Terms of Use

1. Unless otherwise defined in this Agreement or in the applicable Order Form or Statement of Work (SOW), the following defined terms shall have the meanings as provided below:

a. “Acceptance Data Package” means the standard tests and data results gathered by Cambrian to verify that the Products meet intended specifications identified in the applicable Order Form or SOW.

b. “API” or “Application Program Interface” means a set of protocols that enables software applications to communicate with each other to exchange data, features and functionalities.

c. “BSP” or “Board Support Package” mean software components that provide an operational capability for a specific system or the hardware configuration of a specific computer board.

d. “Customer Supplied Prerequisites” or “CSPs”” mean those items (e.g., information, hardware, software and license rights) that Customer is responsible for delivering to Cambrian.

e. “Customized Acceptance Data Package” means those tests that are outside of the Acceptance Data Package delivered as standard with the Product and includes customizations performed by Cambrian for the Customer at the then standard professional services rates as detailed in an applicable SOW.

f. “Deliverables” means specific items (e.g., software, documentation etc.) expressly identified in the applicable SOW for delivery to Customer as a result of Cambrian’s performance of Professional Services.

g. “Documentation” means the applicable Product or Service documentation, including user guides, operating manuals, technical specifications, training guides, API information, and Product or Service descriptions published by Cambrian and updates or modifications thereto and copies thereof.

h. “Exhibit” means an attachment to this Agreement that the Parties may elect to simultaneously or separately execute from time to time, usually in the form of an Order Form, SOW, or when applicable, Purchase Order.

i. “Firmware” means software programmed into any of the applicable Hardware’s memory units.

j. “Hardware” means physical devices, appliances, and units of machinery, including all parts, elements, components thereof and accessories thereto, provided under an SOW or Order Form and includes Firmware installed therein, unless expressly excluded.

k. “Intellectual Property Rights” or “IPR” means all copyrights, trade secrets, trademarks, patents, mask works and other intellectual property rights recognized in any jurisdiction worldwide.

l. “Open Source Software” means software subject to an open source license, which requires as a condition for redistribution of such software, including modifications thereto, that the: (i) redistribution be in source code form or be made available in source code form; (ii) be licensed by the user to third parties under the same license terms as the original code for the purpose of making and/or distributing derivative (or adapted) works; or (iii) redistribution be at no charge.

m. “Order Form” means the transactional document that identifies Products and/or Services to be purchased by Customer. Order Form may also be referred to as a Purchase Order or “PO”, as applicable and agreed upon by the Parties.

n. “Product” and “Products” means Cambrian products made available to Customer under these terms and conditions, subject to Customer’s full payment thereof, including Hardware and Software.

o. “Professional Services” means consulting, design, development, integration, implementation, or training engineering services to be provided by Cambrian using commercially reasonable efforts as stated in the applicable SOW.

p. “Project Change Request” or “PCR” means an amendment detailing changes to an SOW.

q. “Services” mean Professional Services and/or Software Maintenance Services offered by Cambrian to Customer.

r. “Software” means (a) the computer programming code in object code format as detailed in an Order Form or SOW and accompanying Documentation, provided by Cambrian under this Agreement; and (b) any patches, Updates, and Upgrades thereto and any modifications . The term “Software” includes APIs, BSP’s, and Firmware but expressly excludes Third Party Software.

s. “Software Maintenance Service” means the maintenance services described in Section 5 below.

t. “Statement of Work” or “SOW” means the transactional document that describes the Professional Services to be purchased by the Customer and performed by Cambrian together with project plan details such as Deliverables, timelines, milestones, pricing, specifications, allocation of responsibilities, as applicable. The SOW can include or be completely defined by the terms in an Order Form.

u. “Third Party Software” means those portions of Software, if any, which are licensed under a third party or that are Open Source Software.

v. “Underlying Cambrian Technology” means Cambrian technology, methodologies, products, tools, templates, software (in source and object forms), architecture, class libraries, objects and documentation and any generally applicable modifications of the foregoing to the extent such do not incorporate confidential information of Customer.

w. “Update” means a Software release consisting of error corrections and patches that is generally made available by Cambrian to Customers with a current Software Maintenance Service agreement without an additional charge.

x. “Upgrade” means a Software release containing new enhancements, features, or functionality that Cambrian may make available to Customers for an additional fee.

a. Hardware. Hardware, excluding Firmware and any Software, is sold to Customer subject to the transfer of title terms below. The purchase of Hardware does not include any Software Products or related Software Maintenance Services, which must be purchased (and licensed, as applicable) separately from Cambrian.

b. Delivery and Acceptance. Cambrian will use commercially reasonable efforts to deliver Hardware on the date specified in the SOW or Order Form. Unless otherwise stated in an SOW or Order Form, Hardware is deemed accepted on the earlier of: a) Customer’s written notice to Cambrian that the Hardware is accepted (an email will suffice) or b) 30 days after the Hardware Delivery Date (defined in subsection c. below), subject to applicable limited Hardware warranty set forth below.

c. Risk of Loss. All Hardware shipments will be made FOB Cambrian’s designated pickup location. Cambrian shall: (i) package and prepare the Hardware for shipment in accordance with Cambrian’s standard commercial practices; (ii) notify Customer in writing that the Hardware is ready for pick-up (notification by electronic means such as e-mail satisfies the written notification requirement); and (iii) make the Hardware available for pick-up by Customer’s selected carrier.

Delivery of Hardware shall occur at the time that Cambrian completes actions (i) through (iii) described immediately above and the date thereof shall be the “Hardware Delivery Date”.

d. Transfer of Title. Title to purchased Hardware, excluding Firmware and Software, shall transfer to Customer once Cambrian has received payment in full. If applicable law does not allow or recognize retention of title by Cambrian after delivery, title to purchased Hardware, excluding Firmware and Software, will pass to Customer on the Delivery Date, but Cambrian shall retain a security interest in the Hardware to secure payment of the purchase price. In such case, Customer agrees to sign any documents that Cambrian reasonably deems necessary or convenient for use in filing or perfecting such security interest.

e. Customer Responsibilities. Customer is solely responsible for the content, integrity, security, accuracy, and timeliness of data processed with, transferred from, accessed through, or stored on Hardware. Customer is solely responsible for any use of Hardware it purchases, regardless of whether such use is undertaken by Customer or any third party authorized by the Customer and all liabilities or other consequences arising from such use.

a. License. The Software and related Documentation are licensed, not sold. On the condition Customer remains in compliance with the terms and conditions of this Agreement, Cambrian grants to Customer a non-exclusive, non-transferable (except as expressly set forth herein), non-sublicensable, revocable license to use the Software in object or executable code format solely with the Hardware on which it was provided by Cambrian. If the Software includes Third Party Software, Customer shall comply with the third party licensing terms and conditions contained therein.

b. Reservation of Rights in Software. Software constitutes proprietary, confidential, trade secret information of Cambrian. Except for the limited license rights granted to Customer under these Terms and Conditions as forth in this A, Cambrian and its licensors retain and reserve all rights, titles, and interests in the Software and Documentation not expressly granted herein.

c. License Restrictions. Unless otherwise stated in an SOW, Customer agrees that only Cambrian has the right to enhance or modify the Software, and the Software license does not include a right to Software source code. Except to the extent such restrictions are prohibited by applicable law, Customer will not or otherwise instruct a third party to modify, disassemble, recompile, or reverse engineer the Software or any part thereof, or otherwise gain or attempt to gain access to the source code of the Software. Customer shall not create derivative works or cause or permit others, directly or indirectly, to create derivative works based upon the Software. The Software’s component parts may not be separated. Customer will not sell, license, sub-license, publish, display, distribute, rent, lease, assign, or otherwise transfer to a third-party the Software, in whole or in part, or any copy thereof.

d. Third Party Software. Certain components of the Software may contain Third Party Software which are subject to the terms and conditions of the applicable third-party licenses. Customer is responsible for compliance with the terms and conditions of such third-party software licenses. Cambrian hereby expressly disclaims any ownership rights or IPR with respect to such Third Party Software.

e. Delivery and Acceptance. Delivery of Software occurs when Cambrian makes the Software available to Customer for download (“ Software Delivery Date”), as notified via email or from a web portal specified by Cambrian. Software is deemed accepted by Customer upon Software Delivery Date.

a. Description. Subject to the terms and conditions of this Agreement and an applicable SOW, Cambrian will provide the Professional Services as described in the relevant SOW. Professional Services may be provided by Cambrian’s third-party contractors provided that Cambrian remains responsible for such third-party contractors’ compliance with the SOW terms.

b. Customer’s Responsibilities. Cambrian’s performance is dependent in part on Customer’s actions. Accordingly, Customer will timely make available required personnel and necessary access, items, documents and assistance including any Customer Supplied Prerequisites. Any dates or time periods relevant to Cambrian’s performance will be extended equitably to reflect delays due to Customer or its contractors and the Parties will use good faith efforts to reach a mutually agreeable revised timeline in writing.

c. Acceptance by Customer. Unless otherwise stated in an applicable SOW, a Deliverable shall be deemed accepted by Customer after 10 days of delivery of such Delivery to Customer unless Customer submits in writing to Cambrian that such Delivery is not accepted and reasons thereof.

d. Customer Owned Deliverables. If applicable and subject to Customer’s payment of all fees and expenses in connection with the Professional Services provided by Cambrian under an applicable SOW, Cambrian irrevocably assigns to Customer all of Cambrian’s Intellectual Property Rights in any Deliverable developed by Cambrian as part of its Professional Services and identified as a “Customer Owned Deliverable” in the applicable SOW. For avoidance of doubt, nothing herein shall be deemed or construed as Cambrian granting any rights of use or ownership to Customer for any of Cambrian’s Products and Services that Cambrian makes generally available to its customers.

e. Cambrian Owned Deliverables. Cambrian and its licensors retain ownership of, and all right, title and interest (including all Intellectual Property Rights) in, any Deliverable that is not expressly identified as a “Customer Owned Deliverable” in the applicable SOW (“Cambrian Owned Deliverable”). Customer’s license to any Cambrian Owned Deliverable shall be (i) as specified in the SOW under which the applicable Deliverable is delivered, or, (ii) if no license is specified in the Exhibit, Cambrian grants Customer a non-exclusive, non-transferable, internal use license, without the right to sublicense, for the sole purpose evaluating such Deliverable in accordance with Section 4(c) (“Acceptance by Customer”). All rights not expressly granted to Customer in this Agreement or in an SOW are reserved for Cambrian and its licensors.

Provided Customer has an active and fully paid agreement for Software Maintenance Service, Cambrian will provide such software maintenance service in accordance with its standard terms then in effect. Software Maintenance Service includes software patches, bug release notes, and Updates to the Software under maintenance, but does not entitle Customer to new Software that is designed to add additional applications of features available in the Software or to provide additional functions and features that were not included in the Software originally licensed. Such additional features, functionality, or new capability are considered Upgrades, and will be separately licensed. Installation and configuration services are not included as part of Software Maintenance Service; however, such installation and configuration services may be purchased separately as Professional Services through a fully executed Order Form or SOW.

a. Limited Hardware Warranty. As to each Hardware, the warranty period is 30 days from Cambrian’s Hardware Delivery Date (“Warranty Period”). Cambrian warrants that during the Warranty Period, Hardware will function in material conformance with the applicable Hardware Documentation and ADP (“Hardware Warranty”). If Hardware does not meet this Hardware Warranty, upon Customer’s prompt written notification and confirmation that the Hardware has been stored, installed, operated and maintained in accordance with all associated manuals, operating instructions and/or recommendation of Cambrian, Cambrian shall correct any such defect either by repair or replacement, at Cambrian’s sole discretion. The foregoing shall constitute Customer’s sole and exclusive remedy and shall fulfill and discharge all of Cambrian’s obligations and liabilities with respect to this Hardware Warranty.

b. Hardware Warranty Exclusions. The Limited Hardware Warranty does not cover malfunctions or defects resulting from Customer’s: (i) integration activities; (ii) mishandling, improper use or installation, improper site preparation, site or environmental conditions, neglect, intentional physical damage, accident, or the elements; (iii) use of Hardware in any other orbit altitude other than Low Earth orbit (“LEO”) which is defined as an Earth-centered orbit with an altitude of 1,200 miles or less; (iv) use, maintenance, or storage of Hardware other than in conformity with the Documentation, (v) modifications, repairs, enhancements, or alterations performed by anyone other than Cambrian or its authorized representative, (vi) normal wear and tear that does not affect the functionality of the Hardware (such as cosmetic damage, scratches, or dents), or (vii) interfaces or use with software or hardware supplied by Customer or a third party not authorized by Cambrian; or (viii) errors, defects, or other issues that cannot be reproduced by Cambrian.

c. Limited Software Warranty. Cambrian warrants that from thirty (30) days from the date of Software Delivery (“Software Warranty Period”), Software will function in material conformance with the applicable Software Documentation. Cambrian further warrants that it uses commercial anti-virus and anti-spyware scanning tools and has not knowingly introduced into the Software any Trojan horses, worms, or other malicious mechanisms or code for the purpose of damaging of corrupting the Software. Customer’s sole and exclusive remedy in the event of breach of warranty is to notify Cambrian in writing within thirty (30) days of delivery of Software and for Cambrian to repair or replace the Software so that it complies with this warranty. Customer assumes full responsibility for taking appropriate measures to prevent loss of data.

d. Software Warranty Exclusions. The Limited Software Warranty does not cover malfunctions or defects resulting from (i) mishandling, improper use, failure to provide a suitable installation or operating environment, or neglect; (ii) use, maintenance, or storage of Software other than in conformity with the Documentation, (iii) modifications, repairs, enhancements, or alterations performed by anyone other than Cambrian or its authorized representative(s), (iv) interfaces or use with software or hardware supplied by Customer or a third party, or (v) errors, defects, or other issues that cannot be reproduced by Cambrian.

e. DISCLAIMER. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN THIS SECTION 6, CAMBRIAN HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF DESIGN, QUALITY, PERFORMANCE, WORKMANSHIP, SUITABILITY, RESULT, MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO CAMBRIAN’S PRODUCTS, DELIVERABLES AND SERVICES, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT DOES CAMBRIAN WARRANT THAT SOFTWARE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTIONS. CAMBRIAN HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF CAMBRIAN.

a. Products and Services. Any and all ownership of and title to all Intellectual Property Rights to Cambrian’s Products and Services shall remain at all times with Cambrian or its assignees.

b. Feedback. Customer may disclose any opinions, observations, comments, criticisms, and suggested improvements, whether in written or oral form (“Feedback”) from its use of Cambrian’s Products and Services and Customer hereby assigns all rights and title of such Feedback to Cambrian. Additionally, Customer is prohibited from using the Products, Services, Feedback Data for the purposes of developing, or assisting another party to develop, any products or services that compete with the Products and Services ordered by Customer under this Agreement.

“Confidential Information” means any nonpublic information disclosed by or on behalf of a Party (“Discloser”) to the other Party (“Recipient”) under this Agreement that is: a) marked with Discloser’s restrictive legend; b) identified by Discloser as confidential at the time of disclosure or thereafter; or c) that a reasonable person would recognize as confidential due to the nature of the information and/or the circumstances under which such information was disclosed. Recipient will treat Discloser’s Confidential Information as strictly confidential and protect it with the same level of care as its own Confidential Information, and never less than a reasonable standard of care. Recipient shall not disclose Discloser’s Confidential Information to any third-party except on a need-to-know basis to Recipient’s employees, officers, directors, affiliates, consultants, contractors, and financial, tax and legal advisors who have signed a confidentiality agreement, or are otherwise bound by confidentiality obligations, with protective terms that are at least as restrictive as those herein. A party may use and copy Confidential Information only as required to exercise rights or perform obligations under this Agreement. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this Section 8. If Confidential Information must be disclosed to a third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of Recipient, Recipient will: (a) assert the confidential nature of the information in the action or proceeding; (b) promptly notify Discloser of the order or request within, wherever possible, at least 15 business days in advance of the disclosure; and (c) permit Discloser (at its own expense) to seek an appropriate protective order or other confidentiality protections, cooperating with any reasonable requests relating to confidentiality from Discloser in the process. Confidential Information does not include information that Recipient reasonably demonstrates is: (i) published or otherwise available to the public other than by breach of this Agreement by Recipient; (ii) independently developed by Recipient without use, access or reference to Discloser’s Confidential Information as evidenced by appropriate records; or (iii) approved for public release by written authorization of Discloser.

Each Party shall comply with all applicable laws and regulations applicable to their respective performance under the Agreement. Customer acknowledges that Products and Services are subject to export controls, including the Export Administration Regulations and ITAR. Neither party will violate nor take any steps that would cause either party to violate any U.S. export controls (including, but not limited to, the EAR) or any U.S. economic sanctions (including the regulations and rules administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State), or any other applicable trade control laws. Customer will not export or re-export (directly or indirectly) any Products or Services (i) without complying with the U.S. and other applicable export controls and economic sanctions; (ii) to any known or suspected denied or restricted persons or parties; (iii) to Cuba, Iran, Myanmar (Burma), North Korea, Syria, Venezuela, or the Crimea region of Ukraine, or any other geography subject to comprehensive sanctions; (iv) for military end uses or to military end users in Russia or China or Myanmar (Burma); or (v) for any other end use or to any other end user prohibited under U.S. export controls. To the extent requested, Customer shall cooperate with Cambrian in ensuring compliance with export control laws and regulations, including submission of true and correct information regarding its identity and the end use upon request.

a. All pricing of the Products and Services and payment due dates to Cambrian hereunder shall be detailed in each SOW and/or Order Form, exclusive of any and all use and sales taxes and duties imposed by any applicable regulatory authority (other than such assessments imposed on Cambrian’s net income). Customer shall be solely responsible for paying Cambrian all such use and sales taxes and duties imposed.

b. For Professional Services, Cambrian shall invoice Customer via email or other electronic means upon completion of each milestone as identified in the applicable SOW or Order Form consistent with the payment schedule in the SOW or Order Form. The timing and amount of milestone payment invoices will be keyed to the completion of specific milestones fixed in such SOW will be billed and payable according to the date as described on the payment schedule. Customer shall notify Cambrian in writing of any objection (and all relevant details) it may have concerning the completion of a Milestone or invoice amount (a “Customer Objection”) no later than ten (10) days after the receipt of the invoice. Otherwise, the invoice amount shall be deemed accepted.

c. Each undisputed invoice shall be payable by Customer in full and without right of set off no later than fourteen (14) days after the date such invoice (other than any initial invoice payable upon execution of this Agreement, which shall be payable at such time). Interest at the rate of 1.0% per month may be assessed on all late payments of amounts due under issued invoices, or if less, the highest rate permitted by applicable law.

Either Party may terminate this Agreement, an Order Form or SOW under this Agreement in the event: (i) the other Party commits a material breach of this Agreement, an Order or SOW hereunder and fails to cure such breach within sixty (60) days following written notice specifying the breach; (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, provided that in the case of an involuntary petition, the Party shall have sixty (60) days in which to vacate such petition; (iii) upon the failure by Customer to pay any undisputed amount due hereunder, provided that Customer shall have twenty (20) days to cure such monetary breach following written notice. If Cambrian terminates this Agreement or related SOW or Order Form due to Customer’s material breach, in addition to all other legal rights and remedies available to Cambrian, Customer shall pay to Cambrian the total contractual amount under the then active SOW(s) and/or Order Form(s).

The Parties expressly acknowledge that commercial space related activities involve substantial risks and recognize the need to define, apportion and limit contractually all of the risks associated with this activity. The payments and other remedies expressly set forth in this Agreement, fully reflect the Parties’ negotiations and intentions with respect to allocation of the risks and the damages associated with the work hereunder. The remedies expressly provided in this Agreement are in lieu of all other remedies under contract, law or equity and are the sole remedies available to the Parties. Except as otherwise expressly provided in this Agreement, no remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy provided that, in no event, shall the non-breaching Party be entitled to multiple recoveries or remedies unless expressly provided otherwise in this Agreement.

TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 7 (INTELLECTUAL PROPERTY RIGHTS), CONFIDENTIALITY (SECTION 8), OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER, TO ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT ANY TIER (INCLUDING SUPPLIERS OF ANY KIND), AGENTS OR CUSTOMERS, TO ITS PERMITTED ASSIGNEES OR SUCCESSOR OR TO ANY OTHER PERSON CLAIMING BY OR THROUGH SUCH PARTY, FOR ANY DAMAGES REPRESENTING LOSS OR CORRUPTION OF DATA, LOSS OF INCOME OR PROFITS, LOSS OF PRODUCTION, LOSS OF BUSINESS, BUSINESS INTERRUPTION, SYSTEM DOWNTIME, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS FOR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, COSTS ASSOCIATED WITH DATA RECOVERY, COSTS OF EFFECTING COVER ARISING FROM OR RELATING TO THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS DELIVERED OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY TYPE AND STRICT LIABILITY), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY. IN NO EVENT SHALL CAMBRIAN’S TOTAL CUMULATIVE MAXIMUM LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF MONEY PAID BY CUSTOMER TO CAMBRIAN FOR THE AFFECTED PRODUCT OR SERVICES IN ACCORDANCE WITH THE APPLICABLE EXHIBIT.

(a) General. Each Party, as an Indemnifying Party, will indemnify, defend, and hold harmless the other Party (as the Indemnified Party) from and against any and all claims, losses, liabilities, damages, and expenses including, without limitation, reasonable attorneys’ fees (“Indemnified Claims”), including without limitation, those based on contract or tort, arising out of or in connection with a claim, suit or proceeding brought against the indemnified party by a third party based upon or arising from the Indemnifying party’s or its agents’: (a) gross negligence or willful misconduct; or (b) violation of applicable laws. Indemnifying Party’s obligations hereunder are conditioned upon the Indemnified Party (i) notifying Indemnifying Party in writing promptly after becoming aware of an Indemnified Claim; (ii) allowing Indemnifying Party sole control of the investigation, defense and settlement of the Indemnified Claim; (iii) fully and timely cooperating with Indemnifying Party in the investigation, defense and settlement of the Indemnified Claim (as reasonably requested by Indemnifying Party); and (iv) making no admission of liability or fault on behalf of itself or Indemnifying Party. Indemnifying Party will not be responsible for any costs, expenses or compromise incurred or made by Indemnified Party without Indemnifying Party’s prior written consent.

(b) IP Indemnity by Cambrian. Cambrian will indemnify and defend Customer against any suit or proceeding brought by a third party against Customer to the extent that such suit or proceeding is based on an allegation that the Software, as authored by Cambrian and delivered to Customer under this Agreement, when used as expressly permitted under this Agreement: (i) directly infringes such third party’s U.S. copyright or patent; or (ii) misappropriates any third party trade secret (an “Infringement Claim”). Cambrian will pay Customer the damages finally awarded against Customer by a court of competent jurisdiction (or settlements agreed to in writing by Cambrian) as a result of an Infringement Claim. Cambrian’s obligations under this Section 15 are conditioned on Customer (a) notifying Cambrian in writing promptly after Customer becomes aware of an Infringement Claim; (b) allowing Cambrian the right to have sole control of the investigation, defense and settlement of the Infringement Claim; (c) fully and timely cooperating with Cambrian in the investigation, defense and settlement of the Infringement Claim (as reasonably requested by Cambrian; and (d) making no admission of liability or fault on behalf of itself or Cambrian. Cambrian will not be responsible for any costs, expenses or compromise incurred or made by Customer without Cambrian’s prior written consent.

In the event the Software is held in any suit or proceeding to infringe such a right and its use is enjoined, or if in the opinion of Cambrian the Software is likely to become the subject of such an Infringement Claim, Cambrian may, in its sole discretion and at its own expense: (1) procure for Customer the right to continue using the Software, or (2) modify or replace the Software so that it becomes non-infringing while giving substantially equivalent performance. In the event that (1) or (2) above are not, in Cambrian’s sole determination, practical using reasonable commercial efforts, then Cambrian may terminate this Agreement and provide a pro-rata refund of fees paid for the Software for the then-current License Term. Cambrian’s defense and indemnification obligations under this Section 15(b) will not apply to the extent an Infringement Claim is based on or result from: (a) modifications other than those that Cambrian makes available to Customer pursuant to the Software Maintenance Service; (b) the combination of the Software with any other item; (c) Third Party Software; or (d) Customer’s failure to use the most recent version of the Software.

THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CAMBRIAN’S ENTIRE LIABILITY FOR ANY ACTUAL OR ALLEGED CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION ARISING OUT OF OR RELATED TO ANY SOFTWARE, DELIVERABLES, PRODUCTS, SUPPORT OR OTHER SERVICES PROVIDED UNDER THIS AGREEMENT.

If a Product or Service is provided to any unit or agency of the United States Government (“U.S. Government”), the following provisions shall apply: All software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms herein.

Customer agrees that its breach of this Agreement may cause Cambrian irreparable harm for which recovery of money damages would be inadequate, and that Cambrian is therefore entitled to seek timely injunctive relief to protect Cambrian’s rights in addition to any and all remedies available at law.

If either Party is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, pandemic or epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other causes beyond the reasonable control of the Party (each a “Force Majeure Event”), such Party shall give prompt written notice to the other Party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

Neither Party may assign, transfer, or sublicense the Agreement or any obligation or benefit under this Agreement without the prior written consent of the other Party and any attempt to do so shall be void; provided, however, that either Party may assign this Agreement without consent to an acquirer of or successor to the business unit making use of the Products, or of all or substantially all of the Party’s equity, assets or business.

Cambrian and Customer’ rights and obligations hereunder shall be as independent contractor and Customer respectively. The provisions hereof shall not be construed in such a fashion as to treat either party as a partner or joint venture of the other party.

This Agreement and all disputes arising hereunder shall be governed by the laws of the State of California (without regard to its conflict of laws principles). Both Parties agree that the Federal and State courts located in the Northern District of California shall have exclusive jurisdiction over all disputes arising under this Agreement, subject to Section 23.

a. If a dispute arises hereunder, the Parties shall first attempt in good faith to resolve it informally and in good faith (the informal mechanism below, “Negotiation”). Upon a Party receiving written notice of a dispute from the other Party (such date the notice is received, the “Dispute Date”), authorized representatives of each Party shall meet to attempt to resolve the dispute. If such representatives do not resolve the dispute within fifteen (15) calendar days after the Dispute Date, either Party may escalate the issue, so that it is handled by Vice-Presidents or Senior Executives of each Party for at least an additional fifteen (15) calendar days.

b. If a dispute is unresolved through Negotiation (as provided in Section 23(a)) then any claim arising out of or relating to this Agreement, or any breach hereof, shall be settled by submitting the matter to binding arbitration in San Francisco, California by and pursuant to the commercial arbitration rules of JAMS (“JAMS”) then in effect. The parties agree that the Expedited Procedures set forth in JAMS’ Comprehensive Rules 16.1 and 16.2 (or any successor thereto) shall apply. The determination of the arbitrator shall be conclusive and binding on the Cambrian and Customer, and judgment may be entered on the arbitrator’s award in any court of competent jurisdiction. The arbitrator shall not have the power to award punitive or exemplary damages. Issues of arbitrability shall be determined in accordance with the United States federal substantive and procedural laws relating to arbitration. The arbitration shall be conducted on a strictly confidential basis.

c. Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of or relating to this Agreement.

The failure of either Party to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

If any provision contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement (and the application of such provision to persons or circumstances, if any, other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each and every provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

The Parties agree that each and every provision of this Agreement has been mutually negotiated, prepared and drafted, each Party has been represented by counsel, and in connection with the construction of any provisions hereof or deletions here from, no consideration shall be given to the issue of which party actually prepared, drafted, requested or negotiated any provision or deletion.

This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts to this Agreement transmitted by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as a signed original.

This Agreement including all Addendums and Exhibits thereto, attachments and schedule attached constitutes the entire agreement between the Parties related to the subject matter hereof and supersedes all previous written agreements, all proposals and drafts and all oral agreements and discussions including any preprinted terms and conditions on Customer’s purchase order forms that may be issued by the Customer on an ongoing basis. This Agreement cannot be amended except in a writing signed by all Parties.