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The terms and conditions contained herein apply to all deliveries made and services rendered by Efabless Corporation of 2570 N 1st St., San Jose, California 95131 (the "Provider") (each also herein referred to individually as a “Party,” or collectively as the “Parties”).

1. DESCRIPTION OF SERVICES. Efabless Corporation will provide to Recipient the services described in the attached Exhibit (collectively, the "Services").

1. PAYMENT. This service is provided at zero cost.  Any costs related to taxes or import duties are the responsibility of the Recipient.

1. TERM. This Contract will terminate automatically upon the satisfactory completion by Provider and acceptance by Recipient of the Services required by this Contract.

1. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Provider in connection with the Services will be the exclusive property of Provider. Upon request, the Recipient will execute all documents necessary to confirm or perfect the exclusive ownership of the Provider to the Work Product.

1. CHANGE ORDERS.   Either party may at any time during the term of this Contract propose changes in the delivery dates, schedules, project plans, deliverables, designs or specifications.  Any such proposal shall be documented in a written change order and shall become effective only upon mutual written agreement of both Parties.  If any such change causes an increase or decrease in the cost or time required for the performance of the Services as modified by such change, an equitable cost or delivery schedule adjustment shall be mutually agreed upon, and this Contract and the appropriate Exhibit shall be modified in writing accordingly.

1. CONFIDENTIALITY. Provider, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or divulge, disclose, or communicate in any manner, any information that is proprietary to Recipient. Provider and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract. Any oral or written waiver by Recipient of these confidentiality obligations which allows Provider to disclose Recipient's confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.

Provider is hereby authorized to disclose Recipient’s Confidential Information to third party subcontractors or consultants to the extent necessary for the performance by the sub-contractor or consultant of any of the work under any Statement of Work that is assigned to it provided always that any such subcontractor or consultant is bound by provisions of confidentiality no less stringent than those provided by this Clause 6.

1. INDEMNIFICATION. Provider agrees to indemnify and hold Recipient harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against Recipient that result from the acts or omissions of Provider and/or Provider's employees, agents, or representatives. Recipient shall indemnify and hold Provider harmless from any third party intellectual property infringement claim arising out of any intellectual property provided by Recipient.

1. WARRANTY. Provider shall provide its Services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the Services which meet generally acceptable standards in Provider's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Provider on similar projects.

Recipient expressly recognizes that the Provider cannot guarantee correct working of Recipient design content or IP provided as part of the design.

Unless otherwise agreed, Provider agrees that any Deliverable shall carry a warranty of 30 days from the date of acceptance (“Warranty Period”). EXCEPT AS SPECIFIED HEREIN, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.  Recipient’s sole and exclusive remedy and Providers entire liability for breach of the above warranty for a Deliverable will be to rectify or replace such defective Deliverable, provided Recipient notifies such Supplier of any breach of warranty within the Warranty Period.

1. LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF ANY BREACH OF CONFIDENTIALITY FOR WHICH LIABILITY SHALL BE UNLIMITED, AS BETWEEN THE PARTIES IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT OR BREACH OF CONTRACT OR OTHERWISE EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES SHALL INCLUDE BUT SHALL NOT BE LIMITED TO THE COST OF REMOVAL AND REINSTALLATION OF GOODS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OR USE OF DATA, INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS BUT NOTHING IN THIS CLAUSE SHALL OPERATE TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY'S NEGLIGENCE. EXCEPT IN RESPECT OF ANY BREACH OF CONFIDENTIALITY FOR WHICH LIABILITY SHALL BE UNLIMITED, A PARTY’S TOTAL AGGREGATE LIABILITY FOR CLAIMS OR ACTIONS IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THIS SERVICES AGREEMENT, THE DESCRIPTION OF SERVICES AND ANY COLLATERAL CONTRACTS WILL BE LIMITED TO 100% OF THE TOTAL FEES PAID AND PAYABLE BY RECIPIENT TO THE PROVIDER UNDER THE RELEVANT DESIGN SERVICE AGREEMENT DURING THE PREVIOUS 12 MONTH PERIOD FROM THE DATE THE CLAIM FIRST AROSE. 

THE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RECIPIENT OR ANY SUBSIDIARY OR OTHER AFFILIATE OF RECIPIENT MAY SUFFER RELATING TO THE USE OF ANY FABRICATION AND/OR DELIVERY, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE FABRICATION OR THE DELIVERY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

THE PROVIDER SHALL NOT BE LIABLE FOR, AND RECIPIENT HEREBY ASSUMES THE RISK OF, AND WILL RELEASE AND FOREVER DISCHARGE THE PROVIDER, ITS AGENTS, OFFICERS AND EMPLOYEES, EITHER IN THEIR INDIVIDUAL CAPACITIES OR BY REASON OF THEIR RELATIONSHIP TO THE PROVIDER, WITH RESPECT TO ANY EXPENSE, CLAIM, LIABILITY, LOSS, OR DAMAGE (INCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGE) EITHER DIRECT OR INDIRECT, WHETHER INCURRED, MADE OR SUFFERED BY RECIPIENT OR BY ANY THIRD PARTIES, IN CONNECTION WITH OR IN ANY WAY ARISING OUT OF THE FURNISHING OR USE OF THE FABRICATION AND/OR DELIVERY.

IN ALL CASES, THE PROVIDER’S LIABILITY TO RECIPIENT ON ANY GROUND AND UNDER ANY LAW WHATSOEVER SHALL NOT EXCEED A SUM EQUAL TO THE FEE PAID TO THE PROVIDER BY RECIPIENT HEREUNDER. 

1. DEFAULT. The occurrence of any of the following shall constitute a material default under this Contract:

1. The failure to make a required payment when due.
2. The insolvency or bankruptcy of either party.
3. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
4. The failure to make available or deliver the Services in the time and manner provided for in this Contract.

1. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 90 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.

1. FORCE MAJEURE. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

1. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.

Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.

1. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.

1. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.

1. AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.

1. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of California.

1. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by internationally recognized courier service to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.

1. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Contract.

1. ATTORNEY'S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney's fees and costs, both in the trial court and on appeal.

1. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.

1. ASSIGNMENT. Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.

1. RESTRICTED ACTIVITIES: Services and deliverables Provider delivers may be subject to U.S. export controls or the trade laws of other countries. Recipient will comply with all such laws and obtain all licenses to export, re-export or import as may be required after delivery of Services and technical data to Recipient, and will not export or re-export to entities on the most current U.S. export exclusion lists or to any country subject to U.S. embargo or terrorist controls as specified in the U.S. export control laws.

Under such laws and regulations, an export license might be required to export technology, software, ASIC, MPW (collectively referred to as “Items”) in case the Items are classified as dual-use items. Recipient undertakes to complete any questionnaire required to assess the dual-use status of the Items. Recipient acknowledges that an export license granted by the competent export control authorities might be required for the supply of the Items. Therefore, it is explicitly agreed that the execution of the Provider’s obligations under these Terms and Conditions are subject to the grant of such export license by the competent export control authorities.  The Provider shall make reasonable business endeavours to acquire such export license. In any event the Provider cannot be held liable for acquiring such license and in the event the Provider is unable to obtain such license, this cannot be considered by the other Party as a substantial breach by the Provider.

In addition, Recipient shall not (i) use any Provider deliverable in the design, development, production, stockpiling or use of weapons of mass destruction, such as nuclear, chemical or biological weapons or missiles nor for any use supporting those weapon activities, (ii) re-export to any third party who is known or suspected to be involved in any such activities nor to any sanctioned entity, or (iii) export, directly or indirectly, to any destination, person, entity or end use prohibited or restricted under such export control regulations, without obtaining prior authorization from the applicable government authorities to the extent required by those laws.

1. TAXES: Recipient shall be responsible for (i) the payment of all sales, use, service, VAT, GST, gross receipts and other similar transaction taxes as well as all withholding taxes (all such transaction taxes and withholding taxes being the “Taxes”) arising in connection with transactions and payments under this Agreement regardless of the party on whom such Taxes are imposed and (ii) the payment of any penalties or interest due to Recipient’s failure to promptly pay any such Taxes. The Parties will cooperate in good faith to minimize such Taxes; however, Provider reserves in their sole discretion the right to file any refund claims for Taxes.  Recipient shall promptly pay all Taxes (and any applicable penalties and interest) set forth on invoices, annexures or in any separate written request to Provider sending such document.  This paragraph shall survive the termination of this agreement with respect to Taxes arising on transactions occurring during the term of this agreement.

EXHIBIT A: DESCRIPTION OF SERVICES

The scope of work includes the following list of requirements:

• Tape-out and fabrication of the provided design on an MPW shuttle
• Packaging of dies and assembly into evaluation PCB boards

Deliverables for the project will include:

• 50 packaged parts fabricated using the target foundry process
• 5 evaluation boards based on predefined

The schedule for the delivery will be provided by the service description on the Efabless web site.