COMMERCIAL IP TECHNOLOGY LICENSE AGREEMENT

This Commercial IP Technology License Agreement is dated as of the date of execution by both Parties hereto (the “Effective Date”) by and between Rambus Inc., a Delaware corporation, with its principal place of business at 4453 North First Street, Suite 100 San Jose, CA 95134, United States (“Rambus” and/or Licensor), and the entity identified as the “Licensee” on the applicable Order Form referencing this Agreement (individually referred to as a “Party” or collectively as the “Parties”).

1.            Definitions. The following terms shall have the meanings provided below:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a given Party. For purposes of this definition,

“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Commercial IP Technology License Agreement and any Order Forms, exhibits, schedules, and addenda hereto.

“Documentation” means materials describing the use or functionality of the Licensed Technology, including but not limited to product user manuals, reference manuals and installation guides on-line help, as may be updated from time to time.

“End User” means a customer of Licensee that acquires a Licensed Product from Licensee.

“FPGA Site” means a physical location that is a Licensee or Subcontractor facility as set forth in an Order Form.
“Instance” means a single occurrence of the Licensed Technology within a Use design. The number of Instances permitted for a specific Use should be set forth in the applicable Order Form.

“Intellectual Property” means, to the extent owned or otherwise directly licensable by Rambus during the applicable Order Form Term, semiconductor topography rights, mask works rights, copyrights, trademarks (including service marks), trade secrets and design rights, whether registered or unregistered, and including any application for registration of any of the foregoing and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may exist anywhere in the world, and each claim of a Rambus patent that, for a given Licensed Technology, absent a license, is directly infringed by the making, use, offer for sale, sale, and/or importation of such Licensed Technology on a stand-alone basis and not in combination with any other circuits, components or other devices.

“Licensed Product” means Licensee’s product offered by Licensee to End Users incorporating or otherwise using all or part of the Licensed Technology, as indicated in an Order Form. Licensed Products that embed the Licensed Technology in the programmable part of an FPGA (Field Programmable Gate Arrays) include only the FPGA Device(s) identified in the applicable Order Form.

“Licensed Technology” means Rambus’ proprietary technology indicated in an Order Form, and any Updates thereto.

“NRE Deliverables” means the items/materials to be developed and delivered by Rambus as part of NRE Services as described in one or more applicable Statements of Work.

“Order Form” means an ordering document for the Licensed Technology that identifies this Agreement as the Referenced Agreement and that is signed by Rambus (or a Rambus Affiliate) and Licensee (or a Licensee Affiliate). By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto, and each Party shall remain jointly and severally liable with its Affiliates for their compliance with the terms and conditions of this Agreement.

“Order Form Term” means the term set forth in, and applicable to, a given Order Form and all Licensed Technology and/or NRE Deliverables set forth therein.

“Records” means all reasonable information relating to compliance with the license and payment terms of this Agreement required to be maintained by Licensee for audit purposes, as further described in Section 4.4 (Audit) hereof.

“Specification” means the specification for a specific Licensed Technology as set forth in the applicable Order Form. If no specification is identified in the Order Form, then the Specification shall mean the Documentation delivered under the Order Form for the applicable Licensed Technology.

“Standalone Product” means the Licensed Technology in executable object code form, for use separately from the Licensed Product.

“Subcontractor” means any legal entity to which Licensee subcontracts the development, design, testing, manufacturing, marketing, or support of the Licensed Product, on behalf of Licensee, pursuant to Section 2.2 hereof.
“Support and Maintenance Services” means the technical assistance, maintenance and support program provided by Rambus for the Licensed Technology as described in Section 5.1 (Support and Maintenance Services) hereof and Exhibit A (Support and Maintenance Program) hereto.

“Update” shall mean all minor version releases that implement minor improvements or augmentations that are made generally available by Rambus to its other licensees and/or customers who are current on their subscription to Support and Maintenance Services.

“Use” means use of a Licensed Technology in a new Licensed Product design. The following would each be considered a new Use of the Licensed Technology, unless set forth otherwise on the applicable Order Form: (i) design of an integrated circuit that will be taped out; (ii) a design derivative which results in a change to  the integrated circuit (unless such design derivative is created solely to rework errors/bugs); (iii) use of the integrated circuit in any multi-chip module other than the Licensed Product(s) identified on the applicable Order Form, or (iv) use of the Licensed Technology in a design to be instantiated in any FPGA Device other than the FPGA Device(s) identified on the applicable Order Form. For the avoidance of doubt, the following derivatives shall not constitute a new Use: (1) the implementation by Licensee of an Update to the Licensed Technology delivered by Rambus pursuant to Rambus’ Support and Maintenance Service obligations; (2) the correction of errors and bug fixes in an existing Licensed Product; and (3) a version of an existing Licensed Product resulting solely from packaging changes.

2.            License Grant and Restrictions

               2.1       Development License. Subject to the terms and conditions of this Agreement, including without limitation the payment obligations, Use limitations, and geographic restrictions (if any) set out in the applicable Order Form, Rambus grants Licensee under Rambus’s Intellectual Property rights in the Licensed Technology a worldwide, non-exclusive, non-transferable license during the applicable Order Form Term to (i) use Licensed Technology solely for Licensee’s internal development of the Licensed Product, and (ii) reproduce copies of the Licensed Technology as necessary to exercise the rights granted in Section 2.1(i)

              2.2       Subcontractors. Subject to the terms and conditions of this Agreement, including without limitation the payment obligations and Use limitations (if any) set out in the applicable Order Form, Rambus grants Licensee under Rambus’s Intellectual Property rights in the Licensed Technology a non-exclusive, non-transferable license during the applicable Order Form Term to sublicense its rights set forth in Sections 2.1 and 2.3 of this Agreement to Subcontractors solely for the purposes of the development, designing, manufacturing, packaging, marketing or technical support of the Licensed Product, provided that (i) the Subcontractor is not a competitor of Rambus as regards the applicable Licensed Technology (unless set forth otherwise in the applicable Order Form; if Licensee is uncertain whether a Subcontractor is such a competitor, then Licensee may inquire via email to [email protected] and Rambus will respond in a timely manner), (ii) Licensee imposes a written obligation on Subcontractors to comply with terms no less restrictive than those set out in Section 2.4 (“License Restrictions”) and Section 7 (“Confidential Information”) hereof, and (iii) Licensee remains liable to Rambus for Subcontractors’ acts and omissions in its performance of its obligations hereunder. Notwithstanding the foregoing, Licensee may disclose the Licensed Technology to Subcontractors that are EDA tool vendors solely for purposes of EDA tool debugging, provided that (i) the Subcontractor personnel who access the Licensed Technology are not engaged in IP core product design, (ii) Licensee imposes a written obligation on Subcontractors to comply with terms no less restrictive than those set out in Section 2.4 (“License Restrictions”) and Section 7 (“Confidential Information”) hereof, and (iii) Licensee remains liable to Rambus for Subcontractors’ acts and omissions in its performance of its obligations hereunder.

              2.3       Manufacturing and Distribution License. Subject to the terms and conditions of this Agreement, including without limitation the payment obligations, Use limitations, and geographic restrictions (if any) set out in the applicable Order Form, Rambus grants Licensee under Rambus’s Intellectual Property rights in the Licensed Technology a worldwide, non-exclusive, non-transferable, perpetual (unless terminated by Rambus under Section 8 of this Agreement) license to make the Licensed Technology as incorporated in Licensed Products, and, during the applicable Order Form Term, to (i) market, promote and distribute the Licensed Technology, as incorporated in or used by the Licensed Product, to End Users, (ii) maintain and support the Licensed Technology for End Users but solely as incorporated in or used by a Licensed Product, and (iii) grant End Users a non-exclusive, non-transferable sub-license to use datasheets and certain other Documentation or firmware as defined in the applicable Order Form, provided that Licensee imposes a written obligation on such End Users to comply with terms no less restrictive than those set out in Section 2.4 (“License Restrictions”) and Section 7 (“Confidential Information”) hereof.

              2.4       License Restrictions. Licensee shall not and shall cause Subcontractors to not (i) license or distribute the Licensed Technology as a Standalone Product, (ii) incorporate the Licensed Technology into any products other than the Licensed Products identified in the applicable Order Form nor exceed the permitted number of Uses set forth in the applicable Order Form, (iii) distribute source code of the Licensed Technology except as expressly permitted herein, (iv) take any action that would cause the Licensed Technology to be disclosed to unauthorized third parties or disseminated or placed in the public domain, (v) modify, create derivative works of, or reproduce the Licensed Technology, except as expressly permitted in the applicable Order Form, (vi) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or in any way attempt to reconstruct or discover any source code or algorithms of the Licensed Technology, except as permitted by applicable law for interoperability purposes, and only then if Licensee has requested such interoperability information from Rambus and the request has not been satisfied, (vii) take any action that would cause the Licensed Technology to become subject to a public license (including but not limited to an open source license as that term is defined by the Open Source Initiative), (viii) use the Licensed Technology in violation of the export control restrictions set forth in Section 11.2 hereof, or (ix) use, distribute, publish or publicly display the Licensed Technology in any manner not expressly authorized herein. Licensee shall not remove any copyright notices, trademarks or other proprietary, restrictive or confidentiality notices. Any proprietary mark on an original version of the Licensed Technology shall be duplicated on any authorized copy (for clarity, instantiating into silicon is not “copying”). Licensee shall, and shall cause Subcontractors to, use all commercially reasonable efforts to incorporate the Licensed Technology in the Licensed Product in such a way as to prevent third parties from extracting Licensed Technology and using it as a Standalone Product.

              2.5       Pass Through Obligations. Licensee shall (i) ensure Subcontractors use the Licensed Technology in compliance with this Agreement, (ii) prohibit any sublicensing, assignment or other transfer of the Licensed Technology in any manner not expressly authorized herein, and (iii) to the maximum extent permitted by applicable law, impose on Subcontractors and End Users confidentiality obligations, warranty limitations, liability limitations and exclusions, and ownership rights that are at least as protective to Rambus as those set forth in this Agreement. Licensee will not provide any warranties or representations on behalf of Rambus that would entitle an End User or third party to assert any rights or demand any remedies from Rambus regarding its use of, or interest in the Licensed Product.

              2.6       Delivery. Upon execution of this Agreement and subsequent Order Forms, Rambus shall make commercially reasonable efforts to deliver the Licensed Technology to Licensee. Unless otherwise provided in the applicable Order Form, delivery shall be deemed to occur upon Rambus making available the Licensed Technology to Licensee through Rambus’ secure server, or other mutually agreed means.

3.            Ownership. Rambus and its third-party licensors, if any, reserve all rights not expressly granted to Licensee hereunder including any worldwide rights in or to any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights. Rambus retains all right, title, and interest in and to the Licensed Technology and any modifications, improvements, and derivative works thereof, and Licensee hereby assigns to Rambus any and all rights it has or obtains to such modifications, improvements, and derivative works. Subject to Rambus’ rights to the Licensed Technology, Licensee, and its third-party licensors, if any, reserve all their rights, title, and interest in and to the Licensed Product including any worldwide rights in or to any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights.

4.            Fees and Payment.

              4.1       Fees. Licensee shall pay Rambus all amounts due in accordance with all Order Forms. Except as set forth otherwise in this Agreement, all amounts are non-cancelable, non-refundable, and non-creditable. Payment terms are net thirty (30) days from the invoice date. If Licensee intends to issue a purchase order, then such purchase order shall be issued promptly upon the Effective Date. Payments shall be made to Rambus without any deductions, including deductions for taxes, imports, customs, levies, losses, costs, bad debts, discounts, credits, refunds, rebates, judgments, withholding or similar tax, or any other charges incurred by Licensee.

              4.2       Late Fees. Rambus reserves the right to charge a late fee of one and one-half percent (1.5%) per month (or the maximum rate allowable by law) on any balance remaining unpaid for more than thirty (30) days from the payment due date and Rambus may, at its option and without limiting its other rights hereunder, either (i) suspend the performance of any Rambus’ obligations hereunder, (ii) if Licensee is authorized to make copies of the Licensed Technology, revoke Licensee’s license rights hereunder, or (iii) withhold Support and Maintenance Services until Rambus receives payment of all amounts due.

              4.3       Taxes and Duties. Charges are exclusive of taxes, duties, and similar charges. Licensee is responsible for collecting and paying import duties and other fees. If Rambus is responsible for collecting taxes, Licensee shall pay them to Rambus, who will remit them to the relevant authority. If Licensee must withhold taxes, Rambus will gross up the invoiced amount and Licensee must provide a withholding tax certificate within 3 months of the invoice date.

              4.4       Audit. Licensee must keep accurate Records for six (6) years after this Agreement ends. Copies of the Records must be kept at Licensee’s principal place of business. Once a year, Rambus or an independent certified public accountant acting on its behalf, may conduct an audit of Licensee’s Records to verify compliance with the license terms, with ten (10) business days’ prior notice. Rambus will bear the expense of the audit unless non-compliance is found, in which case Licensee will be responsible for the cost of the audit, including accountants’ and attorneys’ fees.

5.           Services

              5.1       Support and Maintenance Services. Licensee pays Support and Maintenance Fees for Rambus to provide Support and Maintenance Services for the Licensed Technology set forth in the Order Form. The service period starts on the applicable Order Form Effective Date and continues for the Initial Support Term and any Renewal Support Terms. If Licensee chooses not to renew, they may reinstate by paying the lapsed fees plus 25%. Unused Support and Maintenance Service hours expire at the end of the term, are purchased per Use, and subject to Rambus’ availability. Rambus can suspend Services if payments are past due.

6.          Warranties

              6.1       Warranties by Licensee. Licensee warrants that it has sufficient right and authority to enter into this Agreement and all related Order Forms on the terms and conditions herein and therein set forth.

              6.2       Warranties by Rambus. Rambus warrants that the Licensed Technology will, for six (6) months from the applicable Order Form Effective Date, perform in substantial conformance with its Specification. In the event of a substantial non-conformance to such Specification, Rambus will use commercially reasonable efforts to correct such non-conformance. Should Rambus fail to correct such non-conformance, Licensee’s sole and exclusive remedy shall be the refund by Rambus of the license fees paid by Licensee for the non-conforming Licensed Technology.

              6.3       Disclaimer. THE FOREGOING WARRANTIES IN SECTION 6.2 HEREOF ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OR REPRESENTATION THAT THE LICENSED TECHNOLOGY IS ERROR-FREE.
ANY USE OF THE LICENSED TECHNOLOGY BY LICENSEE IS AT LICENSEE’S OWN RISK. RAMBUS DOES NOT WARRANT THAT THE LICENSED TECHNOLOGY SHALL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED TECHNOLOGY SHALL BE UNINTERRUPTED OR THAT ANY ERRORS SHALL BE CORRECTED OR THAT UNLESS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE LICENSED TECHNOLOGY SHALL BE COMPATIBLE WITH ANY PARTICULAR PLATFORM.
IF ANY EXCLUSION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ONLY THOSE INVALID EXCLUSIONS SHALL BE STRICKEN AND ALL OTHERS WILL REMAIN IN FULL FORCE AND EFFECT.

7.          Confidential Information. Both Parties agree to keep all information exchanged during the agreement confidential, including but not limited to software, hardware, product plans, customer information, and financial information. This obligation does not extend to information that is already public, received from a third party without confidentiality limitations, independently developed, already known, disclosed to a third party without restrictions, or approved for public release. Both Parties will protect the other’s confidential information with the same level of care as they protect their own proprietary information, and will only use it as necessary to fulfill their obligations under the agreement. They will limit disclosure to employees and Subcontractors who have a reasonable need to know and have signed a non-disclosure agreement no less restrictive than the obligations set forth herein. If there is an unauthorized disclosure, the receiving Party will notify the disclosing Party promptly and provide assistance as needed. If legal or regulatory requirements beyond the receiving Party’s control necessitate disclosure, the disclosing Party will be notified to seek a protective order.

8.         Term and Termination

              8.1       Term. This Agreement commences on the Effective Date and, unless sooner terminated in accordance with this Section 8, will continue thereafter. In addition, each Order Form to this Agreement may have a term set forth therein and such term may expire or terminate independently of this main Agreement.

              8.2       Termination by Either Party. Either Party may terminate this Agreement for a material breach of any contractual obligations or warranties by providing written notice and a description of the alleged breach. The breaching Party will have thirty (30) days to cure the breach, unless termination is immediate in the event of bankruptcy, insolvency, or other specified circumstances. If the breach is not cured within the cure period, this Agreement will terminate unless the breaching Party has corrected the breach. Termination does not preclude other legal or equitable remedies.

              8.3       Obligations Upon Termination or Expiration. Upon the termination or expiration of this Agreement or the applicable Order Form, all licenses granted hereunder shall cease and Licensee shall:

              8.3.1     Immediately pay all outstanding sums due to Rambus;

              8.3.2     Cease, and cause Subcontractors to cease, any ongoing development of the Licensed Product;

              8.3.3     Subject to Section 8.5, cease, and cause any of its distributors to cease, the reproduction, marketing, and distribution of the Licensed Product; and

              8.3.4     Subject to Section 8.5, destroy all copies of the Licensed Technology or provide Rambus written certification that copies of the Licensed Technology have been destroyed.

              8.4       End User Rights Upon Termination. Termination or expiration of this Agreement shall not affect licenses granted to End Users prior thereto.

              8.5       Post Termination Manufacturing and Distribution Rights. Unless Rambus has terminated the Agreement for cause, Licensee may continue exercising its manufacturing and distribution rights pursuant to Sections 2.3 (Manufacturing and Distribution License), 2.4 (License Restrictions) and 2.5 (Pass-through Obligations) hereof, subject to compliance with Licensee’s payment obligations pursuant to Section 4 (Fees and Payment), all the license restrictions set out in Section 2 (License Grant and Restrictions) and compliance with the other provisions that survive termination of the Agreement as set forth in Section 8.6 (Survival) below.

              8.6      Survival. The following Sections shall survive any termination or expiration of this Agreement: Sections 3 (Ownership), 4 (Fees and Payment; for amounts incurred prior to termination or expiration), 6 (Warranties), 7 (Confidentiality), 8 (Term and Termination), 9 (Liability), and 10 (Infringement and Indemnification) and 11 (General).

9.         Liability

             9.1       Limitation of Liability. THE CUMULATIVE LIABILITY OF RAMBUS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE LICENSED TECHNOLOGY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY LICENSEE TO RAMBUS HEREUNDER FOR THE APPLICABLE LICENSED TECHNOLOGY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL RAMBUS OR ITS SUPPLIERS BE LIABLE TO LICENSEE, ITS DISTRIBUTORS OR END USERS OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY EVEN IF RAMBUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS AND LOST PROFITS SHALL BE DEEMED INDIRECT DAMAGES FOR THE PURPOSE OF THIS AGREEMENT AND SHALL NOT BE RECOVERABLE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID, OR UNENFORCEABLE. THE LIMITED WARRANTIES AND REMEDIES, THE WARRANTY DISCLAIMER AND THE LIMITED LIABILITY PROVISIONS OF THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN RAMBUS AND LICENSEE AND RAMBUS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.

10.         Infringement and Indemnification

              10.1   Indemnification by Licensee. Licensee will defend at its expense and indemnify Rambus from and against any losses, costs or damages awarded by a court of competent jurisdiction resulting from or in connection with:

              10.1.1   Any claims filed by third parties alleging copyright, trade secret or trademark infringement resulting from or in connection with the use, manufacture, assembly or distribution of the Licensed Product by Licensee, its distributors or its End Users in any country, provided that Rambus gives Licensee prompt written notice of any such claim, grants Licensee the right to defend or settle any claim (at Licensee’s expense) and provides any assistance that Licensee may reasonably require to defend or settle any claim. This indemnification shall not apply to infringement actions or claims if such actions or claims are based solely on the use of the Licensed Technology in the form provided by Rambus;

              10.1.2   Any unauthorized warranties or representations made by Licensee regarding the Licensed Technology; and

              10.1.3   Any claims filed by third parties related to personal injury or loss of life caused by the Licensed Products.

              10.2      Indemnification by Rambus. Subject to Section 9.1 and conditioned upon payment of all applicable fees, Rambus will defend, at its expense and indemnify Licensee from and against any losses, costs or damages awarded by a court of competent jurisdiction in relation to any claims filed by third parties against Licensee alleging that the Licensed Technology, as provided by Rambus to Licensee and used in compliance with this Agreement, infringes a third party trade secret or copyright, provided that Rambus is notified promptly, in writing, of such claim and is given full and complete authority (including settlement authority) information and assistance by Licensee for such defense. Licensee agrees to promptly notify Rambus of any unauthorized or potentially infringing use of any of the Licensed Technology and will provide all reasonable assistance, cooperation and information as may be reasonably requested by Rambus. In the event the Licensed Technology is found to infringe a third party right and its use is enjoined, or if, in the opinion of Rambus, the Licensed Technology is likely to become the subject of such a claim, Rambus, at its election and expense, will either (i) procure for Licensee the right to continue using the Licensed Technology, or (ii) modify or replace the Licensed Technology so that it becomes non-infringing while providing substantially equivalent performance. In the event neither of the foregoing options, in Rambus’ sole opinion, are available using reasonable commercial efforts, then Rambus may terminate this Agreement and refund amounts Licensee paid Rambus for the Licensed Technology, which is subject of such claim, less its depreciated value (applying the straight-line depreciation method and assuming an estimated useful life of five years). The indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) the use of the Licensed Technology in combination with software, hardware or equipment not supplied by Rambus, provided that the Licensed Technology would not be infringing but for such combination, (ii) Rambus’ compliance with Licensee’s designs, specifications or instructions provided that there is no way to comply with such designs, specifications or instructions without giving rise to the claim, (iii) modifications to the Licensed Technology by a party other than Rambus provided that the Licensed Technology would not be infringing but for such modifications, (iv) Licensee’s failure to use the most recent version of the Licensed Technology, if the Licensed Technology is software, or to otherwise take any corrective action directed by Rambus, or (v) any infringement or alleged infringement of any intellectual property rights covering a standard, whether proprietary or open, a standard being any technical specification demonstrably promulgated for the purpose of widespread adoption. THIS SECTION STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND RAMBUS’ ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.

11.        General

              11.1      Dispute Resolution, Governing Law, and Forum.

              11.1.1   This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to any conflicts of laws rules unless otherwise specified in an applicable Order Form. This Agreement is prepared and executed and shall be interpreted in the English language only.

              11.1.2   Dispute Resolution for Licensee’s based in the United States. Any disputes related to this Agreement that cannot be resolved amicably in accordance with Section 11.1.3 shall be submitted to the exclusive jurisdiction of the United States District Court for the Northern District of California or the state courts of Santa Clara County, California unless otherwise specified in an applicable Order Form. Rambus may bring actions related to the protection of its Intellectual Property rights in the courts of any country where an infringement occurs or is alleged to occur. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.

              11.1.3   Any dispute arising directly under this Agreement shall first be resolved through senior executive meetings and, if not resolved, through a one-day, non-binding mediation with an impartial mediator. If the Parties have not resolved the dispute within thirty (30) days after the mediation, either Party may begin litigation proceedings. However, a Party may seek preliminary injunctive relief from a court of competent jurisdiction in accordance with Section 11.1.2.

              11.1.4   Dispute Resolution for Licensee’s not based in the United States. For any dispute,  claim, or controversy arising out of or relating to this Agreement, involving a Licensee that is incorporated outside the United States of America, or the breach thereof, will be resolved by arbitration. The arbitration will adhere to applicable law and will be administered by the International Centre for Dispute Resolution following its International Arbitration Rules. The arbitration panel will consist of three (3) arbitrators. San Francisco, California, is designated as the location for arbitration to occur, and the proceedings will be conducted in English.

              In addition to the powers conferred by the specified rules, and without prejudicing any provisional measures available from a court of competent jurisdiction, the arbitrators have the authority to grant any provisional measure(s) deemed appropriate, including, but not limited to, provisional injunctive relief. To the extent permitted by applicable law, any provisional measures ordered by the arbitrators may be treated as a final award on the subject matter and enforceable as such.

              The arbitrators will consider the IBA Rules on the Taking of Evidence in International Arbitration when addressing issues covered by such rules. Parties are restricted from unilaterally disclosing information about arbitration to third parties, except as required by law, and any documents or other evidence presented in arbitration is considered confidential, disclosed only to participating parties, witnesses, or experts, unless required by law.

              The arbitrators may award costs and expenses, including attorneys’ fees, to the prevailing party, as determined by the arbitrators. Judgments based on arbitrators’ awards may be entered in any court with competent jurisdiction.

              11.2      Export Control. The Licensed Technology may be subject to regulation by United States, European Union, and/or other government agencies, which prohibit export or diversion of the Licensed Technology and direct products thereof to certain countries and certain persons and subject the export or diversion of Licensed Technology and direct products to an export license requirement. Licensee will not export in any manner, either directly or indirectly, any Licensed Technology or direct product of the Licensed Technology without first obtaining all necessary approvals from appropriate government agencies. It is the sole responsibility of the Licensee to comply with any and all export restrictions. Unless permitted in the applicable Order Form, Licensee shall not themselves use the Licensed Technology for (i) any military end-use as defined in Article 4(1)(b) of Regulation (EU) 2021/821, (ii) any use related to the development, production, or use of supercomputers or supercomputer components in China, or (iii) for any use related to chemical, biological or nuclear weapons, other nuclear explosive devices or missiles capable of delivering such weapons; and Licensee shall not export or transfer the Licensed Technology where the Licensee has knowledge the Licensed Technology is, or may be, intended for any of the aforementioned uses. Licensee will defend, indemnify, and hold harmless Rambus from and against any and all damages, fines, penalties, assessments, liabilities, costs, and expenses (including attorneys’ fees and expenses) that may arise as a result of Licensee’s breach of this provision and/or Licensee’s violation of any applicable export laws. Rambus shall have no liability under this Agreement if Rambus is unable to deliver any Licensed Technology or NRE Deliverables due to applicable export/import restrictions.

              11.3      U.S. Government Restricted Rights. Any Licensed Technology delivered in the form of computer software and technical data and acquired by Licensee on behalf of the United States Government or any contractor thereof, shall be classified as “commercial computer software developed at private expense” and delivered subject to “RESTRICTED RIGHTS” as defined in 48 CFR 12.212, 2.101, DFAR 227.7202-1 through 4 Federal Acquisition Regulation (“FAR”) 52.227-19(b)(2) and the Defense Federal Acquisition Regulation (“DFAR”) 252.227-7013 to 7019, as applicable. Use, duplication or disclosure of the Licensed Technology and Documentation by the U.S. Government and parties acting on its behalf is governed by and subject to the restrictions set forth in FAR 52.227-19(b)(1) and (2) or DFAR 252.227-7013 to 7019, as applicable.

              11.4      Assignment. Licensee cannot assign, delegate, or transfer this Agreement, or any of its rights or duties hereunder, without prior written consent from Rambus or unless otherwise specified in an applicable Order Form. Rambus can assign or transfer this Agreement or its rights or duties without prior written consent from Licensee. Any attempted assignment in violation of this Agreement is void. The Agreement is binding on both Parties and their respective successors or permitted assigns.

              11.5      Notices. All notices and other communications required or permitted hereunder must be made in writing and will be deemed to have been duly given: (i) when delivered by hand and receipt acknowledge by the recipient, (ii) upon receipt when the notification is made by overnight delivery service, or (iii) upon receipt when the notification is made by certified or registered mail, return receipt requested, with postage prepaid to the Party at the address set forth above, or to such address and email as either Party shall furnish to the other Party in writing pursuant to this Section 11.5. Licensee shall email a copy of all notices to Rambus to [email protected].

              11.6      Entire Agreement; Order of Precedence. This Agreement, including any appendices, exhibits, order forms, attachments and any document referred to in this Agreement or attached hereto, constitutes the entire and exclusive statement of the agreement between the Parties with respect to its subject matter and supersedes all prior communications, understandings, and agreements between the Parties concerning the subject matter hereof, whether written or oral. The Parties agree that any term or condition stated in a Licensee purchase order or in any other Licensee order documentation is void. In the event of any conflict or inconsistency between the body of this Agreement and an Order Form or attachment hereto, the later in time document shall prevail.

              11.7      Compliance with Laws. During the Term, each Party hereto shall comply with all applicable laws and regulations relevant to its respective performance hereunder.

              11.8      Amendments. The terms herein may not be changed or modified except by a written instrument signed by the authorized representatives of both Parties. The Parties further agree that unless otherwise agreed in writing by the Parties, the terms and conditions of this Agreement shall prevail over the terms and conditions on any purchase order or other document prepared by Licensee. Any attempt by Licensee to substitute the terms of this Agreement with the pre-printed or additional terms on a purchase order is hereby rejected by Rambus.

              11.9      Waiver. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure of either Party to require the performance by the other Party of any provisions of this Agreement, shall not be construed as a waiver of such provisions in the future, nor will it affect the ability of a Party to enforce each and every provision thereafter.

              11.10    Severability. If any court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted to best accomplish its intent within the limits of the applicable law or court decisions.

              11.11    Force Majeure. Neither Party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by occurrences beyond the reasonable control of, and not caused by the negligence of, such Party, including without limitation if such inability to perform results from fire, flood, earthquake, strike, lockouts, work slowdowns or stoppages, terrorism, civil, governmental or military authority, government-ordered industry shutdowns, act of God/nature, power or server outages, widespread infectious disease outbreaks (including, but not limited to epidemics and pandemics), failure of any governmental or other regulatory authority to act in a timely manner, failure of Licensee to furnish timely information, or other similar causes.

              11.12    Independent Contractors. This Agreement does not create a partnership, joint venture, or any other association between Rambus and Licensee. Licensee is an independent contractor, and neither Party is liable for the debts or liabilities of the other, nor authorized to incur obligations on behalf of the other. This Agreement is not a franchise agreement, and any provision deemed to create a franchise will result in automatic termination.

              11.13    Publicity. Both Parties can release a mutually agreed news release about the Agreement, and Rambus can list Licensee as a customer on its website with equal prominence as other customers but must remove the reference upon Licensee’s written request or termination of the agreement. Neither Party can disclose the applicable Order Form terms to any third party without the other Party’s written consent, except as required by legal or accounting obligations or government authorities, after making reasonable efforts to consult with the other Party.

              11.14    Injunctive Relief. Licensee acknowledges that if it breaches any obligations hereunder, Rambus may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and in addition to all other remedies, Rambus shall be entitled to seek injunctive relief, specific performance, equitable relief or any other remedy necessary to prevent a threatened breach by Licensee or to correct an actual breach and to enforce this Agreement. Licensee hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.

              11.15    Non-Exclusivity. Licensee acknowledges that its right to license to use and distribute the Licensed Technology and Documentation under this Agreement is non-exclusive, and that Rambus reserves the right to license and distribute the Licensed Technology and Documentation to any third party anywhere in the world, and to appoint any third party to do so, without giving Licensee notice thereof and without incurring any liability to Licensee therefor.

              11.16    Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.

              11.17    Life Endangering Specifications. The Licensed Technology is not designed, made, or intended for use in any application where failure or inaccuracy might cause death or personal injury including military grade, medical grade or space grade devices, applications and uses. Accordingly, Licensee agrees that Rambus shall not be liable in whole or in part, for any claims or damages arising out of or in connection with the use and performance of Licensed Technology in such applications.

              11.18    Counterparts. This Agreement may be executed in two or more counterparts or duplicate originals, including electronic and facsimile counterparts, each of which shall be deemed to be an original and all taken together shall constitute one and the same instrument. A copy of either Party’s signature to this Agreement sent by electronic transmission (e.g., facsimile or PDF) shall be deemed an original manual signature of this Agreement.

EXHIBIT A

SUPPORT AND MAINTENANCE SERVICES

1. SUPPORT AND MAINTENANCE SERVICES
   
   1. Rambus will use commercially reasonable efforts to provide Support and Maintenance Services for Licensee’s integration of the Licensed Technology into the Licensed Product. These services apply only to Licensee and not to Subcontractors or End Users. They also apply only to the Licensed Technology delivered by Rambus under this Agreement.
   2. Rambus will provide email and internet-based support during Rambus’ standard business hours, Monday to Friday (excluding Rambus observed holidays), with sufficient skilled personnel for prompt support.
   3. The technical support services provided to Licensee are limited to the hours specified in the applicable Order Form for the corresponding time period. Additional support hours can be purchased during an active Support and Maintenance Service term at the price in the applicable Order Form.
2. ISSUE REPORTING PROCESS
   
   1. Rambus and Licensee will collaborate to classify each Support issue based on the following criteria:
      

      CLASSIFICATION	CRITERIA
      Critical	Issue that blocks the use of the Licensed Technology
      Major	Issue that prevents the full use of the Licensed Technology
      Minor	Issue that has a minor impact on the use of the Licensed Technology

   2. Rambus shall provide an initial response to issue reports according to the following schedule:
      

      CLASSIFICATION	Response Time†
      Critical	1 day
      Major	2 days
      Minor	1 week

      ^† All times listed are in effect during normal support hours only (as defined in Section 1.b.).

   3. Based on the classification assigned to each issue, Rambus will provide acknowledgment of receipt of issue report within the allotted response time.
   4. Rambus shall, after receiving an issue report, inspect and if confirmed, confirm as well as its priority classification to Licensee in writing by email and make reasonable efforts to address/resolve.
   5. An issue will be resolved when Licensee has either:
      • Implemented a satisfactory recommendation received; or
      • Taken possession of an applicable Update or other deliverable to address.
3. ISSUE REPORT CONTENT
4. Licensee shall inform Rambus of a Support issue by a written report in electronic format including the following information:
   
   1. Customer number;
   2. Version number of the Licensed Technology and operating system used, if applicable;
   3. Detailed description of the issue;
   4. Instructions on how to reproduce the issue, if applicable;
   5. Debug logs and/or configuration files, if applicable;
   6. Any other necessary and/or useful information relating to locating the reported issue; and
   7. Licensee’s view on the priority classification of the reported issue.

   Prior to contacting Rambus, Licensee should:

   1. Check the Documentation, release notes and online help;
   2. Search the knowledge base for solved cases; and
   3. Check whether the issues have been solved in a later issued release.
5. LIMITATIONS ON SUPPORT AND MAINTENANCE
   
   1. Support and Maintenance Services availability is restricted to the latest version/Update of Licensed Technology.
   2. Rambus shall not be obligated to provide any support:
      
      1. Relating to problems caused by (a) modifications made by Licensee or (b) use of the Licensed Technology in a manner or form not defined and described in the standard Documentation of the Licensed Technology;
      2. Relating to problems caused by the installation of the Licensed Technology on an unsupported platform;
      3. Relating to any problems that cannot be reproduced on-site at Rambus’s technical support facility.
      4. Regarding any functionality not directly related to the Licensed Technology; or relating to problems caused by third party products;
6. QUALIFYING UPDATES
7. Subject to the payment of all amounts due in accordance with the applicable Order Form, Rambus shall deliver to Licensee any Updates to the Licensed Technology that are released by Rambus during the term of Support and Maintenance Services hereunder.