Master Services Agreement

This Master Services Agreement (“Agreement”) is made between Allegro Labs, Inc. (d/b/a “Quilter”) and Customer (defined below) and governs the Customer’s use of the Quilter Assets (as defined below). 

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses an Quilter Asset. Quilter reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Quilter Asset(s).

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE QUILTER ASSETS. THE QUILTER ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Quilter have executed a written agreement governing Customer’s access to and use of the Quilter Assets as a Quilter customer, then the terms of such signed agreement will govern and will supersede this Agreement. The parties agree as follows:

1. Definitions. 

1. “Affiliate(s)” means any entity that now or hereafter controls, is controlled by, or is under common control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such control exists. 
2. “Authorized User” means one individual (no concurrent usage with other users is permitted), whether for themself or on behalf of their entity, that are authorized by Customer to use the Service.
3. “Beta Features” means any Quilter Asset features, functionality or services which Quilter may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
4. “Candidate” means a layout candidate (also known as a CBL).
5. “CBL(s)” means a printed circuit board layout, and related documentation, generated by an Authorized User by using the Software and/or Service.
6. “Cloud” means a Deployment Type of the Service made available to Customer within Quilter’s multi-tenant cloud server.
7. “Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Quilter the Usage Data; and (ii) with respect to Customer, the Customer Data and Output. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
8. “Consumption Metrics” means metrics required to be provided by Customer with respect to its use of the Self-Hosted Deployment Type: (i) Layout Jobs submitted to the Software including the number of Pins organized by Layout Job; (ii) extracted CBLs organized by Layout Job ID; (iii) Pin Credits consumed; and (iv) the number of additional Units Customer requires for the upcoming calendar quarter.
9. “Customer Data” means all data provided by, or on behalf of, Customer in connection with or by means of the Software and/or Service, including Input and any Personal Data as that term is defined under the DPA or as otherwise set under applicable laws. Notwithstanding anything to the contrary in this Agreement, Customer Data does not include Usage Data.
10. “Customer Environment” means equipment, systems, servers, including those of third party virtual machine cloud providers, and workstations owned or managed solely by Customer.
11. “Data Processing Agreement” or “DPA” means Quilter’s Data Processing Agreement available at: http://quilter.ai/dpa.
12. “Deployment Type” means the deployment type of the Software and/or Service purchased by Customer identified in an Order Form and that specifies the permitted use under this Agreement. 
13. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software and/or Service, as may be provided or made available by Quilter to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
14. “Image” means the current version of Quilter’s serialized copy of the Software necessary to run the Self-Hosted Deployment Type in the Customer Environment.
15. “Input” means information and/or data, including input board files, schematic designs, CAD files, and related comments and questions, uploaded to the Service, or inputted into the Software for processing, by Authorized Users.
16. “Layout Job” means a prompt or group of prompts and/or requirements submitted to the Software or Service, that receives a unique identification (ID) from the Software, in order to generate CBLs from Input files for Customer.
17. “Malicious Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service to cease functioning; (ii) damage or corrupt any Quilter owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
18. "Order Form" means: (i) each order document executed in writing between the parties for the purchase of a subscription to the Service and/or Software; and/or (ii) the purchase of a subscription to the Service and / or Software by means of the Service dashboard including via Quilter’s authorized payment processor (e.g., Stripe).
19. “Output” means CBLs generated and outputted by the Software and/or Service by processing Input.
20. “Pins” means an electrical connection point on component footprints provided in Input files. 
21. “Pin Credits” means the number of pre-paid Pins purchased by Customer under an Order Form. 
22. “Pricing Page” means Quilter's pricing page (located here: https://quilter.ai/pricing), which may be updated from time to time by Quilter, that sets forth the applicable pricing, fees, usage thresholds, and feature availabilities for each Quilter customer tier.
23. “Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Quilter in its sole, but reasonable, discretion.
24. “Quilter Assets” means the Software, Service and Documentation.
25. “Quilter AI Model(s)” means Quilter’s various proprietary artificial intelligence techniques and models for automated circuit layout creation.
26. “Self-Hosted” means a Deployment Type of the Software where the Customer implements and updates Images within the Customer Environment via a server and/or host of Customer’s own choosing.
27. “Service” means Quilter's proprietary solution offered as a software-as-a-service for automated circuit layout creation which includes the Quilter Assets.
28. "Software" means software that Quilter develops and maintains in order to provide automated circuit layout creation, including as necessary to provide the Service, as well as all Quilter Models, Images, Beta Features, modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works to any and each of the foregoing.
29. “Statement of Work” or “SOW” means a statement of work executed in writing between the parties setting forth specific terms and conditions for the performance of certain services by Quilter to be delivered to Customer. 
30. “Subscription Period” is the subscription length specified in the Order Form.
31. “Support” means the support terms for the Service set forth in Section 3(b) below. 
32. “Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
33. “Unit(s)” means a number of Pins, Pin Credits, CBLs or other measurements specified in an Order Form. 
34. “Usage Data” means data collected and aggregated by Quilter pertaining to Customer’s interaction with the Service which includes, but is not limited to, performance of the Software and/or Service, metrics and other measures of Customer’s use of the Service and its operation, and Consumption Metrics provided by Customer to Quilter as required hereunder. Usage Data are not Customer Data and do not consist of Customer Personal Data (as defined in the DPA).

2. Grant of License to the Software & Service; Restrictions. 
   
   1. Grant of License to the Software & Service. Subject to the terms of this Agreement and the applicable Order Form, and/or Pricing Page, Quilter grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Period, solely for Customer's internal business operations up to the Units and for the Deployment Type specified on the Order Form: (i) for the Cloud Service Deployment Type, to access and use the Service and Documentation; and (ii) for the Self-Hosted Deployment Type, to install and use the Software, solely within the Customer Environment in object code form, and the Documentation. Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Quilter Assets by such individuals will be for the sole benefit of Customer
   2. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Quilter Assets; (ii) share any Quilter issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software and/or Service; (iv) modify, adapt, or translate the Quilter Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Quilter Assets; (v) make copies, store, or archive, any portion of the Quilter Assets without the prior written permission of Quilter; (vi) use the Quilter Assets in violation of any applicable law; (vii) introduce, any Malicious Code into the Software and/or Service; or (viii) exploit the Software and/or Service in any unauthorized manner including by circumventing any process Quilter has put in place to safeguard the Software and/or Service or by using flood pings, denial-of-service attacks, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Service infrastructure (together, (i) through (viii) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
   3. Trial Period. Subject to the terms of the Agreement and Order Form and/or Pricing Page, including payment of all Trial Period fees (if any), commencing on the Effective Date and for the period set forth on the Order Form, Customer will have the right to use the Quilter Assets for evaluation purposes ("Trial Period"). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to Quilter ("Trial Termination Notice"). If Quilter does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Period commences upon the expiration of the Trial Period, and Quilter will invoice Customer in accordance with Section 6.
   4. Beta Features. Beta Features made available by Quilter are provided to Customer for testing purposes only. Quilter makes no commitments to provide Beta Features in any future versions of the Quilter Assets. Customer is not obligated to use Beta Features. Quilter may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Quilter does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.
   5. Third-Party Applications. The Software and/or Service may integrate with third party products, services, tools or applications that are not owned or controlled by Quilter ("Third-Party Application(s)"). Quilter does not license or endorse any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. QUILTER HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER.
3. Quilter Obligations. 
   
   1. Software & Service. The Software and/or Service enables Customer to provide Input to the Software and/or Service that uses Quilter AI Models to generate AI Output. Quilter will provide the Software and/or Service in conformance with this Agreement, the Order Form(s), Pricing Page, and applicable Documentation. Quilter will be responsible for hosting the Service as necessary for the subscription to the Service specified in the Order Form.
   2. Support. Unless stated otherwise in the applicable Order Form and/or Pricing Page, if Customer experiences any errors, bugs, or other issues in its use of the Software and/or Service, Quilter will use commercially reasonable efforts to respond as soon as possible (“Support”) in order to resolve the issue or provide a suitable workaround. The fee for Standard Support is included in the cost of the subscription set forth on the Order Form.
   3. Software & Service Changes. Customer acknowledges for Quilter to provide improved experience for the Software and/or Service, Quilter may make changes to the Software and/or Service provided Quilter will not materially decrease the overall functionality of the Service.
   4. Professional Services. The parties may execute a Statement of Work for “Professional Services.” Unless stated otherwise in the Statement of Work, Quilter will own any and all improvements to the Software and/or Service made by Quilter that arise out of the Statement of Work. Any conflict between the terms of this Agreement and a Statement of Work will be resolved in favor of the Statement of Work but only with respect to the subject matter thereof.
4. Customer Obligations. 
   
   1. Internet Connections. Customer will be responsible for obtaining Internet connections necessary for Customer to access the Quilter Assets. 
   2. Self-Hosted Service: Implementation & Updates. For Quilter’s Self-Hosted Deployment Type, promptly following the Effective Date and during the Term: (i) Quilter will make available an Image via email (e.g., as a Zip file)  as specified in the Documentation; and (ii) Customer is responsible for implementing the Self-Hosted Service, including all Images and updates thereto, within the Customer Environment. Customer will implement all Images in a timely fashion. If Customer fails to do so, performance of the Software may be impacted.
   3. Export. The Quilter Assets are subject to export control laws and regulations. Customer may not access or use the Quilter Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Quilter Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. 
5. Data License & Protections. 
   
   1. Data License. In connection with its use of the Service, Customer (including its Authorized Users) will transfer Customer Data to Quilter. Quilter: (i) uses Customer Data to provide the Service; and (ii) uses Customer Data in combination with the Software and/or Service to generate CBLs for Customer. Customer grants Quilter a limited license during each Subscription Period to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement and the DPA. Customer Data is not used to train Quilter AI Models.
   2. Usage Data. While Customer uses the Service, Quilter will generate Usage Data. Quilter will use Usage Data to improve and develop the Service.
   3. DPA. Quilter will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.
6. Fees. 
   
   1. Layout Jobs, Candidates, and Consumption of Pin Credits. 
      
      1. General. Quilter's Software and/or Service receives Input that designates a certain number of Pins in order to complete a Layout Job and its underlying Candidates/CBLs. Upon completion of a Layout Job by the Software and/or Service, Customer will download such Layout Job's CBLs from the Service, or extract them from the Software. For such downloads and/or extractions, Customer consumes (on a 1 to 1 basis) Pin Credits against pre-paid Pins purchased by Customer under the applicable Order Form. 
      2. Cloud Deployment Types. The Service dashboard indicates Customer’s total permitted Units of Pin Credits for the Subscription Period and current balance of consumed Pin Credits. In the event Customer consumes more than the permitted number of Units of Pin Credits under an applicable Order Form, Quilter will notify Customer in writing. Unless agreed separately in writing between the parties, Customer will pay for such overage of additional Pin Credits at Quilter’s then current rate.
      3. Self-Hosted Deployment Type & Consumption Metrics. For Self-Hosted Deployment Types, Customer will, by no later than 5 days after the last day of each calendar quarter during the Subscription Period, provide Quilter with Consumption Metrics in writing via email to: billing@quilter.ai.
   2. Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Quilter within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.
   3. Taxes. Customer will pay all applicable Taxes excluding only those based on Quilter’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Quilter such additional amounts as necessary to ensure receipt by Quilter of the full amount Quilter would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Quilter prior to the execution of this Agreement. If Quilter is required to collect and remit Taxes on Customer’s behalf, Quilter will invoice Customer for such Taxes, and Customer will pay Quilter for such Taxes in accordance with Section 6(a).
   4. Late Payments. In the event that Quilter does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Quilter may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Service renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend access to and terminate for failure to pay (if applicable) the Service pursuant to Section 7(b).
   5. Credit Card Processing. For online Order Forms that require Customer's payment by credit card, Quilter uses a third-party credit card processing service (e.g., Stripe) to process payments. Customer consents to the use of such service and to the transfer of Customer's credit card details to such third-party processor for the purposes of such transaction. Customer agrees to be bound by any separate terms applicable to the processing service. Customer's credit card will be charged fees automatically for Customer's use of the Quilter Assets at the end of each billing cycle.
   6. Quilter Audit Rights. For Self-Hosted Deployment Types, Quilter will have the right to appoint an independent certified public accountant to audit Customer's compliance with the usage limitations on the Software and/or Service and the financial terms of the Agreement including each applicable Order Form (“Quilter Audit”) one time per calendar year at Customer's principal place of business (during normal and reasonable business hours and in a way that does not interfere with normal business operations) and must provide Customer at least fifteen (15) business days advanced written notice of such Quilter Audit. If the Quilter Audit results show any underpayment by Customer, Customer will immediately pay any amounts due to Quilter. In the event that Customer understates, for the audited period, by more than two percent (2%) the amount payable to Quilter, Customer will pay the reasonable costs of the Quilter Audit; otherwise, the cost of the Quilter Audit will be borne by Quilter.
7. Term & Termination. 
   
   1. Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Period under and Order Form, or until terminated earlier in accordance with Section 7(b). For clarity, each Subscription Period will be set forth in the applicable Order Form.
   2. Suspension Rights & Termination. Quilter may suspend Customer’s access to, or use of, the Service if: (i) any amount due to Quilter under any invoice is past due and such amount is not paid within 10 days of written notice from Quilter; and (ii) any use of the Software and/or Service by Customer or Authorized Users that in Quilter's reasonable judgment threatens the security, integrity or availability of the Software and/or Service. Quilter will: (x) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
   3. Termination.  Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
   4. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Quilter will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Period as of the date of such termination. Upon termination or expiration of this Agreement for any reason, Quilter will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Period as specified in the DPA.
   5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 16 (Miscellaneous, as applicable).
8. Confidentiality. 
   
   1. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.  
   2. Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
   3. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
   4. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. Ownership. 
   
   1. Quilter Property. As between the parties, Quilter owns and retains all right, title, and interest in and to the Quilter Assets and Usage Data. Except for the limited license granted to Customer in Sections 2(a), Quilter does not by means of this Agreement or otherwise transfer any other rights to Customer.
   2. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data and Output. Except for the licenses granted to Quilter in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Quilter.
   3. Feedback. Customer may provide comments, suggestions and recommendations to Quilter with respect to the Quilter Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Quilter may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing.
10. Representations & Warranties; Disclaimer.
    
    1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
    2. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Quilter; (ii) has all rights necessary to grant Quilter the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to Quilter by means of the Service or as required for Quilter’s provision of Support hereunder.
    3. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE QUILTER ASSETS AND BETA FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. QUILTER AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. QUILTER DOES NOT WARRANT THAT THE QUILTER ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.
11. Indemnification.
    
    1. By Quilter. 
       
       1. Quilter will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Quilter will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Quilter Assets, including Customer's permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party.
       2. If Quilter becomes, or in Quilter’s opinion is likely to become, the subject of an infringement or misappropriation claim, Quilter may, at its option and expense: (a) procure for Customer the right to continue using the Quilter Assets; (b) replace the Quilter Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (c) modify the Quilter Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Quilter shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
       3. Quilter will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Quilter Assets or Quilter’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Quilter Assets or Quilter’s intellectual property rights, other than as expressly approved by Quilter that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
       4. THIS SECTION 11(A) STATES QUILTER’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
    2.  By Customer. Customer will defend Quilter, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Quilter Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Quilter Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Quilter Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by Quilter under this Agreement or at Customer's request or direction, has violated any applicable law.
    3. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability. 
    
    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
    2. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (BUT AS FURTHER LIMITED BELOW) AND UNCAPPED CLAIMS, EACH AS DEFINED BELOW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE QUILTER ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.

3. "Excluded Claims" means any claim and/or liability associated with any breach by Quilter of Sections 5(c) (DPA), including for clarity with respect to any claim of liability associated with the DPA, and Section 8 (Confidentiality). Quilter’s total, cumulative liability for all Excluded Claims will not exceed the greater of (i) $500,000 or (ii) three (3) times the total amount of fees paid by Customer for use of the Quilter Assets under this Agreement.
4. "Uncapped Claims" means any claim or liability associated with: (i) either party's respective indemnification obligations under Section 11; or (ii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, intentional misconduct, or violation of the other party’s intellectual property rights.

13. Insurance. Quilter will maintain in full force and effect during the Term:
    
    1. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury and property damage;
    2. Worker's compensation insurance as required by applicable law; and
    3. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $1,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Quilter Assets, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service. 

Insurance carriers will be rated A-VII or better by A.M. Best Provider. Quilter’s coverage will be considered primary without right of contribution of Customer's insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Quilter’s contractual liability for indemnification or any other liability of Quilter under this Agreement.

14. Force Majeure. Except for Customer's payment obligations hereunder, neither Quilter nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action (each, a "Force Majeure Event"). For clarification, events caused by a party's own action are not Force Majeure Events. If a Force Majeure Event prevents Quilter from providing the Service for at least thirty (30) consecutive days, either of the parties may immediately terminate this Agreement and any Order Forms, by providing written notice to the other.
15. Marketing Logo and Case Study Rights. For the “Confidential” tier as set forth on the Pricing Page: (a) Customer grants Quilter the right to use Customer's name and logo on Quilter's website for the sole purpose of identifying Customer as a customer; and (b) Customer grants Quilter the right to create, and Customer will participate in, a "Co-Branded Case Study" (e.g., collateral materials) prior to the end of the first year of the Subscription Period, that will include approved responses and feedback from the Customer from the usage of Quilter's products and services.
16. Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in Los Angeles County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.