These LiquidMetal AI General Terms (“General Terms”) between LiquidMetal AI,
Inc, a Delaware corporation, with its office at 2261 Market Street STE 22330,
San Francisco, CA 94114, USA (“LiquidMetal” or “we” or “us” or “our”) and
you (“Customer” or “you” or “your”) govern your acquisition, access to, and use
of LiquidMetal’s Offerings, regardless of how accessed or acquired, whether
directly from us or from another Approved Source. By clicking on the appropriate
button, or by downloading, installing, accessing, or using any Offering, you
agree to these General Terms. If you are entering into these General Terms on
behalf of Customer, you represent that you have the authority to bind Customer.
If you do not agree to these General Terms, or if you are not authorized to
accept the General Terms on behalf of Customer, do not download, install,
access, or use any Offering.
The “Effective Date” of these General Terms is: (i) the date of Delivery; or
(ii) the date you access or use the Offering in any way, whichever is earlier.
Capitalized terms are defined in the Definitions section below.
1. Your Use Rights and Limits
- Your Use Rights. We grant you a non-exclusive, worldwide, non-transferable
and non-sublicensable right, subject to your compliance with these General
Terms and payment of applicable Fees, to use acquired Offerings only for your
Internal Business Purpose during the Term, up to the Capacity, and, if
applicable, in accordance with the Order (“Use Rights”). You have the
right to make a reasonable number of copies of On-Premises Products for
archival and back-up purposes.
- Limits on Your Use Rights. Except as expressly permitted in the Order,
these General Terms or Documentation, your Use Rights exclude the right to,
and you agree not to (nor allow any user or Third Party Provider to): (i)
reverse engineer, decompile, disassemble or otherwise attempt to discover
source code or underlying structures, ideas, protocols or algorithms of, or
used by, any Offering; (ii) modify, translate or create derivative works based
on any Offering; (iii) use an Offering to ingest, process, monitor, analyze or
service the devices, systems, networks or application data of any third party;
(iv) resell, sublicense, rent the use of, transfer or distribute any Offering;
(v) access or use an Offering to analyze, test, characterize, inspect, or
monitor its availability, performance, or functionality for competitive
purposes; (vi) access or use an Offering to develop, test, troubleshoot,
support, or market any software or service that competes with any Offering, or
that integrates, interoperates with, or constitutes an extension of any
Offering and that you use or intend to use for a commercial purpose; (vii)
access or use any Offering in order to analyze, test, characterize, inspect,
or monitor its source code or underlying structures, ideas, protocols, or
algorithms it contains or uses; (viii) attempt to disable or circumvent any
license key or other technological mechanisms or measures intended to prevent,
limit or control use or copying of, or access to, Offerings; (ix) separately
use any of the applicable features and functionalities of the Offerings with
external applications or code not furnished by us or any data not processed by
the Offering; (x) exceed the Capacity; or (xi) use any Offering in violation
of any applicable laws and regulations (including but not limited to any
applicable data protection and intellectual property laws). For clarity, each
of the foregoing subsections imposes a separate and independent limit on your
Use Rights.
- LiquidMetal Extensions. Your Use Rights in LiquidMetal Extensions are
limited to your use solely in connection with the applicable Offering and
subject to the same terms and conditions for that Offering, unless a
LiquidMetal Extension is expressly provided under an Open Source Software
license that provides broader rights in that LiquidMetal Extension than the
Use Rights you have in the underlying Offering. Despite anything to the
contrary in these General Terms, and unless otherwise required by law,
LiquidMetal Extensions (excluding LiquidMetal Extensions designated by us as
premium) are provided “AS-IS” without any indemnification or warranties.
Support and service levels for LiquidMetal Extensions are as set out in the
Support Terms.
- Trial, Beta, Test and Similar Offerings
- Trials and Evaluations. We may make certain Trial Offerings available
to you under these General Terms. After the Term for the Trial Offering
expires, you may continue to use that Offering only subject to payment of
applicable Fees.
- Beta Offerings. We may make certain Beta Offerings available to you
under these General Terms. Your Use Rights in any Beta Offering are
further limited to your use solely for internal testing and evaluation of
that Beta Offering during the period specified with the Beta Offering,
and if no period is specified, then for the earlier of one year from the
Beta Offering start date or when that version of the Beta Offering becomes
generally available. We may discontinue a Beta Offering at any time and
may decide not to make a Beta Offering or any of its features or
functionality generally available.
- Test and Development Offerings. For Offerings identified as “Test
and Development” on the Order, your Use Rights are further limited to
your use of those Offerings on a non-production system for non-production
uses only, including product migration testing or pre-production staging,
or testing new data sources, types, or use cases.
- Free Offerings. We may make certain Offerings available for full use
(i.e., not subject to limited evaluation purposes) at no charge under
these General Terms. These free Offerings may have limited features,
functions, and other technical Use Rights limitations.
- Limitations and Termination. Despite anything to the contrary in these
General Terms, and unless otherwise stated in the Order or required by
law, Trial Offerings, Beta Offerings, Test and Development and any free
Offerings are provided “AS-IS” without any indemnification,
warranties, maintenance, support or service level commitments. Unless
otherwise stated in the Order, we reserve the right to terminate any
Offering in this section 1.4 at any time without prior notice and without
any liability.
2. Purchasing Through Approved Sources
- LiquidMetal Affiliate Distributors. We have appointed certain LiquidMetal
Affiliates as our non-exclusive distributors of the Offerings (each, a
“LiquidMetal Affiliate Distributor”). Each LiquidMetal Affiliate Distributor
is authorized by us to negotiate and enter into Orders with customers. Where a
purchase is offered by a LiquidMetal Affiliate Distributor, you will order
from, and make payments to, that LiquidMetal Affiliate Distributor. Each Order
will be deemed a separate contract between you and the relevant LiquidMetal
Affiliate Distributor and will be subject to these General Terms. You agree
that: (i) LiquidMetal’s total liability under these General Terms as set out
in section 18 (Limitation of Liability) states the overall combined liability
of LiquidMetal and our LiquidMetal Affiliate Distributors; (ii) entering into
Orders by a LiquidMetal Affiliate Distributor will not be deemed to expand
LiquidMetal and its Affiliates’ overall responsibilities or liability under
these General Terms; and (iii) you will have no right to recover more than
once from the same event. We agree that: (a) the LiquidMetal Affiliate
Distributor will be liable for the performance of the Order; and (b) to the
extent that any obligations of the Order are to be performed by us, the
LiquidMetal Affiliate Distributor will be responsible for, and ensure our
compliance with, the terms of the Order.
- Approved Sources. These General Terms will govern any Offering that you
acquire through any Approved Source. Your payment obligations (if any) will be
with the Approved Source through whom you acquired the Offering. However, a
breach of your payment obligations with any Approved Source for any Offering
will be deemed to be a material breach of these General Terms between you and
LiquidMetal. In addition, if you fail to pay a Digital Marketplace for an
Offering, we retain the right to enforce your payment obligations and collect
directly from you. Any terms agreed between you and an Approved Source (other
than us or a LiquidMetal Affiliate Distributor) that are in addition to these
General Terms are solely between you and that Approved Source. No agreement
between you and that Approved Source is binding on us or will have any force
or effect with respect to the rights in, or the operation, use or provision
of, any Offering.
3. Your Third Party Providers
You may permit your Third Party Providers to access and use the Offerings on
your behalf, provided that: (i) such access and use will at all times be subject
to these General Terms and any applicable Order; (ii) you will ensure these
Third Party Providers comply with these General Terms and any applicable Order;
(iii) you are liable for any action or omission of any Third Party Provider if
that action or omission would constitute a breach of these General Terms or any
Order if done by you; and (iv) the aggregate use by you and all of your Third
Party Providers must not exceed the Capacity.
4. Hosted Services
- Service Levels. When you purchase Hosted Services, we will make the
applicable Hosted Services available to you during the Term in accordance with
these General Terms. The Service Level Schedule in the Specific Offering Terms
and associated remedies will apply to the availability and uptime of the
applicable Hosted Service. If applicable, service credits will be available
for downtime in accordance with the Service Level Schedule.
- Your Responsibility for Data Protection. You are responsible for: (i)
selecting from the security configurations and security options made available
by LiquidMetal in connection with a Hosted Service; (ii) taking additional
measures outside of the Hosted Service to the extent the Hosted Service does
not provide the controls that may be required or desired by you; and (iii)
routine archiving and backing up of Customer Content. You agree to notify
LiquidMetal promptly if you believe that an unauthorized third party may be
using your accounts or if your account information is lost or stolen.
- Return of Customer Content. You may retrieve and remove Customer Content
from the Hosted Services at any time during the Term. We will also make the
Customer Content available for your retrieval for 30 days after termination of
your subscription. After those 30 days, we will delete all remaining Customer
Content without undue delay, unless legally prohibited. If you require
assistance in connection with migration of Customer Content, we may require a
mutually agreed upon fee for it.
5. Security
- Security Program. We have implemented and will maintain an industry
standard security program to protect our Offerings, IT systems, facilities and
assets, and any Customer Confidential Information accessed or processed
therein, including Customer Content in a Hosted Service and customer account
information. Our Hosted Service security controls include commercially
reasonable administrative, technical, and organizational safeguards designed
to protect Customer Content against destruction, loss, alteration,
unauthorized disclosure, or unauthorized access, such as threat and
vulnerability management, incident response and breach notification
procedures, disaster recovery plans, open source security scans, virus
detection, industry-standard secure software development practices, and
internal and external penetration testing in the development environment. Our
general corporate security controls include information security policies and
procedures, security awareness training, physical and environmental access
controls, and vendor risk management.
- Maintaining Protections. Despite anything to the contrary in these General
Terms or any policy or terms referenced in these General Terms via hyperlink,
we may update Security Exhibits from time to time, provided those updates do
not materially diminish the overall security protections set out in these
General Terms, applicable Specific Offering Terms or Security Exhibits.
6. Configuration and Implementation Services
We offer additional services to configure and implement your Offering (“C&I
Services”). These C&I Services are purchased under a Statement of Work and are
subject to payment of applicable Fees. We provide C&I Services in accordance
with our standard C&I Services terms covered in a separate Professional Services
Agreement effective on the start date of the Statement of Work.
7. Our Compliance, Ethics and Corporate Responsibility
- Compliance. We will comply with the laws and regulations applicable to our
business and the provision of the Offerings to our customers generally, and
without regard to your particular use of the Offering.
- Ethics and Corporate Responsibility. We are committed to acting ethically
and in compliance with applicable law, and we have policies and guidelines in
place to provide awareness of, and compliance with, the laws and regulations
that apply to our business globally. We are committed to ethical business
conduct, and we use diligent efforts to perform in accordance with the highest
global ethical principles.
- Anti-Corruption. We implement and maintain programs for compliance with
applicable anti-corruption and anti-bribery laws. Our policy prohibits
offering or soliciting any illegal or improper bribe, kickback, payment, gift,
or thing of value to or from any of your employees or agents in connection
with these General Terms. If we learn of any violation of the above, we will
use reasonable efforts to promptly notify you at the main contact address that
you have provided to us.
- Export. We certify that we are not on any of the relevant U.S. or EU
government lists of prohibited persons, including the Treasury Department’s
List of Specially Designated Nationals and the Commerce Department’s List of
Denied Persons or Entity List.
8. Usage Data
We collect and process Usage Data. Usage Data does not include Customer Content
and will be kept confidential.
9. Capacity and Usage Verification
- Certification and Verification. Upon our request, you will provide us with
a certification signed by your authorized representative verifying that your
use of the Offering is in accordance with these General Terms and any
applicable Order. For On-Premises Products, we may also ask you from time to
time, but not more frequently than once every 12 months, to cooperate with us
to verify usage and adherence to the Capacity. If we request such a
verification, you agree to provide us reasonable access to the On-Premises
Product installed at your facility (or as hosted by your Third-Party
Provider). If we do any verification, it will be performed with as little
interference as possible to your use of the On-Premises Product and your
business operations. We will comply with your (or your Third-Party Providers’)
reasonable security procedures.
- Overages. If a verification or usage report reveals that you have exceeded
the Capacity or Use Rights, then we will have the right to invoice you using
the applicable Fees at list price then in effect, which will be payable in
accordance with these General Terms. Except where you have paid the applicable
Approved Source for such additional Capacity or Use Rights, we will have the
right to directly invoice you for overages, regardless of whether you acquired
the Offering from us or another Approved Source.
10. Our Use of Open Source
Certain Offerings may contain Open Source Software. In the applicable
Documentation, we make available a list of Open Source Software and applicable
licenses incorporated in our On-Premises Products to the extent required by the
respective Open Source Software licenses. Any Open Source Software that is
delivered as part of your Offering and which may not be removed or used
separately from the Offering is covered by the warranty, support and
indemnification provisions applicable to the Offering, but only to the extent
that Open Source Software is used as intended with the Offering. Some of the
Open Source Software may have additional terms that apply to the use of the
Offering (e.g., the obligation for us to provide attribution of the specific
licensor), and those terms will be included in the Documentation. However, those
terms will not: (i) impose any additional restrictions on your use of the
Offering; or (ii) negate or amend our responsibilities with respect to the
Offering.
11. Third Party Extensions, Content and Products
- Third Party Extensions not built by LiquidMetal. We may make Third Party
Extensions available from LiquidMetal’s Website. We do not represent, warrant
or guarantee the accuracy, integrity, quality, or security of any Third Party
Extension, even if that Third Party Extension is identified as “certified” or
“validated” for use with the Offering. Your use of a Third Party Extension may
be subject to additional terms, conditions or policies. We may block or
disable access to a Third Party Extension at any time.
- Third Party Content. Hosted Services may contain features that enable
interoperation with Third Party Content that you choose to add to a Hosted
Service. You may be required to: (i) separately obtain access to Third Party
Content from its provider; and (ii) grant us access to your accounts with
those providers. By choosing to enable such interoperation by allowing us to
enable access to Third Party Content, you: (a) certify that you are authorized
to do so; and (b) authorize us to allow that provider to access Customer
Content as necessary for interoperation. We are not responsible or liable for
disclosure, modification or deletion of Customer Content resulting from such
interoperation, nor are we liable for damages or downtime or other impact on
the Hosted Service, resulting directly or indirectly from your use of or
reliance on Third Party Content, sites or resources.
12. Your Compliance
- **Lawful Use of Offerings.**When you access and use an Offering, you are
responsible for complying with all laws, rules, and regulations applicable to
your access and use. This includes, without limitation, being responsible for
your Customer Content and users, their compliance with these General Terms,
how you acquired your Customer Content, and the accuracy and lawful use of
your Customer Content.
- PHI, PCI Data and ITAR Data. You may not transmit or store PHI, PCI Data
or ITAR Data within a Hosted Services unless you have specifically acquired an
Offering for that applicable regulated Hosted Services environment.
- Registration. You agree to provide accurate and complete information when
you register for and use an Offering and agree to keep this information
current. Each person who uses an Offering must have a separate username and
password. For Hosted Services, you must provide a valid email address for each
person authorized to use your Hosted Services. We may require additional
information for certain Offerings (e.g., technical information necessary for
your connection to a Hosted Service), and you will provide this information as
we reasonably request. You are responsible for securing, protecting, and
maintaining the confidentiality of your account usernames, passwords and
access tokens.
- Export Compliance. You will comply with all applicable export laws and
regulations of the United States (which apply irrespective of the use location
of the Offerings) and any other country (“Export Laws”) where your users use
any of the Offerings. You certify that you are not on any of the relevant U.S.
government lists of prohibited persons, including the Treasury Department’s
List of Specially Designated Nationals and the Commerce Department’s List of
Denied Persons or Entity List. You will not export, re-export, ship, transfer
or otherwise use the Offerings in any country subject to an embargo or other
sanction by the United States, including, without limitation, Iran, Syria,
Cuba, the Crimea Region of Ukraine, Sudan and North Korea, and you will not
use any Offering for any purpose prohibited by the Export Laws.
13. Confidentiality
- Confidential Information. Each party will protect the Confidential
Information of the other. Accordingly, receiving party agrees to: (i) protect
disclosing party’s Confidential Information using the same degree of care (but
in no event less than reasonable care) that it uses to protect its own
Confidential Information of a similar nature; (ii) limit use of disclosing
party’s Confidential Information to only for purposes consistent with these
General Terms; and (iii) use commercially reasonable efforts to limit access
to disclosing party’s Confidential Information to its employees, contractors,
agents, or Affiliates, each of which has a bona fide need to access such
Confidential Information for purposes consistent with these General Terms, and
who are subject to confidentiality obligations no less stringent than those
set out here.
- Compelled Disclosure of Confidential Information. Despite the provisions
above, receiving party may disclose Confidential Information of disclosing
party if it is compelled by law enforcement agencies or regulators to do so,
provided receiving party gives disclosing party prior notice of such compelled
disclosure (to the extent legally permitted) and reasonable assistance, at
disclosing party’s cost, if disclosing party wishes to contest the disclosure.
If receiving party is compelled to disclose disclosing party’s Confidential
Information as part of a civil proceeding to which disclosing party is a
party, and disclosing party is not contesting the disclosure, disclosing party
will reimburse receiving party for its reasonable cost of compiling and
providing secure access to such Confidential Information.
14. Payment
- Payment Terms. The payment terms in this section 14 only apply when you
purchase Offerings directly from us.
- Fees. You agree to pay all Fees specified in the Orders. Fees are
non-cancelable and non-refundable, except as otherwise expressly stated in
these General Terms. Without limiting any of our other rights or remedies,
overdue charges may accrue interest monthly at the rate of 1.5% of the
then-outstanding unpaid balance, or the maximum rate permitted by law,
whichever is lower. Fees are due and payable either within 30 days from the
date of our invoice or as otherwise stated in the Order.
- Credit Cards. For e-commerce transactions, if you choose to pay by credit
or debit card, then you: (i) will provide us or our designated third party
payment processor with valid credit or debit card information; and (ii)
authorize us or our designated third party payment processor to charge such
credit or debit card for all items listed in the applicable Order. Such
charges must be paid in advance or in accordance with any different billing
frequency stated in the applicable Order. You are responsible for providing
complete and accurate billing and contact information and notifying us in a
timely manner of any changes to such information.
- Taxes. Fees are exclusive of applicable taxes and duties, including any
applicable sales and use tax. You are responsible for paying any taxes or
similar government assessments (including, without limitation, value-added,
sales, use or withholding taxes). We will be solely responsible for taxes
assessable against us based on our net income, property, and employees.
15. Warranties
- Relationship to Applicable Law. You may have legal rights in your country
that prohibit or restrict the limitations set out in this section 15, which
applies only to the extent permitted under applicable law.
- General Corporate Warranty. Each party warrants that it has the legal
power and authority to enter into these General Terms.
- Hosted Services Warranty. We warrant that during the Term: (i) we will not
materially decrease the overall functionality of the Hosted Services; and (ii)
the Hosted Services will perform materially in accordance with the
Documentation. For any breach of these warranties, our entire liability, and
your sole remedy, will be for us to: (a) modify or correct the Hosted Service
so that it conforms to the foregoing warranty; or (b) if we determine that (a)
is not commercially, technically or operationally reasonable, terminate the
non-conforming Hosted Service, and refund to you any prepaid but unused Fees
for the remainder of the Term.
- On-Premises Product Warranty. We warrant that for a period of 90 days from
its Delivery, the On-Premises Product will substantially perform the material
functions described in the Documentation, when used in accordance with the
Documentation. For any breach of this warranty, our entire liability, and your
sole remedy, will be for us to: (i) modify, or provide an Enhancement for, the
On-Premises Product so that it conforms to the foregoing warranty; (ii)
replace your copy of the On-Premises Product with a copy that conforms to the
foregoing warranty; or (iii) if we determine that (i) or (ii) is not
commercially, technically or operationally reasonable, terminate the Offering
with respect to the non-conforming On-Premises Product and refund to you the
Fees paid for such non-conforming On-Premises Product.
- Disclaimer of Implied Warranties. Except as expressly set out above, and
to the extent allowed by law, the Offerings are provided “AS IS” with no other
warranties or representations whatsoever express or implied. We and our
suppliers and licensors disclaim all warranties and representations not
expressly set out above, including any implied warranties of merchantability,
satisfactory quality, fitness for a particular purpose, noninfringement, or
quiet enjoyment, and any warranties arising out of course of dealing or trade
usage. We do not warrant that use of Offerings will be uninterrupted, error
free or secure, or that all defects will be corrected.
16. Ownership
- Offerings. As between you and us, we own and reserve all right, title, and
interest in and to the Offerings and other LiquidMetal materials, including
all Intellectual Property Rights therein. We retain rights in anything
delivered or developed by us or on our behalf under these General Terms. No
rights are granted to you other than as expressly set out in these General
Terms.
- Customer Content. You own and reserve all right, title and interest in
your Customer Content. By sending Customer Content to a Hosted Service, you
grant us a worldwide, royalty free, non-exclusive license to access and use
the Customer Content for purposes of providing you the Hosted Service and as
set out in the Specific Offering Terms. Subject to section 16.1, you own any
reporting results that you or your Third Party Providers may derive from
Customer Content through the use of the Offerings.
- Feedback. You have no obligation to provide us with any Feedback, unless
otherwise stated in the Order. If you provide any Feedback, you grant to us a
non-exclusive, transferable, irrevocable, worldwide, royalty-free license
(with rights to sublicense) to make, use, sell, offer to sell, reproduce,
modify, distribute, make available, publicly display and perform, disclose and
otherwise commercially exploit the Feedback.
17. Term and Termination
- Term and Renewal. These General Terms will start on the Effective Date and
remain in effect until all your Offerings have expired, unless earlier
terminated pursuant to this section 17. Termination of a specific Offering
will not affect any other Offering. Terminating these General Terms will have
the effect of terminating all Offerings. Grounds for terminating an Offering,
that are specific to that Offering, will not be grounds for terminating
Offerings where no breach exists. Unless indicated otherwise in the Order, the
Term of an Offering that you acquired through an Order, along with these
General Terms, will automatically renew for an additional period of time equal
to the length of the preceding Term, unless one party notifies the other of
its intent not to renew at least 1 day before the expiration of the then
current Term.
- Termination. Either party may terminate these General Terms, or any
Offering, by written notice to the other party in the event of a material
breach of these General Terms, or the specific terms associated with that
Offering, that is not cured within 30 days of receipt of the notice. Upon any
expiration or termination of an Offering, the Use Rights granted to you for
that Offering will automatically terminate, and you agree to immediately (i)
cease using and accessing the Offering; (ii) return or destroy all copies of
any On-Premises Products and other LiquidMetal materials and LiquidMetal
Confidential Information in your possession or control; and (iii) upon our
request, certify in writing the completion of such return or destruction.
Unless stated otherwise in these General Terms, upon termination of these
General Terms or any Offering, we will have no obligation to refund any Fees
or other amounts received from you during the Term. Despite any early
termination above, and except for your termination of an Offering for our
uncured material breach, you will still be required to pay all Fees payable
under the Order.
- Refund Upon Termination for our Breach. If an Offering is terminated by
you for our uncured material breach, we will refund you any prepaid but unused
Fees covering the remainder of the Term after the effective date of
termination.
- Survival. The termination or expiration of these General Terms will not
affect any provisions which, by their nature, survive termination or
expiration, including the provisions that deal with the following subject
matters: definitions, ownership of intellectual property, confidentiality,
payment obligations, effect of termination, limitation of liability, privacy,
and the “Miscellaneous” section in these General Terms.
- Suspension of Service. In the event of a material breach or threatened
material breach of these General Terms, upon at least 5 days’ notice, we may,
without limiting our other rights and remedies, suspend your use of the Hosted
Service until such breach is cured or we reasonably believe there is no longer
a threat. Suspension of a Hosted Service will have no impact on the duration
of the Term of the Offering, or the associated Fees owed.
18. Limitation of Liability
Each party’s aggregate liability, together with any of its Affiliates, arising
out of or related to these General Terms will not, in any event, exceed the
total amount paid by you for the affected Offering in the 12 months preceding
the first incident out of which the liability arose. This liability cap does not
limit: (i) your obligations under the “Payment” section above; (ii) your rights
to any service level credits under any applicable Service Level Schedule; and
(iii) our right to recover amounts for your use of an Offering in excess of the
Capacity purchased or outside of your Internal Business Purpose.
In no event will either party or its Affiliates have any liability arising out
of or related to these General Terms for any lost profits, revenues, goodwill,
or indirect, special, incidental, consequential, cover, business interruption or
punitive damages.
The limitations above apply whether the action is in contract or tort and
regardless of the theory of liability, even if a party or its Affiliates have
been advised of the possibility of such damages or if a party’s or its
Affiliates’ remedy otherwise fails of its essential purpose.
The limitations above do not apply to your violation of the Use Rights limits
in section 1.2 or either party’s: (a) infringement of the Intellectual Property
Rights; (b) indemnification obligations; or (c) fraud, gross negligence or
willful misconduct.
The limitations in this section do not apply to the extent prohibited by law.
Some jurisdictions do not allow certain damages to be excluded or limited. To
the extent such a law applies to you, some or all of the exclusions or
limitations above may not apply to you, and you may have additional rights.
19. Indemnity
- Our Indemnification to You. We will defend and indemnify you, and pay all
damages (including reasonable attorneys’ fees and costs) awarded against you,
or that are agreed to in a settlement, to the extent a claim, demand, suit or
proceeding is made or brought against you or your Affiliates by a third party
(including those brought by a government entity) alleging that your use of an
Offering infringes or misappropriates such third party’s patent, copyright,
trademark or trade secret (a “Customer Claim”). We will have no obligation
under the foregoing provision to the extent a Customer Claim arises from your
breach of these General Terms, your Customer Content, Third Party Extension,
or the combination of the Offering with: (i) Customer Content; (ii) Third
Party Extensions; (iii) any software other than software provided by us; or
(iv) any hardware or equipment. However, we will indemnify against combination
claims to the extent: (a) the combined software is necessary for the normal
operation of the Offering (e.g., an operating system); or (b) the Offering
provides substantially all the essential elements of the asserted infringement
or misappropriation claim. We may in our sole discretion and at no cost to
you: (1) modify an Offering so that it no longer infringes or misappropriates
a third party right; (2) obtain a license for your continued use of the
Offering, in accordance with these General Terms; or (3) terminate the
Offering and refund to you any prepaid fees covering the unexpired Term.
- Your Indemnification to Us. Unless expressly prohibited by applicable law,
you will defend and indemnify us, and pay all damages (including reasonable
attorneys’ fees and costs) awarded against us, or that are agreed to in a
settlement, to the extent a claim, demand, suit or proceeding is made or
brought against us or our Affiliates by a third party (including those brought
by a government entity) that: (i) alleges that your Customer Content infringes
or misappropriates such third party’s patent, copyright, trademark or trade
secret, or violates another right of a third party; or (ii) alleges that your
Customer Content or your use of any Offering violates applicable law or
regulation.
- Mutual Indemnity. Each party will defend, indemnify, and pay all damages
(including reasonable attorneys’ fees and costs) awarded against the other
party, or that are agreed to in a settlement to the extent that an action
brought against the other party by a third party is based upon a claim for
bodily injury (including death) to any person, or damage to tangible property
resulting from the negligent acts or willful misconduct of the indemnifying
party or its personnel. Each party will pay any reasonable, direct,
out-of-pocket costs, damages and reasonable attorneys’ fees attributable to
such claims that are awarded against the indemnified party (or are payable in
settlement by the indemnified party).
- Process for Indemnification. The indemnification obligations above are
subject to the party seeking indemnification: (i) providing the other party
with prompt written notice of the specific claim; (ii) giving the indemnifying
party sole control of the defense and settlement of the claim (except that the
indemnifying party may not settle any claim that requires any action or
forbearance on the indemnified party’s part without its prior consent, which
will not be unreasonably withheld or delayed); and (iii) giving the
indemnifying party all reasonable assistance, at such party’s expense.
20. Updates to Offerings
From time to time, we may update or modify our Offerings and policies with
prospective effect, provided that such change or modification: (i) applies to
all our customers generally; (ii) does not impose additional fees or
restrictions on your use of the Offering during the Term; (iii) does not
override or supersede the risk allocation between us under these General Terms,
including without limitation the terms under sections 18 (Limitation of
Liability) and 19 (Indemnity); and (iv) does not materially reduce the security
protections or overall functionality of the applicable Offering during the Term.
21. Governing Law
These General Terms will be governed by and construed in accordance with the
laws of the State of California, as if performed wholly within the state and
without giving effect to the principles of conflict of law. Any legal action or
proceeding arising under these General Terms will be brought exclusively in the
federal or state courts located in the Northern District of California and the
parties consent to that venue and personal jurisdiction. We may seek injunctive
or other relief in any state, federal, or national court of competent
jurisdiction for any actual or alleged: (i) breach of confidentiality
obligations; (ii) infringement of intellectual property or other proprietary
rights of LiquidMetal, our Affiliates or any third party; or (iii) violations of
the Use Rights limits in section 1.2. You agree that such breach, infringement
or violation likely causes irreparable harm. Neither the Uniform Computer
Information Transactions Act nor the United Nations Convention for the
International Sale of Goods will apply to these General Terms.
22. Use of Customer Name
We may add your name to our customer list, identify you as our customer on our
websites and publicly use your name and logo in connection with our marketing
activities (e.g., press releases). Nothing in these General Terms gives you a
right to use LiquidMetal’s name, logo, or marks for any reason.
23. Miscellaneous
- Different Terms. We expressly reject terms or conditions in any Customer
purchase order or other similar document that are different from or additional
to these General Terms. Such different or additional terms and conditions will
not become a part of the agreement between the parties despite any subsequent
acknowledgement, invoice or license key that we may issue.
- No Future Functionality; Discontinuation. You agree that your purchase of
any Offering is not contingent on the delivery of any future functionality or
features, or dependent on any oral or written statements made by us regarding
future functionality or features. You acknowledge and agree that, subject to
our Support Policy and commitment during the Term, we may in our sole
discretion discontinue the manufacture, development, sale, or support of any
Offering, at any time and without any liability.
- Notices. Except as otherwise specified in these General Terms, all notices
related to these General Terms will be sent in writing to the addresses in the
Order, or to such other addresses as may be specified by either party to the
other. Notices will be effective upon: (i) personal delivery; (ii) the second
business day after mailing; or (iii) if sent by email, the day of sending.
However, any notices relating to termination or an indemnifiable claim must be
clearly marked as a legal notice, and must not be sent by email.
Billing-related notices to you will be addressed to your relevant designated
billing contact. All other notices to you will be addressed to your relevant
designated system administrator.
- Assignment. Neither party may assign, delegate, or transfer these General
Terms, in whole or in part, by agreement, operation of law or otherwise
without the prior written consent of the other party. However, we may assign
these General Terms in whole or in part to an Affiliate or in connection with
an internal reorganization or a merger, acquisition, or sale of all or
substantially all of our assets to which these General Terms relates. Any
attempt to assign these General Terms other than as permitted in these General
Terms will be void. Subject to the foregoing, these General Terms will bind
and inure to the benefit of the parties’ permitted successors and assigns.
- Waiver; Severability. The waiver by either party of a breach of or a
default under any of these General Terms will not be effective unless in
writing. Either party’s failure to enforce any provisions of these General
Terms will not constitute a waiver of any other right hereunder or of any
subsequent enforcement of that or any other provisions. If any provision of
these General Terms is deemed by a court or other tribunal of competent
jurisdiction to be invalid or unenforceable, the rest of these General Terms
will remain in full force and effect, and the provision affected will be
construed so as to be enforceable to the maximum extent permissible by law.
- Integration; Entire Agreement. These General Terms, along with any
additional terms incorporated by reference, constitute the complete agreement
between the parties regarding the subject of these General Terms, and replace
and supersede all previous agreements, communications and understandings,
whether written or oral, relating to their subject matter. Except as otherwise
expressly set out in these General Terms, any waiver or amendment of any
provision of these General Terms will be effective only if in writing and
signed by duly authorized representatives of both parties.
- No Reliance. In acquiring and using an Offering, you agree that you have
had the opportunity to conduct independent due diligence with respect to that
Offering, are relying on that due diligence as well as these General Terms and
any additional terms incorporated by reference, and are expressly not relying
on any other terms, agreements, communications, or understandings, whether
written or oral, relating to their subject matter.
- Force Majeure. Neither party or its Affiliates, subsidiaries, officers,
directors, employees, agents, partners and licensors will (except for the
obligation to make any payments) be liable for any delay or failure to perform
any obligation under these General Terms where the delay or failure results
from any cause beyond their reasonable control, including, without limitation,
acts of God, labor disputes or other industrial disturbances, electrical,
telecommunications, or other utility failures, earthquake, storms or other
elements of nature, blockades, embargoes, riots, acts or orders of government,
acts of terrorism, or war.
- Independent Contractors; No Third Party Beneficiaries. The parties are
independent contractors. These General Terms do not create a partnership,
franchise, joint venture, agency, fiduciary, or employment relationship
between the parties. There are no third party beneficiaries of these General
Terms. Neither party has the authority to bind or act on behalf of the other
party in any capacity or circumstance whether by contract or otherwise.
24. Definitions
| Term | Meaning |
|---|
| Affiliate | A corporation, partnership or other entity controlling, controlled by, or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than 50% of the voting rights in such entity or, in the case of a noncorporate entity, equivalent rights. |
| Approved Source | LiquidMetal AI, Inc, a LiquidMetal Affiliate Distributor, our authorized reseller, our authorized platform or repository, or a Digital Marketplace. |
| Beta Offering | Offerings or features of our Offerings we make available as a preview, beta, or other pre-release version. |
| Capacity | Measurement of usage of an Offering (e.g., aggregate daily volume, API requests, number of search requests, compute milliseconds, storage capacity or other), as stated in the Order. |
| C&I Services | As set out in section 6. |
| Confidential Information | All non-public information disclosed by a party to the other party, whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. However, “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is received from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party. |
| Content Subscription | Your right to receive content applicable to an Offering (e.g., models, templates, searches, playbooks, rules and configurations, as described in the Documentation) on a periodic basis over the Term. Content Subscriptions are provided as an add-on service and are identified in the Order. |
| Customer Claim | As set out in section 19.1. |
| Customer Content | Any data in an Offering that has been ingested by you or on your behalf from your internal data sources. |
| Delivery | The date of our initial delivery of the license key for the Offering or, for Hosted Services, the date we make the Offering available to you for access and use. |
| Digital Marketplace | An online or electronic marketplace operated or controlled by a third party where we have authorized the marketing and distribution of our Offerings. |
| Documentation | Online user guides, documentation and help and training materials published on our website or accessible through the Offering, as may be updated by us from time to time. |
| Enhancement | Updates, upgrades, fixes, enhancements, or modifications to an Offering made generally commercially available by us to our customers. |
| Export Laws | As set out in section 12.4. |
| Extension | Any separately downloadable or accessible configuration file, add-on, plug-in, example module, command, function, playbook, content, or application that extends the features or functionality of the applicable Offering. |
| Feedback | Ideas for improvement, suggestions and other feedback you provide to us in connection with an Offering. |
| Fees | Fees that are applicable to an Offering, as identified in the Order. |
| HIPAA | The Health Insurance Portability and Accountability Act of 1996, as amended, and supplemented by the Health Information Technology for Economic and Clinical Health Act. |
| Hosted Service | A technology service hosted by us or on our behalf and provided to you. |
| Intellectual Property Rights | All worldwide intellectual property rights (whether registered or unregistered), including copyrights and other rights in works of authorship; rights in trademarks, trade names, and other designations of source or origin; rights in trade secrets and confidential information; and patents and patent applications. |
| Offering | Products, services, subscriptions, licenses, and other LiquidMetal offerings (including any associated components), regardless of how acquired, whether directly from us or indirectly through another Approved Source. Examples of Offerings include On-Premises Products, Hosted Services, Support Programs, Content Subscriptions, and C&I Services. |
| On-Premises Product | LiquidMetal software that is delivered to you and deployed and operated by you, or on your behalf, on hardware or cloud service designated by you, and any Enhancements that we make available to you. |
| Open Source Software | Software that is licensed under a license approved by the Open Source Initiative or similar freeware license, with terms requiring that such software code be: (i) disclosed or distributed in source code or object code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributed under the same license terms. |
| Order | Our quote or ordering document (including an online order form) accepted by you via your purchase order or other ordering document submitted to us (directly or indirectly through another Approved Source) to order Offerings, which references the Offering, Capacity, pricing and other applicable terms set out in our quote or ordering document. Orders do not include any preprinted terms on your purchase order or any other terms on your purchase order that are additional to, or inconsistent with, these General Terms. |
| PCI Data | Credit card information within the scope of the Payment Card Industry Data Security Standard. |
| PHI | Any protected health information, as defined under HIPAA. |
| Service Level Schedule | A LiquidMetal policy that applies to the availability and uptime of a Hosted Service. |
| LiquidMetal Extensions | Extensions made available through our website that are identified on our website as built by us (and not by a third party). |
| Statement of Work | A statement of work or any Order that describes the specific C&I Services to be performed by us, including any materials and deliverables to be delivered by us. |
| Term | Duration of your subscription or license to the Offering that starts and ends on the date listed on the Order. If no start date is specified in the Order, the start date will be the Delivery date of the Offering. If no end date or duration is specified in the Order (or if there is no Order associated with the Offering), the duration of your subscription or license is limited to 60 days, unless otherwise specified with the Offering or in these General Terms. |
| Third Party Content | Information, data, technology, or materials made available to you by any third party that you license and add to a Hosted Service or direct us to install in connection with a Hosted Service. Examples of Third Party Content include Third Party Extensions, web-based or offline software applications, data service or content. |
| Third Party Extensions | An Extension created by a third party (not by us or our Affiliate). |
| Third Party Products | As set out in section 11. |
| Third Party Providers | Your authorized consultants, contractors, and agents. |
| Trial Offering | An Offering we make available on a trial or evaluation basis. |
| Usage Data | Data generated from the usage, configuration, deployment, access, and performance of an Offering. |
| Use Rights | As set out in section 1.1. |
Resale Terms and Conditions
READ THESE TERMS AND CONDITIONS BEFORE AGREEING TO ANY RESALE TRANSACTION
THE TERMS AND CONDITIONS OF LIQUIDMETAL AI’S RESALE OF EQUIPMENT AND SOFTWARE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CLIENT”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE EQUIPMENT OR SOFTWARE OR BY ENGAGING LIQUIDMETAL AI TO PROVIDE EQUIPMENT OR SOFTWARE, CLIENT AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS, UNLESS CLIENT AND LIQUIDMETAL AI HAVE SIGNED A SEPARATE AGREEMENT SPECIFICALLY COVERING THE RESALE OF EQUIPMENT AND/OR SOFTWARE, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY LIQUIDMETAL AI WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN LIQUIDMETAL AI AND CLIENT.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Client and LiquidMetal AI and are referred to herein as either “Terms and Conditions” or this “Agreement”. Client accepts these Terms and Conditions by making a purchase from or placing an order with LiquidMetal AI or shopping on any LiquidMetal AI Website or Mobile Application (each, a “Site”) or otherwise requesting Equipment or Software (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Client places an order or signs a Statement of Work will govern the order in question unless otherwise agreed in writing by LiquidMetal AI and Client.
Client consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; Client may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting LiquidMetal AI. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Client may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice.
Equipment and Software
This Agreement shall apply to sales by LiquidMetal AI to Client of third party equipment (“Equipment”) and third party software (“Software”) on a reseller basis. Orders or quotes (“Orders”) for Equipment and/or Software must be in writing and shall specify a purchase order number, product costs, any special delivery time or freight upgrade, the Equipment and/or Software to be purchased or licensed, the quantities, and the desired delivery location. Orders will be subject to acceptance by LiquidMetal AI. Client is not committed to any minimum purchase or aggregate dollar volume during the term of this Agreement. Purchases shall be initiated by Client’s purchase orders.
Prices and Payment for Equipment and Software
Prices for Equipment and Software purchased through LiquidMetal AI hereunder will be set forth in the Order. LiquidMetal AI reserves the right to make adjustments to pricing, Equipment, and Software offerings for reasons including, but not limited to, changing market conditions, Equipment or Software discontinuation, Equipment or Software unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Equipment or Software availability. Therefore, LiquidMetal AI cannot guarantee that it will be able to fulfill Client’s Orders. Unless otherwise specified on the Order, prices for Equipment and Software will be exclusive of delivery and installation charges.
Client shall pay the price for the Equipment and Software purchased hereunder within thirty (30) days of invoice date or Net Terms negotiated in master agreement. All payments must reference the Client number shown on the Order and must be sent to the address specified on the invoice. Client agrees to provide LiquidMetal AI with written notice of any disputed invoice items within thirty (30) days of the invoice date. In the event of any dispute over amounts invoiced, Client shall pay all undisputed amounts within such 30 day period and the parties shall use commercially reasonable efforts to resolve any dispute as quickly as possible.
Out-of-pocket expenses, as pre-approved in writing by Client, shall be re-billed to Client at cost, and shall be reimbursed by Client. LiquidMetal AI shall invoice Client for such expenses and said invoices shall be accompanied by sufficient detail to substantiate expenses.
In the event of litigation or collection activity arising out of Client’s non-payment, LiquidMetal AI will be entitled to reasonable costs and expenses incurred, including reasonable attorneys’ fees. LiquidMetal AI reserves the right to suspend performance of any Services if Client is in arrears in payment.
Client is solely responsible for payment of any taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from its purchase or use of the Equipment and/or Software, other than taxes based on the income or property of LiquidMetal AI. Client shall indemnify and hold LiquidMetal AI harmless from all claims and liability, including without limitation, any fines or penalties, arising from Client’s failure to report or pay such taxes.
Title, Risk of Loss and Delivery
The delivery schedule for Equipment and Software shall be shown on the Order. The risk of loss or damage to Equipment and Software shall pass from LiquidMetal AI to Client upon delivery to the transportation or freight company. Transportation and insurance charges shall be prepaid and billed to Client. Acceptance of all Equipment and Software by Client shall occur upon delivery of said Equipment and Software to Client’s facility, and may only be returned subject to the policies of the original Equipment manufacturer or Software licensor and LiquidMetal AI’s guidelines for returns. Title of Equipment shall pass to Client, subject to the applicable Equipment manufacturer’s standard terms and conditions, upon full payment of the purchase price for such Equipment. Upon full payment for the Software, the license for any Software licensed by Client through LiquidMetal AI is hereby passed through to Client by LiquidMetal AI to the extent allowed by the Software licensor and shall be subject to the licensor’s standard terms and conditions.
Orginal Equipement Manufacturer (OEM) Documentation
For Equipment purchased or Software licensed hereunder, LiquidMetal AI shall supply Client with one set of the manufacturer’s documentation (or make such documentation available electronically) that LiquidMetal AI normally furnishes with that Equipment or Software. Client may use the copies of all documentation for Client’s internal use and only in accordance with the applicable Equipment manufacturer’s or Software licensor’s standard terms and conditions.
No Warranty
Client understands that LiquidMetal AI is a reseller, and is not the manufacturer or licensor, of the Equipment purchased and/or Software licensed by Client hereunder and the only warranties and indemnification that apply are those of the Equipment manufacturer and/or the Software licensor, not LiquidMetal AI or its affiliates. In purchasing the Equipment and/or Software, Client is relying on the manufacturer’s or licensor’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Equipment and/or Software that may be provided by LiquidMetal AI or its affiliates. The warranty for any Equipment leased or purchased by Client through LiquidMetal AI and/or Software licensed by Client through LiquidMetal AI is hereby passed through to Client by LiquidMetal AI to the extent allowed by the applicable manufacturer or licensor and shall be subject to the applicable manufacturer’s or licensor’s standard terms and conditions. LiquidMetal AI provides no warranty on Equipment or Software whatsoever. Neither the Equipment nor the Software will be considered deliverables, work product or work made for hire.
No Infringement Warranty or Indemnification
Client expressly waives any claim that it may have against LiquidMetal AI based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Equipment or Software and also waives any right to indemnification from LiquidMetal AI against any such Claim made against Client by a third party. Client acknowledges that no employee of LiquidMetal AI is authorized to make any representation or warranty on behalf of LiquidMetal AI that is not in this Agreement. For the sake of clarity, LiquidMetal AI shall not indemnify nor be liable to Client and/or its affiliate(s) for any infringement of intellectual property rights arising out of any Equipment or Software purchased or licensed by Client through LiquidMetal AI hereunder and Client shall look solely to the Equipment manufacturer or Software licensor for any losses or other costs incurred by Client related thereto.
Resale and Export Restrictions, and Client Certifications
Client certifies that all purchases made pursuant to this Agreement are for its own use and not for resale or sublicense. Client represents and warrants that the Equipment purchased or Software licensed pursuant to this Agreement is not for export. LiquidMetal AI assumes no liability whatsoever for any damages arising out of any use of the Equipment or Software.
Limitation of Liability
EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM INSTANCES OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM INSTANCES OF LIQUIDMETAL AI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, LIQUIDMETAL AI’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY, SHALL IN NO EVENT EXCEED THE FEES PAYABLE FOR THE EQUIPMENT AND/OR SOFTWARE THAT GIVES RISE TO THE LIABILITY.
Confidentiality
Any information, whether or not protected by a patent or copyright, which has been provided in oral, written, or electronic forms by the disclosing party or any of its affiliates to the receiving party pursuant to this Agreement (hereinafter “Confidential Information”), shall be treated by the receiving party as being the proprietary information of the disclosing party, and shall be held in strict confidence by the receiving party. Confidential Information shall remain at all times during and after the term of this Agreement the exclusive property of the disclosing party. With respect to all Confidential Information, the receiving party shall (i) not provide or make available the Confidential Information in any form to any person other than those employees or contractors of the receiving party who have a need to know such Confidential Information in order for the receiving party to exercise its rights or perform its obligations under this Agreement; (ii) not reproduce the Confidential Information except for use reasonably necessary for the receiving party to exercise its rights and perform its obligations under this Agreement; and (iii) not exploit or use the Confidential Information for any purpose other than as required for the receiving party to exercise its rights and perform its obligations under this Agreement. In the event that the receiving party is specifically authorized by this Agreement to disclose any Confidential Information to a third party, then the receiving party shall have in place with the third party a Confidentiality Agreement the terms of which shall be no less restrictive than the terms set forth herein. Notwithstanding the foregoing, LiquidMetal AI may disclose Confidential Information to an Equipment manufacturer or Software licensor if such disclosure is required in connection with the performance by LiquidMetal AI hereunder, provided that LiquidMetal AI notifies such manufacturer or licensor of this obligation of confidentiality. Notwithstanding the foregoing to the contrary, “Confidential Information” will not include information that (i) was in the public domain prior to the receipt of same by the receiving party or comes into the public domain through no fault or breach by the receiving party; (ii) was in the receiving party’s possession or known to the receiving party prior to its receipt hereunder as evidenced by written documentation and was not acquired directly or indirectly from the disclosing party; (iii) was received by the receiving party from a third party where the receiving party was without an obligation of secrecy with respect thereto and was not acquired directly or indirectly from the disclosing party; or (iv) was independently developed by the receiving party without use of access or reference to, nor any benefit of the disclosing party’s Confidential Information. In the event that a subpoena or other legal process in any way concerning the Confidential Information is served upon the receiving party, or the receiving party is otherwise required by law to disclose any Confidential Information. the receiving party shall promptly notify the disclosing party, to the extent permitted by law, prior to such disclosure and shall reasonably cooperate with the disclosing party, at the expense of the disclosing party, in any lawful effort by the disclosing party to contest the legal validity of such subpoena or other legal process, limit the disclosure, or seek confidential treatment of the Confidential Information required to be disclosed. A party shall notify the other party immediately of any loss or unauthorized access, possession, use, or knowledge, or attempt thereof, of the other party’s Confidential Information and agrees to follow such party’s subsequent instructions to mitigate the impact of such an event, which cost shall be the sole responsibility of the notifying party. The notifying party shall promptly provide the other party with full details of any such event and use commercially reasonable resources to prevent a recurrence of any such event. The parties agree that monetary damages will not be an adequate remedy if this Confidentiality section is breached and therefore, a disclosing party shall, in addition to any other legal or equitable remedies, be entitled to seek injunctive relief against any breach or threatened breach of this Confidentiality section. The covenants, rights and obligations set forth in this Confidentiality section will survive for a period of three years following the expiration or termination of this Agreement; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations of this Agreement shall survive for the longer of three years or so long as such information remains a trade secret under applicable law, excluding failure to so qualify as a result of breach of this Agreement.
Notices
Except as otherwise provided in this Agreement, written notices required under the terms of this Agreement shall be sent by (a) Priority U.S. mail, return receipt requested, (b) personal delivery including Federal Express, UPS, or other reputable express courier services, or (c) facsimile or email, provided written confirmation of receipt is received, and a copy is sent by either the method described in (a) or (b). Notices shall be addressed to LiquidMetal AI at LiquidMetal AI, 2261 Market Street STE 22330, San Francisco, CA 94114, Attention: CEO; and to Client at its address shown in this Agreement; or such other address as shall be provided by LiquidMetal AI or Client in writing to the other. Notices shall be effective upon actual receipt.
Compliance with Laws
During the term of this Agreement, each party shall comply with all applicable federal, state and local laws.
Assignment
This Agreement is not assignable without the prior written consent of the other party, except that either party may assign this Agreement in connection with the sale of all or substantially all of its business or assets. This Agreement shall bind and inure to the benefit of the parties to the Agreement and their respective successors, representatives, and permitted assigns.
Governing Law and Venue
This Agreement shall be governed by, interpreted, and construed in accordance with, the laws of the State of California without reference to the body of law controlling conflicts of law. In the event of any litigation, the prevailing party shall be awarded its reasonable attorneys’ fees and other direct costs associated with the litigation. Venue of any action brought hereunder shall be exclusively in the County of San Francisco
General Terms
No waiver, alteration or modification of any provision hereof shall be binding unless in writing and signed by duly authorized representatives of both parties. The failure of either party to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights nor shall it preclude the future exercise of such rights. LiquidMetal AI assumes no liability whatsoever for any damages arising out of any use of the Equipment or Software. If any printed term or condition contained in any purchase order or other form used by Client to order products or services pursuant to this Agreement, or in any acknowledgment or other form used by Client is inconsistent with any term or condition contained herein, the provisions hereof shall apply and take precedence. Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement. If any provision of this Agreement is adjudged by any court or arbitration board of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent possible and necessary to preserve the original intentions of the parties, and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Unless otherwise expressly provided, all rights, remedies, powers and privileges conferred under this Agreement upon the parties shall be cumulative and shall not be deemed to exclude any other right that either party may have at law or in equity.