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Technology License Agreement

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; andto 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.