent or admits in writing its inability to pay its debts as they mature; or the other Party makes an assignment for the benefit of creditors; or the other Party files (or has filed by any Third Party against it) a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist or as they may be amended; or if an application for a receiver of the other Party is made by anyone and such petition or application is not resolved favorably within thirty (30) days.
11.4 Effect of Expiration or Termination
11.4.1 Expiration or termination of an Agreement shall be without prejudice to any rights which have accrued to the benefit of a Party prior to such expiration or termination. Without limiting the foregoing, [Sections 8, 9, this 11.4, and 13] survive any expiration or termination of an Agreement.
11.4.2 Except as otherwise expressly set forth in an Agreement, promptly upon the expiration or earlier termination of an Agreement, each Party shall return or destroy as directed by the other Party all tangible items regarding the Confidential Information of the other Party and all copies thereof; provided, however, that each Party shall have the right to retain one (1) copy for its legal files for the sole purpose of determining its obligations hereunder.
11.4.3 Each Party shall remain liable to the other after termination of an Agreement for all obligations it incurred prior to such termination. Unless an Agreement is terminated by Femtosense under Section 11.2 or Section 11.3, all purchase orders placed before termination must be duly executed and the entirety of an Agreement will apply to any such purchase orders.
12. LIMITATION OF LIABILITY
12.1 CUMULATIVE LIABILITY. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, EACH PARTY’S TOTAL LIABILITY, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE, IS LIMITED TO THE PAST 12 MONTHS OF AMOUNT PAID OR PAYABLE BY CUSTOMER TO FEMTOSENSE FOR PRODUCTS PURCHASED UNDER AN AGREEMENT.
12.2 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), WHETHER FORESEEABLE OR NOT, ARISING OUT OF AN AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, REGARDLESS OF THE LEGAL THEORY ON WHICH ANY SUCH CLAIM MAY BE MADE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. GENERAL
13.1 Representations and Warranties. Each Party represents and warrants to the other Party as follows:
13.1.1 Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.
13.1.2 Such Party (a) has the requisite power and authority and the legal right to enter into an Agreement and to perform its obligations hereunder; and (b) has taken all requisite action on its part to authorize the execution and delivery of an Agreement and the performance of its obligations hereunder. An Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms.
13.1.3 All necessary consents, approvals and authorizations of all governmental authorities and other persons or entities required to be obtained by such Party in connection with an Agreement have been obtained.
13.1.4 The execution and delivery of an Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of applicable laws, regulations or orders of governmental bodies; and (b) do not conflict with, or constitute a default under, any contractual obligation of such Party.
13.2 Representative. Each Party will designate in writing an individual or individuals (each a “Representative”) who will be responsible for implementing and reviewing any questions concerning the terms of an Agreement. Each Party may change its designated Representative(s) upon written notice to the other Party.
13.3 Force Majeure. If the performance of either Party is delayed or prevented by circumstances beyond the reasonable control of that Party, including but not limited to any act of God, any refusal of any import, export or other license or other governmental act or restriction, fire, explosion, strike or lockout, war, terrorism, hostilities, sanctions, revolution, riot, interruption of transportation or inability to obtain necessary labor, materials, or facilities (such circumstances, a “Force Majeure Event”), then the due time for performance will be extended by a reasonable period.
13.4 Governing Law; Exclusive Jurisdiction. An Agreement and any action related thereto shall be governed, controlled, interpreted, and defined by and under the laws of the State of California and the United States, without regard to the conflicts of laws provisions thereof. The exclusive jurisdiction and venue of any action with respect to the subject matter of an Agreement shall be the state courts of the State of California for the County of San Mateo or the United States District Court for the Northern District of California and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The Parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
13.5 WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO AN AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO AN AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.5.
13.6 Import and Export. Each of the Parties agree to comply fully with all relevant export laws and regulations (“Export Laws”), to assure that the Products are not exported, directly or indirectly, in violation of Export Laws, or intended to be used for any purposes prohibited by the Export Laws, including nuclear, chemical, or biological weapons proliferation, and the United States International Traffic in Arms Regulations (“ITAR”) and the terms and conditions of all applicable ITAR authorizations. Each Party shall provide the other with reasonable assistance necessary for determining whether the Products are subject to any export or import control regulations and to assist the other Party to obtain any necessary export or import clearances, certificates, or licenses, as applicable.
13.7 Complete Agreement. An Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof, and all prior representations, understandings and agreements regarding the subject matter hereof, either written or oral, expressed or implied, are superseded and shall be and of no effect.
13.8 Waivers and Amendments. No change, modification, extension, termination or waiver of an Agreement, or any of the provisions herein contained, shall be valid unless made in writing and signed by duly authorized representatives of the Parties hereto. The waiver by either Party hereto of any right hereunder or the failure to perform or of a breach by the other Party shall not be deemed a waiver of any other right hereunder or of any other breach or failure by said other Party whether of a similar nature or otherwise.
13.9 Severability. If any term or other provision of an Agreement is held to be invalid, illegal or incapable of being enforced in accordance with the terms hereunder, all other conditions and provisions of an Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transaction contemplated by an Agreement is not affected in any manner materially adverse to either Party. Upon any such determination, the Parties shall negotiate in good faith to modify an Agreement to affect their original intent as contemplated by an Agreement to the greatest extent possible.
13.10 Further Actions. Each Party shall execute, acknowledge and deliver such further documents and instruments and to perform all such other acts as may be necessary or appropriate to carry out the purposes and intent of an Agreement.
13.11 Expenses. Except as otherwise expressly provided herein, each Party shall bear its own expenses of performing its obligations hereunder.
13.12 Assignment; Successors. Neither Party may assign an Agreement or any of its rights hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other, except that either Party may assign an Agreement and all its rights hereunder in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of such Party’s assets. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, an Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
13.13 Subcontracting. Femtosense will be entitled to use the services of its Affiliates and its and their respective subcontractors and/or consultants, provided that Femtosense remains fully liable for the performance of Femtosense and its Affiliates and its and their respective subcontractors or consultants hereunder.
13.14 Independent Contractors. The relationship of the Parties hereto is that of independent contractors. The Parties hereto are not deemed to be agents, partners or joint venturers of the others for any purpose because of an Agreement or the transactions contemplated thereby.
13.15 No Third-Party Beneficiary Rights. No person not a Party to an Agreement is an intended beneficiary of an Agreement, and no person not a Party to an Agreement will have any right to enforce any term of an Agreement.
13.16 Headings and Interpretation. Femtosense and CUSTOMER acknowledge that each Party and its counsel have reviewed and revised an Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting Party are not to be employed in the interpretation of an Agreement. The heading references in an Agreement are for convenience of reference only and will not affect any of the provisions hereof. The words “include,” “includes,” or “including,” when used in an Agreement are non-limiting and will be deemed to be followed by the words “without limitation.” The words “hereof”, “herein”, and “hereunder” and words of similar import, when used in an Agreement, refer to an Agreement as a whole and not to any particular provision of an Agreement. Unless otherwise expressly set forth in an Agreement, references herein to a specific Section or Exhibit shall refer, respectively, to Sections or Exhibits of an Agreement.
13.17 Language and Translation. An Agreement will be executed in the English language only and no translation will be considered in the interpretation hereof.
13.18 Counterparts. An Agreement may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one and the same agreement. Execution of an Agreement may be accomplished via facsimile or via email exchange of signed PDF execution copies.
Last updated: May 13, 2025
