SOFTWARE LICENSE TERMS

**WARNING** BY CLICKING ON THE "ACCEPT" BUTTON OR OTHERWISE ACCESSING, DOWNLOADING, INSTALLING OR USING THE LICENSED SOFTWARE, YOU OR THE ENTITY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE EFINIX SOFTWARE LICENSE AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING SOFTWARE LICENSE TERMS (THE "AGREEMENT") WITH RESPECT TO THIS LICENSED SOFTWARE. IF A SEPARATE WRITTEN LICENSE AGREEMENT WITH RESPECT TO THIS LICENSED SOFTWARE EXISTS BETWEEN LICENSEE AND EFINIX, INC. (“EFINIX”), THE TERMS OF THAT WRITTEN LICENSE AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY EFINIX) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT LICENSEE IS BOUND BY THE TERMS OF THAT WRITTEN LICENSE AGREEMENT. PROVISION OF THE LICENSED SOFTWARE IS CONDITIONED ON, AND LICENSEE'S DOWNLOADING, INSTALLATION OR USE OF THIS LICENSED SOFTWARE SHALL CONSTITUTE, LICENSEE’S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN LICENSE AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD OR INSTALLATION PROCESS WILL NOT CONTINUE. IF YOU CONTINUE WITH THE DOWNLOAD OR INSTALLATON, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. EFINIX SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) are incorporated by reference and made a part of that certain Software License Agreement (this “Agreement”) between Efinix, Inc. (“Efinix”), a Delaware corporation, and the identified Licensee (“Licensee”). Capitalized terms not defined herein are as defined on the cover page to this Agreement or applicable Order.

1. Definitions.
   1. "Authorization Codes" means any license key, license file, license manager, dongle or other key, code or information issued by (or on behalf of) Efinix that is necessary to download, install, operate and/or regulate User or Seat access to the applicable Licensed Software.
   2. “Effective Date” is set forth on the applicable Order.
   3. “Efinix Devices” means programmable logic devices, including field programmable gate array devices (“FPGAs”), complex programmable logic devices (“CPLDs”), SoC devices, and/or any other semiconductor devices designed, developed or manufactured by or on behalf of Efinix.
   4. “License Term” means the term of the license grant for the Licensed Software as set forth on the applicable Order.
   5. “Licensed Software” the Efinity software as defined on the applicable Order.
   6. “Maintenance Period” means the period during the License Term in which Licensee is entitled to receive Updates and Upgrades, as set forth on the applicable Order.
   7. “Maintenance Services,” “Updates” and “Upgrades” are defined in Section 3 below.
   8. "Order” means the cover page to this Agreement (if attached), a separate written authorization or order document that has been acknowledged and agreed by Efinix in writing, or an electronic order placed through Efinix’s online order and procurement page on its website, with confirmed payment.
   9. "Seat" means the right granted by Efinix to Licensee to have the Licensed Software used by one User in accordance with the terms and conditions of this Agreement. A "Seat" is either a Node-Locked Seat or a Floating Seat, which is set by the Authorization Codes:
      • “Node-Locked Seat” means use of a specific machine limited to a single User.
      • “Floating Seat” means concurrent use on any number of machines and by any number of Users up to the total number of authorized Seats.
   10. “Termination Date” is set forth on the applicable Order.
   11. “Third Party License” is a separate file, header, or release notes that contains additional terms, conditions or restrictions imposed by third-party licensors. Third Party Licenses will be identified and relevant terms included in the Licensed Software documentation and/or appear upon activation of the Licensed Software.
   12. "User" means a specific human being who is identified by Licensee as a person who is authorized to use the applicable Licensed Software on behalf of Licensee. In cases where Licensee is an individual who has obtained a Seat from Efinix for his/her individual use, Licensee and User are one and the same.
2. License.
   1. Licensed Software. Subject to the terms and conditions of this Agreement, Efinix hereby grants Licensee, under Efinix’s rights in the Licensed Software, a non-transferable, non-exclusive, non-sublicensable license, within the Territory, to use the Licensed Software for the License Term solely in connection with developing, synthesizing, testing and verifying designs only for Efinix Devices. The Licensed Software may only be used by up to the permitted number of Seats and Users, as set forth on the applicable Order. If Efinix has issued to Licensee a Node-Locked Seat, the Licensee may allow the Licensed Software to be (a) installed on and accessed from only the specific machine(s) allowed by the applicable Authorization Codes, and (b) used by only one User (at a time) for each one Seat for such Licensed Software that has been issued to Licensee by Efinix.
   2. Third-Party Licenses. Certain portions of the Licensed Software may originate from third-party licensors and are subject to the notices, terms and conditions of the applicable Third-Party Licenses.
   3. Restrictions:
      • Licensee shall not use, distribute, reproduce, modify, create derivative works of, or allow access to the Licensed Software except as expressly authorized by this Agreement.
      • No right is granted hereunder to use the Licensed Software to program or develop designs for non-Efinix Devices.
      • Except to the extent such restrictions are prohibited under applicable law, Licensee may not decompile, translate, reverse-engineer, disassemble, or otherwise reduce the Licensed Software, data files generated by the Licensed Software, and/or programmable hardware devices, transmit the Licensed Software, or make any hard-copy memory dumps of the object code.
      • Licensee may not publish or disclose the results of any benchmarking of the Licensed Software, or use such results for any other software development activities.
      • Licensee shall not use the Licensed Software for a design for use in military, nuclear, chemical or biological weapons, or missile technology applications, or medical, diagnostic, therapeutic, life support or safety devices or systems, or in any other application in which the failure of such design could create a situation where personal injury or death may occur.
3. Updates and Upgrades to the Licensed Software. Provided that all License Fees and Maintenance Fees due and payable under the applicable License Agreement have been paid to Efinix, Efinix will provide Updates and Upgrades to Licensee during the Maintenance Period, pursuant to the License Agreement (“Maintenance Services”). All Updates and Upgrades provided to Licensee under the License Agreement shall be deemed “Licensed Software” and subject to all of the terms and conditions of the applicable License Agreement. For purposes of this Agreement:
   1. “Update” means an error correction, bug fix, patch or other correction or modification to a current version of the Licensed Software that does not otherwise add functionalities to the Licensed Software or to the relevant documentation, which Efinix in its discretion designates as such and makes generally commercially available without an additional charge. Updates do not include any new features, functionality or components that are made available by Efinix as separate products or for additional fees; and
   2. “Upgrade” means a new release of the Licensed Software that add functionalities to the Licensed Software or to the relevant documentation, which Efinix in its discretion designates as such and makes generally commercially available to Licensees without an additional charge. Upgrades do not include any new features, functionality or components that are made available by Efinix as separate products or for additional fees.
4. Fees and Payment; Taxes. Within thirty (30) days after delivery of the Licensed Software or, if indicated, such other payment period indicated on the applicable Order or specified with delivery of the Authorization Codes for the Licensed Software (and annually thereafter with respect to recurring, use or User fees) or, if applicable, the date(s) otherwise expressly agreed by Efinix, Licensee shall pay Efinix Efinix’s then current standard license fees for any authorized Seats, Users or other uses of the Licensed Software or such other fees as have been expressly agreed to by Efinix (“License Fees”); in the case of annual or monthly License Fees, License Fees therefor will be paid annually in advance. Additional licenses for additional Seats or Sites may be ordered by Licensee by submitting a written order consistent with the current prices quoted by Efinix. If Maintenance Services are ordered by Licensee, at the same time as payment of the initial License Fees, and annually in advance thereafter if Maintenance Services are renewed, Licensee shall also pay Efinix’s then current Maintenance fees for Licensed Software or such other fees as have been expressly agreed to by Efinix (“Maintenance Fees”). Without limiting Efinix’s remedies, if Licensee makes or uses copies, or has Seats/Users/uses, that are not authorized hereunder, it will so report to Efinix and will pay additional license and maintenance fees equal to Efinix’s then current standard fees for the license and maintenance of such extra copies and Seats/Users/uses (from time to time upon request, Efinix will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be at Licensee’s expense). All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Efinix has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by Licensee directly to Efinix. Licensee will reimburse Efinix for all reasonable travel and other related expenses incurred by Efinix in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.
5. Export Control. Licensee shall not, directly or indirectly, export, re-export or transship the Licensed Software in violation of any applicable export control laws and regulations of any country having jurisdiction over the Licensed Software or parties to this Agreement (“Export Laws”), including without limitation, the U.S. Export Administration Regulations, the Enhanced Proliferation Control Initiative (EPCI) Regulations, the Foreign Asset Control Regulations, the import and export restrictions of the various European, Middle Eastern and/or African countries and any economic sanctions imposed by the United States Government upon any foreign country. Licensee agrees, at Licensee’s own expense, to comply with all applicable Export Laws and will, in accordance with the indemnification provisions of this Agreement, indemnify, defend and hold Efinix and its third-party vendors harmless from any claim against Efinix or its third-party vendors due to Licensee’s violation or alleged violation of the Export Laws.
6. WARRANTY DISCLAIMER. THE LICENSED SOFTWARE AND ANY RELATED MATERIALS ARE PROVIDED “AS IS” AND EFINIX MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT THERETO, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO LICENSEE.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY, EFINIX SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, DATA OR PROFIT, WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION, OR IN ANY EVENT (II) FOR ANY AMOUNT IN EXCESS, IN THE AGGREGATE, OF THE FEE PAID BY LICENSEE TO EFINIX HEREUNDER (OR, IF THE FEE HAS BEEN WAIVED, $100), EVEN IF EFINIX SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
8. Proprietary Rights. Licensee acknowledges and agrees that Licensee has no proprietary rights in the Licensed Software or in any other materials received from Efinix, and does not acquire any proprietary rights by virtue of this Agreement, except those contractual rights that are expressly granted herein.
9. Indemnification. Licensee shall defend, indemnify and hold harmless Efinix and its affiliates and their respective directors, officers, employees, and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, liabilities, losses, damages and expenses, including reasonable attorneys’ fees, incurred by Efinix in investigating and/or defending against any claims, actions or liabilities arising out of or in connection with (a) a claim that a design or other product created by Licensee violates any applicable laws or regulations or infringes the rights of any third party, including, without limitation, rights arising under patent, trademark, copyright or trade secret law (except to the extent such claim relates to the Licensed Software); (b) the failure of Licensee to comply with all applicable laws, rules, and/or regulations; or (c) any warranties granted by Licensee, or any implied warranties claimed by any of Licensee’s purchasers or end-users. Any settlement that requires the payment of monies or other actions by Efinix or that affects Efinix’s rights shall require Efinix’s prior written consent.
10. Confidential Information. Licensee agrees that the Licensed Software and any information relating to Efinix or its products or business (collectively “Confidential Information”) are highly proprietary to Efinix. Licensee agrees to keep the Confidential Information confidential and not to use it or disclose it to any third party, except as expressly authorized herein. Licensee’s agents, contractors and employees may access the Confidential Information on a need-to-know basis, to the extent necessary for Licensee’s authorized use of the Licensed Software and provided such agents, contractors and employees are bound in writing to the obligations and restrictions of this Section 10 and Section 2.3 (f) herein. Licensee agrees that it will not alter, remove or obfuscate any proprietary markings or labels that may appear on the Licensed Software, its packaging, documentation or other related materials. Licensee shall be liable for any unauthorized disclosure by its agents, contractors or employees. Licensee agrees that any violation of this Section 10 could cause Efinix irreparable harm for which Efinix would have no adequate remedy at law and in the event of such violation, Efinix shall be entitled to preliminary and other injunctive relief, in addition to and not in lieu of any other remedies to which it may be entitled in equity or at law. Upon termination or expiration of this Agreement for any reason, Licensee shall promptly return to Licensee or destroy (and so certify to Licensee) all Confidential Information then in its possession or control.
11. Term and Termination.
    1. Term. Unless earlier terminated as provided below, this Agreement shall have a term extending from the Effective Date until the Termination Date, as determined by the License Term and the scope of access set by the Authorization Codes. Upon expiration of the License Term or earlier termination as set forth below, Licensee’s access to the Licensed Software will automatically be disabled and Licensee may no longer be able to, and shall not attempt to, use the Licensed Software.
    2. Termination. This Agreement will terminate:
       • By Efinix immediately and without notice if Licensee breaches any provision of or obligation under this Agreement
       • By Licensee at any time upon Licensee’s ceasing all use of and destroying the Licensed Software and all copies thereof, with notice thereof to Efinix;
       • Upon written notice, effective immediately, if Licensee becomes insolvent or is placed in receivership or upon the commencement by or against Licensee of bankruptcy proceedings or any other proceedings for the settlement of Licensee’s debts, or if Licensee makes an assignment for the benefit of creditors, or commences of any act or action concerning Licensee’s dissolution or liquidation.
    3. Liability and Other Remedies. Neither party will be liable for damages of any kind as a result of exercising its right to terminate this Agreement according to its terms, and termination will not affect any other right or remedy of either party.
    4. Effect of Termination; Survival. Upon termination of this Agreement for any reason, all licenses to the Licensed Software shall terminate and Licensee must destroy the Licensed Software and all copies thereof. The provisions of Sections 2.3 through 13 shall survive any termination or expiration of this Agreement.
12. Arbitration.
    1. Agreement to Arbitrate. The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in the State of California, county of Santa Clara. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
13. General Provisions.
    1. Assignment. Licensee may not assign any rights or delegate any duties under this Agreement without the prior written consent of Efinix, and any attempt to do so without that consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
    2. Choice of Law. This Agreement will be governed by and construed according to the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
    3. Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
    4. Entire Agreement. This Agreement, including the applicable Order(s) and all Exhibits to this Agreement, which are hereby incorporated by reference, represents the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and agreements, whether written or oral.
    5. Notices. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing. They will be deemed given when required if: (a) delivered personally, (b) sent by confirmed email, (c) sent by commercial overnight courier with written verification of receipt, (d) sent by registered or certified mail, return receipt requested, postage prepaid; or (e) except with respect to any notice of breach or termination under this Agreement, by confirmed email. All communications must be sent to the receiving party’s address set forth in the introduction to this Agreement or to such other address that the receiving party may have provided for purpose of notice in a manner provided in this Section. Notice by mail shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent. All notices and other communication required or contemplated by this Agreement delivered in person or sent by confirmed email shall be deemed to have been delivered to and received by the addressee and shall be effective on the date of personal delivery (in the case of subsection (a) above) or on the date sent (in the case of subsections (b)-(d) above), or in the case of email, on the date the recipient confirms receipt of such email. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.
    6. Government Users. This Section shall only apply to the US Government, to any US Government agency, entity, or branch, to any quasi-US Government entity, and to any US Government subcontractor at any tier (collectively, “US Government”) as Licensee. The Licensed Software was created at private expense, is commercial as defined in Federal Acquisition Regulation (“FAR”) 2.101, and are provided with no rights conferred to the US Government except as expressly stated in this Agreement. If the Licensee is the US Government, then, the use, duplication, reproduction, release, modification, disclosure or transfer of the Licensed Software, or any related Efinix intellectual property of any kind, including any documentation, technical data, specifications, and manuals, is restricted by the terms, conditions and restrictions contained in this Agreement or in a license agreement, in accordance with FAR 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement (DFARS) 227.7202 for military purposes, if applicable, or any related, applicable FAR, DFARS, or US Government agency regulation part, subpart, paragraph, clause or Code of Federal Regulation similarly restricting such use. In any event, under any and all circumstances, the US Government agrees that it shall only have the right to use the Licensed Software in accordance with the terms, conditions, and restrictions contained in this Agreement or as contained in a related license agreement referenced in, or attached to, this Agreement, or referenced in an exhibit to it. All other use is prohibited. The US Government will only use the Licensed Software for US Government purposes. Licensed Software shall be deemed irrevocably accepted by the US Government upon delivery by Efinix, in any form consistent with the terms of this Agreement, and acceptance by the US Government in accordance with standard and usual US Government practices for commercial services and products.
    7. Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. Licensee will not represent or imply that it is Efinix, an agent of Efinix, or a part of Efinix.
    8. Force Majeure. No liability shall be incurred by either party by reason of non-performance or delay in performance of any obligation (except for non-payment by Licensee) caused by Force Majeure, at least for the duration of the Force Majeure; provided however that the affected party shall notify the other party of the existence thereof and the effect upon its ability to perform its obligations. As used herein, the term “Force Majeure” shall mean and include, without limitation, any act of God, industry wide strikes, explosion, fire, flood, war and other hostilities, acts of terrorism, civil unrest, governmental acts, regulations, or orders, inadequate supply of raw materials, components, labor or energy, or any other circumstance of a similar nature beyond the reasonable control of the affected party.
    9. Severability. If any part of this Agreement is found invalid or unenforceable, such part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.
    10. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

-End of Software License Terms and Conditions-

-Posted July 25, 2018-