This No-Fee, Limited Trial Use Freemium Agreement is entered into by and between PDF Solutions, Inc. (“PDF”) and User (as defined in Section 13 below) to facilitate the evaluation by User of PDF’s Exensio® software as a service in connection with the analysis of semiconductor manufacturing and test data to decide whether User’s employer (as identified on User’s registration form submitted to PDF in connection with click accepting this Agreement) may wish to enter into a commercial license for such software with PDF. Once accepted by User, this Agreement becomes effective on the date PDF issues credentials to User to enable User’s access to and use of the Platform and of the Hosted Services
1. Hosted Service
A. Subject to Section 1.C., PDF will create an Account for the User using only User’s employer’s email address assigned to User, and generate User login details for that Account. User may not permit the sharing of its User credentials. User shall ensure that its use of the Hosted Services complies with all of the requirements and terms of this Agreement. User will at all times be responsible for and expressly assumes the risks associated with use of the Hosted Services under User’s Account, whether or not such use was made by User or by another party and whether or not such use was authorized by User.
B. PDF hereby grants to User a non-exclusive, royalty-free, fully-paid up, limited license (without the right to sublicense) to access and use the Hosted Services (URL to be provided by PDF) as set forth herein and in accordance with the Documentation during the term of the Agreement.
C. Any obligation of PDF under Section 1.A. and the license granted by PDF to User under Section 1.B. are subject to the following limitations:
(i) The Hosted Services made available to User pursuant to this Agreement are provided for evaluation purposes only. In no event may the User use the Hosted Services in a development system or for development purposes.
(ii) Use of the Hosted Services may be terminated and/or cancelled by PDF at any time in its sole discretion, without any compensation or liability hereunder to User for such termination and/or cancelation;
(iii) the Hosted Services may only be used to upload up to a total of fifty (50) GB of data from User’s employing company;
(iv) the Hosted Services are intended for use with and solely support STDF binary files and WAT data in CSV format; any data provided by User for upload may be blocked from upload for any reason including incompatibility of the file format or incorrect or unknown data types contained in the file(s).
D. Except to the extent expressly permitted in this Agreement or required by law, the license granted by PDF to User under Section 1.B. is subject to the following prohibitions:
(i) User acknowledges that the Hosted Services are only for the use of the User and that User shall not permit any unauthorized person(s) to access or use the Hosted Services, nor shall User divert or permit the diversion of the Hosted Services to any other entity or person.(ii) User must not use the Hosted Services to provide services to third parties except in performance of User’s standard job responsibilities for User’s employer company in connection with User’s evaluation hereunder;
(iii) User shall not lease, rent, loan or commercially share (including time-share or electronically transmit over a network to a third party) or otherwise use the Hosted Services for purposes of providing a service bureau;
(iv) User shall not upload nor include any personal data or any personally identifiable data in its User Data nor shall it generate any User Results that include any personal data or any personally identifiable data.
(v) User must not republish or redistribute any content or User Results generated from the use of the Hosted Services except in performance of User’s standard job responsibilities for User’s employer company in connection with User’s evaluation hereunder;
(vi) User must not make any alteration to the Platform, except as permitted by the Documentation; and
(vii) User must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of PDF.
(viii) User shall be entitled to download reports generated from use of the Platform, but shall not download the Exensio software or any technology from the Platform.
(ix) User shall not undertake any activities in connection with its use of the Hosted Services that may in any way damage the name, goodwill, or reputation of PDF.
(x) User shall not use the Hosted Services in the market for scientific research and development related activities, including, but not limited to, research and development in the following fields: healthcare provision, diagnostics, translational medicine, life sciences, environmental, academia, government, biotechnology, chemicals, foods, consumer product goods, agriculture and petrochemicals
(xi) User has no authority express or implied to assume or create any obligation on behalf of PDF and has no authority to represent PDF in any capacity.
(xii) User shall not under any circumstances use the trademarks, service marks, domain names, or resource indicators of PDF and/or of Tibco and shall not challenge directly or indirectly any of the foregoing. Nothing in this Agreement shall be deemed to grant User any right of ownership, goodwill, title, or interest in the PDF or Tibco trademarks.
E. User shall put appropriate security measures relating to Account access details in place to ensure that no unauthorized person may gain access to the Hosted Services using User’s Account.
F. PDF shall use reasonable efforts to maintain the availability of the Hosted Services to the User at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, however, nothing in this Agreement is, or shall be interpreted to be, a guarantee of any level of service availability.
G. User shall comply with PDF’s Cloudsite Acceptable Use Policy as posted at https://www.pdf.com/company/trust-center/working-with-pdf-solutions/cloudsite-acceptable-use-policy/
H. User shall not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
I. User shall not use the Hosted Services in any way that is unlawful, illegal, fraudulent or harmful, including without limitation, in violation of any privacy or data protection laws.
J. For the avoidance of doubt, User has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the term, and PDF will not deliver any software to User hereunder.
K. The Hosted Service provided is a trial service only and as such PDF may suspend or terminate the provision of the Hosted Services at any time for any reason without any obligation or liability hereunder. In the event, during the term of the Agreement, User ceases its employment with the semiconductor company employing User at the time User first signed up hereunder, User shall immediately cease access to the Hosted Services and shall not, after the date of the separation of such employment, utilize the Account access details associated with User’s prior work email address after such separation date.
L. PDF is not responsible for any loss, destruction, alteration or corruption of User Content.
M. User shall report any suspected Data Security Incident to [email protected] immediately upon determination or suspicion of a DSI. User shall reasonably cooperate in any investigation of a suspected or actual DSI which involves User or any User Data.
2. No Maintenance, Support, or Training Services
A. PDF is not obligated to provide any technical support, maintenance services, including with respect to any Hosted Services Defects, or training on use of the Platform or applications.
B. If PDF elects in its discretion to apply an Update, including a security fix, PDF may give User advanced notice if such application is likely to affect the availability of the Hosted Services but has no obligation hereunder to do so.
3. User Data
A. User hereby grants to PDF a non-exclusive license to access, copy, reproduce, store, distribute, publish, export, adapt, edit, use, and translate User Data to the extent reasonably required for the performance of PDF’s obligations and the exercise of PDF’s rights under this Agreement and for general product development, benchmarking, and sales and marketing purposes. User also grants to PDF the right to sublicense these rights to its hosting, connectivity, and telecommunications service providers as needed for performance of this Agreement.
B. User acknowledges and agrees that PDF may collect anonymized User statistics regarding User’s use of the Platform and of the Hosted Services for marketing, sales, or other purposes. Such User statistics may include, but shall not be limited to, the gigabytes consumed by User, and the amount of time User is on the Platform and/or using the Hosted Services. PDF will not share outside of PDF nor publicly make available any user statistics that identify User.
C. User warrants to PDF that it has the right to upload User Data for the purposes of the use of the Platform and such use will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. In particular, User represents and warrants to PDF that the User Data will not contain (i) any information that is “classified”, secret, or otherwise restricted under applicable national-security laws and regulations; or (ii) any data for which User does not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement.
D. PDF reserves the right to delete all or any part of the User Data at any time in its sole discretion, without notice to or consent of User.
E. No later than 60 days after the term ends, PDF will permanently delete all User Data unless User enters into another SaaS Agreement with PDF in which case such Agreement will define how such existing User Data will be transferred, modified, exported or deleted.
4. Reserved rights; no assignment of intellectual property
A. As between the Parties, all rights relating to the Platform and applications not expressly licensed hereunder to User are reserved and retained by PDF. Further, the applications and all feedback about the Hosted Services that User shares with PDF are exclusively owned by PDF, and PDF may incorporate into the Platform and/or the Hosted Services or otherwise use free of charge any feedback PDF receives from User. PDF acknowledges that any feedback is provided on an “as is” basis with no warranties of any kind. User irrevocably waives in favor of PDF any moral rights which User may have in such feedback pursuant to applicable law.
B. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from PDF to User.
5. No Fee; no obligation
A. Each Party shall:
(I) not use any of the other Party’s Confidential Information other than as permitted under this Agreement;
(ii) keep the other Party’s Confidential Information confidential, using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its most valuable confidential and proprietary information; and,
(iii) not disclose the financial or other terms of this Agreement without the prior written consent of the other Party.
B. Confidential Information shall remain the sole property of the disclosing Party and each receiving Party acknowledges that it does not acquire any rights therein.
C. User shall not disclose PDF’s Confidential Information to any person or entity that is a competitor or potential competitor of PDF, unless approved in advance in writing by PDF.
D. This Section 6 imposes no obligations upon either Party with respect to the other Party’s Confidential Information that:
(i) is known to the receiving Party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(ii) is or becomes publicly known through no act or default of the receiving Party; or,
(iii) is obtained by the receiving Party from a third party in circumstances where the receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality.
(iv) The restrictions in this Section 6 do not apply to the extent that a disclosing Party’s Confidential Information is required to be disclosed by the receiving Party pursuant to any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of a Party on any recognized stock exchange. However, the Party required to so disclose the other Party’s information shall, if legally permissible, provide prompt notice to the disclosing Party so that the disclosing Party can, at its sole cost and expense seek a protective order or otherwise seek to limit or prevent the disclosure.
(v) The provisions of this Section 6 shall continue in force for a period of five (5) years following the termination of this Agreement, at the end of which period they will cease to have effect, except with respect to any of PDF’s trade secrets embodied in its Confidential Information, which obligation to not use and keep them confidential shall survive any termination or expiration hereof.
(vi) Notwithstanding anything to the contrary, (i) PDF is expressly allowed to disclose the terms of this Agreement to its Affiliates; and (ii) User authorizes PDF to: use User’s name and logo in public presentations, and to issue a press release to the public generally announcing User, as a user of the Hosted Services; where applicable, disclose this Agreement to licensors of included or enabling technology or software only in connection with royalty reporting to such entities.
7. Acknowledgements and warranty limitations
A. User acknowledges that complex software is never wholly free from defects, errors, bugs, security vulnerabilities, and PDF gives no warranty or representation that the Hosted Services will be free from defects (including Hosted Services Defects), errors, bugs, or be entirely secure.
B. User acknowledges that the Hosted Services are designed to be compatible only with certain supported tools and limited network systems; and PDF does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
C. The User acknowledges that PDF will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and PDF does not warrant or represent that the Hosted Services or the use of the Hosted Services by User will not give rise to any legal liability on the part of User or any other person.
D. NO WARRANTY, INCLUDING AS TO THE ACCURACY, COMPLETENESS, SECURITY, OR SUITABILITY OF SOFTWARE OR INFORMATION, OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, ARE MADE BY PDF UNDER THIS AGREEMENT. THE PLATFORM, HOSTED SERVICES, APPLICATIONS, AND ALL SOFTWARE ARE PROVIDED “AS IS.”
8. Limitations and exclusions of liability
A. User hereby acknowledges and agrees that PDF shall have no liability whatsoever in contract, tort (including negligence), or otherwise for any loss of goodwill, business, use or production, revenue or profits, anticipated savings, data, or wasted expenditure or corruption of any data, database or software (in any case, whether reasonably foreseeable or not), or indirect, incidental, special, punitive, or consequential damages or losses suffered by User or any third party in relation to this Agreement or for any non-performance by PDF hereunder.
B. The limitations and exclusions of liability set out in this Section 8 and elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty.
9 Subcontracting and Affiliates
A. PDF may subcontract all or any part of its obligations under this Agreement without the prior consent of User.
B. Notwithstanding anything herein, references to PDF herein shall be to PDF Solutions, Inc. and all of its Affiliates, and the duties/obligations set forth herein may be fulfilled by any such entity without prior notice to or consent of User.
10. Export Control
User acknowledges that the use of the Hosted Services and the Platform may be subject to applicable export control or sanctions laws and regulations. Notwithstanding anything to the contrary, availability and any PDF obligations to provide the Hosted Services and the Platform are subject to such export control and sanctions laws and regulations, and the User agrees that in the event such laws and regulations restrict PDF from providing the Hosted Services, PDF will be excused from such obligation without liability, penalty, or compensation. User confirms it will comply with any such applicable laws and regulations, and without limiting the foregoing, (i) will not export, reexport, transfer, or divert the Hosted Services to a country, entity, or individual without a required license or other government authorization, in violation of any applicable export or import laws of any jurisdiction; and (ii) will not export, reexport, transfer, divert, or allow any third party to use the Hosted Services in any activities related to the development, production, storing or testing of nuclear, chemical or biological weapons or missiles. User certifies that it does not develop, produce, maintain, or use military items, that it is not a military end-user, and that the PDF Hosted Services are not intended for a military end-use or military end-user.
11. General
A. Capitalized terms used herein and not defined herein have the meanings given them in Section 13.
B. Any notice required or permitted under this Agreement shall be given in writing by email only, to the email address for each party set forth in each Party’s signature block to this Agreement. Notice shall be effective one day after sending.
C. No breach of any provision of this Agreement shall be waived except with the express written consent of the Party not in breach.
D. If any provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable law, the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The affected clause shall be interpreted in such a manner as to render it enforceable while attempting to closely approximate the intent and the economic effect of the affected clause.
E. This Agreement may not be varied except by a written document signed by or on behalf of each Party.
F. User shall not, without the prior written consent of PDF, assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement. Any attempted assignment shall be void.
G. This Agreement is made for the benefit of the Parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
H. PDF and/or its licensors shall have the right to audit User’s compliance with this Agreement upon reasonable notice, at its expense, and at reasonable times. User agrees to reasonably cooperate in any such audit to ensure a complete and accurate audit by PDF and/or its independent auditors.
I. This Agreement shall constitute the entire agreement between the Parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements, and understandings between the Parties in respect of that subject matter. This Agreement may not be modified or altered except by a writing duly executed by PDF and User.
J. No waiver by either Party of any breach of any provision of this Agreement shall be construed as a waiver of that or any other provision on any other occasion.
K. This Agreement shall be governed by and construed in accordance with the laws of the State of California (USA), without regard to or application of any rules governing conflicts of laws, and both Parties consent and hereby submit to the exclusive jurisdiction and exclusive venue in the state and federal courts sitting in Santa Clara County, California (USA) for adjudication of any dispute arising out of or in connection with this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from and shall not apply to this Agreement.
L. User agrees that by click accepting the terms of this Agreement online (e.g., by electing to submit the registration form), User agrees to be bound by all of the terms and conditions stated in this Agreement, and that if User does not so agree, User will not click accept the Agreement (or submit the registration form) and will not use or access the Hosted Services or the Platform.
12. Termination
A. This Agreement shall continue in force until terminated by either the User or PDF, which either Party may do at any time in its discretion upon written notice to the other (email is sufficient).
B. Upon termination of this Agreement, all of the provisions of this Agreement, including User’s right to use the Hosted Services shall cease. Notwithstanding the foregoing, the following provisions of the Agreement shall survive and continue in full effect (in accordance with their express terms or otherwise indefinitely): Sections 3.C., 4, 6, 7, 8, 10, 11, 12, and 13.
C. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either Party.
12. Definitions
- “Account” means an account enabling a User to access and use the Hosted Services.
- “Affiliate” as used herein means an entity that is controlled by a Party, controls that Party, or is under common control with that Party. Control means that more than fifty percent (50%) of the controlled entity’s shares or ownership interest representing the right to make decisions for such entity are owned or controlled, directly or indirectly, by the controlling entity or person. An entity is considered to be an Affiliate so long as such ownership or control exists.
- “Agreement” means this agreement including any appendices attached hereto and any amendments to this Agreement from time to time.
- “Business Day” means any weekday other than a bank or public holiday in Santa Clara County, California (USA).
- “Data Security incident” or “DSI” means any event that results in unauthorized access or use, loss, disclosure, modification or destruction of PDF Confidential Data or User Data whether accidental or deliberate.
- “Documentation” means the documentation for the Hosted Services produced by the PDF and delivered or made available by PDF to User.
- “Hosted Services” means Exensio® applications made available by PDF to User as a service (via the Internet) in accordance with this Agreement.
- “Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect on the operation, functionality, or performance of the Hosted Services.
- “Hosted Services Specification” means the specification for the Platform and Hosted Services set out in in the Documentation, if any.
- “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
- “Party” means PDF or User, and “Parties” means both PDF and User.
- “PDF Confidential Information” means the Platform, Hosted Services and applications accessed thereby, and all other non-public confidential or proprietary information of PDF disclosed to, or learned by, User in connection with this Agreement or the sales and marketing efforts of PDF during the Term of this Agreement.
- “Platform” means the collection of online resources, typically provided via a third-party commercial cloud service provider, managed by PDF and used by PDF to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer resources on which that application, database, system and server software is installed and operates.
- “Update” means a hotfix or patch to any Platform software.
- “User” means the individual who accepts this Agreement by click accepting it online.
- “User Confidential Information” means information disclosed by User to PDF that at the time of disclosure was marked as “confidential” and all User Data.
- “User Content” means all User Data and User Results.
- “User Data” means all data, works and materials: uploaded to or stored on the Platform by the User; transmitted by the Platform at the instigation of the User; supplied by User to PDF for uploading to, transmission by, or storage on the Platform.
- “User Results” means any output User generates from use of the Hosted Services or generated by the Platform as a result of the use of the Hosted Services by User (but excluding analytics data relating to the use of the Platform and server log files).
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